In the high court of swaziland in the matter of Case No. S. 78/81



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IN THE HIGH COURT OF SWAZILAND
In the matter of Case No. S.78/81
REX
vs.
1. Robert Makhosini Dlamini
2. Dumisa Geoffrey Zwane
3. William Musa Dlamini
4. Jerry M. Dlamini
5. Dumisa Henry Nhlengethwa
CORAM: NATHAN C.J.
FOR CROWN: FLYNN
FOR ACCUSED No. 4: MATSE
ACCUSED Nos. 1,2, 3, and 5: IN PERSON
JUDGMENT
(Delivered on 4th Feb. 1982)
NATHAN C.J.
The four Accused were originally charged with one William Dlamini, also referred to in the evidence as Musa Dlamini, on various charges of forgery of Government cheques and the uttering thereof. The indictment set out the part allegedly played by each of the Accused in the various charges. William Dlamini, who was NO. 3 Accused, figured only in regard to Count 1. At the inception of the trial Mr. Flynn, who appeared for the Crown, informed the Court that the Crown would not be able to establish a case against NO. 3 Accused in regard either to the forgery or the uttering of the cheque in question. No. 3 Accused thereupon formally pleaded not guilty and was acquitted and discharged. The trial then proceeded against the remaining Accused who have for convenience been referred to throughout by their original descriptions of Accused Nos. 1, 2 4 and 5. Accused Nos. 1, 2 and 5 were undefended. Accused No. 4 was defended by Mr. D. Matse. All the Accused pleaded not guilty.
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Count 2 alleges a forgery of cheque No. 211 for E803.59 by No. 5 Accused and an uttering or presentation thereof by No. 1 Accused.
Count 3 alleges a forgery of cheque No. 212 for E505.23 by No. 5 Accused and an uttering or presentation thereof by No. 2 Accused.
Count 4 alleges a forgery of cheque No. 221 for E603.16 by No. 5 Accused and an uttering or presentation thereof by No. 1 Accused.
Count 5 alleges a forgery of cheque No. 231 for E580 by No. 4 Accused and an uttering or presentation thereof also by No. 4 Accused.
Count 6 alleges a forgery of cheque No. 233 for E940 by No. 4 Accused and an uttering or presentation thereof by No. 1 Accused.
Count 7 alleges a forgery of cheque No. 234 for E650 by No. 4 Accused and an uttering or presentation thereof by one Walter Malinga. As Walter Malinga is not one of the Accused, this uttering portion of the charge was dropped.
As will be seen from the foregoing it is alleged that No. 4 Accused did the forgery of the cheques in Counts 5, 6 and 7 and that No. 5 Accused did the forgery of the cheques in Counts 2, 3 and 4.
Further that No. 1 Accused uttered the cheques in Counts 2, 4 and 6; No. 2 Accused uttered the cheque in Count 3; No. 4 Accused uttered the cheque in Count 5.
It will be convenient to deal firstly with the evidence in regard to the forgery or drawing of the several cheques.
This consisted of the evidence of the Investigating Officer, Asst. Sup. Magagula of the Royal Swaziland Police and D/W/O Quinton of South African Crininal Bureau, Pretoria, a handwriting expert.
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Supt. Magagula said that he took two sets of specimens of the hand­writing of Accused No. 4, at Mbabane Police Station and at Sidwashini Prison, and two sets of specimens of the handwriting of Accused No. 5, at Mbabane Police Station and at Lobamba Police Station. There is a conflict between him and No. 5 Accused on this point. No. 5 Accused says the specimens were taken from him at Sidwashini Prison and then later at Lobamba. Nos. 4 and 5 Accused were being held in custody at Sidwashini, with Musa Dlamini and Walter Malinga on a "Holding charge" of forgery and uttering. Asst. Supt. Magagula said in his evidence in chief that he told Nos. 4 and 5 Accused that he wanted specimens of their handwriting and told them to give these to him. He said he told them it was part of the investigation. He said they raised no objections, and he did not make any promise to them; nor were any threats made.
The specimens consisted, in the case of Accused No. 4 of copies of the bodies, including signatures, of cheques Nos. 231 and 233, and in the case of Accused No. 5 of copies of the bodies, but without the signatures, of cheques Nos. 211, 212, and 221.
Asst. Supt. Magagula did not create a favourable impression in his evidence in regard to how these copies came to be made. He started off by saying that the cheques were not given to the Accused to copy although they might have had an opportunity of glancing at them. The cheques might have been lying on the table or in a drawer. This is obviously untenable, and Supt. Magagula then said that he thought he did tell the Accused to copy the cheques, and he went on to say that he did place the cheques there for them to copy.
Senior Police officers - all police officers in fact - should be more careful in the manner in which they give evidence. Evidence of the type I have set out only serves to cast doubt upon the whole of their evidence.
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Although the Accused were told to copy the cheques it does not appear that they were told to copy the specific handwriting on the cheques. But I think it should be made clear to persons when asked to provide specimens of their handwriting that they are not being required to copy the disputed handwriting. It is indeed preferable that they should not see the disputed handwriting but should furnish the specimens from dictation. The attention of the Commissioner of Police is drawn to these remarks.
It appears that there was some talk of Nos. 4 and 5 Accused being used as accomplice witnesses if they agreed to provide specimens of their handwriting and to make statements. The evidence in regard to this is inconclusive, and I hesitate to find that any definite promise to this effect was made by Supt. Magagula, although there is the possibility that this is so. No. 4 Accused closed his case without leading evidence. No. 5 Accused was cross-examined by Mr. Matse and he was definite that he and No. 4 Accused were instructed, as distinct from merely being asked, to give specimens of their handwriting. But No. 5 Accused, was by no means a reliable witness; and although I have reservations about portions of Supt. Magagula's evidence - I have already referred to the conflict between him and No. 5 Accused as to whether specimens were taken from No. 5 Accused at Sidwashini - it appears to me that if there was any undue influence or coercion brought to bear upon Nos. 4 and 5 Accused to provide specimens of their hand­writing, this was minimal in extent and hardly more than flows from the fact that the specimens were furnished while the Accused were in custody. As I will show, in my opinion even if there was any appreciable measure of coercion, this did not vitiate the evidence derived from it. This was the excellent evidence of Mr. Quinton, the handwriting expert, which I fully accept, and
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which makes it very clear that cheques Nos. 251, 233 and 234 (Counts 5, 6 and 7) were drawn by No. 4 Accused, and that cheques Nos. 211, 212 and 221 (Counts 2, 3 and 4) were drawn by No. 5 Accused. No. 5 Accused indeed admitted having written these latter cheques.
I have dealt at some length with the question of the taking of the handwriting specimens because Mr. Matse has submitted that this evidence should be excluded on the basis of the maxim Nemo tenetur se ipsum prodere (or accusare - vide Ogilvie Thompson J.A. in S v Lwane, 1966 (2) S.A. 433 (A.D.) at p. 438), i.e. nobody can be obliged to incriminate himself.
The earlier decisions on this question are not harmonious and it is difficult to extract any clear guiding principle from them. In Coleman v R. 1907 T.S. 535 evidence as to finger prints taken from an accused person at a Charge office was admitted, but excluded in regard to those taken after he was lodged in gaol. Apparently the Accused consented to the taking of the finger prints at the charge office, and it was held that these were made voluntarily.
In R v Maleleke, 1925 TPD 491 the accused, before his arrest, was compelled to put his foot into certain footprints at the scene of the crime. It was held that as the footprint was not voluntarily supplied, but was compelled by force evidence thereof should be rejected. Similarly in Goorpurshad v R, 1914, 35 NLR 87 (finger­prints) and R v Gama, 1916 EDL (submission to examination to detect gunshot wounds). In R v Voisin, 1918 IKB 531, 13 C. A. R. 89, on the other hand, a specimen of handwriting submitted by the Accused at the dictation of the police and at their request was admitted as having been voluntarily given. It was further held that the fact that he had not been warned that the specimen might be put in against him did not render the statement inadmissible.
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The Court quoted from the statement in Ibrahim v R, 1914 AC 599 that in English law "no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear or prejudice (of prejudice, in the C. A. B. report, and in Maleleke's case at p. 331) or hope of advantage exercised or held out by a person in authority."
In R v B, 1933 OPD 139 a schoolboy charged with crimen injuria by having written certain obscene words on a blackboard was made to write the offensive sentences by a police sergeant and constable, and again later in the presence of the headmaster. No caution was given to him. It was held that this evidence should have been excluded by the Magistrate who had been considerably influenced thereby. Fischer J purported to follow Maleleke's case, supra, and Ibrahim's case; and held that there was prejudice to the Accused. I am doubtful whether this case was correctly decided.
I repeat the conclusion that I have come to on this aspect of the case, namely that I am not satisfied that there was any undue influence or coercion brought to bear upon No. 4 Accused to supply the specimens; but if there was any improper pressue this did not vitiate the specimens, for the reasons which I proceed to give.
Firstly, it is provided in Section 230 of Act 67/1938 that "Comparison of a disputed writing with any writing proved to the satisfaction of the Court-------to be genuine may be made by witnesses; and such writings and the evidence of witnesses respecting it may be submitted to the Court or Magistrate as the case may be, as evidence of the genuineness or otherwise of the writing in dispute."
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It is to be noted that this section is in part 13 E of the Act which deals in general with the admissibility of evidence, including, in many instances, evidence prejudicial to the accused, such as confessions, evidence as to character, dying declarations, the handing in of medical reports, etc. The section does not say that the handwriting with which the disputed handwriting (the cheques in the present instance) is to be compared must have been obtained without duress or undue influence. All that is required is that it should be proved to be genuine. It appears to me, therefore, that the common law rule against self-incrimination has been modified by the legislature so as to render admissible evidence of the accused's handwriting, even if this has been obtained by what at common law would be regarded as improper means.
Support for this conclusion is to be found in Phipson on Evidence, 10th Edition paragraph 316-317. The English statute in regard to comparison of handwritings is in practically identical terms to those in Section 230; and Phipson gives not the slightest hint that the genuine handwriting should not have been obtained from the Accused by some form of compulsion. On the contrary, he says at the end of paragraph 317, "the party whose writing is in dispute may also be required to write, for the purpose of comparison, in the judge's presence, and such writing will then be admissible; as also will specimens voluntarily written by the accused before tria trial, when detained by the police for inquiries, although not cautioned (R v Voisin, 1918 IKB 531), or written since the trial and tendered on appeal."
It appears to me that if the specimen can properly be insisted upon being given in Court there can be no objection in principle to its being furnished earlier so as to enable a handwriting expert to make a comparison before trial.
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Secondly, Section 227 (1) and (2) of Act 67/1938 provide as follows:
(1) "Evidence may be admitted of any fact otherwise admissible in evidence notwithstanding that such fact has been discovered and come to the knowledge of the witness giving evidence respecting it, only in consequence of information given by the accused person in a confession or in evidence which by law is not admissible against him, and notwithstanding that such fact has been discovered and come to the knowledge of the witness against the wish or will of such accused.
(2) Evidence that any fact or thing was discovered in consequence of the pointing out of anything by the accused person or in consequence of information given by him may be admitted notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible against him."
(Amended A. 20/1968).
It appears to me that this section exactly covers the present case. The fact that is admissible in evidence is that the hand­writing of the Accused is the same as that in the disputed cheques. And this is admissible notwithstanding that it has come to the knowledge of the witness giving evidence respecting it (the hand­writing expert) only in consequence of information given by the Accused in evidence which by law is not admissible against him. (This is how I write).
The approach of the Appellate Division in Ex parte Minister of Justice in R v. Matemba, 1941 A.D. 75 is very similar to what I have endeavoured to express. It is there stressed that the maxim nemo tenetur se ipsum prodere and the confession rule are concerned with evidential admissions made by the Accused, and not with facts ascertained from information supplied by him. See to the like effect R v Gericke, 1941 C. P. D. 211, following Matemba's case; R v Samhando 1943 A.D. 608.
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It was submitted by Mr. Matse that the above reasoning was in fact put forward by the Attorney-General im Maleleke's case, supra, but was rejected by the Court. But, as is pointed out in Hoffmann, S.A. Law of Evidence, 2nd Edition p. 207-8, Malekeke's case although it has not been specifically over-ruled, must be taken to have been wrongly decided, and has at least been deprived of any authority. Hoffmann bases his argument on Matemba's case, supra, and on the Privy Council decision in Kuruma v R., 1955 (1) All E.R. 236 at P. 239 in which it was said "In their Lordships' opinion, the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is it is admissible and the court is not concerned with how the evidence is obtained."
For the above reasons I come to the concusion that the evidence of the handwriting expert Mr. Quinton, founded upon a confession of the cheques and the handwriting specimens, was correctly admitted. It follows that Nos. 4 and 5 Accused must be found to have drawn the cheques in counts 5, 6 and 7, and counts 2, 3 and 4 respectively. As I have already mentioned, No. 5 Accused admits drawing the cheques in counts 2,3 and 4.
I proceed to consider the evidence in regard to the uttering of the cheques, and other matters having a general bearing on the case .
Peter Shabalala said he had met Nos. 1 and 5 Accused and Musa Dlamini (ex Ace. No. 3) at the Tavern Hotel. No. 1 Accused was in possession of a plastic bag containing a Government cheque book and a validating stamp. He asked Shabalala to make out two cheques. Shabalala refused to do this, but No. 5 did so. This evidence was denied by No. 1 Accused, but it is largely immaterial as No. 1 Accused admitted uttering the cheques in respect of which
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he is charged but said he obtained these from Musa Dlamini. No. 5 Accused in his evidence said that Shabalala's evidence was true; and he admitted writing the 3 cheques (but not the signatures thereon) in respect of which he was charged.
Peter Dlamini is employed at the Government Stores, in which No. 2 Accused was working. The only relevance of his evidence is that no.2 Accused may have had access to the Government cheque books, two of which went missing.
Tennyson Mabusela, warned as an accomplice, said he obtained a validating stamp from one Willie Nxumalo, and this he gave to Musa Dlamini. I endorse Mabusela's indemnity from prosecution.
Emson Sithole is the brother-in-law of No. 1 Accused. He said No. 1 Accused left with him a plastic bag. Later, in the presence of the police, this was found to contain a cheque book and validating stamp. He may have been told by No. 1 Accused that the latter had been given the plastic bag by a man in town who was going to the Hospital. This man, so it later emerged in No. 1 Accused's evidence, was Musa Dlamini.
Comfort Mngomezulu is an employee of the Central Bank who was acting as a teller at the relevant time. He gave evidence that cheques Nos. 211, 212, 233, and 234 were presented to him for payment. It is unnecessary to go into details of his evidence because No. 1 Accused admitted that he had presented cheques Nos. 211 and 233 for payment. He also presented cheque No. 221 to teller Henry Maseko for payment. Comfort said that No. 2 Accused presented cheque No. 212 for payment and this was admitted by No. 2 Accused.
It was admitted on behalf of No. 4 Accused that he had presented cheque No. 231 for payment. In regard to whether he knew it to be a forged cheque, on the handwriting evidence he had drawn it himself.
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Walter Malinga gave evidence to the effect that on 27th February 1981 he had met Nos. 1 and 5 Accused. No. 1 Accused produced a Government cheque and asked Malinga to cash it for him; and Malinga went to the Bank and did so. This was denied by No. 1 Accused in the course of his cross-examination of Malinga. It appears to have been cheque No. 234.
The defence of No. 1 Accused was that he had received cheques 211, 221 and 233 from Musa Dlamini in each case. According to him he was doing Musa a favour by cashing these cheques. But his evidence is riddled with improbabilities. In regard to cheque 211 he said he cashed it because Musa "wanted to check on lady somewhere in town and he asked me to rush to the Bank." In regard to cheque 221 he said he met Musa at Bonnie & Clyde's shop; they walked towards town. When they were near the Shamrock Butchery Musa told No. 1 Accused he had been robbed of the money that No. 1 Accused had cashed the previous day. "He then told me he had dodged from work and was trying to find more money. He asked me to accompany him to the Bank where he was to find money. At the Central Bank we met a lady who asked me if I would let Musa talk to her. While talking to the lady he handed me a cheque already signed and asked me to go to the Bank to have it cahsed." He went and cashed the cheque. "On getting out of the Bank the lady he had been talking to was no longer there. I handed the money to Musa. He then said he was rushing to work and would find me at the Jabula Inn before 1.00p.m."
The following day he net the same Musa who said he was in a hurry and asked No. 1 to go to the Bank on his behalf. He said he was going to pay someone he owed. No. 1 Accused cashed the cheque. This would have been cheque 233. When he saw Musa he asked
Musa for a loan of E10. Musa lent him E20 instead of E10. E10 was
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a loan; the other E10 was a free gift.
No. 1 Accused, as I have mentioned, denied Walter Malinga's evidence in regard to cheque 234; but No.1 Accused's evidence is far from convincing. He said he could not have handed Malinga the cheque because he was out of employment. Under cross-examination he said Malinga had lied about him because they had quarreled. No.1 Accused is not charged in relation to cheque 234, but the evidence is relevant to his credibility.
Under cross-examination No.1 Accused was very unsatisfactory in regard to the explanations Musa gave him for wanting him to cash the cheques and his own enquiries in regard thereto. The Court adjourned to enable No. 1 Accused to find out whether Musa was prepared to support him in evidence. No. 1 Accused said on the resumption that Musa was prepared to do this. Musa was called into the box where it was explained to Musa that it was understood that he was prepared to give evidence for No. 1 Accused who would proceed to question him. Musa then announced dramatically that the Accused could put questions to him but that he was not prepared to give evidence on his behalf.
No. 2 Accused in evidence also put the blame on Musa Dlamini in regard to the cashing of cheque 212. He said he met Musa and asked him to pay him E5.00 that he owed him. Musa had no cash but had a cheque, and as No. 2 Accused needed the money desperately he took the cheque and cashed it. Musa had declined to cash the cheque himself. No. 2 Accused said that he went to the Bank alone. This is in conflict with the evidence of Comfort Mngomezulu who said Nos. 1 and 2 clashed the cheque together; and in cross-examination of Comfort he had asked "Did you have any difficulty in identifying us?" This "us" he said was a slip of the togue.
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When asked about the enquiries he had made in regard to this cheque he said it was the 25th of the month, pay day, and he hoped it was Musa's cheque. This is very unsatisfactory evidence.
No. 2 Accused said he would leave it to the Court whether or not to call Musa - he said Musa was his co-Accused and could not help him in any way. Consequently Musa was not called.
No. 5 Accused in his evidence admitted writing the three cheques in respect of which he has been charged. He said he was negligent in not enquiring whether it was in order for him to do this and that it did not occur to him that the Government would be defrauded. He said he wrote out the cheques at the joint re request of No. 1 Accused and Musa. Under cross-examination he admitted that he hardly knew Musa. He said he had been drinking and this would have influenced him. He was most unimpressive in his efforts to show that he had written out the cheques in good faith; and I reject his evidence.
The aforegoing survey of the evidence makes it clear that the Crown has proved its case on all the Counts. In recapitulating I will deal with the position of each Accused individually:
No. 1 Accused is found guilty of uttering the cheques in Counts 2, 4 and 6. He himself admits this but he says it was at the request of Musa in each instance. Even if this is true there can in the circumstances be no question of his having believed he was entitled to cash the cheques.
No. 2 Accused is found guilty of uttering the cheque in Count 3. The same considerations apply to him as in the case of No. 1 Accused.
No. 4 Accused is found guilty of the forgery in Counts 5, 6 and 7 and of the uttering in Count 5. The conviction in respect of the forgery is based on the handwriting evidence which I find to have
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been admissible and fully acceptable. No. 4 Accused gave no evidence to gainsay this. In regard to the uttering in Count 5 it was admitted that No. 4 had presented this cheque for payment. As he had forged it he must have had the same fraudulent intent in uttering it.
Ho. 5 Accused is found guilty of forgery in respect of the cheques in Counts 2, 3 and 4. His explanations in regard to how he came to do this are quite unacceptable.
C. J. M. NATHAN
CHIEF JUSTICE.


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