SWAZILAND
HIGH COURT
REX
vs
PAULOS
NDLANGAMANDLA
1st
Accused
MFUNGELWA
JOHN SHONGWE
2nd
Accused
JUSTICE
ZWANE
3rd
Accused
MALAMI
VILAKAZI
4th
Accused
Coram SAPIRE,
CJ
For
the Crown Mr. B. Magagula
For
1st Accused Mr. E. Twala
For
2nd Accused Mr. Ntiwane
For
3rd Accused Mr. B. Simelane
JUDGMENT
(12/12/2002)
2
This
is another case which comes before the court where the sentencing is
nearly 2 years, 21 months after the accused persons were first taken
into custody. The charge faced by the accused was robbery, which was
non bailable.. The outcome is that the convicts, have already served
their ultimate sentences. But we have to deal with the situation as
we find it and I will deal with the sentence of No. 1 on counts 3 and
4. On each of the counts you will be sentenced to three years
imprisonment of which one year is suspended for three years on
condition that you are not hereafter found guilty of an offence
involving possession of a firearm and / or ammunition in
contravention of the arms and ammunition act committed during the
period of suspension. The sentence is deemed to have commenced being
served on the 16th February 2001.
The
sentences on both counts are to run concurrently.
As
far as accused nos. 2 and 3 are concerned, they have been convicted
of theft. I have found in all probability the "robbery" was
merely planned as a theft because no. 3 was the person who was going
to hand out the money in any case. He arranged for persons to come
and take the money and in so doing caused the abstraction of the
money. This does reduce the moral capability of the offence in
comparison to what it would have been had I found that a robbery had
taken place. But the theft itself is a serious offence especially if
it is a theft from an employer.
This
consideration is tempered by the fact that accused no. 3 has served
the complainant's firm for over 20 years. He has money passing
through his hands everyday, which makes his monthly salary
insignificant. Unfortunately this consideration is of general
application in Swaziland where the level of wages is not the same as
it is in South Africa. But the point made by counsel is that the very
large discrepancy is in itself a constant temptation. But this
consideration cannot override the fact that a theft from an employer
has always been regarded as a serious form of its kind. A custodial
sentence would have at any time been appropriate in this case for
both accused no.2 and accused no. 3. But there is also the
consideration that they have in fact already spent nearly 2 years in
custody. I have also considered that they will return to the outside
world as former convicts, they will have lost their jobs and
3
will
have great difficulty in meeting their obligations as fathers and
heads of their families.
In
each of their cases I will impose the following sentence. Both No. 2
and No. 3 accused I will sentence for the theft as follows: 4 years
imprisonment for which 2 years are suspended for 3 years on condition
that the accused is not thereafter found guilty of an offence
involving theft or other dishonesty committed during the period of
suspension. The sentences will be deemed to have commenced being
served on the 16 February 2001.
As
far as the firearms are concerned they must be taken into custody of
the state and destroyed. All exhibits consisting of money are to be
held by the police for a period of 60 days and unless claimed by
anyone entitled thereto after such period of 60 days be forfeited to
the state for the benefit of the consolidated revenue.
As
far as the accomplices are concerned they are given the indemnity
against prosecution to which they are entitled.
SAPIRE,
CJ
