Queen v Ntshalintshali [1986] SZHC 8 (20 May 1986)


IN THE HIGH COURT OF SWAZILAND


CRIM CASE NO. 12/85


In the matter of:


THE QUEEN


vs


CORAM: J. A. HASSANALI


FOR THE CROWN: A. DONKOH


FOR THE DEFENCE :


CHARGE: THEFT


JUDGMENT


20-05-86


HASSANALI, J.


The Accused stands charged with the following two count -


3) theft of E500. belonging to Manzini Supermarket on 14/6/82


2) theft of E1,000 belonginq to Manzini Supermarket on 26/6/82. He pleaded not guilty to count I and guilty to count II.


The accused at all maternal times was employed as a sales assistant at the Manzini Supermarket whore me Minah Khumalo also worked as a bock keeper. One of her duties as buck keeper was to total up the day's collection and send it to the Bank fur deposit by the accused. Sometimes she herself did the banking.


Minah Khumalo testified that on 14/6/82 she with the assistance of one Parcel Dlamini checked and totalled up the manies for banking and handed over to the accused a sum of E5000. together with the bank deposit slip in duplicate. When the accused returner! from the bank neither Minah nor Ndwandue, the owner appeared to have checked the duplicate deposit slip. Mineh's explanation for this was that the accused was a trusted employee and therefore


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there was no he esity to check. Her explanation is unset ctory and I don't agree with it XXX waver honest a person is, he XXX as back keeper should have been to check the deposit slip make the necessary entries in the relevant brinks. From the XXX examination of the Crown witness I gather that the accused defence was that he did not take any money to the Bank for XXX on that day- Then what happened to this money?....


It must be remembered that the burden of proving beyond reasonable doubt that it was the accused who stole the money castssquarely on the Crown.


The only evidence that links the accused with the theft a this money is that of Mineh. Parcel Dlamini who happened to be present according to her, when the money was counted and handed aver to the accused, was not called to give evidence for the Crown since his whereabouts was not known. It is also regrettable that the Bank Deposit slip and cash bock were not produced in evidence. I understand that they had been misplaced or lost.


Although Ndwandwe mentioned that he saw accused taking the money to the Bank, he was not sure of the date. In the circumsta-20 nces I do not propose to place much reliance on his evidence.


According to Minah, the accused in her presence admitted to Ndwandwe that he took the money. But Ndwandwe denied that Minah was present. This is a serious centradiction and therefore I do not wish to give any credence to either of them as regards to the accused's admission.


From the evidence it is clear, that the accused had every opportunity of stealing this money had it been given to him for deposit. On the other hand Minah herself could have taken this money by writing the deposit slip since she ton handled the banking on occasions. The effect of this is to introduce Minah


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as a possible suspect. However she appeared to me to be a honest witness, and it is fair to say that nothing more than opportunity has been established against her.


Taking all the factors into consideration I have come XXX conclusion that there is some doubt as to whether the accuse took the money.


Mr. Donkoh stressed the fact that the accused did not gi XXX evidence. This is a circumstance to be taken into account: the importance to be attached to the failure of the accused give evidence depends upon the circumstances of each partic ar


case. One of the factors to be considered in this connection is the strength or weakness of the Crown case. See R vs Ismail 1952 (i) 205 at 210. However in this case the Crown has not established a prime facie cose against the accused, although there ore certainly some grounds for suspicion. In these circum­stances I do not consider that the accused's failure to give evidence can turn the Crown's prima facie case into a conclusive one.


In my opinion the Crown has failed to establish its case against the accused beyond reasonable doubt. I regret that I have to come to this conclusion because it is clear that a well conceives! theft has been perpetrated upon the complainant.


The accused in found not guilty in respect of count 1 and he is acquitted.


The accused had already pleaded guilty to Cound II. Therefore I find him quilty as charged.


J. A. HASSANALI


JUDGE

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