THE HIGH COURT OF SWAZILAND
AT MBABANE CRIMINAL APPEAL NO.55/91
the matter between:
THE CROWN: MR. NSIBANDZE
THE APPELLANT: MR. KUBHEKA
accused was found guilty of five counts of fraud and one count of
theft by the Magistrate. He now appeals against convictions. These
are his grounds of appeal:-
learned Magistrate erred in not giving the appellant enough time to
prepare for his defence in as much as he had intimated that he
required the services of a lawyer.
learned Magistrate erred in concluding that the Crown had made a case
beyond any reasonable doubt against the appellant.
learned Magistrate committed an irregularity in not warning the
appellant of his rights at the close of the crown case.
sentence is, in the circumstances too harsh and includes a sense of
shock. Appellant should at least be given an option of a fine.
the hearing the appellant abandoned the other grounds and chose to
appeal on ground one. The appellant first appeared before the
Magistrate on 6th June, 1991. He was remanded until 12th June, 1991.
He indicated that he wanted to apply for bail. He was then remanded
till the 7th June, 1991 to allow the investigating officer to be
the 7th June, 1991 he was granted bail of E500 on the following
surrender his passport or travel document to the Commercial and Fraud
Branch of the Manzini Police Station, and not to apply for a fresh
one until the trial is concluded.
once a week on Fridays to the same branch of the Police Station
between 8:00 a.m. and 5:00 p.m.
attend all remand dates.
appellant failed to pay the bail and was remanded in custody until
12th June 1991. On 12th June 1991 he was further remanded to 19th
then applied for the bail to be reduced. The court reduced his bail
to E300. He failed to pay the bail and was then remanded in custody
to the 19th June, 1991. He did not ask the court or the police to
contact his people to arrange an attorney for him or pay bail for
the 19th June, 1991, the date of his trial, the Magistrate recorded
to conduct his own defence and he said he had no means to hire an
indicates that he was aware that he had a right to be presented and
that the services of an attorney are paid for. That he had no means
appears from his failure to pay bail and to pay the reduced bail.
Magistrate having satisfied himself that the appellant was ready. He
started the trial. In the course of the trail at page 12 of the
record the following appears:-
I am not feeling well and I am asking for postponement. The problem
is that I have pains in my body".
I ask that the accused's bail be withdrawn as there is a likelihood
that the accused will abscond in view of the heavy evidence against
him which he had not challenged"
I will not abscond as I am a Swazi citizen and also if I am out on
bail, I will be in a position to instruct an attorney to mitigate for
Court: Accused's bail to stand.
application by prosecutor failed. His bail still stood. He was at
liberty to pay his bail and arrange for the services of an attorney
to mitigate for him. He could also arrange through the court to
arrange with his relatives to engage an attorney for him.
the 8th August, 1991 the accused was convicted. The following appears
at page 29 of the record.:-
I was not prepared for mitigation".
is remanded in custody to 14th August,1991".
the 14th August, 1991 after he had mitigated, he went to say at page
29 lines 19-21 - "I was only given 12 days to get the services
of an attorney. I was not happy with the prosecutor".
shows that the Magistrate gave him time. He was the one who said on
the 19th June 1991 that he was unable to get the services of the
attorney. He was not able to pay the bail. The court came to his
assistance by reducing the bail from E500 to E300.
have outlined above what happened during the trial. I do not find
that the Magistrate erred at any stage of the trial. The accused
himself says he was only given twelve days to arrange for the
services of the attorney. He counts from 7th to 19th June 1991 . He
did not use those days nor did he ask for postponement on 19th June
1991 to arrange for an attorney. The record shows that he said he was
not in a
to get an attorney. The Magistrate did not commit any irregularity
because he did not refuse to give the accused enough time. If he
refused to adjourn the case when asked by appellant, it might have
been an irregularity depended on the circumstances of the
application. SEE R V ZACKEY 1945 AD 505 AT 509, and R.V. HEVIN AND
OTHERS 1928 TPD 357.
see no irregularity where the Magistrate exercised his discretion
wrongly with possible prejudice to the accused. The Magistrate
afforded him all the opportunity but he was not able to use it
because he had no money. The Magistrate could not allow him free bail
nor pay an attorney for him. I therefore, find that the Magistrate
did give the accused enough time to pay bail and to arrange for his
defence if he was able. He did not refuse any application for further
adjournment. The appeal against conviction is dismissed.
Crown has pointed out that the sentence passed by the Magistrate is
not competent because it is a global sentence i.e. two years for the
six counts. This court has power to pass a competent sentence.
am not sure whether the appellant has served his sentence. I shall
correct the sentence in such a way that it does not cause hardship to
the appellant. I shall sentence the appellant to two years
imprisonment on each count. All the sentences are to run