The first count is one of armed robbery. In brief, the appellant (and three other appellants) was charged with robbing Prince Thumbumuzi
Dlamini and one Bruce David on 4th January 1996, by threatening to shoot them on a Mercedes Benz motor car and a number of articles which were in the car. The registration
number of the car was TBR166T and the articles were a mobile telephone, a yellow and blue tracksuit jacket and a khaki jacket, a
pair of sandals, US$700, a visa card, telephone credit card, various other credit cards, a driver’s licence, car licences,
and a blank cheque of Glenhood Construction Company.
The complainant, Dlamini, in his evidence described how in 4th January 1996, he was driving a Mercedes Benz motor vehicle and three passengers including the said Bruce David. Some time after midnight
and near Mantenga Handicraft Center, he noticed a motor vehicle following them and using the flashing light of the police to indicate
to them that they should stop. This he only did at the gate of Mantenga Lodge Hotel where they were to spend the night. What was
still to be the police turned out to be two robbers with firearm to whom, under threat of being shot, the car was surrendered. The
four occupants that is two men and two women were forced to alight from the car which was then driven away. The complainant Dlamini
detailed items which were in the car including two jackets (one tracksuit, one “Miss World” jacket) which had been given
to him at the Miss World competition in South Africa), six CD’s in a black case and his personal papers some of which emanated
from and were the stationery of the Hyatt Hotel in Johannesburg.
In the court, among the coipus delicti he identified his jacket, CD case and cassettes, number plates of his Mercedes Benz car. He also deposed to having recovered his
car in the damaged condition from the police. The jackets were identified by reference to what he described as “M-Net Signs”
which were given to him at the Miss World pageant and his CD’s.
The learned Judge in the trial court has comprehensively analysed the evidence of all the witnesses, and for the purposes of this
judgment I intend to return to only some of them. The witness Musa Hlophe, was warned as an accomplice. One of his tenants at his
homestead was the appellant. He stated that (erased by mistaken) 1996 at about 6pm at the Mfabantfu station, he was asked by the
appellant and one Firstborn Shongwe one of the accused to convey him and Pius Simelane (he was accused no.1) in his car to a destination
in Mbabane. This he did. During the night, the three arrived at his house in a white Toyota Corolla. He asked to accompany them,
for a fee, to Ezulwini where he would either drive the Corolla back to Ngogola. He agreed. En route to Ezulwini, he sat in the back
and fell asleep. When he awoke he found that they were packed behind a Mercedes car from which he saw four people alighting, two
women and two men. He then proceeded to drive the Corolla leaving the accused persons including the present appellant at the Mercedes
car. For his trouble, he was later paid E1,500.00 for “having been woken up” (over-recorded by mistake). Subsequently,
he was again asked to accompany Simelane, (instructions to drive the car in which they were traveling back to Mfabantfu.)
This evidence was accepted by the learned Judge as collaboration with the evidence of the complainant himself - it is hardly surprising
that he did so. Mr. Hlophe was hardly cross-examined and was not questioned about the statement that on 4th January 1998 he was woken up in the dead of night and asked to accompany the appellant and the others so as to be available to drive
the Corolla back after the others have alighted. He also collaborated, of course, and was not cross-examined concerning the four
persons that he described alighting from the Mercedes Benz.
Quite apart from the circumstances of the robbery there was, as I have said, positive identification of the items of complainant’s
papers on which the name Hyatt Hotel, a hotel in Johannesburg in which the complainants had stayed, still decipherable.
The other evidence against the appellant, briefly stated, was the following:-
1.
On the 18th January 1996 the appellant accompanied by the police arrived at a room in Mhlaleni to which the appellant had taken the witness the
previous day. This was not the room normally occupied by the appellants but it was nevertheless searched by the police and a gun
was found there. The witness Ferreira then recounted how it came about that subsequently she searched a black jacket belonging to
the appellant which was in the room normally occupied by him in Mfabantfu. In the jacket, she found a gold chain and a glove in the
pocket. She had, incidentally, seen the appellant wearing the jacket previously.
2.
The appellant Simelane led the Assistant Superintendent Simelane (PW10) to a place called Ngogola after they had been warned according
to the Judges’ Rules. There they pointed out the Benz number plates and in the vicinity the papers including those of the Hyatt
Hotel to which I have already referred, were found.
3.
The appellants also led PW11 to a homestead where he handed over a jacket, in the jacket there were certain rounds of ammunition.
He also handed over a khaki jacket with the “Miss World” inscription on it i.e. that jacket which is identified by the
complainant on count one. It was then that the police discovered a (not clear) of pistol, CD cassettes and a wrist watch. The latter
was apparently a Bulova watch and it was identified by the complainant Bahlmann as being his property.
As I have said above, the learned Judge aquo comprehensively analysed the judgment, and in my judgment made two findings which are
understandable on appeal. Firstly, he said the witness was very impressive and that he believed him. The learned Judge, having seen
and heard the witness, was in a much better position to judge his credibility than we are. No other reason has been admitted to us
to persuade us to differ from the learned Judge in this respect. Secondly, I am of the opinion that the learned Judge was fully justified
in accepting the accomplice’s evidence and that he exercised proper caution in doing so. I need only make one other observation
namely:-
That the complainant on count three deposed to having lost two sets of golf clubs. The witness Mdluli described how the appellant
together with accused no.1 and 3 arrived at his house at about 4am and left among other things two bags of golf clubs in garage together
with the vehicle in which they arrived. Some time later when they called for the car they also took the golf bags with them. Mdluli
was not cross-examined. And there no reason to have any reasonable doubt concerning the complainant’s identification golf clubs
and particularly the golf glove which was also found as I have already said, in the jacket, the pocket of the appellant. In his evidence
the appellant did not deal with either the clubs or the glove. In the main, he dealt with the evidence then led by the Crown against
him by bare denials save that he claims that the glove was his said, “I (not clear) go with it”. His difficulty in that
regard was that Bahlmann was not cross-examined about the glove and it was not suggested to him that this was the glove of the appellants
with which he played snooker with it.
Under cross-examination, he also admitted all the sailant points of the version told by the accomplice with Hlophe concerning the
nights on which the latter was hired to accompany the three accused (taking the appellant to the place where they parked behind the
vehicle (not clear) the complainant Thumbumuzi Dlamini and how they were left there by Hlophe behind what he could not deny was a
Mercedes vehicle. The appellant was one of the robbers involved in counts one, three and four was proved beyond reasonable doubt
as was his guilt in counts seven and eight. The appeal against his conviction must therefore be dismissed.
As far as the sentence is concerned, this Court has already found that the effect of what the learned Judge said in regard to sentence
was that the appellant would serve five years imprisonment only on all the counts. This is an extremely lenient sentence and there
is no possible reason for interfering with it.
The appeal is therefore dismissed and the conviction and sentence confirmed.
J. BROWDE JA
I AGREE
:
L. VAN DEN HEEVER JA
I AGREE
:
D.L.L. SHEARER JA
Delivered on the day of June 2001.
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