IN
THE HIGH COURT OF SWAZILAND
APPEAL
CASE NO. 11 / 2004
In.
the matter between:
REX
VS
SHOBANE
DLAMINI 1st APPELLANT
NHLANHLA
SANDILE DLAMINI 2nd APPELLANT
CORAM
BROWDE JA
STEYN
JA
TEBBUTT
JA
JUDGMENT
Steyn
JA
Before
us on appeal are two appellants who were accused no. 1 and no.2 in
the High Court and I will refer to them as such.
The
charges which are relevant for present purposes are two counts of
robbery, one of housebreaking and theft and one of the theft of a
motor vehicle. The two accused challenged the convictions on these
charges as well as appealing against the sentences imposed.
2
I
do not propose to deal exhaustively with the evidence which sustained
the charges. The Crown tendered the evidence of an accomplice (PW2 in
the court below) who described in detail how the offences were
planned and executed under the leadership of accused no. 1 and with
the extensive participation of accused no.2 and the witness. His
evidence was corroborated by a number of witnesses including police
testimony that linked both accused with the goods stolen pursuant to
the commission of the offences with which they were charged. There
can be no doubt that the Crown proved their guilt beyond all doubt.
Unfortunately
when the trial Judge delivered his judgment he failed to enter his
findings of guilt on the two robbery charges. It is clear,
however, that he was satisfied that the guilt of the two accused had
been established on these counts and that he was indeed finding them
guilty accordingly.
If
any doubt existed that this was so, it is removed by his introductory
comments when passing sentence. He says, "The two of you have
been found guilty of three counts of robbery", (this was a
second and more serious error because he had convicted the accused on
two counts of robbery and one of housebreaking and theft.)
There
can thus be no doubt that both of the accused were correctly
convicted on the two robbery counts. Mr. Simelane, who appeared for
accused no.2 relied on what he called the irregularity of the trial
court in not formally entering a verdict. This, he said, invalidated
the convictions on the two robbery counts. We are satisfied that
although it was unfortunate that the court did not do so, it is
abundantly clear that he did in fact convict them.
3
The
trial Judge also unequivocally entered a verdict of guilty of
housebreaking on count 8. The record reads:
"Regarding
count 8, that of housebreaking and theft, A1 and A2 are found guilty
as charged".
However
it would appear that when he sentenced the two accused on this count
the Judge a quo laboured under a misapprehension that he had
convicted them of robbery. I say this because, not only does he refer
to having convicted the accused on three robbery counts, he imposed
the same sentences on this count as he did on one of the robbery
counts. The sentences on count 8 will therefore have to be adjusted
to reflect the fact that the verdict was one of guilty of
housebreaking and theft not robbery. No violence having accompanied
the theft of goods in question means that a lesser degree of moral
guilt is to be attributed to the two accused than if they had been
convicted of the more violent form of crime i.e. robbery.
It
is recorded that the two accused are found guilty as follows:
On
count 5 (five) : guilty of robbery
On
count 6 (six) : guilty of robbery
On
count 7 (seven) : guilty of theft
On
count 8 (eight) : guilty of housebreaking with intent to steal and
theft
The
sentences imposed by the High Court on counts 5, 6 and 7 are
confirmed. On count 8 the sentences imposed on the two accused of 4
years imprisonment are set aside and a sentence of 2 years
imprisonment is imposed in respect of both accused on this count. The
sentences on all four counts are to run concurrently and are
backdated to the 10th day of December 2001.
4
Save
as aforesaid the appeals are dismissed and the convictions and
sentences are confirmed.
J.H
STEYN JA
I
agree J. BROWDE J.A.
I
agree P.H. TEBBUTT JA
DELIVERED
IN OPEN COURT ON THIS 15™ DAY OF NOVEMBER 2004
