THE
HIGH COURT OF SWAZILAND
CRIM.
CASE NO.41/00
In
the matter between:
REX
VS
OBERT
SITHEMBISO CHIKANE
MUZI
RICHARD DLAMINI
CORAM: MASUKU
J.
For
the Crown: Mrs M. Dlamini
For
1st Accused: Mr B. Sigwane
For
2nd Accused: Mr M.D. Mamba
RULING
ON APPLICATION IN TERMS OF SECTION 174 (4)
OF
THE CRIMINAL PROCEDURE & EVIDENCE ACT, 67/1938
16/07/02
Indictment
The
accused stand before me indicted on fifteen Counts as follows:-
COUNT
ONE
Accused
No.1 and No.2 are guilty of the crime of MURDER.
In
that upon or about 26th August 1999 at or near Nkoyoyo area, Hhohho
region, the said accused persons, each or both of them, acting
jointly with a common purpose did unlawfully and intentionally kill
GEORGE MASHWAMA.
2
COUNT
TWO
Accused
No.1 and No.2 are guilty of the crime of ROBBERY.
In
that upon or about 26th August 1999 at or near Nkoyoyo area, Hhohho
region the said
Accused
persons each or both of them acting jointly with common purpose did
unlawfully and with intent of inducing submission by GEORGE MASHWAMA
to the taking of property which was a Toyota Venture registered SD
534 and valued at E80.000.00, threatened the said GEORGE MASHWAMA
that unless he consented to the taking by accused persons of the said
property or refrained from offering any resistance to them in taking
the said property, they would then and there shoot him and did then
and thereupon take and steal from the said GEORGE MASHWAMA the said
property which was his property of or in his lawful possession, and
did rob him of the same,
COUNT
THREE
Accused
No.l and No.2 are guilty of the crime of ROBBERY.
In
that upon or about 3rd September 1999 at or near Nkhungu area, Hhohho
region, the said accused persons each or both of them acting jointly
with common purpose did unlawfully and with the intention of inducing
submission by WESTON MANDLA PHIRI to the taking of property, a Toyota
Corrola 1.6. valued at E 40,000.00, threatened the said WESTEN MANDLA
PHIRI that, unless he consented to the taking by accused persons of
the said property or refrained from offering any resistance to them
in taking the said property, they would then and there shoot him and
did then and thereupon take and steal from the said WESTON MANDLA
PHIRI or in his lawful possession and did rob him of the same.
COUNT
FOUR
Accused
No.l and No.2 are guilty of the crime of ROBBERY.
In
that upon or about 7th September 1999 at or near the Mbabane Market,
Hhohho region, the accused persons each or both of them acting
jointly with a common purpose, did unlawfully and with the intention
of inducing submission by CYPRIAN SENZO MASUKU to the taking of
property, which was money valued at E69,997.15, threatened the said
CYPRIAN SENZO MASUKU that, unless he consented to the taking by
accused persons of the said property or refrained from offering any
resistance to them in taking the said property, they would then and
there shoot him and did then and thereupon take and steal from the
said CYPRIAN SENZO MASUKU
3
the
said property which was the property or in the lawful possession of
CYPRIAN SENZO MASUKU and did rob him of the same.
COUNT
FIVE
Accused
No.1 and No.2 are guilty of the crime of CONTRAVENING SECTION 11 (1)
OF THE ARMS AND AMMUNITION ACT 24/1964 AS AMENDED BY ACT 6/1988 AND
ACT 5/1990.
In
that upon or about 7th September 1999 at or near Piggs Peak, Hhohho
region, the said accused persons not being holders of a permit or
licence to possess a firearm each or both of them acting jointly with
common purpose, did unlawfully possess one 9mm vector pistol model
288 with serial number obliterated.
COUNT
SIX
Accused
No.l is guilty of the crime of FRAUD.
In
that upon or about 2nd August 1999 at or near Mbabane City in the
Hhohho Region, the said accused person unlawfully and with intent to
defraud, misrepresent to Tsenjwako Maseko that a certified copy of
birth certificate numbered 273924 which he then and there produced
and exhibited to the said Tsenjwako Maseko was a copy of a birth
certificate belonging to them and that according to the said birth
certificate was entitled to be issued with Swaziland travel document
and id by means of the said misrepresentation induce the said
Tsenjwako Maseko to the prejudice of Swaziland Government to issue
him with a Swaziland travel document whereas at the time he made the
aforesaid misrepresentation well knew that the said copy of birth
certificate did not belong to him and that he was not entitled to the
said document.
COUNT
SEVEN
Accused
No.2 is guilty of the crime of FRAUD.
In
that upon or about 2nd August 1999 at or near Mbabane City in the
Hhohho Region, the said accused person unlawfully and with intent to
defraud, misrepresent to Tsenjwako Maseko that a certified copy of
birth certificate numbered 273924 which he then and there produced
and exhibited to the said Tsenjwako Maseko was a copy of a birth
certificate belonging to them and that according to the said birth
certificate was entitled to be issued with Swaziland travel document
and
4
id
by means of the said misrepresentation induce the said Tsenjwako
Maseko to the prejudice of Swaziland Government to issue him with a
Swaziland travel document whereas at the time he made the aforesaid
misrepresentation well knew that the said copy of birth certificate
did not belong to
him
and that he was not entitled to the said document.
COUNT
EIGHT
Accused
No.1 is guilty of the crime of FORGERY.
In
that upon or about 2nd August 1999 at or near Mbabane City, in the
region of Hhohho, the said accused person, did unlawfully, falsely
and with intent thereby to defraud and to the prejudice of Swaziland
Government, forge an instrument in writing, to wit, one immigration
form marked Form 01/109 purporting to be signed by Richard M. Dlamini
for the issuance of Swaziland travel document.
COUNT
NINE
Accused
No.2 is guilty of the crime of FORGERY.
In
that upon or about 2nd August 1999 at or near Mbabane City, in the
region of Hhohho, the said accused person, did unlawfully, falsely
and with intent thereby to defraud and to the prejudice of Swaziland
Government, forge an instrument in writing, to wit, one immigration
form marked Form 01/109 purporting to be signed by Muzi Dlamini for
the issuance of Swaziland travel document.
COUNT
TEN
Accused
No. 1 is guilty of the crime of UTTERING.
In
that upon or about 2nd August 1999 at or near Mbabane City in the
Hhohho region, the said accused person did unlawfully and with intent
to defraud and to the prejudice of the Swaziland Government, offer,
utter and put of application form for Swaziland travel document to
Tsenjiwe Maseko, he, the accused person, when he so offered, uttered
and put off the aforesaid instrument well knowing it to have been
forged.
AND/ALTERNATIVELY
5
COUNT
TWELVE
Accused
No.l is guilty of CONTRAVENING SECTION 5 OF THE PASSPORT ACT 1971
READ
WITH SECTION 14.
In
that upon or about 2nd August 1999 the said accused person did
unlawfully, intentionally and knowingly make a false representation
that he was Richard M, Dlamini and to Tsenjiwe Maseko and that as a
result of the false representation he obtained a Swaziland passport
and thereby contravened the said Act.
COUNT
THIRTEEN
Accused
No.2 is guilty of CONTRAVENING SECTION 5 OF THE PASSPORT 1971 READ
WITH
SECTION 14.
In
that upon or about 2nd August 1999 the said accused person did
unlawfully, intentionally and knowingly make a false representation
that he was Muzi Dlamini and to Tsenjiwe Maseko and that as a result
of the false representation he obtained a Swaziland passport and
thereby contravened the said Act.
COUNT
FOURTEEN
Accused
No.l is guilty of CONTRAVENING SECTION 5 READ WITH SECTION 35 OF THE
IMMIGRATION REGULATION 6/1987.
In
that upon or about 26th August 1999 at or near Oshoek the said
accused person did unlawfully and intentionally enter and remain in
Swaziland and thereby contravene the said regulations.
COUNT
FIFTEEN
Accused
No.2 is guilty of CONTRAVENING SECTION 5 READ WITH SECTION 35 OF THE
IMMIGRATION REGULATION 6/1987.
In
that upon or about 26th August 1999 at or near Oshoek the said
accused person did unlawfully and intentionally enter and remain in
Swaziland and thereby contravene the said regulations.
6
Both
accused persons pleaded not guilty to all the Counts and their
respective pleas were confirmed by their respective attorneys.
During
the course of the Crown's case, Mrs Dlamini, indicated that she
wished to withdraw certain of the charges and proceeded to do so.
These are Counts 6,7,8,9,10,11,12 and thirteen to which a plea of not
guilty had been entered. I therefor acquit and discharge the accused
persons on these and no further reference to them will be made in the
course of this ruling.
At
the close of the Crown's case, the defence moved an application in
terms of the provisions of Section 174 (4) of the Criminal Procedure
and Evidence Act, 67/1938, as amended, (hereinafter referred to as
"the Act"), for the acquittal and discharge of the accused
persons on Counts 1, 2, 3, 4, 5, and 14 in respect of Accused 1. In
respect of Accused 2, the application was moved for acquittal and
discharge for Counts 1,2,5, and 15. I reserved judgement, after
listening to an address by all Counsel and I indicated that reasons
would be handed down in due course. These now follow.
The
law applicable to Section 174 (4) of the Act.
Section
174 (4) of the Act as amended provides the following:-
"If
at the close of the case for the prosecution, the Court considers
that there is no evidence that the accused committed the offence
charged or any other offence of which he might be convicted thereon,
it may acquit and discharge him. "
An
analysis of the application of this Section in our jurisdiction was
undertaken by Dunn J. in THE KING VS DUNCAN MAGAGULA AND 10 OTHERS,
CRIM. CASE NO.43/96 (unreported). He came to the following conclusion
at page 8 of the judgement:-
'This
section is similar in effect to section 174 of the South African
Criminal Procedure Act 51 of 1977. The test to be applied has been
stated as being whether, there is evidence on which a reasonable man
acting carefully might convict."
7
From
the legislative nomenclature employed, it is clear that the decision
to refuse a discharge is a matter that lies within the discretion of
the trial Court. The use of the word "may" is indicative of
this. In the case of GEORGE LUKHELE AND 5 OTHERS VS REX C.A. CASE
NO.12/95 (unreported), it was held that no appeal lies against the
refusal of a trial Court to discharge an accused at the conclusion of
the prosecution's case. It is however important to mention that this
discretion must be exercised judicially and whether in any case the
application will be granted is dependant upon the particular
circumstances of the matter before Court.
There
are two primary issues for determination in this matter, namely, the
question of the admissibility of certain computer printouts and the
question of whether or not the application for a discharge ought to
be granted. I propose to deal with the former question first.
(i) Admissibility
of computer printouts.
In
a quest to bolster its case, particularly on the charges relating to
contraventions of the Immigration Regulations, and also possibly, to
a lesser extent, the presence of the accused in the country in
relation to the murder and robbery counts, the Crown called
Superintendent Jacobus Pietrus Johannes Botha of the South African
Police Services (SAPS), who featured as PW 17.
He
testified that he is a member of the South African Police Services
and a Commanding Officer of the movement and control and keeps record
of all travellers. He handed into Court certain documents which he
said he extracted from a computer in his department and which
contained detailed information relating to the use of passports and
travel documents which according, to the Crown, were found in the
accused persons' possession on the date of their arrest in Pigg's
Peak. According to PW 17, the information is obtained from travellers
by the South African immigration officials and then transmitted to
the traveller's record system in Pretoria, from which he extracted
the information provisionally marked A1, A2, A3 and A4.
The
attack on the admissibility of these documents by the defence is on
the ground that the said documents constitute hearsay evidence as
computer evidence is not admissible at
8
common
law, in the absence of statutory exceptions in Swaziland. A further
ground was that according to PW 17, the information is punched into
the computer by the Immigration officials and it is then relayed at
the end of the day to the movement and control bureau of the SAPS in
Pretoria and that is where the information was extracted by PW 17. As
it is, it was argued and conceded PW 17 that he cannot vouch for the
accuracy of the information he extracted from the computer.
In
the case of S VS HARPER AND ANOTHER 1981 (1) SA 88 (D & DLC),
Milne J. considered the question whether computer print-outs are
admissible in evidence and whether a computer falls to be regarded as
a document for purposes of Section 221 of Act 51/1977, It is
important to hasten to point out that we have no equivalent of this
Section, in our C.P. & E., which stipulates certain prerequisites
for accepting computer evidence.
At
page 95 E - F, the learned Judge stated the following:-
"The
extended definition of 'document' is clearly not wide enough to cover
a computer, at any rate, where the operations carried out by it are
more than the mere storage or recording of information. Quite apart
from that, however, how would the document, that is in this case the
computer, be produced? "
At
page 97 E - F, the learned Judge summed the position as follows:-
"It
seems to me necessarily envisaged that, because of the development of
modern commerce and the necessity to store records relating to large
sums of money and large numbers of people, special provisions would
need to be made making evidence admissible that would not be able to
be subject to the ordinary vigorous test of cross-examination, "
It
is clear that the documentary evidence tendered in this case is
inadmissible as it offends against the hearsay rule. In the absence
of statutory enactment altering the present legislative position, it
is my view that this evidence must be regarded as inadmissible. PW 17
is not the one who fed the information to the machine and cannot
vouch for its correctness. He appears to have received the
information 3rd hand as it were since it is
9
collected
at the border and transmitted from the border to Pretoria, where it
is updated and it is from these updates that he extracted the
documents before Court.
I
am also of the view that even if we had similar provisions to Section
221, there are some insuperable difficulties facing the Crown. There
is no evidence to show that the computer used was operating correctly
and there was no evidence as to the precise nature of the processes
involved in producing the final document. In casu it clear ex facie
the documents filed that on some occasions, and in relation to the
accused person's movements, the computer was operating incorrectly.
It ascribed more than sixty minutes to an hour in some . cases and
further reflected the borders to open at 02h00 when according to the
evidence, the border closes at 20h00. There is also information
reflecting the use of A1's expired passport for flying to Singapore
from the Johannesburg International Airport at a time when the
accused were already in custody and the passport already in the hands
of the RSP. I accordingly rule the computer printouts are
inadmissible.
As
a matter of comment, the failure by our Legislature to update our
legislation in order to keep abreast of technological, commercial,
scientific and legal developments is worrying. It is high time that
these and other deficiencies, particularly in the CP & E, which
affect daily activities of the Courts should receive attention as a
matter of priority and urgency. In this way, evidence that would
otherwise be useful to the determination of the lis must be
jettisoned because of our failure or refusal change. I refer in this
regard to some comments I made in R VS ELIZABETH MATIMBA H.CT.
CRIM.CASE NO. 184/98 at page 39 to 40.
(ii) Application
for discharge.
For
purposes of convenience and easy reading, I intend to consider this
application in relation to each Count in respect of which the
application has been moved.
(a) Count
1 - murder of Rev. George Mashwama.
The
evidence, which is largely undisputed in this regard is that on the
26th August 1999, Reverend Mashwama, the deceased entered Ngwenya
border Post from the Republic of South Africa at or about 20h41. He
was driving a vehicle bearing registration number SD
10
534
D.N. He was shot and killed by the use of a firearm and his corpse
was found at or near Nkoyoyo inside Swaziland the following day.
During the autopsy, a bullet was extracted from his skull and it was
sent to a forensic laboratory in South Africa for tests.
It
was sent together with a bullet cartridge, which the Police say was
found at the scene of the deceased's death, about three metres away
from the spot where the deceased's body lay. There are some curious
features about the discovery of this cartridge. Firstly, the first
officers who attended the scene searched in vain for this cartridge.
Some three weeks later, this cartridge was then found. The scene had
not been preserved and dogs which had been essayed to find the bullet
failed allegedly because the ground was wet. I do not accept the
reason for the dogs being unable to search for the cartridge as given
by PW 19 Supt. Aaron T. Mavuso because although he claimed to be
knowledgeable about Police dogs, for which he was not trained, he
failed to answer a simple question relating to the breed of dogs used
by the RSP. A shoulder to shoulder search ensued and the cartridge
was found clearly not hidden under the grass. Furthermore, the
accused, from whose possession a firearm had been obtained a few days
earlier, were not called when this discovery was made, neither were
any dispassionate and independent witnesses called who could testify
as to the circumstances surrounding the discovery of the cartridge.
According
to the forensic report filed by PW 14 Christiaan Mangena and marked
Exhibit "T2" after a microscopic examination, he found that
the cartridge case referred to above had been fired from the pistol
pointed out by one or both accused persons. Mangena further found
from his examination that the spent bullet jacket retrieved from the
deceased's head was not fired from the said 9 mm parabellum pistol
obtained from the accused persons.
Can
it be said, in view of the above evidence that it is the accused
persons, one or both of them who shot and killed the deceased? There
was no eyewitness to this sombre and I may add senseless and brutal
murder. From the entry/departure cards submitted by the Crown marked
Exhibits "J" and "K", respectively, it would
appear that on the 26th August, 1999, the day of the deceased's
demise, both accused persons left Swaziland, using the Ngwenya border
post at 18h45 and 18h50 respectively. The deceased, from Exhibit "N"
entered Swaziland through the same border post at 20h41. I may hasten
to add that there is no
11
evidence
that the accused persons, particularly, A1 re-entered Swaziland at
any border which could connect them with the deceased's death.
The
expert testimony of Mangena, as hitherto stated, states that the
bullet found in the deceased's brain was not fired from the firearm
recovered from the accused persons motor vehicle. Had it been
otherwise, it would have been necessary for them to explain. Mrs
Dlamini however argued that according to Captain Amos Steven Mona (PW
18) of the SAPS, A1 owned a licensed 9mm pistol which could have been
used to kill the deceased. There is no evidence that the said accused
person, when entering Swaziland brought that firearm with him. It is
common cause that South African citizens are ordinarily not allowed
to bring firearms into Swaziland. The mere fact that Al owns such a
firearm, in the absence of any other evidence is not sufficient to
lead to an inference that he shot the deceased, assuming he did bring
the firearm into Swaziland. Furthermore, he is not the only person
who owns a 9mm pistol such that it can be said he was the only person
who could have shot and killed the deceased.
I
have raised concern about the curious circumstances surrounding the
finding of the cartridge. For there to be a direct link, it was
necessary to bring the accused persons or at the least adduce the
evidence of impartial witnesses on the discovery. As it is, the
firearm was with the RSP from the 14th September, 1999, when it was
found and the cartridge was only found on the 18th in circumstances
hardly suggesting that it was concealed, also having regard to the
search carried out by the officers who removed the deceased's body.
More importantly, the bullet used to kill the deceased, according to
Mangena, is not one that was fired from the firearm pointed by the
accused persons.
In
view of the foregoing, it is my view that there is no evidence before
Court that the accused persons committed this offence or any other of
which they might be convicted. I accordingly acquit and discharge
both accused persons in respect of Count 1.
(ii) Count
2. Robbery of Rev. Mashwama.
Robbery
consists in the theft of property by intentionally using violence or
threats of violence to induce submission to the taking of the said
property from another. All the
12
elements
enumerated above must be proved by the Crown in order for the Court
to return a
verdict
of guilty.
As
observed in respect of Count 1, it is common cause that there was no
eyewitness to the deceased's death. Furthermore, there was no
eyewitness to the alleged robbery. There is therefor, no evidence
regarding the chronology of events, namely, whether there was any
violence before the taking of the vehicle or the deceased was just
killed and a person, who may not have shot him drove away his
vehicle. There is in this case no concrete evidence and all that the
Court is left to rely on is conjectural.
In
respect of this offence or other competent verdict, it is my view
that there is no evidence linking A1 with the deceased motor vehicle.
His brother's name was mentioned in a cursory manner regarding the
discovery and possession of the vehicle in Nelspruit. I cannot even
assume that it was A1 who was with A2 at Mashobeni on the 27th
August, 1999, because both Crown witness, PW 2 and PW 6 stated that
they did not know A2's companion who was driving the vehicle which
answers the description of the accused's vehicle. The person with A2
was described as, slim, tall and dark in complexion. He was seen in
broad daylight but could not be identified by both witnesses. Even
when seeing him in Court (which would clearly not suffice), their
memory could not be jogged to a position where they could confirm
that he was with A2. I therefor acquit and discharge A1 on this
Count. There is no evidence upon which a reasonable man, acting
carefully can convict him in the circumstances.
Different
considerations however apply in my view regarding A2. According to
the evidence of PW 2 and PW 6, he came to PW 2's homestead in the
early hours of the 26th August 1999, the day of the deceased's death
in the company of another man who was driving a motor vehicle that
answers the description of the deceased's vehicle. Although A2 was
driving a white Jetta sedan, it is clear from the evidence that he
and his colleague were on a similar mission, which was given as
transporting people to a funeral at Vusweni. Considering the time
when the deceased's vehicle must have been taken and the time when A2
and his companion came to PW 2's home, it is in my view reasonable to
infer some connection with the deceased's vehicle and that A2 should
be called to his defence in this regard. It would be difficult to
contemplate a situation where two people who are carrying mourners
can meet at such a time at night and the other be unaware of
circumstances
13
surrounding
the other's mode of transport. According to PW 6, A2's companion was
checking both vehicles suggesting they were not people who had just
met fortuitously.
It
is my view that A2 must be called to his defence on this count,
although in my view, he would have to answer in relation to a charge
of theft being, a competent verdict, as I indicated in the preface to
this Count that it cannot in the circumstances be stated that the
charge of robbery has been proved by the Crown. I shall however have
no regard for the accused's arrest in the Republic of South Africa on
charges of theft of what appears have been the deceased's motor
vehicle from the Police Station as no competent evidence was led in
regard to that charge before this Court.
(iii) Counts
3 and 4 - Robbery of Phiri and Masuku
These
Counts shall be considered only in relation to Accused 2. Mr Mamba
wisely and properly did not move an application in respect of his
client. I had occasion, in the case of R VS JUSTICE TEYA MAVIMBELA
HIGH COURT CASE NO. 115/98 at page 14 to 15 to consider the duties of
the defence Counsel at the close of the Crown's case, considering in
particular, his ethical duties as an officer of the Court at this
stage of the proceedings.
The
evidence in these Counts is somewhat inter-linked. In Count 3, Weston
Mandla Phiri testified that on the 3rd September 1999, he was
travelling to Swaziland in the company of Glorine Mbuyisa and some
children. They were travelling in a white Toyota Corolla 1.6, sedan,
bearing registration number JJH 296 GP. He testified that they
entered the Ngwenya border at around 21h30 and when they were near a
level crossing inside Swaziland, the motor vehicle sustained a
puncture to which he attended. Two men came and offered assistance
which he declined as he was almost through with replacing the
punctured tyre.
These
men then came back shortly thereafter and one fired a gun next to PW
12 whilst the other fired next to Glorine (PW 13). One put a firearm
to PW 11 's head and the other to Glorine's ribs and they were led to
the bush and shoved to the ground. They eventually took all the
belongings and drove away in the vehicle.
14
PW
11 was later called to identify certain items which had been
recovered by the Police. He identified certain car mats, a first aid
kit which was in the vehicle on the fateful night, some wheel caps,
which he said were peculiar in that they had some scratches which he
explained. Glorine also identified certain items, including some
money in the Botswana currency, which she was robbed of. PW 11
proceeded to identify the vehicle, which now bears a false
registration number BVT 066 MP as the one he was driving on the night
in question.
This
vehicle, according to Supt. Aaron Thabo Mavuso (PW 19) was pointed
out by the accused persons after they were arrested in Pigg's Peak.
It was parked at the parking lot of the Ministry of Justice. The keys
of this vehicle were found in the possession of the accused persons
when they were arrested in Piggs Peak on 7th September, 1999 and
according to the Crown's evidence, some of the items allegedly taken
from PW 11 were found in that vehicle in which the accused were
travelling on that day, namely, a white BMW registered BNN 243 MP.
Toyota rubber and carpet mats which were identified by PW 11 were
found in that vehicle. Furthermore some speakers were removed from
the Toyota and were found at A2's home in Mpolonjeni by the R.S.P.
Furthermore,
when the accused persons were arrested as aforesaid, according to PW
12 Constable Mfanasibili Dlamini, some items which were subsequently
identified by Glorine, including the money in the Pula currency, some
marking pens and a key were found in the BMW motor vehicle. All these
items in my view link the accused persons to the robbery in Count 3
necessitating that they be called to their defence and this Mr Mamba
realised.
In
respect of Count 4, PW 10 Cyprian Senzo Masuku told the Court that he
was robbed of
some
money in a leather bag. He had parked the vehicle at the Mbabane
market, as he was heading for Standard Bank along the Allister Miller
Street. He testified that as he came out of the vehicle, intending to
lock it, somebody hit him on the back and as he turned around,
somebody was holding the bag and a firearm was pointed at him. They
took the bag away and speeded off in a white Toyota Corolla with the
last letters reading MP in the registration plate.
A
similar car was pointed out by the accused persons as stated above.
Furthermore, PW 10 described the moneybag in which the money he was
robbed of was contained. It was from
15
Nedbank
and was inscribed in a marking pen "E500" and F"1".
He told the Court that he was once sent to Barclays Bank to get
change for E500 which was to be in El coins. This bag was also
described by PW 9 Dumsile Bonisile Dlamini, who had prepared the
money and cheques for banking by PW 10. She testified that the
collections totalled E69 997.15, comprising of cheques in the amount
of E39,174.50 and cash in the amount of E30 822.65.
The
accused persons were arrested by PW 12 on the 7th September and he
found the moneybag described above placed in the boot of the BMW.
Accused 1 was the driver of that vehicle and Accused 2 a passenger.
The amount in cash found in that moneybag was . E29 682.65. This, in
my view also connects the accused persons to the offence as the
robbery of PW 10 occurred on the 7th September, 1999 and the accused
persons were arrested a few hours later in Piggs Peak, carrying a
large amount of money and in a money bag which answers fully to the
description given by PW 9 and PW 10. It is for these reasons that I
find that Accused 2 must be put to his defence in respect of this
count as well.
(iv) Count
5 - firearm possession
According
to PW 19, on the 12th September 1999, both accused persons were
cautioned and interviewed. After the interview and having been
cautioned again, the accused persons led him and other officers to
the aforesaid BMW motor vehicle at the Mbabane Police Station. Above
the accelerator pedal, there is a secret compartment in which the
accused persons pointed out a 9mm verto with fourteen (14) live
rounds of ammunition. Its serial number had been removed. During an
inspectio in loco, the Court was shown this compartment.
From
the cross-examination of this witness, it was denied on A1's behalf
that he was present during the pointing out. PW 19 however maintained
that both accused persons were present. In respect of A2, it was put
to PW 18 that the pointing out was not made freely and voluntarily as
the said accused person had been subjected to torture immediately
before the pointing out. This PW 18 vehemently denied, stating that
the accused persons were cautioned and that their pointing out of the
firearm was done freely and voluntarily.
16
It
was urged on A2's behalf that the pointing out itself only proved
knowledge and not possession, regard had to the fact that A2 was a
passenger in that motor vehicle. Furthermore, the location of the
firearm in the vehicle was far from A2's seat but in front of the
driver suggesting that A2 may have known about it but was not its
possessor.
In
evidence, it has been shown, but not denied that the BMW belonged to
Accused 1 and the firearm was found in that vehicle in front of the
driver, in a concealed compartment. If accused 2's story is to be
believed, he pointed out the firearm (and I do not venture an opinion
at this stage as to whether the pointing out was done freely and
voluntarily), from that concealed closet. Although he was a
passenger, he was not a mere passenger divorced from the vehicles
owner, if he as a passenger would be privy to the presence and
location of dangerous items like a firearm, which, more importantly,
was concealed in a place in which a supposed thorough search by the
RSP failed to find. In my view, both accused persons must be called
to their defence in respect of this Count. As an aside, it is
interesting to note that notwithstanding the evidence of PW 19 that
there were fourteen (14) live rounds of ammunition and thirteen of
which were exhibited in Court, the accused persons were not charged
with the possession thereof.
(v)
Count 14 - Accused 1 only and Count 15 (Accused 2)
The
allegations in respect of this Count is that this accused persons
wrongfully and unlawfully entered and remained in Swaziland on the
26th August 1999 in contravention of Section 5 read with Section 35
of the Immigration Regulation 6/1987.
I
will preface my remarks by saying, as it was agreed by all counsel
involved that the accused persons were charged with contravening the
Immigration Regulations, 1987. Regulation 5, in terms of which the
charge has been laid reads as follows:-
"Any
person other than an exempted person, who enters or departs from, or
attempts to enter or depart from Swaziland at any place or at any
time other than a place or at a time specified in relation to such
place in the Third Schedule hereto shall be guilty of an offence. "
17
Section
2 interprets an "exempted person" as a person of a class or
description of person who is exempted by the Minister (for Home
Affairs) under the Act from obtaining an entry permit or pass; from
reporting entry into or departure from Swaziland.
There
is, on the evidence before me no indication or intimation that the
accused persons are to be regarded as exempted persons. I shall, in
view of that deal with them as un-exempted persons. Regulation 35 on
the other hand is a penal provision, stipulating the sentence or fine
to be meted to a person adjudged guilty of contravening the
Regulations.
In
respect of Accused 1, the evidence which was tendered by Philemon
Zion Shongwe, shows that Accused 1 left Swaziland on the 26th August
1999 through Ngwenya Border Post at 18h45. There is no indication
that A1 returned to Swaziland on that day, re-entering through the
legalised entry points or otherwise. There is also no evidence before
Court that he was seen inside Swaziland later on that day. In my
view, Accused 1 stands to be acquitted and discharged on this offence
as I hereby order.
With
regards to Accused 2, the evidence is that he arrived in Swaziland
through Ngwenya border using travel document No.C26428. He arrived at
16h35. He then left Swaziland the same day, using travel document
No.C403760, leaving through Ngwenya border at 18h50. There is no
indication from the Immigration Officials that he re-entered
Swaziland legally. There is however evidence that he arrived at the
home of PW 2 during the night of the 26th and was seen on the 27th by
PW 2 and PW 6 at Mashobeni. This has not been disputed by the
defence.
Being
a person who does not fall in the catergory of exempted persons
within the meaning of Section 2, it is my view that the accused has a
case to answer as he was seen in Swaziland without any evidence in
the Crown's possession of his re-entry through a recognised border
and at a designated time. The assertion by his attorney that he is a
Swazi and is therefor entitled to enter and remain in Swaziland does
not assist him if there is evidence that he departed through a
recognised entry point but was later seen within the Swazi territory
the same night, leading to the following day, without any endorsement
or indication that he re-entered through a recognised entry point
listed in the Third Schedule.
18
I
order that Accused 2 be and is hereby called to his defence on Count
15.
In
conclusion and in relation to the conclusions to which I have
arrived, it is apposite that I refer to an article by A., St Skeen,
entitled, "The Decision to Discharge an Accused at the
Conclusion of the State case: A Critical Analysis", South
African Law Journal Vol.102 part II, May 1985, page 286 at 287, where
the author reasoned as follows:-
"If
a prima facie case is established the accused runs the risk of being
convicted if he offers no evidence, but it does not necessarily mean
that if he fails to offer evidence, the prima facie case will then
become a case proved beyond a reasonable doubt. This may or may not
take place. It sometimes happens that a court, after refusing the
application for discharge at the conclusion of the State case, will
acquit the accused where he closes his case without leading any
evidence."
I
whole-heartedly embrace this remarks as being reflective of
possibilities in our jurisdiction as well.
In
sum, Accused 1 is acquitted and discharged on Counts 1, 2 and 15. I
find that he has a case to answer in respect of Counts 3, 4 and 5.
Accused
2 on the other is acquitted and discharged only in respect of Count
1. He has a case to answer in respect of Counts 2, 3, 4, 5 and 15.
T.S.
MASUKU
JUDGE
