IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRI. APPEAL NO. 19/2011
In the matter between:
VIKA VELABO DLAMINI APPELLANT
THE KING RESPONDENT
CORAM : RAMODIBEDI CJ
: MOORE JA
: DR. TWUM JA
FOR THE APPELLANT : IN PERSON
FOR THE CROWN : MR. S. FAKUDZE
HEARD : 2nd NOVEMBER 2011
DELIVERED : 30th NOVEMBER 2011
Appellant convicted for Attempted Murder, Two counts for possession of firearms and one count for possession of ammunition - Convictions upheld - Offences arising out of single transaction at the same time and place - All events inextricably interwoven - Sentences ordered to run consecutively by Trial Court - Consecutive sentences set aside - Sentences ordered to run concurrently - No reasons given for order that sentences run consecutively - Supreme Court at large to exercise its own discretion - Appellant’s late filing of Notice of Appeal condoned - Evidence of accomplice witness of high quality and amply supported by evidence of other prosecution witnesses - Properly accepted by trial court.
 This is an appeal against both conviction and sentence. The appellant had been charged in count one with the crime of attempted murder. On counts two and three, he was accused of being in unlawful possession of firearms whereas he was indicted in count four with the unlawful possession of ammunition. At the conclusion of his trial he was duly convicted by M.C.B. Maphalala J who found him guilty:
“of attempted murder, two counts of contravention of section 11 (1) as read with section 11 (8) of the Arms and Ammunition Act No. 24 of 1964 as amended by Act No. 5 of 1990, and one count of contravening section 11(2) as read with section 11 (8) (c) of the Arms and Ammunition Act No. 24/1964 as amended by Act 5/1990.”
 The learned judge sentenced the appellant on the first count to nine (9) years imprisonment backdated to the 13th December 2007 being the date of his arrest. In paragraph  of his judgment on sentence His Lordship wrote:
“On the second count he is sentenced to five (5) years imprisonment or a fine of E5,000.00 (Five Thousand Emalangeni). On the third count he is sentenced to five (5) years imprisonment or a fine of E5,000.00 (Five Thousand Emalangeni). On the fourth count he is sentenced to two (2) years imprisonment or a fine of E2,000.00 (Two Thousand Emalangeni). The sentences will run consecutively.”
 By ordering the sentences to run consecutively, the judge effectively condemned the appellant to a net term of twenty one years imprisonment.
 In his written Heads of Argument, counsel for the Crown submitted:
“POINTS OF LAW IN LIMINE
Appellant is grossly out of time as a Notice of Appeal ought to have been filed within four weeks of the 28thSeptember 2008. No application for leave to file out of time has been lodged by appellant and moreover, there is no cause for condonation raised by appellant in his ‘application for appeal’. Therefore, the appeal against both conviction and sentence by the appellant is not properly before this Honourable Court and the Registrar should have not received it.
REFER TO: RULE 8 OF THE COURT OF APPEAL RULES, 1971.
REFER TO: RULE 8(2) & RULE 9 OF THE COURT OF APPEAL RULES, 1971.”
 The appellant pleaded before the court that, his failure to comply with the relevant rules notwithstanding, he nevertheless be permitted to argue the appeal on the merits. Counsel for the Crown graciously allowed that he would not stand in the way of the unrepresented appellant arguing his appeal for what it was worth. The court exercised its discretion in the appellant’s favour and ordered that his non compliance with the rules be condoned. The appellant grasped the opportunity which had been afforded him eagerly and proceeded to present vigorous and ample arguments that both his convictions and sentences should be set aside.
THE ACCOMPLICE WITNESS
 Before the hearing of the evidence began, counsel for the Crown applied for separate trials of the appellant, who was the No. 1 accused, and the No. 2 accused who was standing beside him in the dock. The appellant offered no objection. The Crown then withdrew the charges against the No. 3 accused Bheki Gama in terms of section 6 of the Criminal Procedure and Evidence Act No. 6 of 1938 which empowers the Attorney General to stop any prosecution commenced by him. Bheki Gama had not pleaded: and so the trial judge prudently cautioned him that the withdrawing of the case against him did not amount to an acquittal.
 There is no evidence about the reasons why the prosecution withdrew the case against Bheki Gama and elected to call him as a witness for the Crown: and there must be no speculation about the matter. However, experience has shown that prosecutors frequently withdraw charges against accused persons in exchange for their testimony against their erstwhile co-accused. That is why courts have developed the practice of examining the evidence of accomplices testifying for the Crown with especial care so as to ensure that it is of the requisite quality, and is not tainted by a desire to do the prosecution’s bidding in exchange for their liberty. By the same token, experienced judges have found that accomplices are uniquely placed to provide high quality evidence about matters in which they have participated actively, or where they have been an observant witness at close quarters, as the events which led to the preferent of the charges unfolded.
 For the reasons which have just been explained, the evidence of this witness needed to be examined with especial care for its inherent quality, credibility and plausibility, and for its harmony with other credible evidence before the court. Having taken the oath, he was wisely cautioned by M.C.B. Maphalala J, in the following terms:
“JUDGE: Mr. Gama, you have been introduced as an accomplice witness. At the end of the crown prosecution, the court will decide whether or not you have answered all questions satisfactorily and truthfully. If you have done that then the court will discharge you from any further possible prosecution. If the court is not satisfied, the crown reserves the right to indict you. You are urged to speak truthfully of all that you saw and participated on. Yes.”
 Bheki Gama swore that he was a kombi driver. He knew all three of his co-accused who were initially indicted with him. They were all players in the drama which led to their prosecution. His evidence, clear and cogent, was well supported in all material aspects by the testimony of the other prosecution witnesses.
 It is common cause that the action began when the attention of the police, who were on patrol in the Matsapha Eteni area in a kombi, was attracted to a white Toyota Corolla parked suspiciously next to the road. It bore a registration plate SG 646 SG. As Bheki Gama testified, there were four occupants of that vehicle. They were seated as shown in the illustration below:
FRONT OF CAR
RAYMOND MATIMBA BHEKI GAMA
SHOT AT POLICE - ESCAPED DRIVER - ACCOMPLICE WITNESS
MBHOYI M. NDWANDWE VIKA VELABO DLAMINI
SHOT AT POLICE - ARRESTED APPELLANT - SHOT AT POLICE - ARRESTED
REVOLVER FOUND PISTOL FOUND
BY POLICE BY POLICE
about 7 casings found
BULLET HOLES IN REAR WINDOW
BACK OF CAR
SG 646 SG
SG 646 SG
 Bheki Gama had noticed that Raymond was carrying a pistol on his left side. The police got out of their kombi and approached the suspicious Corolla. As they did so, Raymond got out of the front passenger seat and fired a gun in the direction of the police who were closing in on the Corolla. The police returned fire. By all accounts, the place was dark by this time. Bheki Gama could hear the sound of gun shots going off behind him from inside of the car where the appellant and Mbhoyi were sitting. At the same time, the police officers observed the flashes of gunfire inside the back of the Corolla. A gun battle raged for about 3 to 4 minutes between the police and the shooters inside of the Toyota Corolla.
 The police advanced. They ordered the occupants of the Corolla to get out of that vehicle. Soon, the police were in full control of the situation. Raymond had managed to flee and escape the scene. But Bheki Gama, Mbhoyi Ndwandwe and the appellant were taken into custody. The Corolla was searched. A pistol was found in the back seat where the appellant had been sitting behind the driver. A revolver was found on the back seat where Mbhoyi Ndwandwe had been sitting. That revolver was found to contain 4 live rounds of ammunition. The pistol which was found on the back seat where the appellant had been sitting showed that it had been fired as the pin was up and no bullet was found in the chamber. Empty cartridges were also found inside the Corolla.
 As bullets flew in the height of the melee 3399 Detective Constable Vusi Dlamini was felled to the ground by a bullet which was fired by one of the occupants of the Corolla. Explaining his survival after being shot he swore: “I thank the vest” - the bullet proof vest which he was wearing that night - “and God my Lord as it protected me.”
 The police summoned reinforcements which quickly arrived upon the scene. The bandits were arrested. The appellant and Mbhoyi Ndwandwe had suffered injuries. They were transported to hospital where they were treated. Luckily, no one was killed in the exchange of gunfire between the police and their armed adversaries.
 The appellant gave sworn evidence in his defence. Stripped of the many irrelevancies which characterized his testimony, the defence was that the appellant was an innocent passenger in the Toyota Corolla who just happened to be enjoying the favour of a ride home in that vehicle when the police suddenly began firing upon it. He swore that he himself was not armed and he did not know if any other occupant of the Corolla was armed. He soon realized that, by an unfortunate quirk of fate, he had found himself the victim of attack by the police. Realizing that he was wounded, he got out of the car and lay on the ground pretending to be dead. By this means he hoped to survive his ordeal. He was eventually arrested, taken to hospital and later charged with the offences listed in the indictment. What is more, he related, he was suffering from an allergy which affected his eyesight and necessitated his wearing sun glasses which further impaired his vision. Whatever may have happened that night, he never acted in concert or common purpose with anyone. Any action which he may have taken after the police commenced firing was purely defensive, and for the sole purpose of preserving his life and limb.
 The appellant submitted that there was insufficient evidence to invoke the doctrine of common purpose and in particular that of Active Association to connect him with the actions of anyone else that night and especially with things done by other occupants of the Toyota Corolla. He argued that:
No one testified about seeing him discharge a firearm that night or even carrying a gun.
There was no evidence of any prior agreement or antecedent plan to commit any crime.
He did not flee the scene as Raymond had done. Raymond’sinvolvement could be inferred from his hasty getaway.
If, which is denied, any shooting came from any occupant of the Toyota Corolla, that shooting was in self defence because it was the police who first opened firing without just cause, and without disclosing their identity as police officers.
There was no expert testimony from a ballistics expert establishing that the damage to the Toyota’s rear window was caused by bullets fired from within that vehicle.
A reasonable inference could be drawn that he played a purely passive role as Bheki Gama had done.
Even if, which is denied, gunfire came from within the back seat of the Toyota, that gunfire could have been caused by Mbhoyi Ndwandwe who was seated in the back of that car.
There has been no proof of active association on his part with the furtherance of a common design to kill the complainant, as there was no evidence at all that he shot Detective Constable Vusi Dlamini or anyone else. There was no evidence at all that he shot that constable or that he assisted anybody’s attempt to kill him.
 M.C.B. Maphalala J. was fully alive to the duty cast upon the Crown to prove that the appellant acted in concert with and in common purpose with those occupants of the Toyota who fired upon the Constable intending to kill him. He gave full consideration to the evidence as set out in paragraphs [10 – 14] supra. He condensed that evidence admirably in paragraph  of this judgment where he wrote:
“I fully agree with the Crown that the accused can be held liable on the doctrine of common purpose and in particular “Active Association”. The Crown has proved beyond reasonable doubt that there was a shootout between the police, the accused, Mbhoyi Ndwandwe and Raymond Matimba; and that the damage on the rear window of the motor vehicle indicated that the shooting came from inside and outside of the motor vehicle. The Crown has further proved that the 9mm pistol was found where the accused was sitting, and, the .38 special revolver was found where Mbhoyi Ndwandwe was seated. Spent cartridges were also found at the backseat where the accused and Mbhoyi Ndwandwe were sitting. Both handguns were found to be serviceable by PW1.”
 He then proceeded to set out and correctly apply the principles articulated in S v Safatsa and Others 1988 (1) S.A. 868 (A) , R v Dlamini Sandile and Others (2) SLR 305, S v Magedezi and Others 1989 (1) SA 687, R v Simelane and Others (1) SLR 221 at 222 – 223H, Rex v Huebsch 1953 (2) S.A. 561 (A) at 567, Rex v Mndzebele 1970 – 1976 SLR 198 at 199 F, Henwood Thornton v Rex 1987 – 1995 (4) SLR 271 at 273, Rex v Mbanjwa Gamedze 1987 – 1995 (4) SLR 330 at 336 D.
The trial judge then expressed his conclusions at paragraphs  –  of his judgment in this way:
“It is apparent from the evidence adduced that the accused and his companions did shoot at the police; and, in doing so they appreciated that the injury they intended to inflict on the police may cause death but were reckless whether death ensued. The evidence also established the other counts of possession of the two handguns and ammunition; the accused and his companions did not have the permit or licence to possess them.
 In the light of the evidence before me, the Court is satisfied that the explanation given by the accused is not only improbable but beyond reasonable doubt false; the accused actively associated with the others in the shootout with the police, and, that he was in possession of the 9mm pistol and four rounds of ammunition. The accused is convicted on Count 1, Count 2, Count 3 and Count 4.”
His conviction of the appellant on all counts charged in the indictment was undoubtedly correct.
 In support of his submission that the sentences on the four counts should run consecutively, counsel for the Crown submitted before the trial court that:
“The counts my lord occurred on the same date but they constitute different digressions of the law. There is no issue of splitting of charges in this case my lord. The first count relates to the contravention of the common law and the other three counts my lord relate to specific contravention of statutory provisions. It is the crown’s humble submission my lord that these are four distinct charges with different elements altogether and this court will not be committing any error whatsoever in treating them on a stand alone basis and the sentence to be imposed may be made to follow one another my lord.”
Unsurprisingly, counsel was unable to cite any authority for this novel and unacceptable proposition.
 The judgment of the court a quo on sentence ended with the cryptic declaration “The sentences will run consecutively.” Section 300 of the Criminal Law and Procedure Act 67/1938 is a statutory provision which deals with the matters of Cumulative or Concurrent sentences. It reads:
“300. (1) If a person is convicted at one trial of two or more different offences, or if a person under sentence or undergoing punishment for one offence is convicted of another offence, the court may sentence him to such several punishments for such offences or for such last offence, as the case may be, as it is competent to impose.
(2) If such punishment consists of imprisonment the Court shall direct whether each sentence shall be served consecutively with the remaining sentence.
 Subsection (2) is the operative canon governing the imposition of consecutive sentences. From a close reading of this terse subsection, it is clear that in the absence of a directive by the court that each sentence shall be served consecutively with the remaining sentence, sentences should run concurrently.
 In Dlamini, Makhokho v R. The Swaziland Law Reports 1987 – 1995 Vol. 1 at page 33 C Melamet J.P. writing for a unanimous Court of Appeal declared that:
“on a proper construction of these sections it would appear that sentences, even if not imposed at the same time, run concurrently unless it is specifically ordered that they will run consecutively.”
 The above dictum was applied by Dunn J in the High Court in Simelane, Dumsane v R, the Swaziland Law Reports 1987 – 1995 Vol. 2 at pages 201 i – 202 a. where he said:
“This section has been interpreted by the Court of Appeal to mean that sentences run concurrently, unless it is specifically ordered that they will run consecutively. See Dlamini, Makhokho v R Appeal No. 27 of 1986. In the absence of any direction in terms of section 300 (2) in the present cases, the sentences on counts one and two must run concurrently, making a total of three years.”
 A recent treatment of the matter of concurrent sentences may be found in the case of Mokela v The State  ZASCA 166 where the principles governing the award of consecutive and concurrent sentences were restated in the South Africa Supreme Court of Appeal by Bosielo JA with the concurrence of Mthiyane and Maya JJA. The appellant in that case had been effectively sentenced by the High Court to a term of 20 years imprisonment. That term was a composite of two sentences of 5 years in respect of the count of attempted murder and 15 years in respect of the count of robbery with aggravating circumstances. The global award of 20 years had been achieved by the order of the court below that those sentences run consecutively. Regrettably the court did not furnish reasons for this order. As their Lordships saw it at paragraph :
“What is even more disturbing is that it does not appear from the judgment whether either the appellant’s counsel or counsel for the State were afforded an opportunity to address the court on this crucial aspect.”
 The sentences were ordered to run concurrently because the evidence showed that the two offences were inextricably linked in terms of the locality, time, protagonists and importantly the fact that they were committed with one common intent. See for example S v Brophy & Another 2007 (2) SACR 56 paragraph 14. In the case before us, the possession by the appellant of the two firearms and ammunition, were inseparable in any way from the commission of the crime of attempted murder to such an extent that the three possession offences were, in essence, integral elements of the offence of attempted murder.
 The principles governing the ordering of consecutive sentences had already been articulated in several judicial pronouncements by the Superior Courts of Southern Africa and in the wider Commonwealth. D.A. Thomas, Sentencing Editor of Archbold Criminal Pleading Evidence & Practice 2005, one of the leading common law exponents of the principles of sentencing, treated the topic of concurrent and consecutive sentences in his scholarly work intituled “Principles of Sentencing” which was published on behalf of the Institute of Criminology, Cambridge, U.K. . At page 47 of the 1973 reprint of his highly persuasive book, the underlying principle is stated in this way:
“Where an offender is convicted on two or more counts of an indictment, or on two indictments, the court has power in law to order the sentences in respect of each count to run concurrently or consecutively. Similarly, where the offender has already been sentenced for another offence, the court may order a sentence which is subsequently imposed to begin at once and run concurrently with the existing sentence, or to begin at the expiration of that sentence. (The subsequent sentence may not be antedated to run from a date earlier than the first day of the session at which it is imposed.)
 At page 48, Prof. Thomas continued:
“The other limiting principle, that consecutive sentences are permissible only if they relate to separate incidents or transactions, is more firmly established and more clearly defined. In determining whether offences are part of one incident or transaction the Court takes a broad view.”
 In ordering sentences to run consecutively, courts exercise a discretion which, like all judicial discretions, must be exercised reasonably, judiciously and judicially, and not whimsically or capriciously. Furthermore, a trial judge must give reasons upon the record for the exercise of his judicial discretion, not only for the benefit of the parties concerned, but also for the assistance of an appellate court in enabling it to decide whether the judicial discretion of a lower court was properly exercised or not. The absence of the requisite reasons in the case before us, amounts to a material misdirection.
 In Mokela the unanimous Supreme Court of Appeal found it necessary to emphasize the importance of judicial officers giving reasons for their decisions. Bosielo JA wrote at paragraph :
“This is important and critical in engendering and maintaining the confidence of the public in the judicial system. People need to know that courts do not act arbitrarily but base their decisions on rational grounds. Of even greater significance is that it is only fair to every accused person to know the reasons why a court has taken a particular decision, particularly where such a decision has adverse consequences for such an accused person.”
 The duty of judicial officers to give reasons for their decisions was also recognized in the superior courts of Australia. Writing in the Australian Law Journal 1993 (67A) 494 the RT Hon Sir Harry Gibbs GCMG, AC, KBE, the former Chief Justice of the High Court of Australia, described the awareness of citizens in modern democracies of their constitutional and civic rights. He affirmed their entitlement to have the rationale underlying decisions taken by all the arms of government explained to them in clear and understandable terms. This is how Sir Harry expressed these ideas:
“The citizens of a modern democracy – at any rate in Australia – are not prepared to accept a decision simply because it has been pronounced, but rather are inclined to question and criticize any exercise of authority, judicial or otherwise. In such a society it is of particular importance that the parties to litigation – and the public – should be convinced that justice has been done, or at least that an honest, careful and conscientious effort has been made to do justice, in any particular case, and that the delivery of reasons is part of the process which has that end in view…’.
See also Mphahlele v First National Bank of SA Ltd 1999 (2) SA 667 (CC) para 12; Commissioner, South African Revenue Service v Sprigg Investment 117 CC t/a Global Investment 2011 (4) SA 551 (SCA) paras 28 – 30.”
 The sentiments enunciated by Sir Harry in the context of Australia, apply with equal validity to the Kingdom of Swaziland as it marches resolutely from developing towards first world status.
 The court a quo having not exercised its discretion on the aspect of sentence, this court is now at large to do so. Applying the principles articulated in this judgment, the proper order is that the sentences on the second count (five years), the third count (five years) and the fourth count (two years), be made to run concurrently with the sentence of nine years imprisonment backdated to the 13th December 2007 being the date of the appellant’s arrest.
 In the light of the foregoing, it is ordered that;
The appeal against convictions be dismissed and the order on conviction be upheld.
The appeal against sentence be allowed only to the extent that the sentences on the second, third, and fourth counts be ordered to run concurrently with the sentence on the first count.
For the avoidance of doubt, the order of this court means that the appellant must now serve a net sentence of nine years imprisonment in respect of the four counts upon which he stands convicted.
JUSTICE OF APPEAL
DR. S. TWUM
JUSTICE OF APPEAL
Delivered this the day of November 2011.