1
IN
THE HIGH COURT OF SWAZILAND
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CRIMINAL
CASE. 118/97
IN
THE MATTER BETWEEN REX
VS
MOSES
PAULOS DUBE AND OTHERS
CORAM S.B.
MAPHALALA - A
J
FOR
CROWN MR J. MASEKO
FOR
DEFENCE ACCUSED NO. 1 MR K. VILAKATI
ACCUSED
NO. 2 MR M. MANZINI
ACCUSED
NO. 3 MR D. MNGOMEZULU
RULING
ON APPLICATION AT THE CLOSE OF THE CROWN'S CASE
(20/05/98)
Accused
No. 1 to 3 are jointly charged with armed robbery. The accused are
alleged to have been acting in furtherance of a common purpose in
committing the armed robbery at Kalanga Bricks on the 25th June, 1997
and robbed one Sipho Zikalala at gunpoint a sum of E500,000-00. The
crown led a number of witnesses in support of the charges. At the
conclusion of the crown's case applications were made in respect of
accused no. 1 and accused no.2 in terms of section 174 (4) of the
Criminal Procedure and Evidence Act No. 67/1938 (as amended) for the
discharge of the two accused persons on the grounds that the crown
had failed to establish a prima facie case to place the accused on
their defence. Mr Mngomezulu for accused no. 3 rightly conceded that
a prima facie has been made in respect of his client accused no. 3
after a bid to render a confession made by accused no.2 inadmissible
failed. However, on that point the court ruled that the statement
made to the Judicial Officer was made freely and voluntarily in
conformity with section 226 (1) of the Criminal Procedure and
Evidence Act.
Mr
Maseko, for the crown opposed the applications made on behalf of
accused no. 1 by Mr Vilakati and accused no. 2 by Mr Manzini.
Mr
Vilakati on behalf of accused no. 1 contended that there is no
evidence before court that accused no. 1 was present when the robbery
took place at Kalanga Bricks on the day in question. The evidence
that attempts to link accused no. 1 with the commission of the
offence is the evidence of two crown witnesses Logwaja Dlamini and
Charles Ginindza. This evidence does not assist the court at all
because the two crown witnesses gave contradictory accounts of what
they
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knew
concerning the matter. Mr Vilakati applied that their evidence be
taken as that of accomplice witnesses who according to them they have
been invited to participate in the heist. The cautionary rule should
be applied. The court has to ask itself if they have not. After the
court had addressed to that question the court will not be required
to look any further.
The
only evidence, Mr Vilakati continued would be the money itself that
was found in the possession of the accused and perhaps the motor
vehicle which accused no. 1 was found driving. On the question of the
money found in the possession of the accused was it the one which was
taken at gunpoint from the lawful possession of Zikalala. If there
was some mark of identification like serial numbers or special ink
marks the accused no. 1 has to go to the witness stand to explain how
the money came to his possession. There may be an argument that the
E5,000-00 found in accused no.l when he was arrested in Nhlangano was
part of the E500,000-00 stolen by the robbers at Kalanga Bricks. The
question of the motor vehicle which accused no. 1 was found driving
in Nhlangano the Toyota Cressida has nothing to do with the robbery.
Thus that evidence is irrelevant for the purposes of this case. The
motor vehicle is not connected with the robbery all the crown
evidence showed that the getaway car which was used by the robbers
was a Toyota Corolla.
Mr
Manzini for accused no. 2 also moved a similar application holding
the view that there is no evidence before court which places accused
no.2 at the scene of the crime on the date and time of the robbery.
In fact the evidence of Nhlabatsi who was leading the investigating
team in this case confirms that on the date and time of the robbery
he (Nhlabatsi) established that accused no. 2 was at work here in
Mbabane when the robbery took place. The crown bears the onus to
prove either directly or by circumstantial evidence that accused no.
2 was involved in the common purpose alleged in the indictment. On
the evidence before court there is no single proven fact for the
court to infer common purpose. Nhlabatsi told the court that on the
8th August, 1997 he approached accused no. 2 and told him that he was
investigating an armed robbery case and cautioned the accused. He
said on the 9th August, 1997 accused no. 2 took him to his home in
Malkerns where accused no. 2 produced a sum of E6,020-00 in E20
notes. What is significant is that the officer does not say that he
was taken there pursuant to his investigations he merely says he was
taken there. Nhlabatsi does not tell the court if accused no. 2
displayed any knowledge of the robbery and the money that was taken.
It is not in dispute that accused no. 2 took Nhlabatsi there but the
investigating officer wants the court to assume that it was part of
the investigations. When Nhlabatsi was cross-examined on the specific
notes which he tendered as evidence he admitted that these notes were
not identified by anyone from First National Bank to positively say
to the court that these notes were the same notes that were
dispatched on the day of the robbery. On further cross-examination
Nhlabatsi admitted that he himself cannot positively say that the
money before court was the same money that was taken in the robbery.
He mentioned that the money taken from accused no. 2 as "loot".
The fact that he decided to refer the money as "loot" does
not take the crown case any further. It was his own conclusion. The
fact that he decided to refer to it as "loot" does not
impute knowledge on the part of accused no. 2 the investigating
officer does not give the court the factual basis on which he came to
the
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conclusion
that the money was "loot".
Even
a verdict of receiving stolen property knowing it to be stolen cannot
be returned. The first requirement which the crown has to prove in
that instance, is whether the money was stolen. Mr Manzini referred
the court to The South African Law of Evidence by Hoffmann and
Zefferit (3rd ed) at page 474 in support of that contention. The
crown has not proved that the money presented before court as an
exhibit was stolen. Nhlabatsi told the court that he could not say
whether the money before court was the one that was stolen. That
admission on its own cast a reasonable doubt on whether the money
before court was the money stolen from PW1.
The
crown as represented by Mr Maseko made a spirited effort to show that
the crown has proved a "prima facie". The evidence as it
stands is that Sipho Zikalala was robbed of money to the tune of
E500,000-00 and that he cannot identify these people who robbed him.
After the police have received certain information they went about
investigating and came along the three accused before court. The
accused were informed why they were being arrested and cautioned in
terms of the judge's rules and the accused took the police to various
places where they produced money. Accused no. 1 upon being asked
after he was handed over to the Manzini Police Station by the
Nhlangano Police gave an explanation which explanation cannot be
reasonable true. He informed the police that the car belonged to his
sister Thoko Dube. However, when Thoko Dube came to testify she said
she does not know anything about the car in question. Accused no. 1
on the day of the robbery crossed the border at Oshoek Border Post to
R.
S.
A. on foot and on the same day he bought the motor vehicle on the
25th June, 1997 he then came back to Swaziland and when he is asked
about it he tell lies. Mr Maseko invited the court to infer that the
motor vehicle bought by the accused had something to do with the
robbery at Kalanga Bricks.
The
crown went further to state that Logwaja and Ginindza cannot by any
stretch of the imagination be called accomplice witnesses. That an
accomplice witness is a person who had a hand in the commission of
the offence. These witnesses did not associate themselves with the
commission of this offence. The crown argued that the accused persons
had a common purpose based on the fact that the whole case relies on
circumstantial evidence. He referred the court to the cases of S vs
Safatsa 1988 (1) SA 868 and S vs Khoza 1982 (3) SA 1019 in support of
that proposition. He argued on that it was important that accused no.
2 must give an explanation of how he received the money. To support
this view he cited the case of Rex vs Duncan Magagula and 10 others
Criminal Case No. 43/96. All in all the crown submitted that the two
accused persons have a case to answer.
The
court then heard the defence in reply on points of law which I will
deal with as I proceed with my ruling.
I
have listened to the impressive arguments on both sides and have
looked carefully at the evidence of the crown witnesses to determine
whether the crown has made a prima facie case in terms of the
section.
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There
is
a
standard which the court ought to apply. Justice J. Matsebula in the
case of Rex vs Thabsile
Mhlambo
Criminal Case No. 81/95 (unreported) succinctly articulated the
standard to be applied
by
the court, thus:
"It
is appropriate at the stage to deal briefly with the standard the
court applies at the end of the crown case when dealing with whether
or not there is a prima facie case.
That
standard is to consider whether or not there is a prima facie case
made out against an accused person, and the court has got a
discretion if that discretion is exercised judicially the application
is granted or refused then the next stage is another standard to be
applied, that is whether the crown at the close of the defence case
the crown has proved the case beyond any reasonable doubt...."
In
the case in casu it is doubtful that the crown has proved a prima
facie case in respect of both accused no. 1 and accused no. 2.
I
will start with accused no. 1 he is found with a sum of E5,000-00
which the police suspects was stolen from Kalanga Bricks. But there
is no tangible evidence before the court that the E5,000-00 found in
his possession is part of the loot of E500,000-00 robbed at Kalanga
Bricks. Nhlabatsi himself when giving evidence in fact admitted that
he could not say that the money found in the possession of the
accused is part of the loot. The evidence of the motor vehicle which
he was found driving is irrelevant. It does not in any way connect
the accused with the crime it would have been a different matter if
he was found driving the Toyota Corolla which was used in the heist.
Then surely, he would have a case to answer. I agree with the
submissions made by Mr Vilakati in this respect. Now I come to the
evidence of Logwaja and Ginindza and agree with Mr Vilakati that they
may be termed quasi-accomplice witnesses. To this end Mr Vilakati
referred the court to The South African Law of Evidence by Hoffmann
and Zefferit (3rd ed) where the learned authors described the term
"quasi - accomplices" and they stated that this term has
been used to describe persons who are not accomplices but appear to
know good deal about the offence and have some purpose of their own
to serve in giving evidence. The reasons for the cationary rule
equally applies to such persons and similar circumspection ought
therefore to be shown in dealing with their evidence. The learned
authors gave examples of such people e.g. fellow members of an
illegal organization (refer E Dutoit and other Commentary on Criminal
Procedure Act 24 - 5) They go further at page 576 of the 4th edition
that:"
"There
is some dispute over whether in such cases the cautionary rule
applies as a requisite of procedural law or whether caution is simply
dictated by common sense (S V Ganie 1967 (4) S.A. 203 (n). but the
point is somewhat academic since, as we have seen, the cautionary
rule is itself no more than an admonition to use common sense (see
the remarks of Van Winsen J in S V Xoswa 1965 (1) S. A. 267 ©
at page 269 h)
These
two witnesses were the only crucial witnesses to the crown case to
put the accused no. 1
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into
the spotlight as according to the summary of evidence he seem to be
the mastermind behind this robbery. The crown case stands or falls on
their evidence. However, they failed both the police who took their
statements and the crown who put up a valiant fight to have them to
testify. The crown even applied to court in terms of section 200 to
have Ginindza incarcerated for four days as he was blatantly refusing
to testify. Even after his brief sojourn at His Majesty's pleasure he
sidelined the issues. He together with Logwaja can be described as
quasi - accomplice witnesses.
It
appear that they had a fear to tell on accused no. 1 in court lest
they be killed. They followed the infamous motto of the members of
the underworld that "hear not, see not and say not" they
are both by their own admissions criminals who have been in and out
of prison for similar offences most of their adult lives. They both
departed drastically from what their statement given to the police
and reflected to in the summary of evidence. This turn of events was
described by Mr Vilakati in referring to the "dicta" in the
case of Rex vs Duncan Mngomezulu (supra) where the learned Justice
Dunn articulated the courts approach to such evidence at the close of
the crown case where the credibility of the witness becomes an issue
in determining a prima facie case where the learned judge in that
case stated that section 174 (4) of the Criminal Procedure and
Evidence Act is similar in effect to section 174 of the South African
Criminal Procedure Act 81 of 1977. The South African decisions on the
question as to whether or not the credibility of the crown witnesses
should be taken into account in deciding whether or not the
credibility of the crown witnesses should be taken into account in
deciding whether or not to grant a discharge have not always been
harmonious observed the learned judge after making an exhaustive
study of South African decisions touching on the matter. The learned
judge went further to consider cases in other jurisdictions. This
involved a study of the High Court of Lesotho decision of Rex vs
Pabilone Nalawa and others Criminal/T/51/69 (unreported) and in the
later case also emanating from the High Court of Lesotho in the case
at the close of the crown case.
Rex
vs Teboho Tamati Romakatsane 1978 (1) s.
i
.r.
70 Contran CJ stated at page 73-4.
"In
Lesotho, however, our system is such that the judge (though he cites
with assessors is not bound to accept their opinion) is the final
arbitrator on law and fact so that he is justified, if he feels that
credibility of the crown witnesses has been irretrievably shattered,
to say to himself that he is bound to acquit no matter what the
accused might say in his defence short of admitting the offence"
Dunn
J in Duncan stated as follows after reviewing these decisions thus:
"The
position of a trial judge in Swaziland is the same as that in Lesotho
and I am persuaded that a similar approach should be followed by the
courts in Swaziland. It must however, be always borne in mind that
the section in question confers a discretion, to be properly
exercised and that it may vary from one case to another depending on
the circumstances of each particular case".
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The
evidence of Logwaja and Ginindza in the case in casu is totally
devoid of credit. Their evidence differs materially from what is
reflected in the summary of evidence. They even contradict each other
on material aspects of this case. As I have pointed out that the
crown case as it pertains to accused no. 1 stands or falls of the
evidence of the witnesses. These two witnesses betrayed both the
police who painstakingly investigated the case and the crown, despite
Mr Maseko spirited opposition to the application. I thus rule that
the crown has not made a prima facie case against accused no. 1 in
the face of the reasons I have outlined he is therefore discharged in
terms of section 174 (4) of the Criminal Procedure and Evidence Act
(as amended) If I were to call him to answer what tangible evidence
is there connecting him with the robbery? The answer to this question
would be in the negative.
Now
I come to accused no. 2 . The only evidence which attempts to connect
him with the offence is the evidence that he led the police to his
home at Malkerns and he handed to Nhlabatsi a sum of E6,020-00 and
Nhlabatsi concluded that it was part of the "loot" that was
robbed at Kalanga Bricks. There is no factual basis which led
Nhlabatsi to come to this conclusion. Nhlabatsi himself in
cross-examination admitted that he cannot say that the money
exhibited in court forms part of the "loot" robbed from
Kalanga Bricks. He admitted that he cannot say that the money was
stolen. Further, and of more significance, Nhlabatsi himself the head
of the investigating team admitted that accused no. 2 was in Mbabane
at his place of employment when the robbery was taking place at
Kalanga Bricks a distance of about 70 kilometres away. He cannot by
any stretch of imagination be one of the robbers and consequently
answer in his defence for the crime of robbery. The least he can be
called upon to answer for is receiving stolen property knowing it to
have been stolen. But even here as Mr Manzini rightly argued that the
money before court was not proved to have been stolen. Mr Manzini
referred me to the case of R vs Charlston 1955 (3) S.A. 168 where the
head notes in that case state, thus:
"In
circumstances where property has been stolen and is found in the
possession of the accused not long afterwards and accused gives an
unsatisfactory or false explanation the court may infer his guilt.
But before the question of any explanation arises or a need for an
explanation, there must be sufficient proof (my emphasis) that the
property is stolen property, whether from a specific person or some
person unknown"
For
theses reasons I also hold that the crown has not made a prima facie
to put accused no. 2 to his defence.
In
conclusion, I wish to point out that it is a great pity especially in
the case of accused no. 1 that he is discharged as a result of crown
witnesses who either refuse to testify or even when they testify they
evade the real issues which brought them to court and state their own
versions which totally does not link accused no. 1 with the robbery
at Kalanga Bricks. However, one cannot expect much from people of
their ilk who had most of their adult lives have been involved in
robberies and have been in and out of prison where they met. Outside
prison they kept on their
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nefarious
close-knit organization. The crown and the police are not to be
blamed for this state of affairs Accused no. 3 now remains to come to
his defence.
S.B.
MAPHALALA
ACTING
JUDGE
