THE COURT OF APPEAL OF SWAZILAND
Appeal No. 2/2003
the matter between
appellant was accused No. 1 in the Court a quo. He was charged with
accused Nos. 2 and 3. All the accused were charged on Count 1
(Robbery) while the appellant alone was charged on three counts under
the Arms and Ammunitions Act.
2 alleged the unlawful possession of a Makarov pistol on or about 16
February, 2001. Count 3 alleged the unlawful possession of an Astra
pistol on the same date while Count 4 alleged the unlawful possession
of four live rounds of ammunition in the Astra pistol.
return to count 1: that count alleged that on or about 16 February
2001 all the accused, acting in furtherance of a common purpose
robbed one Joel Kheswa of a total of E53 962.93 comprising cash to
the value of E51 501.80 and cheques to the value of R2 461.73 the
property of the Swaziland United Bakeries.
appellant was acquitted on Count 1 while his co-accused were found
not guilty of robbery but guilty of theft. The appellant was
acquitted on Count 2 but convicted on Counts 3 and 4.
count 1 accused Nos 2 and 3 were each sentenced to four years' of
which two years were conditionally suspended. The appellant was
sentenced on each of Counts 3 and 4 to three years' imprisonment of
which one year was conditionally suspended. The sentences were
ordered to run concurrently and were deemed to have commenced on 16
reason why accused Nos 2 and 3 were acquitted of robbery on Count 1
was that the Court found that violence was not proved but that the
theft at the Swaziland United Bakeries clearly was. The evidence
implicating the appellant on that count was that he had supplied two
pistols, which he took from his house in a white plastic bag, for the
purpose of intimidating anyone who would attempt to resist the
unlawful actions of accused Nos 2 and 3. I shall refer to the
evidence in greater detail presently. However, it is convenient at
this stage to refer to the evidence against the appellant on Counts 3
and 4. On about 16 February 2001 (about two days after the theft) the
police called upon the house of the appellant. According to his
evidence (which was not disputed) he shared that house with others
but he alone occupied his bedroom. The police entered his bedroom.
Underneath the wardrobe in that room they found the Astra pistol
(Count 3) with the live rounds of ammunition in it (Count 4). The
Court also relied upon the Crown evidence on Count 1 that the
appellant had supplied two pistols obtained from his house for the
purpose of the offence on Count 1 being committed. These pistols were
never identified and the evidence does not by itself prove that the
appellant unlawfully possessed the Astra pistol on 16 February 2001.
But in my view the evidence can nevertheless be relied upon as being
inconsistent with the
of the appellant that at no time did he ever possess any pistols at
the sake of completeness at this stage I should mention that the
appellant was acquitted on Count 2 because the Makarov pistol was not
found in his house but in the grounds a distance away and was not
pointed out by him but by his son. It was found in a white plastic
that prelude I turn now to consider the evidence in greater detail.
Fana Zwane was an accomplice. He testified, inter alia, that on a
date which he could not remember the appellant, in the presence of
Musa Gulwako arranged to give them firearms which were to be used, if
necessary, in the planned robbery at Swaziland United Bakeries. Later
that day they met the appellant again who was driving his employer's
car. The appellant stopped, got out of the car and went to his house.
He returned from the house carrying a white plastic bag which
contained the firearms but the appellant warned them not to be
negligent in using the firearms as he worked for the Government. (The
evidence disclosed that the appellant was a police officer.) That
evidence was supported in all material respects by another accomplice
Musa Gulwako, a taxi driver. He was employed by Swaziland United
Bakeries. He was party to the
robbery. He had been advised that the appellant would be able to give
them something to use "in scaring the people". He confirmed
the evidence of Zwane that they met the appellant who went to his
house at the Police College. He returned from his house carrying a
white plastic bag in which were two firearms the names of which he
did not know. This event occurred in the presence of accused No. 2.
Zwane had given the same evidence.
cross-examination it was put to the Crown witnesses that the
appellant would deny having at any time handed over a white plastic
bag and would deny further any involvement whatsoever in the planned
robbery. The Crown witnesses rejected that suggestion. The trial
Judge found these witnesses to be satisfactory witnesses and he
rejected the appellant's version (to which I shall later refer) as
Inspector M. Dlamint was PW10. On 14 February 2001 he received a
report that a robbery had been committed at the Swaziland United
the course of his investigations he went to the house of the
appellant. The house was locked. He found the appellant and one of
his sons and returned to the house which was opened by the
the house he found a Makarov pistol buried in the grounds inside a
white plastic bag.
the bedroom of the appellant he found the Astra pistol containing
live rounds of ammunition. He found it under a wardrobe and it was
pointed out by the appellant. He also found some money there. In
cross-examination it was suggested to him'that he had told the
appellant to tilt the wardrobe so that he could bend down and look
underneath it. The appellant complied (so it was suggested) and the
witness emerged with the firearm which he placed on the bed. In
short, the suggestion was that the police had planted the firearm.
That suggestion was rejected out of hand as the learned Judge
regarded that version as highly unlikely.
Constable Mabuza testified as PW7. He is a police photographer and
was present when the firearms were found. He said that the house was
opened by the appellant's son. They entered the bedroom of the
appellant. The appellant informed the police that there was a firearm
under the wardrobe. The appellant pointed out the firearm which is in
accordance with the evidence of the previous witness. The witness
placed the firearm on the bed. The other pistol was found in the
garden after the appellant's son had dug and retrieved a plastic bag
containing the pistol. He, too, rejected the defence version.
appellant gave evidence under oath part of which has regrettably not
been transcribed but that does not prevent the Court, in all the
circumstances, from dealing with this appeal. The appellant agreed
that we could do so. His evidence amounted to a bare denial. He
denied being involved in the planned robbery at all. He denied the
whole of the Crown evidence implicating him in supplying the pistols
and he denied the whole of the police evidence.
appellant appeared in person at the hearing of the appeal and
advanced various reasons which he claimed justified the setting aside
of his convictions.
appellant suggested that the pistol was possessed not by him but by
his son who had the keys to the house, but that defence was never
advanced in the Court a quo and was, in any event quite inconsistent
with the police evidence. In any event, so the appellant contended,
it was the police who had planted the gun.
defence of the appellant was, as I have said, rejected as false. It
involves the hypothesis that the accomplice witnesses, had implicated
the appellant for no good reason. It also involves the hypothesis
had deliberately planted the gun and conspired to give false evidence
against the appellant. I have already indicated that the learned
Judge a quo regarded this as highly unlikely and I fully agree.
my judgment the learned Judge was fully justified in accepting the
Crown evidence and rejecting that of the appellant as false. The
Crown witnesses were credible witnesses and the trial Judge did not
misdirect himself in any way. Their evidence reads well and it was
consistent and clear. As against that the appellant's version was
rightly found to be highly unlikely and false. I am unable to find
any basis for disagreeing with the findings of the trial Judge.
appeal against the convictions is without merit and there is no
appeal against the sentences.
appeal is dismissed and the convictions and sentences are confirmed.
IN OPEN COURT THIS... .DA Y OF NOVEMBER 2004
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