THE HIGH COURT OF SWAZILAND
the matter of:
THE CROWN: A. DONKOH
THE DEFENCE :
Accused stands charged with the following two count -
of E500. belonging to Manzini Supermarket on 14/6/82
of E1,000 belonginq to Manzini Supermarket on 26/6/82. He pleaded not
guilty to count I and guilty to count II.
accused at all maternal times was employed as a sales assistant at
the Manzini Supermarket whore me Minah Khumalo also worked as a bock
keeper. One of her duties as buck keeper was to total up the day's
collection and send it to the Bank fur deposit by the accused.
Sometimes she herself did the banking.
Khumalo testified that on 14/6/82 she with the assistance of one
Parcel Dlamini checked and totalled up the manies for banking and
handed over to the accused a sum of E5000. together with the bank
deposit slip in duplicate. When the accused returner! from the bank
neither Minah nor Ndwandue, the owner appeared to have checked the
duplicate deposit slip. Mineh's explanation for this was that the
accused was a trusted employee and therefore
was no he esity to check. Her explanation is unset ctory and I don't
agree with it
honest a person is, he
back keeper should have been to check the deposit slip make the
necessary entries in the relevant brinks. From the XXX examination of
the Crown witness I gather that the accused
was that he did not take any money to the Bank for XXX on that day-
Then what happened to this money?....
must be remembered that the burden of proving beyond reasonable doubt
that it was the accused who stole the money
on the Crown.
only evidence that links the accused with the theft a this money is
that of Mineh. Parcel Dlamini who happened to be present according to
her, when the money was counted and handed aver to the accused, was
not called to give evidence for the Crown since his whereabouts was
not known. It is also regrettable that the Bank Deposit slip and cash
bock were not produced in evidence. I understand that they had been
misplaced or lost.
Ndwandwe mentioned that he saw accused taking the money to the Bank,
he was not sure of the date. In the circumsta-20 nces I do not
propose to place much reliance on his evidence.
to Minah, the accused in her presence admitted to Ndwandwe that he
took the money. But Ndwandwe denied that Minah was present. This is a
serious centradiction and therefore I do not wish to give any
credence to either of them as regards to the
the evidence it is clear, that the accused had every opportunity of
stealing this money had it been given to him for deposit. On the
other hand Minah herself could have taken this money by writing the
deposit slip since she ton handled the banking on occasions. The
effect of this is to introduce Minah
a possible suspect. However she appeared to me to be a honest
witness, and it is fair to say that nothing more than opportunity has
been established against her.
all the factors into consideration I have come XXX conclusion that
there is some doubt as to whether the accuse took the money.
Donkoh stressed the fact that the accused did not gi
evidence. This is a circumstance to be taken into account: the
importance to be attached to the failure of the accused give evidence
depends upon the circumstances of each partic
One of the factors to be considered in this connection is the
strength or weakness of the Crown case. See R vs Ismail 1952 (i) 205
at 210. However in this case the Crown has not established a prime
facie cose against the accused, although there ore certainly some
grounds for suspicion. In these circumstances I do not consider
that the accused's failure to give evidence can turn the Crown's
prima facie case into a conclusive one.
my opinion the Crown has failed to establish its case against the
accused beyond reasonable doubt. I regret that I have to come to this
conclusion because it is clear that a well conceives! theft has been
perpetrated upon the complainant.
accused in found not guilty in respect of count 1 and he is
accused had already pleaded guilty to Cound II. Therefore I find him
quilty as charged.