THE
HIGH COURT OF SWAZILAND NHLANHLA MOTSA
Vs
REX
Criminal
Case No. 118/2003
Coram S.B.
MAPHALALA - J
For
the Applicant MR. DLAMINI
For
the Respondent MR. B. MAGAGULA
RULING
(On
bail application)
(04/07/2003)
Before
court is an opposed bail application.
The
Applicant was arrested by the Lobamba Police on or about the 23rd May
2002 on a charge of theft of a motor vehicle.
The
Applicant in his founding affidavit avers that he is not guilty of
the charge levelled against him in that he never committed the
offence as charged. If admitted to bail, he undertakes to abide by
all the conditions as may be set by the court and moreover undertakes
to avail himself at trial. He avers further that that he has no
reason to abscond. He states that all his life he has always been a
resident of Swaziland and his family and property is all in Swaziland
and he has no intention of relocating. Furthermore, that he is
employed in Swaziland and will lose his job if his incarceration
continues. He can afford the bail of E500-00, which is within his
means.
2
On
the other hand the Respondent opposes bail and the opposing affidavit
of 3095 Constable P.
M.
Dludlu is filed thereto. The pertinent ground for opposition is found
at paragraph 7 therein. The said paragraph reads as follows:
"AD
Paragraph 7
In
as much as Applicant may not abscond if granted bail, I have reason
to believe that
Applicant
will interfere with crown witnesses. One such witnesses is the person
Applicant
had
asked and/or hired to tow form him (Applicant) the stolen vehicle and
ferry from him
(Applicant)
certain car parts from the very same stolen motor vehicle.
This
witness and Applicant work together as they ate employed by the same
company. I
humbly
submit that the risk of interference is very high for the above
stated reason".
To
the above the Applicant replied as follows:
"AD
Paragraph 7-8
Contents
of this paragraph are denied and the Respondent is put to strict
proof thereof. I submit that once the court grants me bail I will
ensure that I adhere to whatever conditions the court may set for me.
I further submit that the investigating officer's belief that I will
interfere with crown witnesses, especially one of my work colleagues
is unfounded. This I say because chances of me retaining my job are
very slim in terms of Section 36 of the Employment Act No. 5 of 1980,
since I have absented myself from work for more a total of three (3)
working days without my employer's permission."
Counsel
have made their submissions. The only question in the instant case to
be answered is "will the accused interfere with state
witnesses?" In S vs Hlongwa 1979 (4) S.A. 112 (d) at 113
H
Howard
J said, and I quote:
'The
accused will have failed to discharge his onus if on all the
evidence, there is a reasonable possibility that he will tamper with
one or more state witnesses if he were released".
The
learned Judge goes on to say:
"The
court may rely also on the investigating officer's opinion that the
accused will tamper with state witnesses if released on bail".
In
the case of Ex parte Qutani 1946 EDL 173 the court held that it is
not essential for the state to prove actual interference;
well-grounded fears will suffice. In the case of
3
De
Jager vs Attorney General of Natal 1967 (4) S.A. 143 (D) the court
held that in assessing the risk of interference the court is entitled
to consider the relationship between the accused and the state
witnesses.
Taking
the above enunciated legal principles into consideration vis a vis
the facts of the present case I come to the conclusion that there is
a well grounded fear that the Applicant might interfere with the
crown witness in this case who happens to be his co-worker.
In
the result, the application for bail is refused.
S.B.
MAPHALALA
JUDGE
