IN
THE COURT OF APPEAL OF SWAZILAND
APPEAL
CASE NO.
In the matter between:
PETER MDLULI
SIPHO DLAMINI
VS
REX
CORAM : BROWDE JA
: STEYN JA
: TEBBUTT JA
FOR THE
APPELLANTS : IN PERSON
FOR THE CROWN :
JUDGMENT
Steyn JA:
This is an application for leave to appeal. Both appellants were
convicted in the Magistrate’s Court on six counts of
housebreaking
with intent to steal and theft. They were each
sentenced to 18 months’ imprisonment on each count; i.e. an
effective sentence
of 9 years’ imprisonment. They appealed to
the High Court both against their convictions and sentences. Their
appeals were
dismissed and their applications for leave to appeal to
this Court were refused. They now seek such leave from this Court.
The six charges of
housebreaking and theft of which appellants were convicted arose from
a series of burglaries that occurred during
the period the 21st
May 1995 and the 29th
July 1995 in Mbabane. Subsequently and on the 2nd
and 4th
August 1995, many of the articles stolen in the course of these
housebreakings were recovered in a two bedroomed house occupied
by
the appellants. The articles recovered were identified by each one
of the complainants as being property stolen in the course
of the six
burglaries referred to above. The Crown therefore relied exclusively
on circumstantial evidence, and more particularly
on the evidence of
the possession of the stolen articles by the appellants,
inasmuch as they were found in the house
occupied by them.
The first appellant argued
his appeal in person. He challenged his conviction only in respect
of counts 1, 2 and 3 and did not
dispute that he was properly
convicted on counts 4, 5 and 6. Mr. Kubheka, counsel for the second
appellant, challenged his client’s
convictions on counts 2, 4
and 6 only, conceding the correctness of the conviction in respect of
second appellant on counts 1,
3 and 5. Both appellants attacked the
convictions on the ground that the goods they were alleged to have
stolen were not found
in their possession.
Mr. Kubheka in the course
of a carefully reasoned argument relied principally on the argument
that each of the appellants could
only be held liable for goods found
in his own room. The goods found in a room other than his own were
not in his possession and
he could accordingly not be held
inferentially to have been involved either in the housebreakings or
the thefts that occurred in
the course thereof. He proceeded on the
basis of this submission to analyse the evidence and to indicate
which goods were found
in second appellant’s room and
challenged the convictions on counts in which such possession was not
established. He quite
correctly conceded, however, that should the
court find that the series of housebreakings had been a joint venture
between the
appellants, the substratum of his argument would fall
away. The fact that the stolen goods were found in a room other than
that
occupied by the particular appellant would then be irrelevant
for the purposes of determining his guilt.
The question therefore is;
did the Crown establish beyond a reasonable doubt that all six
housebreakings occurred pursuant to a
joint enterprise by the two
appellants? In this regard the following factors appear to me to be
supportive of such a finding:
1. All the
housebreakings occurred in the same town, viz Mbabane.
2. All of these offences
were committed during a three month period i.e. during May, June and
July 1995.
3. Two of them occurred
on consecutive nights.
4. The fingerprint of
first appellant was found on a window of the house that was broken
into on count one. This is a count on which
Mr. Kubheka conceded
that the second appellant was correctly convicted. We therefore know
that this was a crime jointly committed
by the two appellants.
5. On count 5 both
appellants have admitted that they were correctly convicted. The two
offences charged in counts 1 and 5 were therefore
also jointly
committed by the appellants.
In these circumstances the
inference that these two persons who live together, also were jointly
responsible for the housebreakings
and thefts committed as charged in
counts three, four and six is irresistible. In so far as count two
is concerned there was uncontested
evidence that the tool-box found
in the second appellant’s bedroom belonged to the complainant
on count 2. Second appellant’s
explanation as to how he came
to be in possession of this tool-box was fanciful and the attempted
corroboration of his version
failed. His conviction on count two is
therefore proved beyond a reasonable doubt. Moreover both the grey
jersey and the gold
watch identified by the complainant as property
stolen from him were found in first appellant’s bedroom. His
conviction
on this count was also established as being a joint
venture.
For the above reasons I am
satisfied that the Crown proved the guilt of the two appellants
beyond a reasonable doubt on all six
counts on which they were
convicted by the trial court. Leave to appeal against their
convictions is therefore refused.
Both accused admitted
previous convictions. They were for similar offences. There is in
my view no substance in the contention
that sentences of 18 months
imprisonment are inordinately severe, neither was counsel able to
point to any misdirection by the
trial court. Leave to appeal
against their sentences is accordingly also refused. The convictions
and sentences are confirmed.
_____________________
J.H. STEYN JA
___________________
J. BROWDE JA
___________________
P.H. TEBBUTT JA
Delivered in open Court on this …….. day of May 2000.
