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Shabalala Bheki v Rex (53/2000) [2001] SZCA 8 (28 March 2001)

                                                                        CRIM.APP.CASE # 53/00

In the matter between:

BHEKI SHABALALA                                               APPELLANT


AND


REX                                                                              RESPONDENT



CORAM:   MASUKU, ANNANDALE J.J.

For Appellant    : In person
For Respondent   : Mr V. Nkambule



JUDGEMENT
28th March, 2001

Masuku J.

The Appellant, to whom I shall continue to refer to as the accused was convicted on two counts of stock theft by the Senior Magistrate, sitting at Manzini and sentenced to five years imprisonment without the option of a fine, two of which were conditionally suspended for three years. Both counts were treated as one for purposes of sentence.

The charge sheet alleged as follows: -

COUNT 1. The accused is guilty of the crime of stock theft in that upon or about
07/03/2000 at or near Luhlelo area in the Manzini region the accused
did unlawfully and intentionally steal one red ox valued at E 2000-00
 the property or in the lawful possession of Maphumzane Ngwenya.

COUNT 2. The accused is guilty of the crime of stock theft, in that upon or about
 7th March 2000 at or near Luhlelo area in the Manzini Region the
                  accused did unlawful and intentionally steal six head of cattle valued
at E9 5000 the property or in the lawful possession of Thembi
Dladla.

The accused has lodged an appeal against both conviction and sentence. His grounds of appeal are enumerated below:-

1.      
The evidence of PW 1 contradicted the evidence of PW 3 to prove fabrication
on the side of the appellant.

2.      
No exhibit was found in possession of the appellant to prove that he
committed the afore said crime.

3.      
Being found walking in the veld does not associate the appellant with the
commission of the crime.

4.      
The court erred infact and inlaw by convicting the appellant on an offence he
never ever committed even in a plea of not guilty.

5.      
The evidence which was delivered before the court is not sufficient for
conviction on the side of the appellant.

6.      
The court erred infact and in law by considering the photo which was
produced by the Police as an exhibit.

7.      
The court erred infact and inlaw by not backdating the sentence from
07/03/2000 which is the date the appellant was arrested.

In support of the charges, the Crown led the evidence of four witnesses, whose evidence is chronicled below. PW1 was Maphumzane Ngwenya, a resident of Lushikishini. It was his evidence that on the 7th March, 2000, eight head of his cattle went missing from the grazing lands;- Together with a Zwane man and Qiniso Dlamini he followed the tracks of the lost cattle which led them across the border into South Africa. The border fence between the two countries had been cut. They followed the tracks which led them to a place in South Africa, where they found the accused herding the cattle.

It was his evidence that they chased the accused and apprehended him. When confronted about the cattle, the accused told them that he was herding the cattle because he thought they belonged to a Simelane, which Simelane he failed to identify. On further interrogation, the accused changed his story and said he was looking for cattle to slaughter for his ancestors. PW 1 further testified that there were no homesteads near the place where the accused was found. The accused was carrying a bag which contained, green overalls wet with dew and a raincoat. Seven of the cattle found with the accused belonged to Dladla and the other one, a Brahman, belonged to PW 1. PW 1 and his compatriots drove back the cattle and returned with the accused. They reported the matter to the community police, who in turn reported the matter to the Royal Swaziland Police.

In cross-examination, the accused asked as to who arrested him and PW 1 said it was Zwane. Asked how old Zwane was, PW 1 said he did not know but was an old man.

PW 2 was Thembi Dladla of the same area. She mentioned that seven of her beasts, which she described, went missing on the 7th March 2000. The following day, she received information that they had been seen in South Africa, whereupon she asked Elias Zwane and Qiniso Dlamini to go in search of the beasts. These went with PW 1 and returned with the cattle and also with the accused. Nothing turned around the cross-examination.

PW 3 was Elias Zwane, who confirmed, PW 2’s evidence and PW 1’s evidence’ regarding their journey to South Africa. He confirmed that they found the accused herding the cattle. It was PW 3’s evidence that the accused told them that he had found the cattle in that area and further said he wanted to use the cattle to get ancestors’ money from a certain mountain. They ordered the accused to return with them to Swaziland, where he could explain as to how he got the cattle. The accused was handed over to the community police. The accused asked if he tried to run away and PW 3 denied this. Asked if PW 3 knew that it was the accused who had stolen the cattle, PW 3 said he found the accused with these cattle and concluded that the accused was the thief.

PW 4 was a Police Officer to whom report was made and nothing much turns on his evidence. I will now deal with the grounds of appeal as raised by the accused.

(i)     
Contradiction between the evidence of PW 1 and PW 3

The contradiction relates to the manner in which the accused was arrested. PW 1 stated that they chased the accused and apprehended him, while PW 3’s evidence was that the accused did not take to his heels.

This contradiction did not escape the attention of the Senior Magistrate who had this to say at page 17 of the record:

         “It is not every contradiction that renders the Crown’s evidence not credible.
         It is only a contradiction that is material that renders evidence unworthy of
         belief by the Court. As to how the arrest was effected is not a material fact.
         What is material is that the accused person was arrested after being found
         herding stolen beasts.”

This provides a full answer to this ground of appeal. In R v DIEMONT 1982 (3) SA at 576, Diemont J.A. had this to say:-

         “The trial judge will weigh the evidence, will consider its merits and demerits
         and having done so, will decide whether it is trustworthy and whether despite the
         fact that there are some shortcomings, or defects or contradictions in the
         testimony, he is satisfied that the truth has been told.”
        
The Magistrate correctly weighed the effect of the contradiction and his conclusion and its effect to the Crown’s case cannot be faulted. This ground of appeal ought to fail.



(2)     
No exhibit found in accused’s possession.

That no exhibit was found in the accused’s possession to prove that he committed the offence takes the accused’s matter nowhere. It is not in all cases that exhibits have to be brought to prove commission of the offence. In some cases, the matter is decided on the credibility of the evidence. In this case, the Crown’s witnesses, PW 1 and PW 3 were ad i dem in their evidence that they found the accused driving the cattle. He did not deny this and the muddled stories he proffered to them did very little to extricate him. The evidence of these witnesses was corroborative on the material aspects and constitutes good reason for finding the accused guilty, even in the absence of exhibits, whatever these should have been. This ground must also fail.

(3) The accused further stated that being found walking in the veld does not per se associate him with the commission of crime. This may be true in other cases. In casu, the accused, as earlier stated was found driving the stolen cattle, which he did not deny. The explanations he gave, according to the witnesses were nonsensical and he also did not deny them. He first said cattle belonged to a Simelane homestead which he failed to identify and later said he needed the cattle for one purpose or another all to do with ancestors. All this he did not deny in cross-examination. The story of looking for money was only raised in chief and is liable to rejection as an afterthought S v P 1974 (SA) 581 and 582 and R v DOMINIC MNGOMEZULU & OTHERS CRIM. CASE NO. 94/90 (unreported), at page 17. In cross-examination, he never denied any knowledge of the cattle. There is no merit in this ground of appeal whatsoever.

(4)     
Error in convicting accused not withstanding plea of not guilty

I have said many times before that the accused’s plea of not guilty does not mean that the Court has to accept it. The Court bases its conviction on the evidence led regardless of the plea. The evidence led supports the conviction and that the accused pleaded not guilty is no error whether in fact or in law. The conviction was proper.




(5)     
Evidence led in Court insufficient

The evidence led in Court, which the accused did not deny, considered together with his explanation would lead any reasonable Court to arrive at a conclusion confirming the accused’s guilt. Cattle got lost in Swaziland, their tracks were followed and the cattle were found being herded by the accused, armed with a raincoat, probably for wet weather. The overalls had dew, which suggests that he had been sleeping in the open while driving the cattle. This accused did not deny and instead gave fanciful stories of a romancing character, which the Magistrate correctly found to be devoid of truth.

(6)     
Considering the photograph

There is no merit in this ground of appeal whatsoever. The Magistrate properly found it unnecessary to go and inspect the cattle as the identity of the cattle was not in issue. See page 12 of record. Furthermore, the photographs, which were not disputed by the accused were handed in. To go for an inspection in loco would have served no useful purpose in view of the fact that accused did not dispute the identity of the cattle nor the fact that PW 1 and PW 2 owned the cattle. This ground is also devoid of any substance and is liable to dismissal.

SENTENCE

The accused alleged that the Court erred by not backdating the sentence to the date of his arrest. The sentencing function is primarily one left to the trial Court. It is only in a very few circumscribed cases that the appeal Court interferes with the exercise of that discretion.

The learned Magistrate, before passing sentence had this to say:.

         “The accused left his country, skipped the border fence and came to Swaziland
         to commit the crime. The Court is alive to the continuing cross-border cattle
         rustling between Mozambique and Swaziland and also between South Africa and
         Swaziland. One way of discouraging such illegal cross-border operations is to
         pass stiff sentences on those arrested and convicted by the Courts.”

The Magistrate concluded by specifically stating that the sentence will not be backdated as he was entitled to do. Back-dating sentences is not done routinely and as of right. The trial Court exercises a discretion. In this case, the accused committed a serious offence outside his own country. The court also considered the ubiquitous incidences of cattle rustling. In a bid to underscore the seriousness of such offences, he decided not to backdate the sentence and there is no irregularity, as the discretion was judiciously exercised. I find no reason to interfere with the sentence.

In sum, the appeal against both conviction and sentence be and hereby dismissed.



T.S. MASUKU
JUDGE



I agree



J.P. ANNANDALE
JUDGE

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