IN
THE COURT OF APPEAL OF SWAZILAND
APPEAL
CASE NO.13
2000
In
the matter between:
MAXWELL
MBONGENI
NDWANDWE
VS
REX
CORAM :
BROWDE J
A
:
STEYN J
A
:
BECK
J
A
FOR
THE APPELLANT :
FOR
THE RESPONDENT :
JUDGMENT
Steyn
J
A:
This
appeal raises the question as to how an appeal to this Court from a
decision of the High Court dismissing an appeal from a lower court in
a criminal matter has to be dealt with.
Section
4(2) of the Court of Appeal Act 74/1954 provides as follows:-
"(2) A
person aggrieved by a judgment of the High Court given or made in its
criminal appellate jurisdiction may appeal to the Court of Appeal -
(a) On
a ground of appeal which involves a question of law alone, or,
(b) With
the leave of the Court of Appeal or upon a certificate of the Judge
who heard the appeal -
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(i) on
a ground of appeal which involves a question of fact alone or a
question of mixed law and fact, or
(ii) on
any ground (including the severity of sentence) which appears to the
Court of Appeal or Judge, as the case may be, to be a sufficient
ground of appeal."
It
follows from these provisions that on a question of fact alone or a
question of mixed law and fact, there are two channels through which
an aggrieved person can obtain access to the Court of Appeal. He can
either do so upon a certificate of the court which heard the appeal
or he can apply to this Court for leave to appeal.
Without
in any way derogating from an aggrieved person's right to approach
this court for leave to appeal, but in order to ensure consistent and
efficient practice, it is our view that a person who wishes to pursue
an appeal in terms of Section 4(2)(b) should exercise his rights as
follows:
1. He
should first seek a certificate from the court which heard his appeal
from the lower court. Should a certificate be granted; i.e. if the
High Court is of the view that there are reasonable prospects of
success on appeal, it will grant him leave to appeal to this Court.
2. In
the event of the High Court refusing him leave to appeal, he may then
petition this Court for leave to appeal.
In
the present case the appellant did, in a letter dated 29th July 1999,
apply to the High Court for leave to appeal to this Court. His letter
in so far as it is relevant for present purposes reads as follows:
"I
the undersigned, Maxwell M. Ndwandwe do hereby make an application
for leave to appeal my case further to the court of appeal.
I
was tried, convicted and sentenced to seven (7) years' imprisonment
for an alleged crime of robbery by a Magistrate court on 11th
February, 1998. I then appealed to the High Court before which I
appeared which respectively in July 1998, August 1998, 17th September
1998 and finally 20th July 1999.
3
The
High Court dismissed my appeal. I am, however not satisfied with the
judgment of the High Court and hence my plea to be granted yet
another chance to present my case before the court of appeal for
consideration."
Unfortunately,
it does not appear that this application was ever forwarded to the
Court that heard and dismissed his appeal. Consequently,
consideration was never given to the question as to whether leave to
appeal should be granted or not.
The
Registrar set the appeal down before this Court even though there was
no application for leave to appeal made to this Court, apparently
construing appellant's letter of 29th July 1999 as such an
application. In view of the fact that his application to the High
Court had not received consideration, we decided to hear him on the
question whether he should be granted leave or not.
The
grounds of appeal set out in his letter are the following:
"1. The
High Court refused to accept the fact that I was in lawful custody
for a certain matter on the date on which this particular case is
said to have taken place. Even the prosecutor failed to disprove this
fact.
2. The
High Court did not want to believe me when I told it the truth that
some of the things which I told the Magistrate, including the very
fact that I was in lawful custody on the date on which the crime was
alleged to have been committed, were not written down by the
Magistrate and as an accused person, I could not have dictated to him
what to write and what not to write.
3. The
High Court rejected the fact that the court record is itself
deficient in the sense that some of the things which I said in court
do not appear on it. In the other hand, there were things in the
court record which I never said.
4. The
High Court did not take into consideration the fact there were no
exhibits to substantiate the allegations levelled against me.
5. The
High Court misdirected itself by considering the Swazi National Court
convictions."
Appellant
was convicted in the Magistrate's Court on a charge of a robbery
committed at the Royal Swazi Sun petrol station. The appellant was
known to the
4
complainant.
He visited her "almost every day." An independent witness
was called who corroborated the complainant's evidence. This witness
runs a taxi business from the hotel. He chased after the appellant,
and when he and a security guard found him they attempted to block
him. The appellant threatened them with a knife. The witness
recognised appellant as a caddy at the Royal Swazi Sun.
In
his cross-examination it would appear that the appellant admitted
that he was in the shop on the day in question, but that he had not
committed the robbery. The record reflects that he put the following
to the complainants:
"I
put it to you that I bade you farewell telling you that I was
leaving.
The
appellant did not testify but made an unsworn statement. In it he
said the following:
"On
my arrival at the shop I bade PW2 farewell telling her that I was
leaving.... I never committed the offence, the witnesses have talked
about and my sin was to go to the shop, stay for the time and then
left them."
At
no stage did he put it to the witnesses that he could not have
committed the offence because he was in jail at the time. Neither did
he say so in his unsworn statement. Moreover at the hearing of the
appeal in the High Court, Crown counsel informed the court that she
had investigated the matter by going to the Magistrate's court and
looking up the records. She ascertained that at the time the
appellant committed the offence he was a fugitive from justice and
had escaped from custody.
It
is clear, as the High Court also found, that the allegation that
appellant was in jail was an afterthought and was untrue.
None
of the other grounds of appeal have substance. The sentence of seven
years imprisonment is severe but fully justified in view of
appellant's previous convictions.
For
these reasons leave to appeal is refused and the appeal is struck
from the roll.
The
Registrar is instructed to process all future applications for leave
to appeal in respect of a matter falling under Section 4(2)(b) of the
Court of Appeal Act in
5
accordance
with the directions set out in this judgment.
J.H.
STEYN
J
A
I
AGREE :
I.
BROWDE
J
A
I
AGREE:
C.
E.
L.
BECK J
A
Delivered
on
this
day of
December
2000.
