THE HIGH COURT OF SWAZILAND
Case No. 162/94
the matter between:
accused was charged with wilfully damaging the property of Meshack
Marnba at Mayiwane on 18th September 1994.
circumstances leading to the incident and the events that have
apparently occurred since the trial are disturbing.
trial was held on 10th October 1994. The complainant was not at home
when the incident occurred. However, he gave evidence of the damage
that was caused.
a woman called Lomoya Mathonsi gave evidence for the Crown. She was
the complainant's neighbour. She said that on the day in question,
while she was at home, the accused had come past her, greeting her as
he did so. After he had disappeared from sight, she heard a bang, as
if of a door being broken. (Mr. Mamba had testified himself that on
his return he found his door broken.)
Mathonsi said that the noise had frightened her. Her first
inclination was to flee but when she recovered herself, she saw the
accused moving away from Mr. Mamba's house. She did not speak to him.
Instead she went into Mr. Mamba's house where she found the damaged
accused elected to give evidence on his own behalf, having pleaded
not guilty on arraignment. His evidence was short and to the point.
confirm having destroyed the items listed on the schedule. However, I
did not do this in a manner that might be said to be malicious. I was
overwhelmed by grief as accused's brother had killed my relative."
was convicted and sentenced to two years imprisonment without the
option of a fine. The learned magistrate's reason for sentence were
that the accused had committed the offence as an act of revenge, and
that a deterrent sentence was necessary because of the propensity of
people in the region for, as he chose to put it, "taking the law
into their hands."
accused was in my view rightly convicted. The learned Magistrate was
also correct in imposing a substantial, actual term of imprisonment
by way of deterrence, even though the accused was a first offender.
He was referring to the northern Hhohho region, which has a bad
reputation for this kind of lawlessness - in other words of persons
venting their anger on other people or on property on the pretext of
so-called "rough justice".
conviction and the sentence are therefore confirmed as being in
accordance with real and substantial justice.
record submitted on review shows that on 10th February 1992, the
complainant again came before the court. As I interpret the record,
it seems that Mr. Mamba was not present when he was first called on
that day, but that he arrived later and that the magistrate then had
him sworn in and the Crown proceeded to question him.
questions were directed first to the circumstances in which the
relative of the accused was said to have been killed.
the prosecutor put to Mr. Mamba, and received, the following
questions and answers:
is Lomoya Mathonsi the woman who gave evidence against the accused?
is late. Some people came and shot her.
the people who killed her related to accused?
are related to accused person."
submitting the case on review, and the record of the subsequent
examination of Mr. Mamba,the learned Senior Magistrate (as he now is)
indicated in a covering letter that the court itself had summoned Mr.
Mamba on 10th February.
proceedings on 10th February were not part of the trial to which this
case on review refers. The accused was not present. Nothing which the
magistrate was told on 10th February in any way is any kind of
evidence against the accused of course, (nor do I understand it to be
suggested that it could be). His trial had been completed.
if it is indeed true that Lomoya Mathonsi has been killed since the
trial, and there is reason to suspect that she herself may have been
killed by relatives of the accused that is an extremely serious
matter. A copy of this review order is therefore to be given to the
Director of Public Prosecutions immediately.