HIGH COURT OF SWAZILAND
the matter between:
DALTON NDLANGAMANDLA Applicant
Applicant : Mr C.S. Ntiwane
Respondent : Mrs S. Wamala
is an application in which the Applicant seeks to be admitted to bail
on such terms as this Court may deem fit to impose. The Crown, in
opposition, has filed a terse affidavit attested to by 3141 Constable
Applicant, in his affidavit states that he was indicted for having
murdered one Themba Ginindza and is presently awaiting trial at
Nhlangano Correctional Services Institution. He states further that
before he was arrested he was in the employ of Usuthu Pulp Limited at
Bhunya and fears that his continued detention will result in him
losing his employment. He further undertakes if admitted to bail, not
demean himself in any way prejudicial to the interests of justice,
nor to interfere with Crown witnesses.
main thrust of the opposition revolves around the following: -
is ordinarily resident in Witbank in the Republic of South Africa and
that he does not use a travelling document to travel to the Republic
of South Africa. Should the Applicant be admitted to bail, he can
still abscond, by employing other means of exit;
community of Lulakeni where the deceased lives is up in arms and is
threatening his life should he be admitted to bail;
is fear that the Applicant will interfere with Crown witnesses as
they are resident in the same area.
NDLOVU VS REX 1982 - 86 SLR 51 at 52 E - F, Nathan C.J. stated the
applicable principles as follows: -
two main criteria in deciding bail applications are indeed the
likelihood of the applicant standing trial and the likelihood of his
interfering with Crown witnesses and the proper presentation of the
case. The two criteria tend to coalesce because if the applicant is a
person who would attempt to influence Crown witnesses it may readily
be inferred that he might be tempted to abscond and not stand, his
trial. There is a subsidiary factor also to be considered, namely,
the prospects of success in the trial. "
the case of SEAN BLIGNAUT VS REX CASE NO. 1549/2001,
cited with approval the judgement Mahomed J. (as he then was) in S VS
ACHESON 1991 (2) SA 805 (Nm Sc) 822 - 823 C, where the factors
applicable were lucidly enumerated. The factors are the following: -
Is it more likely that the accused will stand his trial or is it more
likely that he will abscond and forfeit his bail? The determination
of that issue involves
consideration of other sub-issues such as.
deep are his emotional, occupational and family roots with the
country where he is to stand trial;
are his assets in that country;
are the means that he has to flee from that country;
much can he afford the forfeiture of the bail money;
travel documents he has to enable him to leave the country;
arrangements exist or may later exist to extradite him if he flees to
inherently serious is the offence in respect of which he is charged;
strong is the case against him and how much inducement there would
be for him to avoid standing trial;
severe is the punishment likely to be if he is found guilty;
stringent are the conditions of his bail and how difficult would it
to evade effective policing movements.
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 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 intimated by him;
or not any condition preventing communication between such witnesses
and the accused can effectively be policed.
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 denied bail.
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 he 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."
remains for me to now consider the issues raised by the Respondent to
determine the Applicant's fate in this matter.
resident in Witbank.
allegation by the Crown has not been controverted as the Applicant
has not filed any Replying Affidavit, to place this allegation in
issue. Uncontroverted as it remains, it must in my view stand. The
question then becomes whether if standing on its own, the Crown's
allegation is enough to deny the Applicant bail. It is common cause
that the R.
and Swaziland enjoy an extradition treaty and if the Applicant
estreats his bail and goes to the R.
with which he enjoys links according to the uncontroverted
allegations by the Crown, he could be extradited back to Swaziland.
Joubert "Laws of South Africa" First Re Issue Vol.10 Part 1
page 251 at paragraph 299, it is recorded as follows :-
which have abolished the death penalty often, either in their
extradition legislation or by treaty, reserve the right to refuse
extradition to a country where the offence for which extradition is
sought could attract the death penalty. "
is clear that the R.
has abolished the death penalty and would therefor be unlikely to
extradite the Applicant to this country that is if he took flight.
For this reason it could be
that the Applicant should fail. This is however subject to the
consideration that the Crown must place evidence which indicates that
the prospects of conviction are overwhelming and which would
therefore precipitate the accused to estreat his bail.
support of this latter proposition, I quote with approval from the
remarks of Millin J. in LEIBMAN VS ATTORNEY-GENERAL 1950 (1) SA 607
(W), where the following appears at page 609.
Court is always desirous that an accused person 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 that he will appear to stand his trial in due course. In
cases of murder, however, great caution is always exercised in
deciding upon an application for bail. The meaning of this last
sentence from subsequent cases, is that the very fact that a person
is charged with a crime which may 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 could over 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 the circumstances disclosed to the Court that the likelihood
of conviction is substantial that the person ought reasonably to
expect conviction, then the likelihood of his absconding is greatly
increased. Thus the Court goes into the circumstances of the case
i.e. the evidence at the disposal of the Crown. Where there has been
a preparatory examination that is the material 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 (the
applicant) or by the Attorney-General as his representative. "
casu, there has been no effort by the Crown to show the strength of
its case and therefor the likelihood of a conviction which would
suffice to induce the Applicant to estreat his bail. Scanty
affidavits without any useful information are unhelpful to assist the
Court in satisfactorily addressing this question which can at times
be vexing indeed. No summary of evidence has been furnished to
indicate the evidence against the accused in casu. In the
of this, there is no indication in my view that the accused would be
impelled to escape resulting in a failure of justice.
is the Respondent's contention in this regard that the people in the
accused's area would resort to taking the law into their own hands
were the accused to be admitted to bail and in which case, they may
even harm him. This is an allegation which the Applicant as
aforestated, has not controverted. The answer would to my mind seem
to lie in the third consideration made by Mahomed J. (supra) i.e. how
prejudicial it might be for the accused in all the circumstances to
be kept in custody by being denied bail. Mr Ntiwane urged the Court
not to consider this ground for the reason that it would mean that it
gives regard to people who take the law into their own hands.
Court cannot however take lightly allegations that the Applicant's
safely cannot be guaranteed. It would be wrong to wait and see
whether the threat to the Applicant's life materialises. It would not
serve anyone's purposes or the interests of justice if the Applicant
cannot be able to stand trial because he is injured or killed at
Applicant, who is in custody, is in my view not well placed to gauge
the mood of the people in his home area. In the light of the above,
it is my view that the likely reaction of the people who may well
feel highly aggrieved by the conduct attributed to the accused as it
is feared by the Respondents that he may be harmed or even killed. In
this regard and for his safety, it is in my view preferable that he
is denied bail. Unfortunately, in the absence of a replying
affidavit, no other area is suggested where the accused could be
liberated to and stay safely.
the last issue i.e. interfering with Crown's witnesses, the relevant
factors are listed in the second consideration by Mahomed J. (supra).
It is clear that some poignant issues must be addressed and placed in
evidence before Court. An affidavit which only alleged that the
Applicant is likely to interfere with witnesses without specifically
addressing the issues set out by Mahomed J. is clearly not useful to
the Court. The Respondent must place sufficient evidence before Court
that will demonstrate that tampering with witnesses is highly likely.
the premises and for the aforementioned reason, bail be and is hereby
refused. The accused does not appear to have spent an unconscionably
long time in custody.