IN THE
COURT OF APPEAL OF SWAZILAND
APPEAL CASE NO.
In
the matter between:
DUMSANE
GAMEDZE 1ST
APPELLANT
NGUDZENI
MAMBA 2ND
APPELLANT
SIBUSISO
SIMELANE 3RD
APPELLANT
VS
REX
CORAM BROWDE
JA
STEYN
JA
ZIETSMAN JA
JUDGMENT
Browde JA:
During
the night of 7th
April 2000 one Nyarenda was robbed at gun-point of a Nissan motor
vehicle SD686LG a 4x4 LDV. The three appellants were charged
in the
High Court, together with one Khumalo, with having committed the
robbery but were found guilty by Annandale J of theft of
the vehicle.
The three appellants were each sentenced to a term of imprisonment
of 5 years of which one year was suspended for
4 years on condition
that they were not convicted of theft or of a competent verdict on a
charge of theft during the period of
suspension.
The appellants have all
appealed to this Court against their convictions and sentences.
The
second appellant was also charged with the offence of contravening
Section 3(1) of the Theft of Motor Vehicle Act 16/1991,
it being
alleged that he did “unlawfully steal and/or receive” a
winch valued at E9 000.00 of motor vehicle SD739KM
the property of
Gidane Vilakati. He was found guilty and sentenced to 2 years
imprisonment of which 18 months were ordered to
run concurrently with
the sentence on the theft conviction. He has appealed to this Court
also against this conviction and sentence.
In
his judgment in the court
a quo
the learned judge set out all the facts of the matter in careful
detail and also dealt in the most thorough manner with every point
raised by the various attorneys who appeared on behalf of the
appellants. I do not propose, therefore, to traverse all the facts
but will confine myself to a bare outline thereof and to the
arguments addressed to us.
The Robbery Count
In
his evidence the complainant Nyarenda described how he was woken up
in the early hours of 7th
April 2000. He opened the door of his house and saw what he believed
to be a gun pointed at him. He was then threatened that
if he did
not hand over the keys of the vehicle, which he said was a green
Nissan LDV 4x4 with registration SD686LG, he would be
shot. He
tossed the keys out of the house and then heard the vehicle being
driven away.
Thereafter the Crown called
the witness Ngozo (PW3) who told the Court that one morning the said
Khumalo and the third appellant
arrived at his home in a green LDV
motor vehicle and left it there until the evening, when they returned
and drove it away.
Then
followed the evidence of David Sithole (PW4 whose evidence came in
for a great deal of criticism before the learned judge
in the High
Court and also before us. In essence, his evidence was to the effect
that at about 6am on the 7th
April 2000 Khumalo woke him up and asked for a jack as his car had a
puncture and was stuck in the mud. It transpired that the
vehicle
was a green Nissan 4x4 LDV. Several persons were called to help
extricate the car from where it was stuck, including the
third
appellant. Once the car was free from the mud, and the punctured
wheel replaced, Khumalo and the third appellant drove it
away with
the intention of leaving it for the day at the home of Ngozo (PW3).
He also stated that in the presence of the third
appellant Khumalo
told him PW4 - that the Nissan 4x4 had been acquired unlawfully.
As he knew that the car was to
be stripped and apparently to be disposed of in parts, PW4 asked that
his part of the loot should
be the battery of the motor vehicle. He
then went on to describe how he participated with the first and
second appellants in stripping
the vehicle at the home of the third
appellant who gave them a candle to provide light for the operation.
According to his evidence
the third appellant at first did not want
the stripping to take place at his homestead. He later gave consent
however but did
not participate in the stripping of the vehicle. He
left the scene ostensibly to visit a friend. After the stripping of
the vehicle,
so the evidence of PW4 went, the parts were loaded on to
a red van. These parts were an engine, gearbox, differential, two
propshafts,
a bonnet, two mudguards, and a grill.
As
a result of police investigations many parts of the vehicle were
recovered and were ultimately inspected, during the course of
the
trial, at the court. Some of these parts were identified by the
complainant Nyarenda, who, according to the evidence, was
in
possession and control of the vehicle on behalf of the owner one
Glohm who had died prior to the commencement of the trial.
Nyarenda
deposed to the fact that he and Glohm had identified what he called
‘the vehicle’, but which appears to have
been the
component parts of the vehicle, at the police station. When asked
about the engine and by what particular feature he
identified it as
belonging to the motor vehicle of which he had been robbed, he stated
that he and Glohm had compared the numbers
on the engine with those
recorded in the “blue book” which was the service manual
of the vehicle concerned. Although
a great deal of time was spent in
canvassing the question as to whether the parts had been properly
identified, I agree unhesitatingly
with the following finding of
Annandale J, namely:
“As
presiding officer, I cannot come to any other conclusion, however
remote, that beyond any reasonable doubt it is indeed the vehicle
taken from Nyarenda that ended up in numerous pieces in the court
yard when viewed in the inspection
in loco. The
combination of engine, chassis, body, suspension, seats, tailgate,
rear window, wheels, battery, exhaust, fenders, steering
wheel,
interior fittings, drive train, gearbox, cab and loadbay, up to a
number plate reading SD686LG constitute a previously whole
and
complete Nissan 4x4 2.4 petrol-engined LDV as was described by
Nyarenda and supplemented by Dlamini. It will border on the
ludicrous to find that it is remotely possible that two different
vehicles are the subject matter. None of the mentioned
discrepancies,
either in isolation or as a whole, militate against
this final factual finding. Thus, it is the factual finding of this
court
that the vehicle which was robbed from Nyarenda is
substantially the same as the one exhibited in its bits and pieces,
collectively
depicted in the photographs marked H2 to H13 and H16 to
H19”.
PW4, as I have said, described
how he participated in the stripping of the vehicle. He then went on
to relate to the court what
happened and what he observed at the
police station when he was arrested. He saw the three appellants
there together with Khumalo.
He stated that he saw some of them
being assaulted. He described the assault by a police officer with a
sjambok on the second
appellant and Khumalo. He said, “I saw
them fisted”. According to PW4 the first appellant was a sorry
sight, his
clothes were soiled and torn and he was crying.
Although he was not named as an
accomplice, it is clear that PW4 was involved in the commission of
the offence charged as were the
first and second appellants.
In
the circumstances, it is clear that what was required of the trial
Judge was to approach the evidence of PW4 with caution. It
is quite
obvious from his judgment that Annandale J did just that. He
analysed the evidence meticulously and was quite aware of
some of the
shortcomings in it. He made allowances, quite rightly in my opinion,
for the fact that PW4 is a person with hardly
any formal education
who was subjected to a gruelling and often rude and aggressive
cross-examination particularly by the attorney
who appeared for the
first appellant. It has been said before in this Court but it
warrants repetition that any witness, no matter
how inimical his or
her evidence is to the interest of the accused, is entitled to
respectful and fair treatment by counsel for
the defence. The fact
that the evidence of the witness differs from the attorney’s
instructions from the accused does not
necessarily mean that the
witness is a “liar”. That epithet was often used in this
case with abandon in cross-examination
of witnesses, even where there
was room for a mistake, let alone the possibility that the
cross-examining attorney’s client
might not have been telling
the truth. It is not a requirement of an effective cross-examination
that attempts be made to humiliate
the witness by insults.
One
of the witnesses that was subjected to this was PW4. The learned
Judge found that he stood to gain nothing by giving false
evidence
and although he was not “the brightest witness” that the
learned Judge had experienced nevertheless impressed
as being honest.
The learned Judge concluded his analysis of PW4’s evidence by
saying:
“The overall impression
he made on me was that of a witness who truthfully and to his best
ability conveyed to the court all that
he knows about the matter,
without the addition of embellishments or distortions or omissions.
He remains a single witness in
some crucial aspects but due to the
role he played, corroboration of his evidence is required before it
can safely be relied on
in as far as he connects the accused to the
crime”.
The learned Judge then
proceeded to consider the evidence in order to ascertain whether
there was corroboration of PW4’s evidence
which, in the
circumstances, he considered necessary before accepting that
evidence. Such corroboration was in my view justifiably
found to
exist in the following:-
(i) the
fact that there was a stolen vehicle as described by PW4 is of course
corroborated by the complainant.
(ii) PW3
confirmed the evidence of PW4 that the car was driven to his home and
later fetched by Khumalo and the third appellant.
(iii) The
parts of the vehicle discovered by the police was corroborative of
PW4’s evidence that the vehicle was stripped.
(iv) Where
the parts were recovered was also corroborative of PW4’s
evidence that the parts were distributed amongst the various
participants.
(v) There
is further significance arising from where the parts of the vehicle
were found. To illustrate the point, I refer to the parts
found in
the vicinity of the homesteads of the appellants.
Det.
Sgt Nhlabatsi deposed to having found the rear chassis of a Nissan
4x4 vehicle “cut in the middle”. This was on
the edge of
the yard of the homestead of the third appellant. Much time was
spent in the trial and a good deal of argument directed
to
ascertaining whether or not the alleged pointings out by the accused
persons were done freely and voluntarily. There is enough
evidence on
record, including of course that of PW4, to indicate that there may
be substance in the allegations that the appellants
and the other
accused were all victims of physical assaults by members of the
police force. If that is indeed so, it is, of course,
and to put it
mildly, quite unacceptable. This type of conduct by police towards
persons detained by them is not only cowardly
in the extreme, since
there can be no retaliation, but is often counter-productive. In
this case, the learned Judge, in my opinion
quite correctly, held the
pointings out to be inadmissible and drew no inference from them.
That however is not the end of the
matter.
Section 227(2) of the Criminal
Law and Procedure Act 67 of 1938 reads:-
“Evidence that any fact
or thing was discovered in consequence of the pointing out of
anything by the accused person or in consequence
of information given
by him may be admitted notwithstanding that such pointing out or
information forms part of a confession or
statement which by law is
not admissible against him.”
This section
was considered by this Court in the case of JULY
PETROS MHLONGO AND OTHERS VS REX (CRIM. CASE 185/92).
It is clear from that judgment and the authorities dealt with
therein that a pointing out is a communication by conduct which
could
constitute an extra-judicial admission. It follows when that is the
case the Crown, if it wishes the pointing out to demonstrate
that the
accused knew where the item pointed out was, and that therefore an
inference adverse to the accused could properly be
drawn, must prove
that the pointing out was freely and voluntarily made. This the
learned judge found, on grounds with which I
entirely agree, not to
have been proved and therefore placed no reliance on the pointings
out.
The evidence of the discovery
of the parts of the vehicle in various localities was given mainly by
Det. Sgt. Nhlabatsi and Det.
Cst. Sabelo Dlamini. According to
Nhlabatsi the green cab and loading bay were found in the immediate
vicinity of the third appellant’s
home while other parts were
deposed to by Det. Cst. Dlamini as having been recovered from within
or very near the homestead where
the first and second appellants
lived. The recovery of the articles is admissible evidence and
inferences can legitimately be
drawn from the mere existence of the
articles at or in the immediate vicinity of the homesteads of the
appellants, that they were
aware of them. They were thus called upon
to explain their existence there, which they failed to do
satisfactorily. The discovery
of the articles is, therefore, further
corroboration of the evidence of PW4.
In
my opinion there was ample corroboration of PW4’s evidence to
justify the acceptance thereof by the learned judge.
The
first and second appellants occupied a house adjacent to which was a
rondavel. In the rondavel the police found the engine
of the Nissan
vehicle. This was not as a result of any pointing out but was seen
inside the rondavel by the police apparently
fortuitously. The first
and second appellants were present and apart from alleging that they
did not have the keys of the rondavel
they did not suggest that they
were not the occupiers or at least had no access to the rondavel.
Only in their evidence in court,
and that after the alleged
ill-treatment of them had not elicited it, did they say that the
rondavel was occupied by one Mvoti.
I agree with Annandale J who, in
this regard made the following finding:-
“If indeed Mvoti was the
tenant of that abode, with the ability to either take the blame or
provide an explanation for its (engine’s)
presence inside his
locked rondavel, where the accused persons were singled out for just
that, one would reasonably expect them
to have given such information
to the police.”
The learned judge also
referred to the fact that it was never suggested to PW4 that a person
by the name of Mvoti had been one
who shared in the spoils –
and this despite the extremely lengthy and detailed cross-examination
of the witness by counsel
for first and second appellants. The
evidence of the appellants in this regard was correctly rejected as
false.
The
third appellant denied that the stripping took place at his home and
relied on the evidence that Ngozo’s home was the
end of the
road and that his (third appellant’s) home was inaccessible
because of a stream which cut it off from traffic.
It transpired,
however, that that was not the home occupied by him and that the
stripping took place at a homestead which was
accessible and to which
the police went and discovered the chassis of the stolen vehicle
which was cut into two. The third appellant’s
evidence was,
therefore, patently false.
It
is quite clear from the evidence that all the appellants were aware
that the vehicle had been acquired unlawfully and their
participation
in stripping it and in the distribution of the parts amongst
themselves was sufficient for the court to have found
them guilty of
the crime of theft.
Their
appeals against their convictions of theft are without substance and
are dismissed.
I
turn now to consider the second appellants appeal against his
conviction for contravening Section 3(1) of the Theft of Motor
Vehicles Act No.16 of 1991. The section provides that “any
person who steals a motor vehicle or receives a motor vehicle
knowing
it to be stolen is guilty of an office.” This, of course,
introduces nothing novel but Section 4(1) of the Act reads
as
follows:-
“4 (1) unless the
contrary is proved by him, a person shall be presumed to have
committed an offence under Section 3 and, on conviction
punished
accordingly if –
(a) he
is found in possession of a motor vehicle which is reasonably
suspected to be stolen,” and Section 2 of the Act defines
“motor vehicle” as including “any part of such
vehicle.”
It
was common cause that the second appellant was found in possession of
a winch. This winch was identified by one Lourens as
the one which
he had attached by welding to the back of his breakdown truck. This
identification was accepted by Annandale J because
of Lourens’
detailed evidence of the characteristics of his winch which
co-incided with that in second appellant’s
possession. There
can be no valid attack on that finding. This gave rise in argument
to the interesting questions as to whether
a winch can be said to be
part of a vehicle and whether a person found in possession of a
stolen part of a vehicle can be found
guilty of stealing that vehicle
which is known not to have been stolen. Because of the conclusion to
which I have come, however,
it is not necessary to decide the precise
meaning of the Act. The theft of the winch was reported to the
police some months prior
to it being found in second appellant’s
possession. In that time it could reasonably have changed hands once
if not more.
The appellant’s defence was that he had bought
the winch for E2 600,00 for which he produced a receipt issued by a
dealer
in spares in Manzini in respect of a winch purchased on 25th
November 1999. There was no clear evidence as to when the winch was
stolen from Lourens and, therefore, the appellant’s
explanation
should have been accepted as satisfactory proof that he did not
commit the offence under Section 3 of the Act.
On this count the appeal
against the conviction and sentence of the second appellant is
upheld.
The
sentences on count 1 were described in Mrs. Mumcy Dlamini’s
helpful heads of argument for the Crown as “fair if
not
lenient”. I fully agree with that submission.
In
the result the appeals of the three appellant’s on count 1 are
dismissed and the convictions and sentence are confirmed.
On
count 7 the appeal of the second appellant is upheld and his
conviction and sentence are set aside.
J.
BROWDE JA
I
AGREE J.H.
STEYN JA
I
AGREE N.W
ZIETSMAN JA
Delivered in open Court on the
…… June 2002
