THE
HIGH COURT OF SWAZILAND
CASE
NO.17/2003
In
the matter between:
VUSI
NXUMALO
(NDWANDWA) 1st Applicant
VS
THE
REX
CORAM :
MASUKU
J.
For
Applicant : Mr C.S. Ntiwane
For
Respondent : Ms S. Wamala
JUDGEMENT
1st
April 2003
The
Applicant was charged with the murder of Cashaza Dlamini and the
illegal possession of a firearm. He is desirous of being admitted to
bail pending his trial. He contends that he did not kill the deceased
and that he was not in any way involved therein. This, he further
alleges, was testified to by his co-accused Wonder Mavuso and Nathi
Nkonyane during their remand hearing.
The
Crown has basically raised two issues in opposition. Firstly, it is
contended that the Applicant is likely to abscond trial as he has
allegedly been crossing illegally into the Republic of South Africa
(R.
S.
A.)
without using a passport. Secondly, it is alleged that there is a
reasonable fear that he may interfere with the witnesses being his
mother and sister amongst others.
2
In
response to the first issue, the Applicant vehemently denies this and
states that he has a home in this country and that he has no reason
to flee as he has good prospects of success at the trial. The factual
basis upon which the allegation of illegal entry into the R.
S.
A.
is made has not been substantiated by Crown. For that reason and in
the absence of evidence indicating that there is high likelihood of a
guilty verdict being returned in order to induce flight, I am unable
to lend weight to the bald allegations by the Crown.
Regarding
the latter aspect, it is the Crown's contention that the Crown
witnesses are known to the Applicant and they are his close
relatives, therefor making it highly likely that he will tamper with
them.
The
Applicant, in reply, states that he does not live in the same
homestead with the said witnesses and that he would heed any
condition imposed by the Court which would curtail or restrict his
contact with the said witnesses.
In
dealing with this point, Mahomed J. stated the following in S VS
ACHESON 1991 (2) SA 805 (Nm Sc) 822 :-
"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. "
3
The
identity of these witnesses has been disclosed and so has their
relationship with the accused. It is clear that they are his close
relatives and because of that relationship, it would in my view be
likely that they may be influenced and/or intimidated by him. Further
and more importantly, it would be very difficult, if not impossible,
to effectively police any condition preventing or limiting
communication or contact between the Applicant and the witnesses in
question.
I
am of the view that for that reason bail ought to be refused in casu
and I so order.
T.S.
MASUKU
JUDGE
