Nyawusa Ben Jonas v Rex (48/2001) [2001] SZCA 25 (30 October 2001)

The accused was charged with the contravening of the provision of Section 3 (1) © read with Section 3 (2) (a) of the Counterfeit Currency Order No. 31 of 1974. The charge sheet alleges that on or about the 11^th May 2000, and at or near Jumbo Farm at Sidvokodvo area in the district of Manzini, the said accused person did wrongfully and unlawfully held in his possession an amount of R943, 000-00 which was in counterfeit notes.

Initially the accused was charged with five (5) others, but during the course of the proceedings the crown withdrew charges against them. The accused who was represented throughout the proceedings pleaded guilty to the offence and the learned Magistrate accordingly found him guilty and sentenced him to fifteen (15) years imprisonment, eight of which was suspended.

In support of the charge, the crown called three (3) witnesses, two (2) of whom were police officers who had manned road block at Sidvokodvo area where a vehicle in which the accused was a passenger was stopped, searched and a bag in which money was found and the ownership was attributed to the accused who did not deny it. The money was found in a bag, and there were trousers in the bag in which the money had been put and the other passengers in the vehicle told the officers that the bag in which the money was found belong to the accused person, and the accused person did not deny that the bag belonged to him, he was the one who was carrying the bag in the vehicle.

Whilst the crown witnesses were being cross-examined, the issue of knowledge or otherwise of the money inside the bag was never raised by the attorney representing the accused. Neither was it suggested to the crown witnesses in anyway the circumstances under which the money found its way into the bag the accused was carrying. The questions were not in any way related to that, but at the end as I have said the accused pleaded guilty. He was called into the witness box and he gave evidence to the following effect: Maybe before I go there, there was an affidavit which was filed in terms of Section 220 (4) of the Criminal Procedure and Evidence Act which was filed by an expert in which he confirmed that the money which was found in the accused possession was counterfeit. There was no objection to the admission of this affidavit as part of the evidence before court. His evidence under oath that the accused stated that he resided at Khumalo location in the North West. He admitted that he was carrying a bag which was placed before court and part of the evidence exhibited in court. He also admitted that the bag contained the clothes which were placed before court together with the money which amounted to R943, 000-00 counterfeits.

For the first time the accused told the court that he was carrying the fake money because he had been asked by one Elsie Mbatha to take it to Gumedze at the taxi rank in Manzini. For the first time also, he told the court that he did not know that the money in the bag was fake. When he was cross-examined by the crown, he admitted that he pleaded guilty to the offence, and he stated that it was Elsie Mbatha who had put the notes in the trousers in the bag and that he was not present when this money was put in. It was put to him that he knew that the notes in the bag were counterfeit, and he denied this under cross-examination by the crown. The court in that then asked questions from the accused person and one of the things that he told the court was that Elsie Mbatha was a neighbour, which means he had asked a neighbour to pack his clothes and put the money in the bag. One of the things that did come out from the examination was that Elsie had not packed the grey trouser which belongs to the accused, and on which money was found. So the Magistrate found the accused guilty as I have stated and the accused has now appealed against both conviction and sentence.

On the question of conviction, I must say, that we were indulgent to the accused to allow him to raise this issue and in light of the fact that he had not done so in his notice of appeal. But I am fully convinced that there was no misdirection on the part of the Magistrate in finding the accused guilty for the following reasons:

The issue relating to Ms Mbatha should be regarded as an afterthought because this issue was never raised to any of the crown witnesses, neither was the question of the knowledge that the money was counterfeit raised to any of the crown witnesses when they were giving their evidence-in-chief.

There is a plethora of authority that the whole case for the defence must be put to the crown witnesses in order to enable the court to see the reaction of the crown witnesses to those issues. I have in mind the case of S vs P 1974 (1) SA 581 and there is also a local decision against Rex vs Dominic Mngomezulu and nine others Case No. 94/90 a judgment by his Lordship Hannah CJ as he then was and in which it was held that

Another issue relates to the involvement of this Elsie Mbatha which I must say appears very fanciful, and this is that Elsie Mbatha is supposed to be a neighbour of the accused person, she packs some clothes in which the money is put, and there is a particular grey trouser which he says that Elsie Mbatha did not pack into the bag, but it is in that trouser which belonged to the accused that the money was found. So it is clear that the accused person knew about that money that was in the bag.

Following the dicta in the case of Rex vs Difford, it cannot be said particularly in this case in view of the fact that the accused plead guilty, that the explanation he gave can in anyway be regarded as being probably true. For that reasons I would propose that the appeal against conviction be dismissed.

Coming to the question of sentence, the Act under which the accused person was charged and convicted stipulates the sentence that the court should impose on a person who is found guilty in terms of that Act. Section 3 (2) (a) stipulates that a person convicted in terms of paragraph (a), (b), (c) (e), (f), (g) and (i) and I mentioned that the accused was found guilty under one or more of these, must be sentenced E15, 000-00 or imprisonment for fifteen (15) years or both. This underscores the seriousness with which the legislature views this particular economic crime because it spells disaster for the sustainability of any economy.

The court can only interfere with sentence where it can be shown that the trial court misdirected itself or committed a gross regularity in passing the sentence that it did. This is an appreciation of the principle that the discretion to pass a sentence vests in the trial court. The principles which the court takes into account before interfering with the sentence were stated with absolute clarity by the late Mr. Mohammed CJ in the case of S vs Shikunga 2000 (1) S.A. pg 615 a judgement of the Namibian Supreme Court. I cannot find any misdirection whatsoever in the reasoning of the Magistrate in arriving at the sentence that he did, and I cannot say he committed any irregularity or gross misdirection in the sense stated in the case that I have just referred to.

The learned Magistrate took into account your personal circumstances, the seriousness of the crime, and the interests of the economy of this country. I must also mention that the amount, which was found in your possession R943, 000-00 is by any standard a lot of money, and having found its way into the blood line of the economy of this country, disaster could only result. And I should also state that you decided to leave your home country, your native country carrying this money in your country’s currency and you crossed the border to come and commit a serious crime in a foreign country namely Swaziland. You used an emergency passport in order to do that, so there was some emergency about bringing the economy of Swaziland on its knees.

The learned Magistrate also considered the fact that you failed to tell the court with confidence rather, by not disclosing the full circumstances surrounding this matter, and in which case maybe the learned Magistrate would have meted a more lenient sentence. And the sentence, it is clear, substantial portion thereof was suspended and the Magistrate also backdated the sentence to the date of your arrest. In the circumstances, I can find no reasons for this court to interfere with a sentence which was properly considered looking at your interest, seriousness of the crime and also the interest of the community.

Swaziland: Court of Appeal

Nyawusa Ben Jonas v Rex (48/2001) [2001] SZCA 25 (30 October 2001)