IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.:28/2013
In the matter between
JOHANNES MFAN’KHONA DLAMINI 1ST APPLICANT
SIZA SIBEKO 2ND APPLICANT
AND
THE KING RESPONDENT
Neutral Citation: Johannes Mfan’khona Dlamini Vs The King (28/2013) [2018] SZHC 149 ( 14 December 2018)
Coram: Hlophe J.
For the Applicants: Mr M.T. Mabila
For the Respondent: Mr I.S. Magagula and Mr T. Dlamini
Date Heard: 6th December 2018
Date Judgement Delivered: 14th December 2018(Ex Tempore)
Summary
Criminal Procedure – Application for Bail Pending Appeal – Applicants convicted of various counts under the Theft of Motor Vehicles Act including 10 of theft of Motor vehicles – Applicants sentenced to different sentences with the 1st Applicant being sentenced to a total of 34 years in custody for the theft of motor vehicles plus twenty years in custody for failing to notify police officers of certain motor vehicle components found in his possession with removed or obliterated Vin numbers which were offences that carried with each one of them an option of a fine –Applicants also convicted on twenty - seven counts of failure to declare to the Eswatini Revenue authority some motor vehicle components brought into the country from outside which carried with each one of them an option of a fine just as they could be served concurrently with the above others which could not be so served between themselves - Applicants can be admitted to bail pending appeal in law where they can show that they have prospects of success and are not a flight risk – Whether applicants are entitled to be released on bail pending appeal in this matter considering its peculiar circumstances – Court of the view a case has not been made for the reliefs sought given the lack of prospects of success and the applicants’ being individual flight risk.
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JUDGMENT
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[1] Two separate applications were moved on different dates by the two applicants who however sought similar reliefs, mainly that they be released on bail pending appeal. These applications followed the conviction of both accused on various counts of violating the Theft of Motor Vehicles Act of 1991 including one count of violating the Immigration Act of 1982 against the 1st Applicant.
[2] In reality the applicants were convicted on 10 counts of contravening Section 3(1) as read with Section 4 of the Theft of Motor Vehicles Act which can loosely be termed as the theft of motor vehicles charges. They were also convicted on 20 counts of contravening Section 6(1) as read with Section 6(2) of the Theft of Motor Vehicles Act of 1991 which can loosely be referred to as the failure by the applicants to report to the police their having in their possession various motor vehicle components whose identity numbers had been obliterated or removed. They were further convicted on 27 counts of contravening section 7 (3) of the Theft of Motor Vehicles Act of 1991, which was about their having failed to declare to the Revenue authorities their having received certain motor vehicle components for declarations for tax purposes had to be made. On the count of the contravention of the Immigration Act of 1982, the first applicant was convicted of contravening Section 14(2) (c) of the said Act by harboring a certain Mozambican national, Vincente Muambo, contrary to the provisions of the said Act.
[3] Following their said convictions, the applicants were sentenced as follows:
3.1.1. On counts 1,3,4,6,8,9,18 and 33 (Being those counts where the theft of the motor vehicles concerned occurred without much incidents such as assault or an overt threat to the vehicle owners or possessors at the time of the vehicle’s theft), they were sentenced to 3 years on each such count which led to a total of 24 years imprisonment in all as they, for the reasons explained, had to run consecutively.
3.1.2. On counts 2 and 5 (where there had been assaults or threats to the owners a possessors of the motor vehicles at the time the motor vehicles in question were stolen or taken), they were sentenced to 5 years on each such count which had to run consecutively between the two of them and those in the above other counts of theft of motor vehicles.
3.1.4. On count 7, which was about dealing in a stolen motor vehicle, they were each sentenced to five years imprisonment. This sentence had to run concurrently with the sentence in count 5 against each particular accused person.
3.1.5. On counts 10, 11, 12, 13, 14, 15, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 (the failure to report to the police the various motor vehicle components found in their possession whose identity marks had been removed contrary to the provisions of the Act) the accused persons were sentenced respectively to one year imprisonment or to a fine of E1000.00 on each such count against the 1st applicant and to 6 months imprisonment or a fine of five hundred Emalangeni in each such count against the Second Applicant. The effect of this sentence was 20 years imprisonment or E20,000.00 fine for the 1st Applicant and 10 years imprisonment or E10,000.00 fine for the second applicant.
3.1.6. On counts 36, 39, 40, 41, 42, 43, 44, 47, 49, 50, 51, 52, 53, 54, 55, 57, 58, 59, 60, 61, 64, 65, 66, 67, 68 and 70 (the charges on failure to declare to the Swaziland Revenue Authority their having received various motor vehicle components which were subject to taxation), the accused persons were sentenced respectively to 6 months imprisonment or to a fine of E1000-00 on each such count for the first accused and to six months imprisonment or to a fine of E500-00 on each particular count in the case of the second applicant. This means that the effective sentence was cumulatively, 13.5 years imprisonment or a fine of E27000-00 in all for the first applicant whilst it was to be 13.5 years imprisonment or E13,500-00 fine for the second applicant.
3.1.7. These sentences (those on 3.1.6.) were for each accused person meant to run concurrently with the counts referred to in paragraph 3.1.5 above, with the remainder having to run concurrently with those counts mentioned in paragraph 3.1.1 above in each such accused person’s case.
3.1.8. On count 71 (the immigration count against the first applicant only) he was sentenced to 6 months imprisonment or to a fine of E500-00 which was however, wholly suspended for three years on condition he is not convicted of a similar offence during the period of suspension.
3.1.9. For the sake of clarity, the sentences were ordered to run consecutively for the offences mentioned in paragraph 3.1.1 and those mentioned in paragraph 3.1.5 above, in line with the provisions of section 14 of the Theft of Motor Vehicles Act which specifically prohibited the sentences on the relevant sections being made to run concurrently on each such count. This is however not the same thing with the sentences for the offences on the violation of section 7 (2) and 7 (3) of the Theft of Motor Vehicles Act 1991, which forms the subject of paragraph 3.1.6 above.
3.1.10. The sentences (those mentioned in paragraph 3.1.1 above), were ordered to take into account any period spent in custody by each such accused person before his being sentenced following his conviction in respect of this matter. For the removal of doubt, these periods are set out as follows :-
(a) With regards the first accused his sentence was to factor in the period 23 January 2013 to 24th February 2013 when he was kept in custody before he was released on bail on the 24th February 2013. It would also be back dated to the 10th August 2017 (the date when his bail was terminated in terms of section 145 of the Criminal Procedure and Evidence Act of 1938).
(b) With regards the 2nd accused his sentence was to be backdated to the 13th January 2013 when he was arrested given that he remained in custody ever since following his failure to pay bail after the grant of same by the court).
[4] After their conviction and sentencing the applicants moved the current applications where they each sought bail pending appeal. In trying to make a case for their applications they each contended that there were prospects of success in each one’s appeal and that they were not flight risks. Although they had moved their applications separately, it was felt that the said applications be consolidated and dealt with as one they did not only emanate from the same facts but they raised the same issues.
[5] It is important for me to mention that on the 6th December 2018, the applicants’ application was heard before this court. After having read the papers filed of record including having heard the parties’ counsel, I issued an order dismissing the applications. I, in a nutshell, stated that I was not convinced the requirements for such an application were met. I was of the view it had not been established that they had prospects of success or even that they were not flight risks given the many unusual occurrences aimed at defeating a smooth trial and conclusion of the matter from its inception up to the time when the matter was concluded. When handing down the ex- tempore judgment I clarified that my reasons were going to follow in due course. This text comprises the said reasons therefore.
[6] Setting out what he termed the ‘background’ to his application, the first applicant sought to explain how two different police investigation raids were carried out at his two homesteads in both September 2010 and November 2012 to January 2013. With regards the 25th September 2010 raid, he suggests that he was no longer staying at his Ngwane Park homestead where the raid was carried out, but claims that he was only called by the police after they had already arrived at his said homestead without finding him there. He continues to contend that he was no longer staying there following a quarrel he had with his wife. That homestead he suggested remained in the possession of his said wife and her cousin, who was also his friend, one Botsotso Jele, who was called as a crown witness. He claimed that the items found by the Police at his Ngwane Park homestead, belonged to Botsotso Jele therefore.
[7] This line could not however be maintained because as soon as Botsotso Jele was called as a witness by the crown, the said Botsotso Jele, who I noted had, since the commencement of trial in the matter, always accompanied the first accused in courtas an apparent close friend of his, changed tune and said that all the items belonged to one Jerry Dlamini who was now said to be late and not him. This was clearly a convenient way by the said Phumlani Botsotso Jele to protect the accused from whose homestead the items had been found. From the evidence it was clear that the items recovered by the police were not a few items which the accused as the owner of the homestead it was possible did not know anything about. It was clear that the items referred to by the police as having been discovered were actually lots of motor vehicle components that had been sourced from stripped or dismantled cars. These were shown to have been made of seven or so motor vehicles chassis frames with ground off or obliterated or removed chassis numbers to mention but a few. I clarify that it is even understatement to say what was found there were motor vehicle components because the evidence depicted for all intents and purposes that the said components were actually motor vehicles that had been chopped into pieces there when one considered the types of components there found together with the tools confiscated by the police.
[8] Among those chassis frames was that which belonged to a motor vehicle that had been stolen at Sulphur Springs South Africa, two days prior, on the 23rd September 2010. Some of the police officers who were at the accused’s place that morning had been led there by a motor vehicle tracker signal allegedly from the vehicle stolen from Sulphur Springs’ chassis frame was among those found at the first applicant’s said homestead by the police. That vehicle had just been chopped into pieces when considering that other than its chassis frame whose chassis numbers meant for identity purposes had been removed or obliterated, its further parts such as the cab, were there and identifiable, with removed or obliterated identity features as well.
[9] The evidence indicated that over and above the seven or so chassis frames with removed or obliterated chassis frames found tied together, there were also other motor vehicle cabs already stripped whilst others had obviously been chopped into further pieces making it difficult to tell from which vehicles they had been found. There were also numerous other motor vehicle components found there such as motor vehicle engines, engine blocks, gear boxes and other components. It is difficult to conceive of any other reason why one would obliterate and /or remove or grind off chassis numbers or vin numbers as found to be the case on the on the chassis frames referred to than that those vehicles which they were sourced had been stolen somewhere necessitating that they be concealed. This conclusion was in my view the only reasonable one to draw from the facts and was further emboldened by the accused’s failure to give a reasonable and probably true explanation on where he had obtained them thus necessitating that an adverse inference be drawn against them.
[10] Of those seven or so chassis frames found without vin numbers, about three of them were positively linked to certain stolen vehicles after experts had examined them using what was called the electro acid process also which was also referred to as the “etching process”. These chassis frames were those of vehicles shown to have been stolen from Sulphur Springs which was the subject of count four; the vehicle stolen from Melrose Arch which was the subject of count 6 and the vehicle stolen from Piet Retief, which was the subject of count 33. There was also found an engine with a semi-obliterated engine number. As some remnants of the engine number were left when the engine number was being removed, the expert who examined it, Colonel Kazamula Mokatse, told the court that he used the process known as the “combination” to establish its identity. This process he said entailed fitting into a computer those numbers to end up finding the identity of the stolen motor vehicle. That method revealed that the engine in question was that of the motor vehicle stolen at Marikana, from Raymond Hales which formed the subject of count 3.
[11] Although all these items and many others found at the applicant’s Ngwane Park homestead were seized by the Police and kept at the Lobamba Police Security Yard, those items were followed up by the people closely associated with the first applicant, in Phumlani Botsotso Jele and others, where they were stolen with others ending up being sold. This aspect of the crime involved some police officers who had obviously been corrupted so as to end up taking part in its commission. One of them was said to have referred to the first applicant as a crocodile (ingwenya) – a word that showed admiration for him for his misdeeds.
[12] It shall be noted much sooner than later that although the first accused seeks to separate the 2010 police raid at his Ngwane Park homestead from what the Police discovered and eventually seized from the November 2012 and January 2013 investigation raids at both his Ngwane Park and Nhlambeni homesteads, there is not much difference between all the incidents if one looked at what the police found at the said places on each separate occasion. Just as they had discovered chassis frames with obliterated or ground off chassis numbers together with other motor vehicle components forming the remnants of some stripped off motor vehicles whose identity numbers had been ground off from them such as certain engines and other car components at Ngwane Park during the 2010 raid, so did they find items dealt with in the same way during their November 2012 to January 2013 raids. The point being made here is that it is clear that what was discovered at the Nhlambeni and Ngwane Park homesteads of the first accused in November 2012 to January 2013 is exactly what had been found as having been done to the applicable vehicle components at the Ngwane Park homestead of the first accused in September 2010. An explanation by the accused suggesting that those items had been brought to his place by James George Maluleka was rendered fanciful and flew in the face of reality. Such is not the explanation required of an accused by the Law. An explanation like that given by the accused is not acceptable. I had found this to be the case in my judgement hence my rejection of the first accused person’s explanation in that regard and the subsequent conviction and sentence that followed.
[14] I must also not leave out the fact that the evidence indicated clearly that the accused’s close association with Phumlani Botsotso Jele and the police officers the latter acted in cahoots with at the Lobamba Security Yard where the items seized from the accused’s homestead after the 2010 raid were stolen and sold, was brought to the fore during that incident. Although the said Botsotso Jele and those he had acted with in committing the offences at the Lobamba Security Yard were arrested and charged with the relevant charges, their cases are said to have never seen the light of day in court for reasons that are not clear. This made the operation of law to be seen as a mockery.
[15] As if this was not enough, it is also a fact that although the charges had been preferred against the First Accused for the items found at his homestead in 2010 before the Manzini Magistrate’s Court, the evidence had indicated that the police docket on the case together with the court record thereto were both stolen resulting in the then criminal cases against the first accused person not being pursued.
[16] As regards the items found by the police in relation to the November 2012 and the January 2013 raids at the first applicants two homesteads namely Ngwane Park and Nhlambeni, I can only clarify that among the items there found, which formed part of the substantial charges of theft of motor vehicles against the accused persons, were components relating to the motor vehicles that formed the basis of counts 1,2,7,8,9 and 18.
[17] Without having to go into the depth of the evidence in each case, which is what can be found in the main judgement I issued after the trial, I can say that the components in question linked the accused persons to the motor vehicles that had been stolen in the Republic of South Africa. The case with regards the said motor vehicles can be summarized as follows:-
(a) The motor vehicle forming the subject of count 1 was found to be the one stolen from one Gordon James at La Lucia,Durban North. A bar code found lying idle on the floor of the First accused’s Nhlambeni home was determined to have come out of the engine of Mr Gordon James’car. This barcode provided the link between Mr James’stolen car and the accused. It necessitated that the accused persons give an explanation that was reasonably possibly true. I found that they had failed to do so.
(b) The car forming the subject of count 2 was found by the experts using the da-ta-dot method to be the Toyota Quantum Kombi stolen during a hijack or robbery carried out on one Zempi Nkosie at Badplaas’, Komati Mine,Republic of South Africa. The particulars found on the dat-a-dot linked the accused to the said Toyota Quantum and necessitated an explanation from him. I again found him to have failed to give such an explanation.
(c) The motor vehicle forming the subject of count 5 was found to have been the one stolen from Erald Rabe in Paul Petersberg, Republic of South Africa, during which incident the latter was heavily assaulted and suffered some permanent disability. It was linked to that car through the discovery that the component bearing its Vin number on the chassis frame had been rough –welded thereon after the original one had apparently been removed through being cut off. There was also found a sticker under the edge of its bakkie with a vin number resembling the original Vin number, of the motor vehicle stolen from the said Erald Rabe of PaulPetersberg. The first accused had actually sold the motor vehicle concerned to one Bongani Christopher Shabangu. Some of the parts, including that bearing the vin number inserted on to the frame of the Paulpetersberg car, initially belonged to a scrap motor vehicle purchased by the first applicant through Thanda Fana Gamedze from the CTA garage in Mbabane. All this necessitated that he gives a reasonable and possibly true explanation. The court found he had failed to give such an explanation as he sought to maintain a bare denial which contradicted the case he had put to Crown Witnesses.
(d) The motor vehicle forming the subject of count 7 is the same one mentioned in count 5 above. The difference is that the thrust of the count concerned is about the dealing in the said motor vehicle in violation of a specific section of the Theft of Motor Vehicles Act 1991. This obviously referred to the sale of that motor vehicle to Bongani Christopher Shabangu by the 1st applicant herein, to which no reasonably possibly true explanation could be given by the latter.
(e) The subject matter of count 8 was found to be the motor vehicle stolen from John Robinson of La Lucia, Durban North. It was linked to the accused persons when a matric certificate that had been kept in it when it was stolen, was found at the first accused’s garage in one of his two homes referred to above. The certificate belonged to John Robinson. It was found lying idle inside the first applicant’s garage at his Nhlambeni homestead. Further, some of its items were found and identified by the witnesses who testified. The accused persons failed to give a reasonable and probably true explanation on their being found in possession of the motor vehicle components and the Matric Certificate. Whereas they claimed the certificate and the canopy of the car, had been delivered to them by one George James Maluleka, they could not explain why the said Maluleka would have brought a matric certificate with the items allegedly loaded in a delivery truck meant to deliver to the first accused’s place.
(f) With regards the motor vehicle forming the subject matter of count 9, it was discovered that same was stolen from Thembinkosi Andreas Ndwandwe at Pongola. In this instance, the accused persons were linked to the motor vehicle concerned by its Registration plate also found lying idle at the first accused’s garage. No reasonable and possibly true explanation could be given by the accused persons.
(g) The motor vehicle forming the subject matter of count 18 had been stolen from David Bransma in La Lucia Durban North. The accused was linked to it by the discovery of a chassis frame on which the part bearing the Vin Number had just been roughly welded in a situation that showed that the vin number there appearing had been used to replace another one. Checking on the bakkie found on it, it was discovered that it had a sticker with a vin number that matched the car stolen from Mr Bransma. No reasonably possibly true explanation could be given by the accused pesons on what had happened leading to the car bearing the obvious controversies referred to above. Otherwise the vin number rough welded in the stead of the original vin number belonged to a scrap car that had been purchased from George Velibanti Gamedze by the first accused. This negated directly the possibility of that chassis frame and bakkie having been brought there by George James Maluleka. Again a reasonably probably true explanation was not forthcoming from the accused persons.
(h) The motor vehicle forming the subject of count 33 was found to have been that stolen from Frederick c. Van Vuuren in Piet Retief. It was discovered by the expert Hammel Naidoo that although there were numbers revealed during the etching process, they had one of its digits wrongly captured. Inside knowledge and expertise by Mr Hammel Naidoo was applied to eventually reveal that the chassis frame there found was for that car. This required expertise to be applied and Mr Naidoo who had over 24 years factory experience managed to come up with that information as an expert. No reasonably probably true explanation of the frame’s being there could be given by the accused. They could not produce any documentation when they should have at least obtained them from the border indicating the chassis frame in question had been brought there by the said James George Maluleka. No reasonably possibly true explanation could be given hence the conviction and sentencing of the applicants as accused persons at the time.
[18] The upshot of all the foregoing circumstances surrounding the counts faced by the applicants herein is that there was in each count sufficient and credible evidence linking the accused persons with the crimes committed. Further the offences taken individually and even more so cumulatively, were very serious as they had a telling blow on the country’s economy and its relationship with other countries as it was being used as a crime haven which cannot be tolerated. This is to answer their contentions that they have prospects of success in their appeals; by which contention they suggest that they should have been granted bail. I am convinced that for the foregoing revelations there are no such prospects of success. The cases are not only strong against the accused, but they were committed over a sustained period and they are very serious. I therefore came to the conclusion that the accused persons had no prospects of success against them in each one of the counts where they were convicted and sentenced.
[19] The position of our law is settled that bail pending appeal can be granted where the applicant for bail has prospect of success and it can be shown that he is not a flight risk among the other considerations. This means that there should, by extension, have been no strong case against each one of the applicants. These requirements were established in such cases as S V Williams 1981 (1) SA 1170, that of Charles Myeza V Rex High Court Case No.117/2006 as well as that of Leo Ndvuna Dlamini V The King, High court Criminal Case No.12/2003.
[20] It complicates it in this case that midway through the trial, and upon observing the seriousness and strength of the case against the first accused I had had to terminate his bail acting in terms of section 145 of the Criminal Procedure And Evidence Act of 1938. I was convinced there was a likelihood of the accused escaping taking into account all the various shenanigans that had occurred ever since the very first arrest of the accused persons as can be seen from the interference with the items seized and kept at the Lobamba Security Yard after the 2010 police raid at the First Applicant’s Ngwane Park homestead. The other notable incident which prompted the court to withdraw his bail was the disappearance of witnesses in circumstances that suggested an interference with them. A good example is the disappearance of one Vincent Muambo from the Mbabane Police station where he was held on an immigration charge whilst awaiting testifying as an accomplice witness against the accused persons following the withdrawal of his charges on a Thursday for him to testify the following Monday. It is now an undisputed fact that another accomplice witness who had been held in Namibia ended up disappearing after all logistics had been put in place for him to testify against the accused persons in the matter. I raise this to show that when looking at the extents that had had to be gone into to ensure the matter was not finalized or that the accused were not convicted, it clearly would not be in the interests of justice to grant bail pending appeal to the applicants. Lastly the disappearance of court records and dockets in the Manzini Magistrates Court, when trial was meant to proceed is another indicator that bail pending appeal would not be an appropriate relief in these circumstances.
[21] In Leo Ndvuna Dlamini Vs Rex (Supra) the position was stated to be that an applicant for bail pending appeal needed to establish exceptional circumstances which were described as a prima facie case for prospects of success on appeal and the likelihood of the entire sentence having been served as at the time the appeal was heard. There was clearly neither prospects nor the risk of the entire sentence having been served as at the time the appeal was heard in the present matter.
[23] For the foregoing considerations, I am convinced that a case has not been made for the reliefs sought by the Applicants. Accordingly, their application cannot succeed and it is dismissed with no order as to costs.
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N. J. HLOPHE
JUDGE – HIGH COURT
