CASE
NO.72/2002
THE
HIGH COURT OF SWAZILAND
In
the matter between:
RINGTON
FOFO DUBE 1st Applicant
TIMOTHY
THEMA 2nd Respondent
VS
THE
KING
CORAM :
MASUKU J.
For
Applicants : Mr C.S. Ntiwane
For
Respondents : Mrs S.
Wamala
JUDGEMENT
1st
April 2003
The
Applicants were charged with the crime of robbery and the 1st
Applicant also with the illegal possession of a firearm. They are now
desirous of being admitted to bail pending the hearing of their
cases.
The
Crown's basis for opposing the relief sought is that the Applicant
are likely to abscond trial, thereby prejudicing the interests of
justice. In this regard, the Crown filed an affidavit deposed to by
1094 Senior Superintendent K. Ndlangamandla who in some detail sets
out the nature of the evidence against the accused. The case against
the accused appears to rests on accomplice evidence. It is also
contended that investigations reveal that the 1st Applicant has three
valid South African passports issued to him and that only one of
these is presently in the hands of the Police. A second one, I must
mention, was handed up by the Defence Counsel at the hearing. This
was in line with an undertaking by the 1st Applicant to do so in his
Replying Affidavit.
2
The
law applicable to bail matters has been set out in the case of SABELO
NDLANGAMANDLA VS REX CASE NO.15/03, delivered simultaneously with
this judgement. In this regard, I also refer to the cases therein
referred to.
The
lst Applicant states that he is a Swazi citizen, who holds dual
citizenship. He has a residence at Fairview, Manzini, where he was
arrested and also where his wife stays. As intimated above, the main
fears expressed by the Crown regarding admitting the Applicant to
bail are the nature of the evidence linking him to the offence and
also the fact that he has dual citizenship, more importantly in this
regard, that he was issued with three (3) passports by the South
African Government and only two are in Police hands, thus making it
possible that he may escape to the Republic of South Africa.
Without
in anyway assessing the strength of the Crown's case and it is not
desirable that I do so, there is some evidence linking the Applicant
to the offences in question. Whether or not there will be cogent and
reliable evidence sufficient to return the verdict of guilty is an
issue to be determined by the trial Court.
If
the Crown has a
prima
facie
case, subject to my remarks above, it may be argued that that would
impel the Applicant to estreat his bail and not to stand his trial.
To facilitate this absconding would be the passports that must
according to investigations still be in his possession. It is fitting
to juxtapose this issue with the question of whether if the accused
does abscond, an extradition treaty exists which would facilitate his
standing trial in the country.
In
casu, there is no dispute about the extradition treaty being in
existence and available for use, should the Applicant for any reason
abscond. Furthermore, the offences wherewith he stands charged are
not those that would be regarded not extraditable in South Africa,
the only other country with which according to Police investigations,
the accused enjoys some connection.
Considerations
applicable to the 1st Applicant are of equal force to the 2nd
Applicant. This is with regard to both the question of strength of
the Crown's case and the links enjoyed with South Africa.
3
It
is fitting to quote with approval from Millin J's trenchant guiding
remarks regarding issues of bail in LEIBMAN VS ATTORNEY GENERAL 1950
(1) SA 607 (w) at 609, where the learned Judge stated the following:
-
"The
Court is always desirous that an accused should be allowed bail if it
is clear that the interests of justice will not be prejudiced
thereby, more particularly if it thinks upon the facts before it he
will appear to stand his trial in due course."
From
the facts before me as presented by the applicants and the Crown, I
am of the view that bail should be granted to both Applicants as I do
hereby order. I however consider imposing stringent conditions in the
light of the anxieties and apprehensions expressed by the Crown. The
granting of bail will be subject to the following conditions: -
1. Payment
of E7, 000.00 by the 1st Applicant as a deposit
2. Payment
of E5, 000.000 by the 2nd Applicant
3. That
each Applicant be and is hereby ordered
3.1. to
surrender his travel document and/or passport to the R.
S.
P.
forthwith and not to apply for a new one in the interim;
3.2. to
report at the nearest Police Station once every day between the hours
of
08h30
and
l6h30
3.3. not
to interfere in any manner whatsoever with Crown witnesses.
T.S.
MASUKU
JUDGE
