THE
HIGH COURT OF SWAZILAND
APPEAL
CASE NO.79/01
In
the matter between:
DUMSANE
MATSEBULA Appellant
VS
REX Respondent
CORAM: MAPHALALA
J.
MASUKU
J.
For
Appellant: Mr A.M. Lukhele
For
Respondent: Ms N. Lukhele
JUDGEMENT
26/04/02
Masuku
J,
The
Appellant, to whom I shall continue to refer to as "the accused"
appeared before the Manzini Senior Magistrate together with one Bheki
Ntuli. They were charged with robbery, it being alleged that on or
about 14th December, 2000, and at Emthanda Area in the Manzini
District, they, acting in common purpose wrongfully and unlawfully
assaulted Spokes Sibandze, and did take and steal from him money in
cash, namely E1010.00, his property or in his lawful possession.
The
learned Senior Magistrate acquitted and discharged Ntuli at the close
of the Crown case but found the accused guilty as charged and
sentenced him to four years imprisonment, without the option of a
fine. The sentence was backdated to 18th December 2000, the date of
the accused's arrest.
2
The
accused had initially appealed against both conviction and sentence
but at the commencement of the appeal hearing, Mr Lukhele indicated
that he was abandoning the appeal against conviction, as it was clear
that the learned Magistrate was correct in convicting the accused.
This is a laudable step by Mr Lukhele as the Magistrate, on the
evidence before him correctly convicted the accused. There was no
misdirection or error on his part in returning that verdict. The same
cannot however be said on the acquittal of Ntuli as there was a prima
facie case proved by the Crown at the close of the Crown's case,
particularly from the evidence of PW 2. Why the Magistrate acquitted
him remains a mystery in the face of that compelling piece of
evidence. We cannot however change his finding as no issue thereon
was timeously or properly raised by the Crown.
PW1
the complainant testified that on the 14th December 2000, he was
attacked in his bedroom by three men at around 01h00. They broke into
the room, assaulted him with a spear, demanded and took away an
amount E1010.00. The accused was recognised as one of the three
assailants. The accused and Ntuli were subsequently arrested and an
amount of E700.00 and Sibandze's wallet was recovered from them. The
accused denied that the complainant was assaulted, reasoning that he
only took the money from Sibandze, his uncle, who had unlawfully sold
a beast belonging to Sibandze's brother and which the accused person
was looking after. This Sibandze denied, maintaining that he sold his
own beast. The evidence against the accused was clearly compelling.
The
appeal is now against sentence. The sentence imposed is attacked by
Mr Lukhele on the following grounds;
(a) The
accused was first offender;
(b) the
amount stolen was negligible and a substantial portion thereof was
recovered; and
(c) it
induced a sense of shock.
Ms
Lukhele, per contra argued that the offence of which the accused was
convicted is serious and the complainant was injured in the course of
the robbery. She argued further that there was an element of
premeditation on the part of the accused and his compatriots in
committing the offence. She further argued that the sentence served
to underscore
3
deterrence
to relatives, in particular, to warn them that they must not resort
perpetrating crime on relatives with which there is an element of
acrimony or misunderstanding.
The
law applicable in such cases was outlined with absolute clarity by
Mahomed C.J. (as he then was) in S v SHIKUNGA AND ANOTHER 2000 (1) SA
616 at 631 F- I (Nm S.C.). The learned Judge stated as follows:-
"It
is trite law that the issue of sentencing is one which vests
discretion in the trial Court. An Appeal Court will only interfere
with the exercise of this discretion where it is felt that the
sentence imposed is not a reasonable one or where the discretion has
not been judiciously exercised. The circumstances in which a Court of
appeal will interfere with the sentence imposed by the trial Court
are where the trial Court has misdirected itself on the facts or the
law (S v Rabie 1975 (4) SA 855 (A); or where the sentence that is
imposed is one which is manifestly inappropriate and induces a sense
of shock (S v SNYDERS 1982 (2) SA 694 (A); is such that a patent
disparity exists between the sentence that was imposed and the
sentence that the Court of appeal would have imposed (S v ABT 1975
(3) SA or where there is an under-emphasis of the accused's personal
circumstances (S v MASEKO 1982 (1) SA 99 (A) at 102; S v COLLETT 1990
(1) SA CR 465 (A)."
See
also PAT BHIBHI MNGOMEZULU v R CRIM. APPEAL CASE NO. 41/99 (per
Tebbutt J.A.) unreported.
In
his reasons for sentence, the learned Magistrate considered the
following - that accused was a first offender and had dependents;
that complainant was injured during the attack; that the latter had
not provoked the accused in anyway; that not all the money was
recovered and that robbery is a prevalent offence in Manzini such
that deterrence, both individual and general should be a weighty
factor.
The
learned Magistrate does not however seem to have considered the fact
that this offence, serious as it may be, was committed by a relative
on another and in which the accused claimed some wrongdoing by the
complainant in respect of a family dispute. This was therefor not a
usual case of robbery and this was a weighty factor in the accused's
4
favour.
Although the learned Magistrate considered the question of the money
taken, he considered that not all of it was recovered, without
considering that a substantial portion thereof was recovered. He also
considered that the complainant was injured but there was no medical
evidence to prove the exact nature, extent and seriousness of the
injuries in order to ascertain the degree of vindictivess by the
accused and his partners in crime.
In
the circumstances, I find it is appropriate to interfere with the
sentence as it appears, regard had to all the attendant,
circumstances that there is a disparity, slight as it may be between
the sentence imposed and that which this Court would impose and there
was overemphasis of some factors and an under-emphasis of some
others as appears above. Whereas a custodial sentence was
appropriate, I am of the view that the four (4) year sentence was
rather severe. Courts should be wary of imposing lengthy custodial
sentences on first offenders where there are factors suggesting less
severe sentences, as in casu.
The
remarks by Tebbutt J.A. in NTOKOZO M. DLAMINI AND ANOTHER v THE CROWN
CRIM. APP. CASE NO.10/2001 are in this instant case apposite. After
considering the seriousness of the crimes wherewith the said
appellants were charged, their lack of remorse, the learned Judge of
Appeal stated that society would expect the Court to mete heavy
sentences of incarceration. He proceeded to state as follows at page
8 :-
"Its
(the Court's) sentences must also serve as a deterrent not only to
the appellants to abstain from similar behaviour in the future, but
to others who may have like minded schemes in contemplation. At the
same time, the reformative aspect of punishment should not be over
looked. The two appellants were aged 19 and 18 at the time of the
offence. They are both first offenders. They must be given the chance
to rehabilitate themselves into society at an age when they can still
do so.
In
the result, it was properly conceded that the appeal against
conviction be abandoned and it is therefor confirmed. The appeal
against sentence is successful to the extent that the Court
substitutes the four (4) year sentence for one of three (3) years
without the option of a fine. The sentence, as had been done by the
Magistrate remains backdated to 18 December 2000.
5
Having
said this, there is nothing to gainsay that the offence you committed
is a very serious one. The complainant is your relative and there was
no reason for you to enlist the services of your partners in crime to
terrorise and assault the complainant in the sanctity of his home. If
you had any legitimate complaint about the complainant's sale of the
beast in question, there is plethora of fora open to you in which you
could have raised the issue, the immediate one being the extended
family. There will be a breakdown of law and order if people like you
allowed to do as they please, translating us back to the state of
nature where life was "nasty, brutish and short" according
to Thomas Hobbes in his LEVIATHAN. One can only hope that you will,
during your sojourn as His Majesty's guest in the Correctional
Institution learn your lesson well and that your wayward behaviour
will be corrected.
T.S.
MASUKU
JUDGE
I
agree
S.B
MAPHALALA
JUDGE
