IN
THE HIGH COURT OF SWAZILAND
CRIMINAL
APPEAL NO.17/96
In
the matter between:
JABULANI
M. HLOPHE 1ST APPELLANT
SIPHO
M. MAGAGULA 2ND APPELLANT
VS
REX
CORAM
:
S.W. SAPIRE A.C.J.
:J.M.
MATSEBULA A.J.
FOR
THE CROWN : MISS S. NDERI
FOR
THE DEFENCE : IN PERSONS
JUDGMENT
16/04/96
The
two appellants Jabulane M. Hlophe and Sipho M. Magagula designated
for convenient sake as appellant one and two respectively, were
jointly charged with various counts for housebreaking with intent to
steal and theft and other charges under the provisions of the ARMS
AND AMMUNITION ACT.
Before
the commencement of the trial, the Crown withdrew count five against
all the accused according to the record. This withdrawal should have
been against appellant two and accused no.7 as the two were the only
ones featuring on count five and not all the accused.
Accused
no.8 Themba Dlamini was not present at the
2
commencement
of the proceedings and there is no indication on the record why he
was not present.
Miss
S. Nderi who appeared on behalf of the Crown at the hearing of the
appeal submitted that the Crown ought to have had the charges
withdrawn against the absent accused formally. Miss Nderi was correct
in that respect.
The
appellants and the other co-accused pleaded not guilty to their
respective charges and; the second appellant was convicted on count
one of housebreaking with intent to steal and theft and sentenced to
three years imprisonment. On count two, first and second appellant
were convicted of housebreaking with intent to steal and theft and
sentenced to three years imprisonment each. The sentences were
ordered to run concurrently with other sentences on count one in
respect of appellant no.2.
The
appellants have now noted an appeal against both the conviction and
sentence. The appeal against convictions and sentences were allowed
on the 17th April 1996 by the Learned Judge Sapire A.C.J. and I
concurred. The appellants were informed that a written judgement on
appeal would follow, the judgement now follows.
At
the commencement of the hearing we drew the attention of the Crown to
the unsatisfactory evidence of pointing out
3
allegedly
made by the accused at their trial. The Crown's attention was also
drawn to the evidence of PW10 Detective Constable Mkhonta who in the
course of giving his evidence stated and I quote,
"On
further interrrogation of the stolen items accused one, two and
Themba Dlamini led me to SCOT in Mbabane. At SCOT they showed me
Fanuzile Dlamini who handed to me two CDs and a coat."
Under
cross examination of PW10 by appellant no.1, PW10 stated that
appellant one, two and Themba Dlamini had not infact taken him to
SCOT and said they had only gave him information.
Miss
Nderi addressed the court in details pinpointing conflicting evidence
relating to the pointing out evidence and submitted correctly, in my
mind, that the convictions could not be sustained. There is very
unsatisfactory manner which investigating officers employ in giving
evidence, that is, making a blanket statement to the effect that a
number of people took the investigating officer to a house and the
occupants of the house then handed over certain items which were
subsequently identified by the complainant. The person who handed
over these items is not called as a witness and the Crown relies on
the fact that the group of accused who took the investigating officer
to the house were guilty. No evidence of how the goods came to be in
possession of the
4
person
who had custody was led, incasu the only evidence linking the
appellants was that of PW10 who gave conflicting evidence about
whether or not the appellants had taken him to the house in SCOT. In
the result the appellants were wrongly convicted and the appeal
succeeds and I so order.
J
.M. MATSEBULA S.W SAPIRE
ACTING
JUDGE ACTING CHIEF JUSTICE
