IN THE HIGH COURT OF SWAZILAND
APPEAL CASE NO.21/02
In the matter between:
JUDGMENT ON APPEAL
MICHAEL MALEKE APPELLANT
CORAM MATSEBULA J
Initially three accused persons appeared before the Senior Magistrate sitting at Nhlangano Magistrate’s Court in the Shiselweni District. Charges against accused no.3 were subsequently withdrawn by the Crown; and in respect of accused no.2 an application for a separation of trials was applied for and granted by the learned Magistrate. At the commencement of the trial only accused no.1 was appearing. Accused no.1 to whom I shall henceforth refer to as the appellant and continue so for the rest of the hearing was facing the following charges:-
Contravention with Section 11(1) as read with Section 11(8) of the ARMS AND AMMUNITION ACT 24/1964 as amended.
Contravention of Section 11(2) as read with Section 11(8) of the ARMS AND AMMUNITION ACT 24/1964 as amended.
Contravention of Section 14(2) of the IMMIGRATION ACT 17/1982.
The appellant pleaded not guilty to counts 1 to 3 and guilty to count 4.
Appellant was represented by an attorney for the major part of the trial. At the end of the trial learned Magistrate convicted him on all four charges.
The appellant is now appealing against conviction on all four counts including the count on which he pleaded guilty. He is also appealing against the sentence.
The grounds of appeal are set out in a rather profile confused and argumentative document entitled “Heads of argument”. For the sake of completeness of the record of these proceedings on appeal, will order that the grounds form part of these proceedings.
The learned Magistrate accepted the evidence of PW1, correctly in my view, how he was robbed of the money at gun point. PW1 was able to describe the clothes his assailant. PW1 later identified the appellant at a properly mounted identification parade. The evidence of PW1 and the assessment of PW1’s evidence both in chief and under cross-examination was found by the learned Magistrate to be materially unassailable. I can find no reason to differ from the findings by the court aquo.
The second witness for the Crown was 3024. Detective Constable Sibusiso Dlamini. PW2’s duties entail inter alia taking of photographs. PW2 took photographs of those lined up in the identification parade in which appellant was arraigned. This evidence was accepted by the court below, and correctly in my view. I can find no reason to interfere with the learned Magistrate’s findings.
PW3 Nelsiwe Constance Nzima introduced as an accomplice. It was her evidence that she had removed a certain plastic container containing money which had been buried by her husband outside the ‘indumba’ – consultation hut and she buried it in the floor of the consultation hut. This she did so that the police should not find it as it was partially visible where her husband had buried it.
The plastic container contained plus minus E4,050.00. PW3’s evidence was accepted by the learned Magistrate as being true. The learned Magistrate however did not understand why PW3 had been introduced as an accomplice witness. In my view the Magistrate must have taken the necessary caution to be applied in dealing with accomplice witnesses. As the issue of why she would have been apprehensive of the police finding the container where her husband had buried it was never canvassed at the trial, she could either have been an accomplice witness or not one. However, the defence did not challenge her evidence and her evidence was accepted by accused who was at that stage represented by attorney Smith.
PW4 David Simelane a neighbour of John Ndzima. This is the person who had been co-charged with the appellant before there was a separation of trials. He was present when the police in the company of the appellant dug out money from the field. The money was contained in plastic bags. Out of the same hole in the field a revolver wrapped in plastic came out. The revolver had ammunitions. The evidence of PW4 was not challenged by the defence. The defence confirmed that the witness did see the money and revolver being unearthed.
PW5 2698 Detective Sergeant K. Sibandze the investigating officer. In the course of his investigations and after the clothes worn by the alleged robber were discovered he traced the appellant at PW4’s homestead. PW5 cautioned the appellant in terms of the Judge’s Rules. PW5 searched the room in which appellant was and found his identification and found money in the amount of E210.98. When appellant was asked for documents entitling him to be in Swaziland he failed to produce any.
After a due caution appellant took the police to a field and indicated a spot. This spot was dug and a firearm came out. Money was also found from the dug hole. The total amount found was E6,000.00.
Appellant failed to produce a licence for the firearm and ammunitions. The Magistrate found that notwithstanding the very lengthy cross examination PW5 stood his grounds. This observation by the learned Magistrate is, in my view, correct.
PW6 2638 Detective Constable D. Shabangu. The evidence by this witness corroborated that of PW5 and so found the Magistrate. This court sitting as a court of appeal and respectfully agrees with the findings by the learned Magistrate. PW7 3716 Detective Constable Dumsani Zwane referred to PW8 incorrectly as being PW7.
Themba Martin Matsebula was invited by Ndzima to join them in a motor vehicle in which the two were. PW8 was in the company of one July Maphalala. PW8 chose to call himself Bugger Buthelezi to the appellant. There was some discussion about a firearm that should not get lost. PW8 saw the firearm in the motor vehicle, according to PW8, he knew the said firearm as belonging to July Maphalala.
PW8 again saw appellant and Ndzima on a date he could not recall. The duo were within the Hospital premises and the time was plus minus 2pm. PW8 approached them and told them that he had been sent by July Maphalala to come and fetch the gun. This duo asked him to allow them another day with the gun. PW8 said it was the appellant who made this request.
PW8 identified the gun before court. Under cross-examination he identified the gun because he knew it very well long before this incident. PW8’s evidence was not shaken.
After the evidence of PW8, the Crown rested its case.
An application in terms of Section 174(4) was unsuccessful, correctly in my view. The appellant also took the witness stand. Appellant admitted the circumstances surrounding his arrest. He denied the evidence of PW1 to the effect that he would have been seen on 13th January 2000 and that he was the one who robbed the complainant. The appellant though admitting to have been identified by PW1 on the identification parade was mounted. It was his evidence that the policeman had nodded his head towards him indicating that he was the culprit. This was never put to the Crown witnesses.
The appellant’s evidence riddles with new facts never put to the Crown witnesses. The appellant was not a truthful witness. The court found the following as having been proven.
Appellant had been properly cautioned in terms of the Judges Rules at all the relevant times.
That there were no serious contradictions in the evidence of the Crown.
The evidence of PW7 – Matsebula was never challenged which was to the effect that the gun used by the robbers belonged to Maphanga and Maphanga had loaned it to appellant.