HIGH COURT OF SWAZILAND
MAPHALALA - J
the Applicant MR. C. NTIWANE
the Respondent MR. N. MASEKO
the 28th February 2003, the Applicant filed an application for bail
in the following terms:
Applicant to bail upon such terms and conditions as the above
Honourable court deems fit to impose.
Further and/or alternative relief.
Applicant has filed a founding affidavit in support thereto.
Crown opposes the application and the opposing affidavit of 2063
Detective Superintendent Aaron T. Mavuso is filed thereto. Supporting
affidavits of Superintendent Ndwandwe 1757 Sergeant Margaret Makhanya
are also filed in opposition. The Crown was then granted leave to
file a supplementary affidavit such affidavit was presented for
filing on the 24th March 2003. This affidavit was deposed to by 2063
Detective Superintendent Aaron Thabo Mavuso who also deposed to the
main opposing affidavit. Various annexures are filed in support
thereto viz annexure "ATM3" being a statement to the police
by Jabulane James Mashaba and annexure "ATM4" by one
Celumusa Mbhekeni Mafu. These two persons are co-charged with the
Applicant in the murder charge.
the 12th March 2003, the Applicant filed a replying affidavit to the
main opposing affidavit. The said affidavit is deposed by the
the 20th March 2003, the Applicant filed a replying affidavit to the
supplementary affidavit which was also deposed to by the Applicant
must say that this matter first appeared before court on the 7th
March 2003, and has been postponed on a number of times for various
reasons until it finally appeared before me on the 5th May 2003.
Applicant is a 70 years old man with a sickly disposition suffering
from sugar diabetes. He is the Court President of the Bhunya National
Court and also a Chief of the area. He also serves in the King's
advisory body, the Swazi National Council Standing Committee (SNC).
was arrested by members of the Royal Swaziland Police force led by
Jomo Mavuso on the 19th February 2003, on a charge of the murder of
one Taba Dlamini and he is presently an awaiting trial prisoner at
Mdutshane Correctional facility.
is desirous of being admitted to bail pending his trial on the murder
charge. He avers that he cannot carry out his responsibilities at the
Bhunya National Court and being Chief of his area because of his
continued detention pending his trial. He cannot also perform his
duties in the King's advisory body.
Applicant is married to eight (8) wives in terms of Swazi law and
custom and has many children the number of which he cannot readily
remember. He is the sole breadwinner of his huge family and given his
incarceration his family is prejudiced. As earlier stated he suffers
from sugar diabetes and he fears that he will die in prison while
awaiting his trial as he does not have access to his medication and
the right type of diet he is supposed to have.
Applicant further, avers that he has a good defence to the charge of
murder in that he did not kill the deceased in as much as he is
involved in any conspiracy to have killed him. That in the event he
is admitted to bail he will reside either at Bhunya where he was
allocated a house by Government or at Mlindazwe where his main home
is. If the court were to admit him to bail he undertakes not to
demean himself in any manner prejudicial to the interest of justice.
He undertakes not to interfere with Crown witnesses and will appear
in court when his matter is tried. He can report at Bhunya Police
Crown's opposition as gleaned from the opposing affidavit of
Superintendent Mavuso and others can be summarised as follows: It is
the Crown's case that there is overwhelming evidence against the
Applicant that he conspired in the murder of the deceased. Applicant
and deceased were involved in a chieftancy dispute. The firearm that
was used to kill the deceased belonged to the Applicant and is
legally registered in
name. This firearm was recovered after a pointing out by accused no.
1 Celumusa Mbhekeni Western Mafu after he had been duly warned and
cautioned in terms of the Judges Rules. It is contended that the
Crown will lead evidence to prove that the Applicant gave the firearm
to 1st accused sometime in 2002.
the Crown will prove that notwithstanding that Applicant knew that he
had given his firearm to accused no. 1 he then in January 2003 went
to Bhunya Police station and falsely reported that he had lost his
firearm. According to the Crown, that was a deliberate ploy to
frustrate and/or obstruct the course of justice, even before the
murder was committed.
second ground for the Crown's opposition which at first blush appears
to have substance is that some Crown witnesses are his subjects
therefore there is high likelihood that Applicant will interfere with
such witnesses. It is contended in this connection that even though
in custody Applicant has passed threatening remarks concerning this
case to the 1st accused and the 1st accused had made a report to the
Zakhele Remand Centre about these threats. As a result thereof the
investigating officer, Jomo Mavuso was called by the said officer
at the instance of accused no. 1 to attend to these threats. This,
according to the Crown was interference by the Applicant with
investigations and the course of justice. Further, accused no. 1
stayed together in one house with Applicant. Accuse no. 1 was the
driver of the Applicant and that they are related.
Aaron Mavuso in his supplementary affidavit deposed further that the
Applicant has interfered with one witness Khabonina Shabangu whose
evidence is crucial to the Crown's case.
leading of viva voce evidence
Mr. Ntiwane had made his submissions and during the course of the
Crown's submissions a need arose for the calling of viva voce
evidence. The evidence was sought
clarify whether accused no. 1 made a report of the threat by the
Applicant to the officer
Zakhele Remand Centre, Manzini and the nature of the threat itself.
The court then adjourned to another date to enable the Crown to call
witnesses. Two witnesses were called in this regard. Officer Ndwandwe
aka Nxumalo testified that accused no. 1 made a "report" to
him but the officer could not assist the court as to the nature of
threat except to say that when Applicant was being remanded at the
Manzini Magistrate Court with the other accused persons he talked
"badly at him" "(wamkhulumisa kabi)". This
witness was cross-examined at some length by Mr. Ntiwane for the
Applicant where certain inaccuracies emerged from his evidence more
importantly that his supporting affidavit was not sworn in terms of
the law. I shall advert to this aspect of the matter later in the
course of this judgement as I feel it needs proper attention. The
Crown then called one Makhanya who is also a co-charged with accused
in this matter.
testified that as he had been shot by the police when they arrested
him he was taken to Mbabane Government Hospital for treatment where
he met the Applicant. The Applicant told him that accused no. 1 Mafu
has fabricated evidence against him and he (applicant) requested
Makhanya to go and tell Mafu who was also kept at the Zakhele Remand
Centre that certain people would come to collect his personal
clothing's. This witness could not help the court as to why these
items were to be collected. But in the affidavits by the Crown it is
alleged that the purpose of collecting Mafu's clothing was that they
were to be treated by some supernatural means so that Mafu would
escape from custody mysteriously. The grand plan was that if Mafu
escaped that would be the end of the matter as the main perpetrator
in the commission of the offence would have disappeared and the
Applicant would go scot-free. This according to the Crown was further
proof that the Applicant was hell bent in interfering with Crown
witnesses and tampering with the evidence in this case.
court has heard submissions by both counsel in this matter.
locus classicus in matters of bail in this jurisdiction is the case
of Jeremiah Dube vs R (1) 1979 - 1981 S.
187 (per Cohen J (as he then was) where the learned judge, inter alia
held that "it is established in our law that the onus is on the
accused to show on a balance of probabilities that the granting of
bail will not prejudice the interests of justice" (see, for
example, S vs Nichas and another 1977 (1) S.A. 257 (c) and Rex vs
Mtatsala and another 1948 (2) S.A. 585 (E) where it was stated that
if the crown opposed the application the onus is on the accused to
satisfy the court that he will not abscond or tamper with Crown
witnesses and if there are substantial grounds for the opposition
bail will be refused. It is necessary to strike a balance as far as
it can be done between protecting the liberty of the individual and
safeguarding and ensuring the proper administration of justice. (see,
for example R vs Essack 1965 (2) S.A. 161 (D) and S vs Mhlawli and
others 1963 (3) S.A. 795 (c).
Nagel (ed) Rights of the Accused (1972) 177-8 the following valid
remarks are also made:
basic purpose of bail, from society's point of view, has always been
and still is to ensure the accused's reappearance for trial. But
pretrial release serves other purposes as well, purposes recognized
over the last decade as often dispositive of the fairness of the
entire criminal proceedings. Pretrial release allows a man accused of
crime to keep the fabric of his life intact, to maintain employment
and family ties in the event he is acquitted or given a suspended
sentence or probation. It spares his family the hardship and
indignity of welfare and enforced separation. It permits the accused
to take an active part in planning his defence (sic) with his
counsel, locating witnesses, proving his capability of staying free
in the community without getting into trouble ... In the past decade,
studies shown that those on pretrial release plead guilty less often,
are convicted less often, go to prison less often following
conviction than those detained before trial. This is true even when
the study controls for factors such as employment at the time of
arrest, retained or assigned counsel, family ties, past record and
present charge. The factor of pretrial release alone shows up as a
vitally controlling factor in the outcome of the trial and
1991 (2) S.A. 805 (Nm) Mohamed J remarked as follows (at 822 A
accused person cannot be kept in detention pending his trial as a
form of anticipatory punishment. The presumption of the law is that
he is innocent until his guilt has been established in court. The
court will therefore ordinarily grant bail to an accused person
unless this is likely to prejudice the ends of justice".
Law of Criminal Procedure (2nd ED), 1969 at page 150 states that bail
will not be granted if the interest of justice will be prejudiced, as
is likely that the accused will abscond or there is a reasonably
founded apprehension that the accused will avoid standing trial, as
by committing suicide (C
1955 (1) P.H. H93 C). In applying this "the court will not look
at the character or the behaviour of the prisoner at any particular
time, but will be guided by the nature of the crime charged, the
severity of the punishment which may be imposed and the probability
of a conviction per Tatham J. in Kok vs R
267, at page 269, 270.
likely that the accused will hamper the investigation of the police
in any way Cheller and another vs Attorney General 1932 CPD 102. In R
vs Mbalele 1946 (1) P.H. H63 E Pittman JP. refused bail where if
released the accused might have brought or attempted to bring grossly
improper influences to bear with the object and effect of disturbing
the due course of justice. But this decision on the potential acts of
the accused should, with respect be followed with caution.
is a reasonable possibility that the accused will tamper with state
witnesses thus bail was refused in ex
231, where it was shown that the lives of two principal witnesses had
been threatened and they were in terror of the accused. In R vs
Phasoane, 1933 T
405, where it was shown that pressure had been brought to bear on a
native woman to induce her to lay the blame on a person other than
who was a deposed headman and a tyrannical person possessing
considerable authority over his own people.
above therefore are the legal principles on which the instant case
ought to be decided. I shall proceed therefore to determine the
issues under two heads; viz i) and ii) enunciated by Swift (supra)
above. As these appears to me to be the two grounds of opposition
advanced by the Crown in casu.
is likely that the accused will abscond or there is a reasonably
founded apprehension that accused will avoid standing trial.
Crown is of the view that there is likelihood that accused will
abscond or there is a reasonable founded apprehension that accused
will avoid standing trial. The Crown's apprehension in this regard is
premised on the fact that the Applicant is facing a crime which
carries capital punishment if he were to be convicted at the
conclusion of his trial. In this connection I find it apt to cite the
case of Jeremiah Dube (supra) at page 189 paragraph C
F where the learned Judge Cohen J cited the judgment of Innes CJ in
the case of McCarthy vs Rex 1906 T.S. 657 at 659, that:
cases of murder, however, great caution is always exercised upon an
application for bail".
J in the case of Leibman vs Attorney General 1950 (1) S.A. 607 (W) at
to say on the subject, and I quote:
meaning of this last sentence, as appears from subsequent cases, is
that the very fact that a person is charged with a crime which entail
the death penalty is in itself a motive to abscond. But that fact is
not enough. If it were otherwise - if that fact were regarded as
enough - no person charged with a capital offence would hope for
bail, and yet bail has in many cases been granted to persons charged
with capital offences. The court looks at the circumstances of the
case to see whether the person concerned expects, or ought to expect
conviction. If it is found on circumstances disclosed to the court
that the likelihood of conviction is substantial, that the person
ought reasonable to expect conviction, then the likelihood of his
absconding is greatly increased thus the court goes into the
circumstances of the case, that is, the evidence at the
of the court where there has been a preparatory examination that is
the material which is used. Where no preparatory examination has yet
been held the court has to consider such material as is furnished to
it by the accused himself (Applicant) or by the Attorney General or
his representative" (my emphasis). I interpose at this stage
that in the instant application the Director of Public Prosecutions
takes the place of Attorney General in this jurisdiction.
casu there is no material allegation in the Respondents papers which
supports this ground of opposition. In this connection the only
paragraph which touches on this aspect of the matter is paragraph
4.1.2 of officer Mavuso's supplementary affidavit as follows:
humbly state further that the custodial sentence to be meted out to
Applicant if convicted of murder, is a factor which can make him
abscond his trial if he is admitted to bail".
have assessed the facts presented before me in toto and it would
appear to me that the Applicant has very deep emotional, occupational
and family roots with the country. It has been stated and it is
common cause that the Applicant is a man advanced in age, married to
eight wives with many children. It has also been revealed that he is
a Chief of his area and is also a member of the highly regarded
King's Advisory Council commonly known as "SNC". He is also
a judicial officer of note in the Swazi National Court hierarchy. His
roots in this country indeed run very deep for him to abscond and
become a fugitive from justice.
what was said by Millin J in Leibman (supra) on my assessment of the
case against the Applicant on the facts presented on the affidavits
the Applicant was not the one who shot the deceased as that role is
ascribed to his co-accused. The case for the Crown, it would appear
from the facts is that the Applicant conspired with the others in the
commission of the murder. However, that is still to be the subject of
the main trial.
apprehension that the applicant on being granted bail may flee the
country maybe allayed by fixing the amount of bail which would make
him think twice in taking that
(see S vs Acheson (supra) at 822 - 823 (c) where Mohamed J (as he
then discusses sub-issue 1 (c) viz how much can he afford to the
forfeiture of the bail money).
factor to be taken into account in this regard is what travelling
documents he has to enable him to leave the country. Following that
would be what arrangements exist or may later exist to extradict him
if he flees to another country. Swaziland has extradiction treaties
with its neighbouring countries.
in all, under this ground of opposition my considered view is that
stringent conditions of his bail may be imposed that would make it
difficult for him to evade policing movements (see Mohamed J in S vs
Acheson (supra) at item 1 (j).
is a reasonable possibility that the accused will tamper with state
second question which needs to be considered is whether there is a
reasonable likelihood that, if the Applicant is released on bail, he
may tamper with the relevant evidence or cause such evidence to be
suppressed or distorted. Again according to Mohamed J in S vs Acheson
(supra) this issue involves an examination of other factors such as:
or not he is aware of the identity of such witnesses or the nature of
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;
the accused's relationship is with such witnesses and whether or not
it is likely that they may be influenced or intimidated by him;
or not any conditions preventing communication between such
witnesses and the accused can effectively be policed".
casu we have the evidence of Superintendent Mavuso on affidavits in
the main Opposing Affidavit and the Supplementary Affidavits that the
Applicant has made "threats" to his co-accused Mafu and as
such will be disposed to tamper with crown witnesses when released on
bail. We have also the evidence of Makhanya who is the Applicant's
co-accused in the murder charge, who testified under oath here in
court that the Applicant approached him at the Mbabane Government
Hospital with a message for Mafu. The message was that Mafu should
not be surprised if people come to collect his personal clothing.
When cross-examined by Mr. Ntiwane as to the reason for this, the
witness did not come out with an answer as to why these clothes were
to be taken from Mafu. It is stated though by Mafu in his statement
that the message from the Applicant was sympathetic to his plight
where he stated inter alia the following:
delivered the message to me as follows:
said to me that he had been sent by Nhloko saying that first of all
he had not disregarded me in
or remand centre. He was still with me. Even now he was still with me
where I am ...".
tenor of the whole statement by Mafu is inconsistent with the
"threats" the Applicant is alleged to have made towards
Mafu in one of the remand hearings. The "threats" which
were later communicated to officer Ndwandwe and subsequently related
to the investigating officer Mavuso. In any event it is common cause
that Mafu and Makhanya are in custody at Zakhele Remand Centre and
the Applicant is kept in another facility. Neither Mafu in his
statement nor Makhanya in his viva voce evidence ever mentioned that
the items from Mafu were to be taken to a traditional healer to
facilitate Mafu's escape. It appears to me that this piece of
evidence by the Crown is based on conjecture. It appears to me
further that the fears expressed by the Crown as regards Mafu and
Makhanya are baseless on the face of the facts presented before me.
proceeding to the other witnesses I wish to revisit the issue of the
affidavit by officer Ndwandwe and its effect on these proceedings.
The officer told the court that he did not appear before a
Commissioner of Oaths when he made his Supporting Affidavit. He was
never in Mbabane on the 7th March 2003, and he never appeared before
the Crown Counsel Khumbulani P. Msibi who purported to have signed as
In terms of Section 2 of the Interpretation Act No. 21 of 1976, an
affidavit is defined as follows:
means a document duly attested and sworn to under oath".
Superior Court Practice, 1995 at page Bl-37, defines an affidavit in
the following terms:
affidavit is a statement in writing sworn before someone who has
authority to administer an oath; it is a solemnly assurance of fact
known to the person who states it, and sworn to as his statement
before some person in authority such as a judge, magistrate, justice
of the peace, commissioner of the court or commissioner of oath".
the present case the supporting affidavit by officer Ndwandwe does
not fulfil the requirements of Section 2 of the Interpretation Act
and the comments by the learned author, Erasmus (supra).
my view, the supporting affidavit is a fraud. A criminal offence has
been committed in this instance, more particularly by the
Commissioner of Oaths who purported to have solemnized the same. I
will direct that a copy of this judgment and the transcripts of the
court record in this case be transmitted forthwith to the office of
the Director of Public Prosecution for his scrutiny and possible
action. I must further add, on this point that this state of affairs
cast doubt as to the authenticity of the other affidavits including
the main affidavit opposing the bail application which were all
solemnized by the same Commissioner of Oaths purportedly on the same
day the 7th March 2003. If that was the case then the Crown case in
opposition of the bail application would crumble like the proverbial
house of cards. Mr. Maseko saw this difficulty and readily conceded
that the affidavit by Ndwandwe is not worth the paper it is written
on, however, he urged the court to consider his viva voce evidence.
to the other witnesses. According to paragraph 2 of the Supplementary
Affidavit deposed to by Detective Sergeant Mavuso the investigations
are not complete
he avers that he is yet to record a statement from a potential
witness who is currently in a neighbouring state. The difficulty with
this paragraph is that the Applicant is not aware of the identity of
this witness or the nature of his/her evidence. He cannot interfere
with a witness who is not known to him (see S vs Acheson (supra).
Further, the bail application served before the court as far back as
the 7th March 2003. Two months have elapsed since the affidavit was
filed on 23rd March 2003. At the time of argument the court was not
appraised on how far the investigations have gone in so far as this
unknown witness is concerned. It would appear to me on the facts that
the opposition advanced in this regard is without merit.
I come to the witness called Khabonina Shabangu. When the matter was
before court the Crown intimated that it was to call her. However,
Mr. Ntiwane objected to the calling of this witness on the ground
that she was a wife of one of the accused persons. Mr. Maseko for the
Crown applied for a short adjournment to consult with this witness.
This witness features prominently in this case and is described by
officer Mavuso as "very crucial witness". Her evidence as
related by Officer Mavuso at paragraph 3.1.5 tends to show that the
Applicant when released on bail will put pressure to bear on her. The
said paragraph reads as follows:
arrested accused no. 1 and no. 2 (Moses Shabangu) it transpired that
Khabonina Shabangu be re-interviewed for the second time. During the
second interview she revealed that immediately after the first
interview with the police on the 13th February 2003, she then
collected by (sic) accused no. 1 and taken to accused no. 3's wife
(LaMlawusa) at Bhunya village, where she met accused no. 3, applicant
before court. During this meeting Khabonina Shabangu was interrogated
by accused no. 1 and accused no. 3 (Chief Nhloko Zwane) about what
she had said to the police on the 13th February 2003, which pertains
to the events of the events (sic) of the 29th January 2003".
Applicant in his replying affidavit to the above mentioned paragraph
countered as follows:) at paragraph 4.5):
deny the allegation that Khabonina was collected and taken to my wife
as alleged where I interrogated her. The truth of the matter is that
Mafu came with Khabonina to our house where I thought they had paid
me a visit. I deny that I interrogated her in the manner alleged or
must say on the evidence a golden opportunity for the Crown was lost
in not calling her to clarify this apparent dispute of fact.
Paragraph 3.1.5 is denied by the Applicant and I cannot gainsay his
version in the replying affidavit to the supplementary affidavit.
assessing the evidence presented before me in connection with this
witness I have come to the conclusion that the Applicant's version
has not been dislodged. It would also appear to me that conditions
may be imposed preventing communication between the Applicant and the
witness which can effectively be policed. Furthermore, it would
appear to me statements have been taken from this witness and she has
committed herself to give evidence in the trial of this matter. (see
S vs Acheson (supra)).
Mohamed J in S vs Acheson (supra) stated that a third consideration
to be taken into account is how prejudicial it might be for the
accused in all the circumstances to be kept in custody by being
learned Judge stated the following pertinent words:
would involve again an examination of other issues such as for
duration of the period for which he is or has already been
incarcerated, if any;
duration of the period during which he will have to be in custody
before his trial is completed;
cause of the delay in the completion of his trial and whether or not
the accused is partially or wholly to be blamed for such delay;
extent to which she might be prejudiced in engaging legal assistance
for his defence and in effectively preparing his defence if he
remains in custody;
health of the accused (my emphasis).
casu issue (e) stated above is relevant in this case.
sum, I have come to a considered finding on a fair assessment of the
facts presented before me that the Applicant has discharged his onus
and has proved on a balance of probabilities that he is entitled to
be released on bail.
can only rule that the Applicant be granted to bail to an amount to
be fixed thereafter and also to enter into recognizances as will be
agreed upon by both the Crown and the Applicant's counsel.