IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CRI
APPEAL NO. 43/97
In
the matter between:
COUNTRY
M. SITHOLE 1st APPELLANT
VUSI
MAZIYA 2nd APPELLANT
And
THE
KING RESPONDENT
CORAM
: DUNN
J.
MAPHALALA
A
J.
FOR
THE APPELLANT : IN
PERSON
FOR
THE RESPONDENT : MR
WACHIRA
JUDGMENT
17th
SEPTEMBER 1997
The
two appellants appeared before the senior Magistrate sitting at
Manzini charged with the crime of Robbery. The particulars were that
at UNISWA, Kwaluseni the accused "did wrongfully and unlawfully
assault Musa Ndzabandzaba and by intentionally using force and
violence to induce submission by the said Musa, did take from his
presence and out of his immediate care and protection certain
property, to wit items listed in attachment "A" valued at
23,180.00, the property of or in the lawful possession of Musa
Ndzabandzaba."
The
appellants pleaded not guilty to the charge. They were, at the
conclusion of the trial found guilty as charged and sentenced to
seven years imprisonment.
The
present appeal is against the conviction and sentence.
The
appellants have both argued their appeals before us this morning. In
so far as the conviction is concerned, the arguments advanced by the
appellants is that they were not positively identified by the
complainant as being the persons that entered his house on the day in
question. That may be so, but the crown's case against the appellants
rested on evidence of possession by the appellants of the items that
were taken from the complainant in the course of the robbery.
2
The
evidence presented before the senior magistrate was that the
appellants were found in possession of items that were taken in the
robbery at the complainant's house. According to the police officers
that testified the appellants voluntarily led the police to various
persons, who also gave evidence, from whom the stolen property was
recovered. The bulk of the recovered property was clearly identified
by the complainant and is set out at pages 15 and 16 of the typed
record. The property was recovered early in June 1996.
The
appellants gave an explanation as to how they had come into
possession of the property. The explanation was that the appellants
were requested by one Gerald Linda, an acquaintance of the 1st
appellant, to assist him in conveying his household effects from
Mbhuleni location to Two Sticks Housing Estate. The goods having been
conveyed, Gerald then gave some of the items to the 1st appellant to
go and sell in order to raise money to enable Gerald to travel to
South Africa. Some items were given to the 2nd appellant as a token
of Gerald's appreciation of the 2nd appellant's assistance. All these
items were subsequently identified by the complainant.
The
appellants could give no acceptable evidence as to the identity or
whereabouts of the Gerald they had referred to. They led the police
to a house at Two Sticks but the occupants did not know of Gerald's
whereabouts. The 1st appellant gave no explanation for property which
he conveyed to Hhelehhele area and which he had not mentioned as part
of the goods, which he was given to sell by Gerald.
The
senior magistrate considered the evidence and rejected the
explanation given by the appellants.
He
came to the conclusion, based on the possession by the appellant of
the recently stolen goods, that the appellants were the perpetrators
of the offence. We can find no fault with the approach to and the
assessment of the evidence as a whole by the senior magistrate and
the conclusion at which he arrived. The appellants' dealings with the
property clearly indicated the falsity of the evidence about Gerald.
The
appeal against the conviction is, in the circumstances, dismissed.
Turning
to the question of sentence, the appellants argued that the sentence
of seven years was severe. Secondly, that the magistrate did not
backdate the sentence to their respective dates of arrest.
Dealing
with the question of the severity of the sentence, regard must be had
to the nature of the offence that was committed. From the monthly
returns; appeals and reviews from the subordinate
courts,
it is quite clear that there is an alarming escalation in the number
of housebreaking cases, despite the stringent sentences presently
being passed by the courts.
There
are far too many cases of this nature where people are attacked
inside their burglar-proofed homes, assaulted and their property made
off with. The attackers make bold and daring raids into houses, with
the occupants inside. There are numerous cases in which innocent
people are raped and murdered in the course of such raids. It is for
the courts to continue to send out the appropriate message to people
like the appellants, that the community does not approve of and
condemns this type of crime.
3
This
court, sitting as a court of appeal, is empowered to interfere with
the sentence of a subordinate court only in certain circumstances.
None of those circumstances are present in this appeal. In our view
and given the circumstances of the case, the sentence of seven years
imprisonment is a proper one.
It
has been a longstanding and salutary practice of the courts to
backdate sentences in cases where an accused person has through no
fault of his own, spent an appreciable period of time in custody
awaiting his trial.
In
the circumstances the appeal against the sentence is also dismissed.
It is, however, ordered that the sentence imposed against the first
appellant be backdated to 6th June 1996 and that imposed on second
appellant be backdated to the 8th June 1996.
B.
DUNN I agree S.
B. MAPHALALA
JUDGE
ACTING JUDGE
