IN THE COURT OF APPEAL OF SWAZILAND

 

HELD AT MBABANE                              Appeal Case No. 15/2002

 

In the matter between

 

LUCASSHONGWE                                 Appellant

 

and

 

THE KING                                                          Respondent

 

 

Coram                                                         LEON, JP

                                                                   STEYN, JA

                                                                   TEBBUTT, JA

 

 

For Appellant                                               In Person

 

 

JUDGMENT

___________________________________________________________

 

LEON, JP

 

Despite the fact that the correct procedure in applications for leave to appeal was not precisely followed in this case counsel for the Crown agreed that this court should treat this case as an application for leave to appeal and we agreed to do so.  I should add, that the applicant, instead of seeking leave to appeal from this court, appealed to it.  It is in that respect that the procedure was not precisely correct.

 

The applicant was convicted in the Magistrate’s court at Manzini of armed robbery and sentenced to seven years’ imprisonment.  He is a first offender.

 

Three judgments have already been given in this matter.  The first by the Magistrate who convicted and sentenced the applicant.  The second by the High Court dismissing the appeal against the conviction and sentence.  The third judgment was that of the High Court in dismissing the application for leave to appeal to this court which it regarded as “hopeless”. 

 

In these circumstances it would be a work of supererogation on my part were I to repeat a detailed examination of the evidence.  I have considered the applicant’s argument and the grounds of his application but in my view the application has no merit.

 

Very briefly stated the facts are as follows.  The applicant was the third accused in the Magistrate’s court.  He and his co-accused were charged with robbing the complainant Mrs. Rebecca Dlamini of E28 859.69.

 

At the close of the Crown case accused Nos 1 and 2 were acquitted while the applicant was put on his defence.

 

With regard to the robbery, none of the Crown witnesses was able to identify the applicant as having taken part in it.  The robbery took place at Yesive Supermarket at about 6.00 p.m. on 4 August 1999.  While those in the supermarket were busy counting their takings two men rushed in, one brandishing a firearm.  One of the workers was assaulted and all were made to lie down.  The sum alleged in the charge sheet was stolen from the supermarket.

 

The evidence against the applicant depends upon that of a single witness, PW5.  I pause to say that, although there was other evidence which confirmed his evidence in a material respect, that evidence did not implicate the applicant and was therefore not corroboration properly so called.

 

I am accordingly prepared to assume, in favour of the applicant, that this case should be treated as a case of a single witness.  But even upon that assumption, I am satisfied that the applicant was correctly convicted.

 

The High Court has set out the proper modern approach which should be adopted towards single witnesses and I agree with that approach.

 

The evidence of PW5 was that the applicant sought his advice as to how Yesive Supermarket could be robbed.  PW5 referred him to PW1 who worked there as a driver.  PW5 arranged a meeting between the two.  PW5 was present.  The applicant asked accused No 1 how he could commit this robbery.  The latter informed him that morning was the best time.  They then left.  On the day before the intended day of the robbery the applicant, in the presence of PW5, asked accused No 1 if he had a firearm but the answer was in the negative.

 

Some days later the applicant telephoned PW5 to inform him that they had gone to the supermarket but did not commit the robbery as they did not have transport.  About two weeks later PW5 heard on the radio that a robbery had taken place at Yesive Supermarket.  One night after that announcement, the applicant came to the house of PW5.  The applicant then informed PW5 that they had succeeded in carrying out the armed robbery and he asked the applicant to bring accused No 1 to his home at Lushikishini which he did on a Saturday evening  leaving at 11.00 p.m. and arriving at 1.00 a.m. by taxi.

 

According to PW5, the applicant then took them to a rondavel saying that they had only managed to steal E2 300 in the robbery.  He gave PW5 E300 and accused No 1 E350.  Before  the robbery, the applicant had promised money to PW5 and the first accused to be paid after the crime was committed. 

 

The cross examination of PW5 by the attorney acting on behalf of the applicant was extremely brief occupying barely one page of the record.  Not only did PW5 emerge from that unscathed but it was never put to him that the applicant did not know PW5 at all.

 

In his evidence the applicant, in his bare denial, stated that he was at home at the time when the offence was committed.  He did not suggest any reason why PW5 should give false evidence against him nor was any suggested in cross examination.  He denied knowing PW5.  Why then, one might ask, should a person unknown to him, implicate him in this offence?

 

In his argument before us the applicant submitted that no one saw him commit the robbery.  That is correct.  He also contended that PW5’s evidence does not connect him with the robbery.  I disagree.  A fair reading of PW5’s evidence shows that the applicant was himself involved in the robbery.

 

Then it was contended by the applicant that the trial court had erred in disbelieving his evidence.  I disagree.  Quite apart from the fact that it was never put to PW5 that the applicant did not know him, the evidence of the applicant that an unknown person should falsely involve him in a robbery is inherently improbable.  When PW5 gave evidence he stated that he knew the applicant as they used to be neighbours.  That was never challenged in cross-examination.  It was only when the applicant gave evidence that he claimed not to know PW5 at all.  In addition to that inherent improbability to which I have referred, the failure to cross examine PW5 on this point suggests that the applicant’s evidence concerning PW5 was false.  In this regard the High Court, in its judgment dismissing the appeal, referred to the judgment of HANNAH, CJ in the unreported case of R V DOMINIC MNGOMEZULU AND OTHERS Criminal Case No 94/1990 where the following is said:-

 

“It is, I think, clear from the foregoing that failure by counsel to cross examine on important aspects of a prosecution witness testimony may place the defence at risk of adverse comments being made and adverse inferences being drawn.  If he does not challenge a particular item of evidence then an inference may be made that at the time of cross examination his instructions were that the unchallenged item was not disputed by the accused, and if the accused subsequently goes into the witness box and denies the evidence in question the court may infer that he has changed his story in the intervening period of time.  It is also important that counsel should put the defence case accurately.  If he does not, and the accused subsequently gives evidence at variance with what was put, the court may again infer that there has been a change in the accused’s story.”

 

I agree.   Without going into detail, another example of the applicant’s mendacity arises from the evidence of PW6 who was Mavis Shongwe the sister of the former accused No 2.  She stayed with the latter in August and September 1999.  She testified that the applicant came to see her brother at Ngwane Park where she was staying in August 1999.  She was not cross-examined.  But when the applicant gave evidence he denied that he had gone to Ngwane Park.

 

I am satisfied that the Magistrate was correct in accepting the evidence of PW5 and rejecting that of the applicant as false.

 

With regard to the sentence of 7 years’ imprisonment, there has been no misdirection by the Magistrate and there is no other basis for interfering with the sentence.

 

There are no reasonable prospects of success either in relation to the conviction or the sentence.

 

In my judgment the application for leave to appeal must be refused.

 

                                     

_____________________

                                                          LEON, JP

 

 

I agree                                                _____________________

                                                          STEYN, JA

 

 

I agree                                                _____________________

                                                          TEBBUTT, JA

 

 

 

GIVEN AT MBABANE  this  15th day of November, 2002    

 

 

 

 

 

THE HIGH COURT OF SWAZILAND

LUCAS SHONGWE

 

Vs

 

REX

 

Criminal Appeal No. 42/2000

 

Coram                                                                          MAPHALALA J

                                                                                    MASUKU J

For the Crown                                                              MISS LANGWENYA

For the Appellant                                                          IN PERSON

 

JUDGEMENT

(26/09/2002)

 

Maphalala J:

The appellant was charged and found guilty of robbery in the Magistrate’s court, Manzini.  Appellant was sentenced to a term of (7) seven years imprisonment.  Appellant subsequently filed an appeal against conviction and sentence in the High Court.  His appeal appeared before us where it was dismissed in respect of both conviction and sentence on the 27th August 2002.  A reasoned judgement on the appeal was delivered in open Court on the aforesaid date.

 

The appellant now seeks leave to appeal to the Court of Appeal being dissatisfied with our findings of the 27th September 2002. 

 

The appellant, in terms of Rule 8 of the Court of Appeal Rules, 1971 should have filed his application for leave to appeal to the Court of Appeal on or before the 25th October 2001.  He did not.  Appellant only filed his Heads of Argument on the 29th April 2002, and did not file an application for condonation for non-compliance with the rules of court.  However, when the matter appeared before us we did not press the issue of condonation in view of the fact that at this stage he was unrepresented.  We then meru motu granted condonation and ruled that the matter should proceed on the merits.

 

The appellant’s grounds for leave to appeal to the Court of Appeal are found in the Notice of Appeal filed by the appellant’s erstwhile attorneys Maphalala and Company on the 8th October 2001, and are as follows:

 

            “AD Conviction

1.                    Their Lordships erred in finding that the appellant was guilty as charged on the evidence placed before them.

2.                    Their Lordships erred in finding that the Crown had proved its case beyond any reasonable doubt.

3.                    Their Lordships erred in findings (sic) that the Crown witnesses were credible witnesses in view of the fact that there was some discrepancy in their evidence.

4.                    The conviction was against the evidence and the weight thereof.

 

AD Sentence

 

1.                    The sentence imposed on the appellant is excessive in the circumstances as to induce a sense of shock taking into account that the appellant is the (sic) first offender and his personal circumstances”.

 

At the commencement of arguments before us Mr. Nzima who represented the appellant both before the court a quo and before us when the appeal was heard submitted that he was formally withdrawing as attorney of record.  He was subsequently released by the court.  The appellant informed us that he was ready to represent himself.  Although in the course of his long address to us he cast aspersions on Mr. Nzima’s competency both in the court a quo and before us on appeal, our view then was that the appellant was free to consult his attorney when he felt he was going contrary to his instructions.  In any event, the relationship between attorney and client was aptly stated by Steyn CJ in the case of Saloojee and another vs Minister of Community Development, 1965 (2) S.A. 135 (AD) as follows: and I quote:

“The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why … the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are”.

 

I must say in this respect that Mr. Nzima when he appeared before us on appeal filed very extensive Heads of Arguments which were painstakingly prepared covering some 9 pages.  He argued with all the force in his command.  Any attack on his competency is unwarranted and misconceived.  He even instructed Advocate Thwala to pursue the matter before the Court of Appeal, albeit prematurely.

 

Reverting to the present application the appellant filed Heads of Arguments which in the main amplified the grounds filed by his erstwhile attorneys.

 

The general principle in regard to leave to appeal is that the power to grant it must be exercised judicially and the test to be applied is the test given in R vs Ngubane and others, 1945 A.D. 185, 187 and R vs Nxumalo 1939, A.D. 580, 581, i.e that leave to appeal will not be granted unless the applicant will have a reasonable prospect of success on appeal, so that if the appeal involves a question of law which is arguable it must be arguable in the sense that there is substance in the argument advanced on behalf of the applicant.  The test must be applied objectively, the trial Judge must disabuse his mind of the fact that he himself has, and had, no reasonable doubt as to the guilt of the accused, and he must ask himself whether there is a reasonable prospect that the Judges of appeal will take a different view (see R vs Kuzwayo 1949 (3) S.A. 761 (AD).

 

It is therefore, within the above-cited legal framework that the matter at hand ought to be decided.  The present case hinges on the evidence of PW5 who the appellant failed both in the court a quo and before us on appeal to dislodge.  The confession by the appellant to PW5 that they had committed the robbery, coupled with the news heard by PW5 of the robbery that indeed the appellant must have been party to the offence.  That was not all.  The appellant further invited PW5 to go to his home to collect his share of the loot.

 

It is worthy of note further that when PW5 was cross-examined by Mr. Nzima for the appellant in the court below it was never put to him by Mr. Nzima that the appellant would say that he does not know PW5 (see R vs Dominic Mngomezulu and others Criminal Case No. 94/90 (unreported) at page 17).  Strangely, when the appellant adduced his evidence, he for the first time, told the court that he did not know PW5 and that he had seen him for the first time in court.  This issue was material to the appellant’s defence such that it could not be omitted without being regarded as an afterthought.

 

It is for the above reasons that I would propose that the application as regards conviction ought to be dismissed, as it is hopeless, without reasonable prospect of success.

 

The above mentioned sentiments equally apply as regards the question of sentence.  The challenge by the appellant is without any merit as we could not find neither a misdirection nor an irregularity on the part of the Magistrate a quo.  Neither can it be said that the sentence imposed was harsh and induces a sense of shock.

 

I am of the view, in the totality of the facts, that the application for leave to appeal to the Court of Appeal ought to fail and it is so ordered.  There is no reasonable prospect that the Court of Appeal would take a different view of this matter, both on conviction and sentence.

 

 

S.B. MAPHALALA

JUDGE

 

I agree

 

T.S. MASUKU

JUDGE