IN THE SUPREME COURT OF SWAZILAND
APPEAL CASE NO.22/2011
HELD AT MBABANE
In the matter between:
THEMBA DLUDLU : APPELLANT
AND
REX : RESPONDENT
CORAM : EBRAHIM, JA
: FARLAM, JA
: MAPHALALA, JA
FOR THE APPELLANT : IN PERSON
FOR THE RESPONDENT : MR. S. DLAMINI
HEARD : 1 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
SUMMARY
Criminal Appeal – murder – appeal against conviction and sentence – accomplice witness – cautionary rule – whether proposition put by attorney on behalf of accused during cross-examination of Crown witness can support evidence against accused who does not testify on the lines of the instructions given to his Counsel. Murder conviction and robbery charges confirmed.
EBRAHIM, J.A.
[1] The appellant, and his co-accused were convicted on a charge of murder and two counts of robbery and sentenced in respect of all three counts. They were sentenced to fifteen (15) years for murder and five (5) years on each of the two counts for robbery. The sentences were ordered to run concurrently and were backdated to 28 January 2006.
[2] On the conviction of murder the Crown relied on the single evidence of an accomplice witness.
[3] The appellant’s co-accused appealed against his conviction and sentence of murder only and was successful in his appeal as regards the murder conviction and this conviction was set aside on appeal in CRIMINAL APPEAL CASE NO.35/2010 LINDA KIBO MANGONGO.
[4] In his judgment Foxcroft JA dealt with a number of legal principles in admirable detail, which bears repeating in this judgment as they are equally pertinent to the matter at hand.
[5] He stated:-
“[2] The requirement of section 237 of the Criminal Law and Procedure Act No.67 of 1938 that the crime charged be proved by evidence aliunde to the satisfaction of the trial court to have been committed was correctly held to have been fulfilled in this case. What remained were the requirements of the so-called cautionary rule regarding the evidence of an accomplice. As stated in this court in PIKININI SIMON MOTSA V REX, APPEAL COURT CASE NO.36/2000 (unreported),
‘That Rule is no more than a reminder to the court that a facile acceptance of the credibility of certain witnesses may lead to false conclusions. At the same time it has often been stressed by the court that the exercise of caution must not be allowed to replace the exercise of common sense. S V SNYMAN 1968(2) SA 582 (A) at 585.’
As this court, per Browde JA, went on to point out, corroboration of an accomplice is not the only manner in which the required cautious approach can be satisfied.
‘Any factor which can, in the ordinary course of human experience reduce the risk of a wrong finding will suffice e.g. the failure by an accused to cross-examine Crown witnesses on material aspects of the case, or to put his version to witnesses or were the accused himself to attempt to mislead the court by palpably false evidence.’(my underlining)
Browde JAthen went on to say –
‘Finally, I should add that even if the above facts are absent, it is competent for a court to convict on the evidence of an accomplice provided the court understands the peculiar and oft-stated dangers inherent in accomplice evidence and appreciates that rejection of the evidence of the accused and the acceptance of that of the accomplice are only permissible where the merits of the accomplice as a witness and the demerits of the accused are beyond question.’
[3] The judgment of this Court in MOTSA V REX, supra, follows upon the decision, among others, of Nathan CJ in REX V MTETWA where the learned Judge said at 367B-C 1976 SLR 364 (HC) that:-
‘This is accomplice evidence. In terms of s 237 of the Criminal Procedure and Evidence Act 67 of 1938 a court may convict on the single evidence of any accomplice provided that such offence has by competent evidence other than the single and unconfirmed evidence of such accomplice, been proved to the satisfaction of the court to have been actually committed. The section does not require that there should be corroboration implicating the accused; but nevertheless, as is pointed out by Hoffmann South African Law of Evidence 2nd ed p399, corroboration implicating the accused still falls to be considered under the well known “cautionary rule.”’
[4] R V MTETWA, supra, was, in turn, reflecting a well established practice in Swaziland, as well as in other former High Commission Territories. This is evidenced in the decision in BERENG GRIFFITH LEROTHOLI AND OTHERS V THE KING (1926 – 1953) H.C.T.L.R. 149, P.C. [1950] A.C. 11 (P.C.). The Court, there dealing in 1949 with section 231 of the Basutoland Criminal Procedure and Evidence Proclamation, 1938, as amended, held that the section only required additional evidence that an offence had been committed. Nevertheless –
‘a Judge in Basutoland, as elsewhere, must always have in mind the danger of accepting evidence which is uncorroborated by independent evidence.’ (per Lord Reid at 158)
[5] A year later, the Privy Council, in GIDEON NKAMBULE AND OTHERS V THE KING, (1926-1953) H.C.L.T.R. 181 at 196; [1950] A.C. 379 which was an appeal from the Swaziland High Court, said
‘In Leretholi’s case the cautionary rule which is followed in South Africa was brought to the notice of the Board, and is set out in the wording used by Schreiner, JA in R V NCANANA. Their Lordships agree with the conclusion reached in Lerotholi’s case that the cautionary rule so stated is that binding in Swaziland as it was in Basutoland, and are satisfied that it was present to the mind of the judge who convicted the appellants and was properly applied by him.’
The words of Schreiner JA in R V NCANANA were what Browde JA had in mind in this Court in his decision in R V MOTSA, supra.
[6] It is also important to remember that before looking for corroboration of an accomplice’s evidence, the court must first decide whether the witness is credible. If not, the matter is at end since the need for corroboration does not arise.
See: Hannah CJ in R V MANDLA HOMEBOY DLAMINI, 1986 SLR 384 at 387D-F, quoting S V MUPFUDZA 1982(1) ZLR 271 cited with approval in Botswana in MONAGENG V THE STATE, CA 37 of 1983.”
[6] The learned Judge a quo correctly held that the requirements of section 237 of the CRIMINAL PROCEDURE AND EVIDENCE ACT NO.67/1938 had been met: In the case of the appellant’s co-accused, however, Linda Kibo Mangongo cited supra, Foxcroft JA with admirable clarity at pages 6 to 15 in paragraph 7 to 19 concluded -
“It follows that the uncorroborated evidence of the accomplice in regard to the charge of murder should not have been accepted by the trial court. The conviction was unsafe and must be set aside.”
[7] The case against the appellant in this case is somewhat different: Here again I have regard to the wise words of Foxcroft JA in the Mangongo case as it is pertinent to the case of the appellant in this case.
The learned Judge Foxcroft JA had regard to the commentary on the CRIMINAL PROCEDURE AND EVIDENCE ACT 51 OF 1977 in South Africa, du Toit et al where it was stated:
“An admission is as a general rule not admissible against anyone except its maker unless it can be brought within some other exception to the hearsay rule. Section 219 provides specifically that no confession shall be admissible against any person except its maker, and the same is true of other admissions in both criminal and civil cases (see S V BANDA AND OTHERS 1990 (3) SALR 466 (B).”
Foxcroft JAcorrectly pointed out that that certain exceptions have arisen of which on admission made by “A will be admissible against B. These exceptions are generally referred to as vicarious admissions.” He went on in his judgment to say:
“[14]Two main categories of vicarious admissions are generally recognized. The first relates to persons authorized to speak on behalf of another. A legal representative is an obvious example. An admission of fact made at a trial by an attorney acting within the scope of his authority is admissible against his client.” If an attorney puts to a Crown witness that his own client will testify that he, the client, was present on the scene of a crime together with a co-accused, that statement by the attorney would have no probative value and would not be admissible against the co-accused. Since the attorney has no authority to speak for the co-accused the statement does not fall within the ambit of a vicarious admission. (my underlining)
[15] In the present case, DW2 did not support the proposition put to the accomplice (PW1) as to his presence on the scene of the crime. Indeed it was suggested to him by counsel for the Crown that he had changed his instructions to his attorney in maintaining that he had gone to Paper Mills to look for a job on the day of the murder. While this may have had some bearing on the conviction of DW2, who is not before us on appeal, it cannot constitute support for the finding that the words of the attorney representing DW2 can be used against DW1. Of course, if DW2 had testified that DW1 was on the scene where the murder took place, for the innocent purpose of mango picking, (and had been believed) the learned trial Judge would have been fully entitled to regard that as supportive of the evidence of the accomplice.”(my underlining)
[8] Whilst it was perfectly proper for Mangongo to have had his conviction set aside on the murder charge this benefit does not avail itself to the appellant, who was the second witness for the defence (DW2) at the trial, whose attorney put to the accomplice that he was at the scene when the crimes forming the subject matter of the trial were committed.
[9] The accomplice witness called by the Crown placed the appellant at the scene of the murder of the deceased in this case. The appellant in giving evidence on his behalf attempted to mislead the court a quo by giving false evidence that he was not at the scene of the crime. This was contrary to what his legal practitioner had put to the accomplice when he cross-examined the accomplice. His Counsel was clearly authorized to speak on his behalf and his admission placing the appellant at the scene of murder made by his Counsel whilst acting within the scope of his authority is admissible against his client. The false evidence deposed to by the appellant in this regard has bearing on his conviction and adds credence to the evidence of the accomplice.
[10] I am satisfied that the appellant in this case cannot benefit from the same fate enjoyed by this co-accused. This evidence given by the accomplice was corroborated as Foxcroft JA said, by the fact the appellant’s own attorney, acting on the appellant’s authority placed him at the scene of the murder and by the fact that he lied to the trial court when contradicting the assertions made by his attorney. All those present, including the appellant were at the scene of the killing of the deceased and participated in robbing him and causing his death. I am of the view therefore that the conviction of murder should be confirmed.
[11] The appellant also has difficulty in escaping conviction on the robbery charges. The complainants were together when they were robbed of their cell phones (counts 6 & 7). Phindile Nhleko the complainant in count seven deposed that she knew one of the men who robbed them as one “T-man” from the past. He is the appellant in this case. She also deposed that she saw the assailants after the robbery and informed the investigating officer that she had done so and that she further saw the appellant at the police station where she identified him. This was confirmed by the investigating officer who gave evidence at the appellant’s trial. There is therefore no basis to interfere with the convictions on these two robbery charges.
[12] I share the sentiments expressed by Crown Counsel on the issue of sentence that the sentences imposed do not warrant interfering with in this case. This was a serious case of murder perpetrated in the pursuance of a robbery and the two counts of robbery were inflicted on two defenceless women. The sentences do not induce a sense of shock and the learned Judge a quo has not misdirected herself.
[13] Accordingly the appeal is dismissed in its entirety.
__________________________
A.M. EBRAHIM
JUSTICE OF APPEAL
I agree : ___________________________
I.G. FARLAM
JUSTICE OF APPEAL
I agree : ___________________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
