3.
Appellant’s father passed away whilst appellant was in custody.
b)
Appellant has never been involved with the wrong side of the law in his lifetime.
The appellant pleaded not guilty to the charge and was legally represented throughout the trial.
The facts of the matter briefly put are that the appellant at the material time was a security guard manning the ATM machine of the
First National Bank at Bhunu Mall in Manzini. The complainant an elderly pensioner kept a bank account with the First National Bank
where his pension had been deposited. The complainant would make regular withdrawals from the ATM machine at Bhunu Mall. During one
of these errands the appellant had occasion to assist the complainant in making a withdrawal from the machine, as he was unsophisticated
and an illiterate man. As a result of this encounter a relationship of sorts developed where the complainant would entrust his ATM
card with the appellant who will then withdraw moneys for the elderly gentleman. The complainant found this arrangement to be convenient,
as he did not have to wait in the long queue to withdraw money from the bank. According to the complainant he even brought the appellant
a chicken as a gift to show his appreciation. This aspect of the matter is confirmed by the evidence of PW3 Martha Maseko who knew
the appellant as they used to work with him at the First National Bank. PW3 according to the evidence actually saw the chicken.
Complainant also testified that the appellant came to his home to give him his ATM card. He was with another man in a motor vehicle.
This aspect of the evidence is confirmed by Sibandze the taxi man who was also one of the crown witnesses.
The appellant apologised to the complainant when he had gone to return the ATM card that he had used some of the money. This evidence
comes from the complainant as well as PW3. The latter told the court a quo that the appellant had told her that he was spending money belonging to an old man. This evidence proved the guilt of the appellant
beyond a reasonable doubt. The appellant when he appeared before us was hard pressed to explain away this damning piece of evidence.
The evidence adduced before the court a quo showed that theft occurred on the account belonging to the complainant. It was also proved beyond a shadow of doubt that the ATM
card belonging to the complainant was in the possession of the appellant at the material time. It was also proved without question
that it is the appellant who dealt with the complainant’s account at the material time. The evidence of the complainant, PW2,
Gugu Mazibuko, PW3, Martha Maseko and the taxi man proved without question that it was the appellant who committed this offence.
Coming to the grounds in this matter it is alleged that “the court a quo erred in law and in fact in finding and holding that all witnesses who testified were truthful and did not set out wilfully to misinform
regarding their experiences in respect of the material facts and allegation”. I find this attack without merit in view of the
evidence adduced from the complainant, PW2, PW3 and the taxi man Sibandze which is without any flaws, as these people did not have
any reason to fabricate evidence against the appellant. The learned Principal Magistrate was correct in his findings as to their
credibility.
The rest of the attack against conviction particularly grounds 2, 3 and 4 is also without any merit in view of the admission of guilt
by the appellant to the complainant and the two other crown witnesses. In this regard, it cannot be said that it is reasonably possibly
true that some other person than the appellant would have withdrawn the money in question. The appellant further argued that he left
for Nelspruit and during his absence the money was withdrawn would imply that some other person had access to the complainant’s
bank account. In our view, this argument is without merit. According to the evidence even after the appellant’s return from
Nelspruit, the card was still in his possession. The only inference to be drawn in the circumstances is that he left the card in
the possession of somebody else who could continue with the withdrawals as the appellant was away.
The appellant contended that there were contradictions in the crown’s evidence.
Firstly, regarding the surname of the complainant. The taxi driver stated that the surname was Mlotshwa whereas it turned out to be
Mlotsa. In our view this inconsistency is not material as in any event the surnames are almost identical and may easily be confused.
Secondly, regarding the complainant’s home area. The taxi man stated that it was at Timbutini whereas the complainant’s
evidence is that it is at Bulunga. It would appear to us that the taxi driver either did not know the area or was mistaken regarding
its name. That, however does not detract from the story that he together with the appellant went to the complainant’s home
where the former confessed having done something wrong. This is confirmed by the complainant.
The appellant also claims in his grounds of appeal that the court a quo erred in law and in fact when it (court) failed to read the rights of the appellant to name his defence witnesses for the court to
summon. I find this ground without merit in view of the fact that Mr. Mdladla legally represented the appellant throughout the trial.
If the appellant required to call any witnesses, he would have indicated this to Mr. Mdladla, who would have known the proper course
to follow.
Regarding the question of sentence the appellant contends that the sentence of seven (7) years imposed by the court a quo is excessive under the circumstances and induce a sense of shock in as much as the court did not place any weight on his personal
circumstances. The learned Principal Magistrate took the appellant’s personal circumstances into consideration as it is clearly
reflected in the record of proceedings in the court a quo.
Now sitting as a Court of Appeal the ambit of the court’s jurisdiction in relation to sentence is relatively restricted. This
is because the question of sentence, the appropriateness of it, what particular sentence should be passed, is primarily the responsibility
of the trial court. On appeal it is clearly established that, in the absence of misdirection or irregularity, a Court of Appeal will
only interfere if, as it is sometimes expressed, there is a striking disparity between the sentence which was in fact passed by the
trial court and the sentence which the Court of Appeal would itself have passed. See S v Shikinga 2000 (1) S.A. 61 (NmSC) at p. per Mahomed CJ. In casu, it has not been shown that the sentence in question is severely harsh and induces a sense of shock, nor has been shown in any way
how the Principal Magistrate misdirected himself in any respect in arriving at the sentence that he did. In this case the appellant
was placed in a position of trust vis a vis the people he was supposed to assist in operating the ATM machine. From the evidence led in the court below, the complainant was
an elderly pensioner who lost almost the entire pension through the appellant’s dishonesty. The sum involved is a very large
sum by any standards and appellant told us here in court that he cannot pay it back or portion thereof. I thus find no fault in the
sentence imposed in the court a quo.
For the above reasons I would propose that both the appeal against conviction and sentence is hereby dismissed.
S.B. MAPHALALA
JUDGE
I agree. I however wish to accentuate a few issues relating to the appeal against sentence. We indicated to the appellant during the
hearing that the only ground upon which we could have possibly interfered with the sentence was if he could undertake to repay the
money stolen or a portion thereof. This appears not to have been canvassed or considered by the Court a quo. It was on this basis that we were willing to reconsider the question of sentence but as correctly stated by my Brother above, the
appellant indicated that he was not in a position financially to comply with an order for restitution, hence we found no reason to
interfere with the sentence thus imposed.
I wish to add that the sentence is appropriate in this case as you betrayed the trust reposed in you by three different classes of
persons. First was the trust reposed in you by your employer. It is not any and every security guard in the employ who is posted
to the duty station where you worked. It is those guards who have in the conduct of their work exhibited signs of faithfulness, honesty
and diligence amongst others. You proved to be the exact apposite.
Second was the trust, which was reposed in you by the Bank. It appears from the evidence that the bank staff, were acquainted with
you and you were able to conduct transactions inside the Bank, particularly on the complainant’s behalf. In your own evidence,
you stated that you had access to ATM cards that were lost, which is however doubtful regard had to the seriousness, secrecy and
sensitivity that attaches to these cards. This however underscores the fact of the trust reposited in you, if indeed your assertion
is true.
Thirdly, you abused the complainant’s trust. In appreciation of the assistance you rendered to him, he brought you a chicken,
which was understandable as in his evidence, which was correctly accepted, you even took some money to the complainant’s home
in the sum of the customary E1, 000-00 that you withdrew as a matter of course for his upkeep. This appeared considerate to the unsuspecting
and the gullible.
That the fruits of the complainant’s decades of toil have resulted in him spending retirement only with a pittance, compared
to what he would have had available but for your dishonest and despicable conduct is worthy of severe censure. This is correctly
translated and conveyed in the sentence imposed by the Court a quo. The general deterrence ingrained in that sentence cannot be over emphasised. You cooked your desert and so you must eat it. If you
do not want to do time do not do crime.
T.S. MASUKU
JUDGE
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