THE HIGH COURT OF SWAZILAND
Appeal No. 85/94
the matter between:
THE APPELLANTS In person
THE CROWN Mr. Ngarua
(ex tempore) (13/12/94)
appellants were convicted in 1992 on charges relating to house
breaking and involving business premises. The first appellant was
also convicted of a further count of unlawful possession of cannabis.
first appellant is not a first offender but his previous convictions
occurred some considerable time ago.
presiding Magistrate imposed the following sentences in respect of
the first appellant: count 2, two years imprisonment; count 3, two
years imprisonment; count 4, two years imprisonment; and count 6, one
year's imprisonment. He ordered that the sentences were to be served
consecutively, and back-dated until 3rd April 1992. Effectively he
therefore imposed a jail sentence of seven years on the first
should however note in passing that the counts of housebreaking on
which he was convicted involved substantial sums of money.
Magistrate sentenced the second appellant on count 2, to two years
imprisonment; on count 3, to two years imprisonment; and on count 4,
to one year's imprisonment. Again he ordered that the sentences
should be served consecutively, and back-dated (according to the
record) to 1st April 1992. The second appellant is a first offender.
At the time of the trial he had turned twenty-five but I believe I am
correct in saying that at the time of the alleged offences he was
first appellant is a rather more mature man. He was thirty five at
the time at which the sentences were imposed.
unfortunate features of this case are first of all that the trial
Magistrate did not deliver reasons for his judgment, and secondly
that the appeals took an unduly long time to come on for hearing. The
failure to give reasons for judgment did raise in my mind a question
as to whether or not I was in a position to judge from the record
whether the Magistrate had rightly come to the conclusion that the
two appellants were guilty on the charges on which he convicted them.
In respect of the fourth count, count 4, that consideration does not
matter because I am of the view that the conviction cannot be
sustained. There is no sufficiently clear evidence on which to enable
me to say that the appellants were properly convicted on that count.
the second and third counts as far as both appellants are concerned,
and on the sixth count as far as the first appellant is concerned, I
have come to the conclusion that the absence of reasons does not
prevent me from coming to a view as to the propriety of the
convictions. I am satisfied that there is evidence on which the
Magistrate could have arrived at the conclusions at which he did
arrive. It is also apparent from the record that in the material
respects the appellants, who gave evidence, did not challenge the
evidence on which the convictions on those two counts essentially
rest. I will give further reasons in due course but I am satisfied
that the appeals against conviction on counts 2 and 3 in respect of
appellants and on count 6 in respect of the first appellant should be
far as the appeals against sentence are concerned, the sentences are
in my opinion, as I have already indicated, manifestly excessive.
is true that housebreaking has for some time been a prevalent
offence, and an offence about which there is great public concern.
one must keep a sense of perspective. All of the offences, leaving
aside the conviction for dagga (or cannabis), were committed within
the same month. It is true that they were committed at night.
is true that they involved commercial premises. Nevertheless I do not
consider that the approach adopted by the Magistrate - simply to
impose a sentence for each charge and then to add them together –
was the right approach or produced the right result. In the case of
but more particularly in the case of the second appellant who was
twenty-four and a first offender, it produced a disparate result in
illustrate this, I will point out that there are many occasions on
which mature businessmen or professional men have been convicted by
courts of crimes such as embezzlement involving substantial sums of
money, and sometimes at trial but often on appeal have ended up with
sentences in the region of between two and a half and four years
imprisonment, where they are first offenders; and I do not think in
the case of the second appellant that a sentence of five years on a
person of his age and station in life can be justified, for that
reason, and I also think the sentence imposed on the first appellant
in the result I make the following orders:
the appeals against convictions, dealing first with the first
appellant, his appeal against conviction on count 4 is allowed, and
the conviction is quashed. His appeals against conviction on counts
2, 3 and 6 are dismissed.
with the second appellant, his appeal against conviction on count 4
is allowed and the conviction is quashed. His appeals against
conviction on counts 2 and 3 are dismissed.
now with the appeals against sentences, and dealing first with the
first appellant, his appeals against sentence on counts 2, 3 and 6
are allowed, to the following extent : The sentences imposed by the
trial Magistrate are set aside and the following sentences
substituted: count 2, two and a half years imprisonment; count 3, two
and a half years imprisonment; count 6, one year imprisonment, all
sentences to run concurrently. The time that he has already spent in
custody on these charges is to be taken into account in calculating
with the second appellant, his appeals against sentence on counts 2
and 3 are allowed to the following extent, in other words, the
sentences imposed by the trial Magistrate are set aside and the
following substituted: Count 2, two and a half years imprisonment;
count 3, two and a half years imprisonment; both sentences are to run
concurrently. The time spent in custody on these charges is to be
taken into account in calculating the length of the sentences.
case either of the appellants does not know what "concurrently"
means, it means that each of the sentences will run at the same time,
the effect of that being that on the charges in respect of which the
convictions are sustained, the appellants' sentences are effectively
reduced in the case of the first appellant from seven years to two
and a half years, and in the case of the second appellant, from five
years to two and a half years - the other modification, however,
being that as to when they run from, they will be calculated taking
into account the time you have already served in custody on these