THE
HIGH COURT OF SWAZILAND
REX
Vs
RINGTON
FOFO DUBE TIMOTHY TEMA
Criminal
Case No. 38/2003
Coram
S.B. MAPHALALA – J
For
the Crown MRS M. DLAMINI – Acting
Director
of Public Prosecutions For the Accused
MR.
C. NTIWANE
JUDGMENT
(17/09/2004)
The
accused having pleaded guilty to Counts 4 and 5, that is, unlawful
possession of a pistol and six (6) rounds of ammunitions,
respectively and having been discharged on Count 1 under the
provisions of Section 174 (4) of the Criminal Procedure and Evidence
Act (as amended), the court found that the accused person has a case
to answer in respect of Counts 2 and 3, being Theft of Motor
Vehicle's Offences.
The
accused person had pleaded not guilty to these offences. The offences
are quashed in the following language.
In
Count 2
2
"In
that upon or about 3rd July 2002 at or near Delmas - Ogies road in
the Republic of South Africa, the said accused each or both acting in
common purpose did unlawfully and intentionally steal a motor vehicle
registration no. BDN 995 MP the property or in the lawful possession
of Christiaan Andreies Cronge valued at E120, 000-00 and that upon or
about the 2nd August 2002 the said accused did unlawfully and
intentionally conveyed the said motor vehicle to Malkerns area in the
Kingdom of Swaziland, theft being a continuous crime the accused
committed the offence under the jurisdiction of this court".
In
Count 3
"In
that during the month of January 2002 and at or near Sasolburg in the
Republic of South Africa the said accused each or both of them acting
in common purpose did unlawfully and intentionally steal a motor
vehicle registered CBC 129 FS the property or in the lawful
possession of Johannes Van Der Merwe valued at E40, 000-00 and that
upon or about the 2nd August 2002, the said accused each or both did
unlawfully and intentionally conveyed the said motor vehicle to
Malkerns area in the Kingdom of Swaziland; theft being a continuous
offence the accused committed the crime of theft within the
jurisdiction of this court".
There
are mainly 3 or 4 Crown witnesses who gave evidence against accused
in relation to Counts 2 and 3. These witnesses were; i) Mrs Sithebe,
ii) Phumlani Mdluli (PW13), iii) Bheki Maduna (PW14) and iv) Mr.
Sithebe (PW12).
The
evidence of Mrs Sithebe was to the effect that the accused came to
her homestead while her husband (PW12) was in South Africa. He came
in the company of another person he introduced as Mr. Sibiya. Accused
requested her to keep the motor vehicle and that he will collect it
later. She further stated that the accused told her that the motor
vehicle belonged to him. This motor vehicle was identified as the
truck which is the subject-matter in Count 2 as identified by the
complainant, Mr, Christiaan Gronge. She further stated that the said
motor vehicle was collected by persons who had indicated that they
were sent by accused to come and fetch the truck. This was at night.
In
cross-examination the accused flatly denied ever dealing with this
witness in so far as the truck was concerned. He stated that he
requested her husband to keep the truck
3
not
this witness. He further suggested to the court why this witness
stated that she dealt with him. The reason was that the police
officers decided" to take her for identifying the truck when it
was later found. This witness stood her ground and highlighted that
her husband was not at home nor did he see the truck as it was taken
before his return from South Africa. She only informed her husband
about the truck upon his return. Mrs Sithebe further maintained that
accused had told her that the motor vehicle belonged to him.
PW12
Mr. Sithebe was called as a witness in order to ascertain whether
indeed what the accused had put to Mrs. Sithebe was what actually
took place. Mr. Sithebe informed the court that he retuned from his
children who were in South Africa and was informed by his wife (Mrs
Sithebe) that accused had left a truck and later collected it. He
confirmed what was said by Mrs. Sithebe that he never saw the truck
nor spoke to accused about it.
In
cross-examination of this witness nothing of substance came out
except that it was revealed that accused was this witness's patient
as he was a traditional healer. It was put to this witness that
accused came in the company of Mr. Sibiya and left the truck. This
witness replied in the negative. It was never put to this witness
that accused informed him that the truck belonged to Sibiya.
PW13
Bheki Maduna told the court that accused came to him driving a BMW
and requested that he fix the BMW (subject matter in Count 3) for him
(accused). He stated that he would collect it later. On this day of
delivery of the BMW accused also indicated that there is a truck at
Nhlangano and asked him to find a buyer for it. This witness fixed
the BMW and drove it until accused in the company of other men
including PW14 Mdluli came to fetch it.
In
cross-examination it was put to this witness that the BMW was brought
to him by accused so that the accused would find a buyer. However,
this witness maintained that the BMW was not for sale but that
accused requested him to fix it for him.
PW14
Mdluli told that court that he had seen PW13 Maduna driving the BMW
which was exhibited in court. He stated that his brother informed him
that the motor vehicle
4
was
left by accused so as to repair it for him. He stated further that on
the night of the 2nd August 2002, accused came in the company of
others he did not know. He requested him to accompany him to PW13 so
as to collect his BMW. He obliged. The BMW was collected and accused
then asked him to accompany his friends to the Sithebe's homestead to
fetch the truck which is the subject-matter in Count 2. He proceeded
to Nhlangano where he found Mrs Sithebe. Nothing much turned upon the
cross-examination of this witness save that it was disputed that he
was related to accused and that when he went to PW14 Maduna with
accused was so that he would call PW13.
The
accused when he was put to his defence in terms of the provisions of
the Criminal Procedure and Evidence Act (per Section 174 (4)) gave a
lengthy account of his version of events. He stated that a certain
Sibiya man came to his home at Manzini and requested him to find a
buyer for exhibit "C 1" (the BMW). He looked for a buyer
but in vain. He then took the vehicle for safe keeping to PW14
(Maduna). He later called Sibiya to fetch his BMW. Sibiya obliged.
They proceeded to PW14's workplace where they took the BMW. While he
was taken back home, Sibiya suggested that they also go to Nhlangano
to fetch a truck. He declined to go because he wanted to sleep and
then suggested that PW14 (Mdluli) accompany them.
He
stated that the truck had been left with Mrs Sithebe. He had prior
met Sibiya at Nhlangano and requested that he find parking for the
truck. It is then that they went and spoke with Mr. Sithebe. He
stated that he would have taken the truck to his in-law's home but it
was too far. He stated that he explained to Mr. Sithebe (PW12) that
the truck belonged to Sibiya.
On
his arrest, accused informed the investigators that the motor
vehicles in issue belonged to Sibiya. He stated that the police took
his diary and telephoned Sibiya who promised to come. He stated that
Sibiya admitted that the motor vehicles belonged to him whilst
speaking to the investigator, Ndlangamandla. He asked to meet them at
Nhlangano. They all proceeded to Nhlangano and waited until morning
but Sibiya never turned up. They then called Sibiya's nephew one
Lubisi who told them that Sibiya had called him but did not come.
They tried to call again at his number but it was engaged. PW16
Ndlangamandla went to Mahamba Border Post
5
where
he telephoned him and said he had arrested some people. He enquired
from accused whether those were the people. He gave a negative
response. On another day, the investigator PW16 introduced two (2)
officers saying they were from Springs in South Africa. He was asked
to give particulars of the address for Sibiya. They would then inform
him of the outcome. PW16 failed to tell him of the outcome although
he waited in anticipation. He later read in the newspaper that PW16
failed to come with Sibiya. He then requested PW16 to come to him but
he never did so.
The
accused person was cross-examined at great length by the Crown as
represented by the Acting Director of Public Prosecutions.
When
the matter came for arguments it was contended for the Crown that the
accused version of events was not put to crucial Crown witnesses and
therefore such defence ought to be rejected as false. The court was
referred to the cases of R v M1946 A.D. 1023, R vs P 1947 (1) S.A.
581 at 582 and the locus classicus being The King vs Dominic
Mngomezulu and 9 others, Criminal Case No. 94/90 (unreported).
It
was further argued for the Crown that the crucial question to be
addressed in the present case is whether accused story is
reconcilable with proven facts as provided. To whom do the two motor
vehicles belong? Is it Sibiya or accused? The issue is not whether
Sibiya exist or not. In this regard Mrs. Dlamini for the Crown argued
at length in her Heads of Arguments to support the Crown's
contention. It was contended that the accused stated two different
reasons for taking the BMW, i.e. when PW14 was cross-examined, it was
so that he would find a buyer for the BMW. However in his
evidence-in-chief and under cross-examination, he had taken it for
security. In this regard the court was referred to the case of R vs
Petersen 1956 (1) S.A. 544 at 545 where Grindly Feris J stated the
following:
"Even
if the evidence of Ross taken by itself did not amount to sufficient
proof of ownership such evidence taken in conjunction with the false
explanation of the Appellant was, I think, sufficient to justify the
conclusion that the Crown's allegation of "theft" had been
established".
6
The
thrust of the Crown's argument in this regard is that "the
giving by an accused of a false explanation of his possession of
goods alleged to have been stolen is a relevant factor which may
properly be taken into account in deciding the question whether the
property was stolen or not".
Mr.
Ntiwane's arguments stand on three legs. First, the determination of
whether it is the accused or Sibiya who stole these two motor
vehicles. Secondly, that the charge sheet was not properly framed and
thus common purpose has not been proved. Thirdly, that the accused
explanation of his involvement is clear and cannot be said to be
false. For the latter proposition the court was referred to the
dictum by Greenberg J in the celebrated case of R vs Difford 1937
A.D. 370 at 373 where the following was propounded; and I quote:
"...No
onus rests on the accused to convince the court of the truth of any
explanation he gives. If he gives an explanation, even if that
explanation is improbable, but beyond any reasonable doubt is false.
If there is any reasonable possibility of his explanation being true,
then he is entitled to his acquittal".
Further
reliance was placed on the dicta in R vs M (supra) where it was held
that "the court does not have to believe the defence story,
still less does it have to believe it in all its details; it is
sufficient if it thinks that there is a reasonable possibility that
it may be substantially true".
The
thrust of Mr. Ntiwane's argument in this regard is that the fact that
Sibiya is alive and dealt with the accused in the manner alleged by
the accused cannot be said to be false. In the premises the court
ought to give the accused the benefit of doubt and acquit him.
It
appears to me that the crux of this case is whether the court ought
to accept the Crown's case and reject the accused evidence. The Crown
case is that it is the accused person who stole the said motor
vehicles and on the other hand it is the accused case that the motor
vehicles belonged to Sibiya.
7
The
test to be applied in such cases has been laid out in a plethora of
decided cases in South Africa starting with the case of R vs Difford
(supra), R vs M. In S vs Sinch 1975 (1) S.A. 227 N Leon J held that
in criminal cases, where there is a conflict between the evidence of
the Crown witnesses and that of the accused, "it would be quite
impermissible to approach the case on the basis that, because the
court is satisfied as to the reliability of the Crown witnesses, it
therefore must reject the accused evidence".
In
S vs Munya 1986 (4) S.A. 712 at 715 F the following was said:
"Even
if the state case stood as a completely acceptable and unshaken
edifice, a court must investigate the defence case with a view of
discerning whether it is demonstrably false or inherently so
improbable as to be rejected as false, (my emphasis).
Slomawitz
AJ in the case of S vs Kubeka 1982 (1) S.A. 534 W at 537 made the
following
remarks:
"Whether
I subjectively disbelieve the accused is, however, not the test. I
need not even reject the state case in order to acquit him. It is not
enough that he contradicts other acceptable evidence. I am bound to
acquit him if there exist a reasonable possibility that his evidence
may be true. Such is the nature of the onus on the state",
I
have assessed the evidence before me against the test propounded in
the above cited cases and in the final analysis there exists in my
mind, a reasonable possibility that his explanation is true. His
evidence concerning Sibiya and what transpired in Nhlangano creates a
lingering doubt in my mind that this elusive Sibiya may well be the
perpetrator of these crimes. Crown witnesses all mentioned Sibiya
i.e. PW3, PW14, PW13 and also the police officer who was
investigating the case PW16, Khethokwakhe Ndlangamandla. Under
cross-examination PW16 testified that Sibiya was telephoned and that
they proceeded to Nhlangano and went to the border to meet with him
but he never turned up.
8
In
the circumstances of the case I give the accused person the benefit
of the doubt and I find him not guilty.
He
is acquitted forthwith.
S.B.
MAPHALALA
JUDGE
