Crim. Appeal Case No.36/02
In the matter between:
GCINA P. MBONANE Appellant
Vs
REX Respondent
CORAM : BROWDE J.A.
BECK J.A.
ZIETSMAN J.A.
JUDGMENT
Zietsman J.A.
The appellant and his co-accused were convicted in the Magistrates Court at Nhlangano on three counts of robbery which were allegedly committed on 16th June 1996. They were each sentenced to 7 years’ imprisonment on count 1, to 6 years’ imprisonment on count 2 and to 6 years’ imprisonment on count 3. The sentences on counts 1 and 2 were ordered to run concurrently and the sentence on count 3 was ordered to run consecutively. The effective sentence in respect of each accused was thus 13 years’ imprisonment. The sentences were backdated to 17th June 1996.
The Crown case is that the appellant, together with his co-accused, entered the room of PW 2, the complainant on count 2, and demanded money from her. The appellant and his co-accused (who together for the sake of convenience will be referred to as the two accused) were armed with a firearm, a bush knife and an iron bar. PW 2’s husband was also in the home but he was, and is, apparently mentally ill and he was not called to give evidence. According to PW 2 they tied her up with her husband’s belt and robbed her of the sum of E300.00.
PW 2 apparently owned a building which had been rented as a shop to PW 1. The two accused then forced PW 2 to take them to the owner of the shop. They entered PW 1’s house, severely assaulted him and robbed him of E690.00 and the other articles mentioned in count 1. The stolen articles were placed in the motor vehicle used by the two accused.
The accused proceed in the vehicle to the home of PW 3, the complainant in count 3. He was also assaulted and robbed of money and other articles. The accused then sped off in the vehicle but were followed by the police who had been alerted to the robberies. The police arranged for the road ahead to be blocked by the Sidvokodvo police who succeeded in stopping the vehicle. The stolen articles were then found in the vehicle.
The two accused did not dispute the robberies or the fact that the stolen articles were found in the vehicle used by them. Their defence was that two other men had hired them to transport them to where they said they wanted to fetch their property, and that it was these two men who obtained the stolen articles and placed them in the vehicle. They stated that shortly before their vehicle was stopped by the Police they stopped at a bridge for another vehicle to pass. They alleged that when they did so the two men jumped out of the vehicle and ran away.
The two accused alleged that they told this to the police when they were stopped. This is denied by the police witnesses. According to Sub-Inspector Magongo (PW 4) the two accused, at the scene where they were stopped by the police, claimed that the articles found in the vehicle had been purchased by them and belonged to them. Later, only after they had appeared in Court, did they come out with the story of two other men who had allegedly placed the stolen articles in the vehicle and had jumped out of the vehicle and run away. This evidence by PW 4 is confirmed by the evidence of PW 5, Constable Maseko.
A further difficulty in the evidence of the two accused concerns the witness PW 2, the complainant in count 2. She was clearly assaulted and robbed and forced by the robbers to take them to PW 1, the owner of the shop. The appellant stated in evidence that he accompanied the two robbers to PW 2’s home. He alleged that they went into PW 2’s home and came out of the home with a lady, obviously PW 2, and walked to where he, the appellant, was standing. He alleges that PW 2 walked freely with the two men and talked to them, and that the three of them then walked to the home of PW1. This evidence is in conflict with that of PW 2 who alleged that her hands were tied with her husband’s belt and she was forced to take the robbers to PW 1’s house.
There is further evidence that the police and the two accused later went back to the place where the vehicle had been stopped by the police. There they found a bush knife, an iron bar, a chain and a moneybag containing money which had apparently all been thrown from the vehicle.
The Magistrate accepted the evidence of the Crown witnesses and he rejected the evidence given by the two accused. He accordingly found that the case against the two accused had
been proved beyond any reasonable doubt. We are not persuaded that the Magistrate erred in this conclusion.
We are also not persuaded that the sentences imposed by the Magistrate are unduly harsh. Three robberies were committed by the two accused who used dangerous weapons, which included a firearm and a bush knife, to assault the complainants. PW 1 in particular was for no apparent reason struck twice with a bush knife causing an open wound and a fracture to his legs, injuries from which he had not yet recovered at the date of the trial.
Our conclusion is that there is no merit in the appellant’s appeal against his convictions or sentences, and his appeal is accordingly dismissed.
N.W. ZIETSMAN J.A.
I agree
J. BROWDE J.A.
I agree
C.E.L. BECK J.A.
Delivered on this………day of November 2002
