IN
THE HIGH COURT OF SWAZILAND
Rev.
Case No. 33/95
In
the matter between:
THE
KING
vs
PATRICK
PANSULA DLAMINI
and
ISAAC
FANA NKAMBULE
CORAM: Hull,
C.J.
Review
Order
(29/3/95)
The
accused was charged with one Nkambule with armed robbery and a second
count of unlawful possession of a firearm.
Both
denied the charges. At the conclusion of the case, the learned Senior
Magistrate convicted the accused on the count of armed robbery, and
acquitted him on the other charge. He acquitted Nkambule on both
counts.
The
Senior Magistrate imposed a sentence of three years imprisonment on
the accused, backdated to 3rd August 1994 to take into account the
time that he had already spent in custody on the charges.
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At
the time of sentencing, the accused was 20 years old. The charge
related to an incident that had occurred some seven months earlier.
He had one previous conviction for house breaking and theft, for
which he had been sentenced on 5the December 1990 to a fine of E60
or, in default, six months imprisonment.
He
was unrepresented at his trial on the charges to which the present
review applies.
The
Crown's case was that in the late afternoon of 30th April 1994, Mrs.
Sibangakonke Mamba had just finished counting the day's takings in
her husband's shop at Dlangeni, in which she worked as the
manageress. She was with two of her brothers, a woman and a girl.
The
accused had come into the shop with two other males. The accused and
one of them bought some bread. It appears from the evidence that they
left. A young man called Patrick Mkabela then came in to buy bread.
After he entered, the door was closed. Then someone knocked at the
door. Mr. Mamba opened it.
Two
men came in. They were, allegedly, the accused and Nkambule.
According
to Mrs. Mamba, Nkambule did not have his face covered. He had a gun
which he pointed at the people in the shop. He did not say anything.
It was the first time she had seen Nkambule.
She
said that the accused at first had a scarf covering his mouth and
neck. He shouted "nyuku make" repeatedly. As he did so his
scarf fell down, showing his face. She said that she recognised him
as the accused, whom she knew to be a bus conductor. She said that
she knew
him
by the name "Pansula". Mrs. Mamba's daughter threw E680 -
the takings - on the floor. The accused told Mrs. Mamba to pick it up
and hand it to him. She obeyed. Then the two robbers locked everyone
in the shop and made away.
Mrs.
Mamba said that during the robbery, the shop had been lit by a candle
on the counter. The counter was as high as her chest. The two men had
been about two metres in front of her (a distance which she
demonstrated to the satisfaction of the presiding Senior Magistrate.)
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Subsequently,
in August, she was called to a police station where she identified
the accused and Nkambule as the robbers. From the record of evidence,
it appears that this was done by way of confrontation rather than at
an identity parade.
Patrick
Mkhabela said that he also knew the accused as "Pansula"
and he had been in the habit of using his bus. He had first seen him
at the beginning of 1992 and the accused had been a conductor on the
bus for a whole year until some time in 1993. He had next seen the
accused on 30th April.
Mr.
Mkhabela said that 30th April was on the other hand, the first
occasion on which he had seen Nkambule.
He
corroborated Mrs. Mamba's account as to the way in which the two
robbers had gained access to the shop, and - except in two details
-as to what then transpired. Mr. Mkhabela said that he had had a
suspicion that the person with the scarf around his face was the
accused, because he knew his voice, and that the suspicion had been
confirmed when the scarf fell down. He indicated that he himself had
been two or three metres from the robbers.
The
points on which his account differed from that of Mrs. Mamba were
that his evidence was that it was Nkambule who had told her to pick
the money up from the floor and had taken it from her. Thus, he also
was saying that Nkambule did speak. He said that he used the word
"Yibutse", meaning "you, pick it up"- and he also
said that when Nkambule came in, he had told them that they must not
move even an inch - "singanyakati".
There
was other Crown evidence that the accused had worked for Thula bus
service from 1992 until the middle of 1993, and thereafter for the
Hollywood bus service. There was also evidence from two taxi drivers
to the effect that late in the afternoon on 30th April the accused,
Nkambule and another person had hired one of those taxi drivers to
take them from Mbabane to Dlangeni and back again.
The
defence of the accused, which he put to the relevant prosecution
witnesses, was that he had been identified wrongly as one of the
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robbers.
He said that on the day of the robbery, he had been in Nhlangano
working for Stocks and Stocks Construction Company, by whom he was
employed. He maintained that certain Crown witnesses, notably the
taxi drivers, had been put up to their accounts by the police. He
denied ever hiring a taxi to go from Mbabane to Dlangeni as alleged.
Although
the Crown prosecutor cross-examined him in such a way as to make it
clear to the accused that the Crown was contending that he was indeed
one of the robbers, the prosecutor himself did not question him
specifically at all about his alibi or, in particular, about his
claim that he was on 30th April employed by the Nhlangano company.
When
the prosecutor completed his cross-examination, however, the Senior
Magistrate of his own initiative proceeded to question the accused at
length about this aspect of the case. These questions and the answers
by the accused begin at page 28 of the record and end at page 30. As
far as it can be demonstrated from a written record, the presiding
Senior Magistrate's questions were put carefully and dispassionately
and I do not doubt at all that that was so.
The
extent of the examination by the court, however, is demonstrated by
the fact that the record of these questions and the answers runs to
two fullscap pages of fairly small type. Thirty one questions in all
were put to the accused, by the Senior Magistrate, on this particular
aspect of the case. It can be seen that the court explored in
considerable detail the basis for the claim by the accused that he
had been working for the Nhlangano company on 30th April.
The
Senior Magistrate elicited in particular from the accused in
particular an assertion that his foreman or supervisor on 30th April
had been a man named Brown, but that on that day he had not been
there and an indvuna had instead been present.
Then,
after both the accused and Nkambule closed their defences, the Senior
Magistrate, of his own motion directed under section 199(2) of the
Criminal Procedure and Evidence Act 1938 (No. 67 of 1938) that the
wages clerk for the Nhlangano company be summoned to court as a
witness, with the records of employment of the company for 30th April
1994.
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This
was done. In fact Mr. Reuben Msibi, the company's accountant,
attended with the wage records for that day. One of the answers of
the accused, in his own response to the Senior Magistrate's
questions, had been that he had been paid on that day in cash.
On
being sworn, and questioned by the court, Mr. Msibi said that he did
not recognise either the accused or Nkambule, and that he could not
find any records of the employment of any person called Patrick
Pansula Viki Dlamini by the company, even though he had searched the
records from the middle of April 1994 until the present time. (There
was evidence that "Viki" was one of the names of the
accused). He also contradicted other answers that the accused had
given to questions put to him by the court, namely that he had been
paid in cash on 30th April, which had been a Saturday. Mr. Msibi
explained that the company's practice was to pay its employees,
including temporary staff, by cheque before midday on Fridays and
that it never paid out wages on Saturdays.
The
accused cross-examined Mr. Msibi, putting it to him that he was
mistaken but the accountant's response indicates that he: was not
shaken in his evidence.
The
Senior Magistrate then suggested to the accused that he reminded Mr.
Msibi of the name of his foreman. The accused responded that he had
forgotten his name. The Magistrate himself then informed Mr. Msibi
that the name that the accused had given earlier was "Brown",
and that he had worked or the company from 10th March 1994 to 30th
April 1994. It does not appear to me, from the record, that the
accused had ever said that Mr. Brown worked for the company from 10th
March to 30th April. I think that the Senior Magistrate may have been
telling Mr. Msibi that the effect of the evidence of the accused was
that he himself - the accused - had been with the company throughout
that period. But, be that as it may, Mr. Msibi replied that the
accused must have been mistaken "because Mr. Brown was at Piggs
Peak during that period", and he went on to add "in fact
Mr. Brown was transferred to Nhlangano on 30th June 1994."
After
that, the Senior Magistrate gave the accused an opportunity to ask
Mr. Msibi further questions if he wished, and to reopen his case
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to
present further evidence if he so wished. The accused declined each
of these opportunities.
The
records that Mr. Msibi had brought with him were handed over to the
court for its consideration.
In
giving judgment, the Senior Magistrate said that he accepted the
evidence of Mrs. Mamba and Mr. Mkhabela, and that Mrs. Mamba was
robbed as alleged in the first count, and also that the faces of the
robbers were illuminated by a candle that was burning on the counter
about? 1.5 meters above the ground. He reminded himself of the
cautionary rule in respect of evidence of identification, and
concluded that no sufficient safeguard existed against the
possibility of mistaken identity in Nkambule's case.
In
relation to the accused, the Senior Magistrate found two things to
be, in his own words "wholly adequate safeguards", namely:
(a) his
scarf had slipped, allowing the people in the shop to see the
features of his full face; and
(b) the
candle light was obviously bright enough to allow for the day's
takings to be counted, and high enough to illuminate the features of
the accused who was within two metres of Mrs. Mamba and three metres
of Mr. Mkhabela.
He
convicted the accused of robbery, as charged.
Leaving
aside for the moment the aspect of the case that relates to the
court's questioning of the accused about his alleged employment by
the Nhlangano company, and Mr. Msibi's testimony, I do not consider
that there are grounds for interfering on review with the Senior
Magistrate's judgment, either on conviction or on sentence.
Although
his reasons for judgment are short, the record clearly discloses the
fact that he addressed his mind to the dangers of mistaken identity
and a sufficient basis for his findings against the accused. He said
that he accepted the evidence of Mrs. Mamba and Mr.
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Mkhabela.
Both said that that the accused was a person who was known to them.
Both also said that they saw Nkambule for the first time on 30th
April. In saying that he accepted their evidence, the Senior
Magistrate was not disregarding the cautionary rule. Notwithstanding
his findings that there was adequate lighting, he applied the
cautionary rule in favour of Nkambule. He did so, obviously, because
the two Crown eye witnesses were saying that Nkambule was not a
person known previously to them. Although he did not say so
expressly, he might also have taken into account the fact that they
next saw Nkambule some time later, in police custody.
The
position of the accused was different. They already knew him. On that
basis, having cautioned himself, it was open to the Senior Magistrate
to accept their identification.
Subsequently,
he nevertheless did initiate and conduct what amounted to his own
independent investigation into the alibi advanced by the accused. It
was perhaps an unsual course. A court has a very wide discretion to
recall witnesses. Such a course is permissible even to supply an
essential ingredient of the offence. In exercising that discretion,
however, the court must be careful not to take over the prosecution
or the defence of the case, or to appear to do so. Where an accused
person is unrepresented that is, I think, especially important.
Questioning at length by the bench may also indicate or give the
impression of indicating undue participation in the arena itself.
Circumspection is therefore necessary in exercising the discretion.
In
the present instance, however, the course taken by the learned Senior
Magistrate was not only unobjectionable but also a sound one. He
prefaced his intention to do so by stating that he considered it
necessary for a just decision. The record does not indicate at all
that he couched his questions unfairly. I do not consider that the
extent of the questioning, in this case, was unfair either.
The
crucial issue in the case was whether, applying caution, he was able
to satisfy himself beyond reasonable doubt that Mrs. Mamba and Mr.
Mkhabela had identified the accused correctly as one of the
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robbers.
They had known him. On the evidence, there was enough light to give
them the opportunity to have recognised him.
But
then, in response to their testimony, the accused came up with an
alibi. What the Senior Magistrate did, of his own accord, was to
check that alibi. I think that he was right to do so, in order to
enable himself to reach a just verdict. He found Mrs. Mamba and Mr.
Mkhabela to be credible witnesses. Nevertheless, if the accused had
been in Nhlangano on the day in question, that would have put a very
different light on the matter. In taking the course that he adopted,
he was taking a further precaution before concluding that he was
satisfied that the two key prosecution witnesses were indeed telling
the truth. In the result, there were very strong reasons for
concluding that the alibi was false, but on a proper view he was not
thereby prosecuting the Crown's case. What he was doing was simply to
investigate a possibility that the Crown witnesses were mistaken. He
was in my view entitled to do that and, having done so, to decide
that they were not.
Notwithstanding
his age, the sentence was correct, given the nature of the crime and
his previous conviction.
The
conviction and sentence are therefore confirmed as being in
accordance with real and substantial justice.
DAVID
HULL
CHIEF
JUSTICE
