Tebbutt JA:
The two appellants were convicted by Sapire CJ in the High Court of robbery and each sentenced to 20 years’ imprisonment. They
now come on appeal to this Court against both their convictions and their sentences.
The appellants were originally charged with murder as well as robbery. They were, however, acquitted by the trial Judge of the murder
charge.
Bekithemba Ralph Khumalo, to whom I shall hereafter refer as “the deceased”, was during his lifetime an advocate of this
Court and a lecturer in law at the University of Swaziland. He was 32 years of age. The first appellant was employed by him as a
part-time gardener. The deceased was last seen alive on 19th January 1998 at approximately 10am. On 21st January 1998 the police at the request of his relatives attempted to enter his house. The exterior doors were locked as well as an
inside door and the police had to gain access by forcing open the kitchen door and climbing through a serving hatch. The body of
the deceased was found in a wardrobe inside the bedroom. A post-mortem examination revealed that he had died of asphyxiation. A number
of items were missing from the house, including the deceased’s motor vehicle, a light blue Nissan Sentra vehicle registration
numbers SD232XM.
Many of these items were subsequently recovered by the police and identified by relatives of the deceased as belonging to him, some of them having been brought by him from Canada where the deceased had spent some time. A number of them were identified
from serial numbers on them which coincided with the serial numbers on boxes, in which they had obviously been packed, which were found in the house of the deceased.
The Crown evidence at the trial was that the two appellants were either found in possession of a number of these items or that they
had given the items to the witnesses who testified. The items included watches, electrical equipment and clothing.
It is not necessary in this judgment to detail all the evidence in this regard. The learned Chief Justice in a full, comprehensive
and careful judgment set out the evidence and analysed it thoroughly. Much of his judgment was not challenged on appeal. For example,
the evidence of Zandile Mabuza (PW5 at the trial) that first appellant left a leather jacket with her that was identified as the
deceased’s was not challenged at the trial or on appeal. The first appellant gave no explanation as to his possession of the
jacket. So, too, was the evidence of Sifiso Matolo (PW10 at the trial) that first appellant gave her a Casio watch in January 1998.
The watch was identified as belonging to the deceased. The first appellant gave no explanation as to how he came by the watch. Indeed,
the appellants gave no explanation in regard to most of the items referred to in the judgment of the Court a quo as being found in their possession or given by them to the various Crown witnesses.
The only items that were the subject of challenge on appeal were -
(i)
A camera, that was alleged to have belonged to the deceased and which the first appellant admitted having given to a school teacher
of his, Sipho Magagula;
(ii)
A leather jacket which the Crown alleged belonged to the deceased and had been given by second appellant to one of the Crown witnesses;
(iii)
A pair of jeans which the first appellant averred belonged to him but which the Crown alleged had belonged to the deceased;
(iv)
The deceased’s car.
As regards the camera, a Pentax camera, Magagula said he saw first appellant in possession of it at about 4pm on 23rd January 1998. His own camera had a mechanical problem and he borrowed the camera from the first appellant. The police later recovered
it from him. it had a serial number which coincided with the number on one of the boxes. Under cross-examination Magagula said the
camera was lent to him “at exam time” which was November or December the previous year. Counsel for appellants submitted
that this cast doubt on the Crown’s case that the camera was one that belonged to the deceased. The camera was, however, positively
identified as that of the deceased by his brother and his sister, who testified that she saw him using it on Boxing Day, 26th December 1997. This evidence went unchallenged at the trial. The learned Chief Justice found that Magagula must have been wrong as
to the date being November or December when first appellant lent the camera to him. This, so Counsel submitted, was a clear misdirection
by the learned Judge. In the light of all the evidence as to the camera however, I cannot find that the learned Judge was wrong in
his conclusion. First appellant said the deceased’s brother had given it to him. The reason why he had taken it to school with
him was because it “disturbed” him to have it with him at exam time an explanation so ridiculous as not to be worthy
of credence. In my view, the Crown succeeded in establishing first appellant’s possession of the deceased’s camera without
a reasonable explanation for being so.
As to the jeans, the police found these in a bag belonging to first appellant. They were identified by the deceased’s brother
as belonging to the deceased. First appellant denied this, stating that they were his; he had bought them. The jeans were, however,
not appellant’s size being far too large for him. They were also expensive. He was then a schoolboy. That he had bought an
expensive pair of jeans that did not fit him was rejected by the learned Judge a quo and, in my view, correctly so.
As regards the leather jacket, the evidence was that the deceased had brought back from Canada two expensive leather jackets. One
had a distinctive lining being a reproduction of a page from either a Canadian or an American newspaper. Nonhlanhla Charity Dlamini (PW6 at the trial) said second appellant brought this jacket to her in January
1998 and left it with her the police recovering it from her in March. The second appellant also gave her a watch and certain compact discs. The police also recovered these from her. Her evidence as to the jacket was, however, contradicted by other
Crown evidence. It appears that during January 1998 the two appellants were arrested in South Africa for illegally entering that country and detained in a prison there. Second appellant was wearing a black leather jacket at the time of his arrest. A fellow
detainee who was in the same cell as the appellants during their detention testified that second appellant gave him a black leather jacket before the appellants were deported back to Swaziland where they were arrested at the border by the Royal Swaziland
Police. At the time of his arrest by the latter, second appellant was no longer then wearing a jacket. The cell-mate, Johannes Makhalima, said he gave the jacket that second appellant had left with him to the police. It was the jacket with the distinctive
lining which had been identified as having belonged to the deceased. The second appellant attempted to assert that he was wearing a black leather jacket when he and first appellant were taken into custody in Swaziland, which jacket his father had
taken from him in prison for safekeeping. Asked to produce the jacket the father, who testified, did not first do so but subsequently did produce a jacket which he said he had bought for his son. His evidence as well as that of second appellant was rejected
by the learned trial Judge and in my view, correctly so. The positive evidence of the police and of Makhalima, who would have had no reason to perjure themselves, that second appellant had the distinctive jacket with him in detention and left it with
Makhalima when he was due to be arrested by the Swaziland Royal Police establishes second appellant’s possession of the deceased’s jacket beyond doubt.
Finally, there is the car Nontokozo Charmaine Mngomezulu said that on the morning of 20th January 1998 the two appellants arrived at her house in a blue Nissan Sentra car. She actually drove it, losing control of it while
doing so and driving it into a maize field. On the same day first appellant was seen with two other people by a police constable.
They were with a blue Nissan Sentra vehicle, which had a puncture, in the Ensuka area. He checked the licence disc with the car registration
plates. The Constable’s evidence was challenged on the basis that in a statement made by him the numbers of the car had at
some time been altered. He was adamant however, that he had correctly memorised the numbers which coincided with those of the car
which belonged to the deceased. It is clear, from all the evidence, that the appellants were seen in possession of a blue Nissan
Sentra car on 20th January 1998, which car, the learned trial Judge found, had been correctly identified as that of the deceased. No fault can, in my
view, be found with that finding.
In summary, therefore, the Crown established that the two appellants were in possession of a large number of items that had belonged
to the deceased.
Counsel for appellants submitted that even if those facts be accepted, a conviction for robbery should not be sustained but that the
appellants should have been convicted of being in possession of stolen property with no reasonable explanation therefor.
The possession by the appellants of the numerous items of the property of the deceased which were, according to the evidence, in the
deceased’s house, established, in my view, that the appellants must have been in the house. It is nowhere suggested on the evidence that they could have come by the goods in any other way or from any other person. The deceased had been asphyxiated prior
to his body being placed into the wardrobe where it was found. In his judgment, the learned Chief Justice said that it was not possible to attribute the physical assault on the deceased to either of the appellants. I agree. However, the conclusion is irresistible
that it was one or other of them who smothered the deceased in order to effect their purpose of depriving the deceased of his property. As the learned Chief Justice stated:-
“It is quite obvious that the deceased met his death as a result of an assault by one or other of the robbers”.
He was unable to find which of them had done so. He was also unable to find that the killing occurred in pursuance of a common purpose. Accordingly, he concluded that he had to acquit the appellants on the murder
charge. However, I am in complete agreement with the learned Chief Justice that there was an assault by one or other of the robbers on the deceased and, on the evidence, those robbers could only have been the two appellants. Both the elements of robbery
viz violence and theft of the victim’s property have been established I therefore hold that they were correctly convicted of robbery.
I turn then to the question of sentence. In sentencing them to 20 years imprisonment, which was not backdated, the learned Chief Justice
said the following:-
“Both of you have been found guilty of robbery committed in grisly circumstances. This unfortunate victim, a gentleman, was
killed in his home to which you accused no.1, apparently had some access by being his gardener. You were not a stranger to the deceased
and would have unsuspectingly been admitted to the dwelling. It was not sufficient for you to overcome his resistance but one of
you, I do no know which, somehow contrived to smother him. But you were both aware of this. It is clear from the fact that the deceased’s
body was put into a cupboard, the door was locked, and the outside door was locked and you as the robbers made off with expensive
equipment, including a motor car and a jacket.”
He added:-
“You have, as has been pointed out, shown no signs of remorse; you have given no clue to this Court what prompted you to do
such a terrible thing”.
He then stated, after saying that he took into account that they were both young men and that they had been in jail for some time,
as follows:-
“I must bear in mind that although I have found that neither of you should properly be convicted of murder, you both took part
in the robbery which caused the death of the deceased. The fact that the victim died makes this a robbery of the most serious kind”.
Counsel for the appellants submitted that this constituted a misdirection by the learned Judge: although acquitting them of murder
he had sentenced them as if they had been convicted thereof. I do not agree. It is clear that one or other - or even both –
of the appellants so assaulted the deceased that he died. One or other – or both – of them put his body into the wardrobe.
If either of them, having regard to these facts, had sought to disassociate himself from the results of the crime, it may have been
possible to regard his moral blameworthiness in a lesser light. Neither of them, however, did so and not only participated in removing
the deceased’s possessions but also thereafter in disposing of them or purloining them for themselves. The moral blameworthiness
of each in the assault causing the death of the deceased is manifest and the remarks of the learned Chief Justice were therefore
justified and were not a misdirection on his part.
Even agreeing with all he said, however, I am of the view that the sentences passed are too severe and that the difference between
them and what this Court feels it would have passed is sufficiently substantial to interfere with the learned trial Judge’s
discretion as to sentence and on appeal to impose lesser ones.
The seriousness of their crimes, their moral blameworthiness and their lack of remorse or regret justify lengthy sentences of imprisonment.
Society would require of this Court that it marks its severe disapproval of this type of criminal behaviour by heavy sentences of
incarceration. Its 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 overlooked. 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. It is for these reasons that I think the
sentence of 20 years is too severe. In my view a sentence of 14 years imprisonment in each case would meet all the criteria I have
set out. I would also backdate the sentences to the date of their arrest in March 1998. Otherwise 14 years in effect becomes 17 years.
In the result the following order is made:-
1.
The appeals by both first and second appellants against their convictions are dismissed and the convictions are confirmed;
2.
The sentences of 20 years imprisonment imposed on each of the two appellants are set aside and there is substituted for them the
following:
Each appellant is sentenced to 14 years imprisonment backdated to 18th March 1998, the date of their arrest.
