THE
HIGH COURT OF SWAZILAND
CASE
NO.321/02
In
the matter between:
ELLIOT
PHOPHO MABUZA Applicant
AND
REX Respondent
CORAM :
MASUKU
J.
For
Applicant : Mr D.S. Madau
For
Respondent : Mr P. Dlamini
JUDGEMENT
1st
April 2003
The
Applicant seeks to be admitted to bail on such terms and conditions
as may to this Court seem to meet. He is charged with robbery that
was committed at the home of one Sipho Henry Maseko and where various
household items were taken.
The
Applicant denies any knowledge of or involvement in the commission of
this offence. He states on oath that the complainant is his cousin
and that after his incarceration for this offence, the complainant
visited him at Sidvwashini Correctional Institution and there
informed him that he (Complainant) had nothing to do with the
Applicant's incarceration but that it was the Police who did so.
According to the Applicant, the complainant told him that he
identified certain people during the robbery and this identification
was given to the Police. These allegations were not denied or put in
issue by the Respondent.
2
It
is the Applicant's contention on oath that the reason he was arrested
and charged was that one of his co-accused wanted to sell a car shell
to him and the Applicant wanted to view the shell first before
parting with his money. He travelled in his co-accused's vehicle to
view the shell little knowing that that vehicle in which he was
driven had been stolen.
The
main thrust of the Crown's opposition is that he is likely to
interfere with Crown witnesses. No sufficient allegations have been
put forward by the Crown to persuade this Court about the strength of
the Crown's case in the light of the Applicant's protestations of
innocence and his explanations, some of which are not denied.
In
dealing with the nub of the Crown's apprehension if the applicant be
released, Mahomed C.J. stated the following in S VS ACHESON 1991 (2)
SA 805 (NraSC) 822 - 823 (C):
"2. The
second question which needs to be considered is whether there is a
reasonable likelihood that, if the accused is released on bail, he
will tamper with the relevant evidence or cause such evidence to be
suppressed or distorted. This issue again involve an examination of
other factors such as
(a) whether
or not he is aware of the identity of such witnesses or the nature of
their evidence;
(b) whether
or not the witnesses concerned have already made their statements and
committed themselves to give evidence or whether it is still the
subject of continuing investigations:
(c) what
the accused's relationship is with such witnesses and whether or not
it is likely that they may be influenced or intimidated by him;
(d) whether
or not any condition preventing communication between such witnesses
and the accused can effectively be policed. "
From
the Crown's depositions in this regard, it cannot be said that there
is evidence of the Applicant interfering with the witnesses. Relevant
allegations as required above are wanting. It is at least clear that
he knows the complainant as one such witness and that an effective
order can be granted preventing communication with the complainant.
In the
3
circumstances,
it is unlikely, if indeed the Applicant is linked to the offence that
he would in anyway influence or intimidate the complainant, regard
had to the loss suffered by the complainant. Should this however
happen, the complainant is at large to report any intimidation or
influence to the Police, which would constitute an application by the
Applicant to forfeit his bail.
I
am of the view that on the facts before me, the interests of justice
will not be prejudiced by the admission of the Applicant to bail.
Bail be and is hereby granted subject to the following terms and
conditions:-
1. Payment
of the sum of E2,000.00
2. The
Applicant be and is hereby ordered:
2.1. To
report at the nearest Police Station once every Friday of the week
between 08h30 and 16h30;
2.2. To
surrender his travel document and or passport to the Police and not
to apply for a new one pending finalisation of the criminal
proceedings;
2.3. Not
to interfere with Crown witnesses
2.4. To
stand trial whenever given notice so to do.
T.S.
MASUKU
JUDGE
