HIGH COURT OF SWAZILAND
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Case No. 521/2004
S.B. MAPHALALA – J
the Applicant MR. B. S. DLAMINI
the Respondent MRS. S.N. WAMALA
Applicant seeks an order to be discharged from custody in accordance
with the provisions of Section 136 (2) of the Criminal Procedure and
Evidence Act No. 67 of 1938.
was arrested at Nhlangano on the 2nd April 2002, on a charge of rape
and was kept at Nhlangano remand facility from date of arrest.
to averments in his founding affidavit he was committed to the High
Court for trial as per the direction of the Chief Justice in terms of
Section 88 bis of the Act on the 8th August, 2002. On the 1st June
2003, almost ten (10) months after being
to this court and whilst awaiting to be allocated a trial date,
Applicant was taken back to the Nhlangano remand facility where he
commenced remind appearances afresh.
application is opposed by the offices of the Director of Public
Prosecutions and the answering affidavit of the Acting Director of
Public Prosecutions herself is filed thereto. The opposition is two
first ground of opposition is found in paragraph 3.1 of the answering
affidavit and reads as follows:
Congestion as Sidvwashini Remand Centre.
is common cause that every accused person committal (sic) at the
High Court for trial has to be conveyed to the Sidvwashini Remand
centre to await his trial date with the high rate of committal owing
to the escalating crime rate on one hand and on the other hand with
cases proceeding below the rate of committal at the High Court, 2nd
Respondent had to take steps to ease the congestion".
follows the second ground for opposition in paragraph 3.2 of the said
step to remove Applicant and others to the Magistrate court was an
Applicant a speedy trial.
is because the High Court was pregnant with murder accused awaiting
trial allocation of dates, as there was another court with
jurisdiction, over Applicant's
it was decided that such matters be removed from the High Court
on in paragraph 4 of the said affidavit the following appears:
was allocated a trial date by the Principal Magistrate prior to
moving this application. I humbly submit therefore that:
Applicant would interfere with his trial, as it has already been
application is not bona fide as he has a trial date.
Principal Magistrate is now seized with the matter as it is enrolled
in his court for trial. It is now the Principal Magistrate who has
jurisdiction to decide on the discharge of the Applicant".
consideration in casu are two issues viz i) whether the Applicant has
satisfied the requirements of Section 136 (2) of the above-cited
legislation and ii) whether the removal of accused persons for trial
elsewhere was in terms of the Act. I must hasten to state that when
the matter came for arguments before me last Friday Mrs. Wamala for
the Respondent conceded that the Applicant in the present case
satisfies the requirements of Section 136 of the Act and further that
the Applicant has not been removed in terms of Section 137 (1) of the
Act This judgment therefore is merely to complete the record. I shall
proceed to address these two points ad seriatum, thus;
in terms of Section 136 (2) of the Criminal Procedure and Evidence
Act No. 67 of 1938.
relevant piece of legislation which forms the basis of Applicant's
relief provides as follows:
such person is not brought to trial at the first session of such
court held after the expiry of six months from the date of his
commitment and has not previously been removed for trial elsewhere,
he shall be discharged from his imprisonment for the offence in
respect of which he has been committed".
is common cause that Applicant having been committee to this court on
the 8th August 2002, the first session in which the Applicant should
have been brought to trial commenced on October 2002 and ended in
December 2002. The period of six (6) calendar months lapsed in June
2003. Applicant therefore is clearly entitled to approach the court
on the basis of Section 136 (2) of the above-cited legislation and
this is conceded by the Crown.
is further common cause that on the 16th February 2004, the Applicant
applied to be released on bail at the Nhlangano Magistrates Court
where he was granted bail of
However, having paid the bail deposit he was not released following
the stand taken by Government in such matters.
of Applicant for trial elsewhere.
Section in the Act that deals with the removal of accused persons for
trial elsewhere is Section 137 (1) which provides as follows:
an indictment has been presented against an accused person in the
High Court, the Judge may, upon application by or on behalf of the
accused, order that the trial shall be held at some place other than
that specified in such indictment".
(2) of the same Act provides that:
any order is made under this Section, the consequences shall be the
same in all respects and with regard to all persons as if the
Attorney General had decided to prosecute the accused at the place
named in the order and at the time specified therein, and if he has
been admitted to bail, the recognizance's of such bail are to be
deemed to be extended to such time and place accordingly".
the facts of the present case and this has been conceded by the
Respondent's representative when the matter was argued that no
application was made by the office of the Director of Public
Prosecutions nor did the Applicant approach this court to have his
matter tried in another forum. No order was ever issued by this court
authorising the removal of the Applicant to be tried in another
to Swift's Law of Criminal Procedure, 2nd ED at page 235 on a
discussion of a similar section in South Africa being Section 151 (1)
an application under this Section should be on notice of motion
supported by an affidavit as to the facts upon which relief is sought
(Rule 6 of the rules of court).
learned author further states the following:
courts have adopted the English practice in regard to applications
for change of venue, and the general rule is that the affidavit must
show adequate grounds for removal, such as that it is not likely that
a fair and impartial trial could be obtained at the place from which
to remove the trial (R vs Malherbe 1921 OPD 142), and in the absence
of cogent reasons to the contrary the trial should take place as near
as possible Jo the place of the alleged.. offence..."
the present case this has not been done moreso as the Applicant has
been committed to the High Court for trial in terms of Section 88 bis
of the Act.
reasons advanced by the Respondent in the answering affidavit viz
congestion at Sidvwashini Remand centre and that the step to remove
Applicant and others to the Magistrate Court was an attempt to afford
Applicant a speedy trial have no effect and lack legal support when
viewed against the backdrop of Section 137 (2) of the Act.
the premise, I have no alternative but to order the discharge of the
accused in terms of Section 136 of the Act having found that his
removal from the High Court to the Principal Magistrate court was
tainted with illegality.
comment en passant, it is imperative that the office of the Director
of Public Prosecutions should follow the full strictures of the law
to avoid incidences like the present one. It is appreciated by this
court that the Director of Public Prosecutions exercises a wide
discretion in such matters but in exercise of this discretion the
Director is not permitted in law to ran roughshod accused persons'
rights by moving them wily nily from one court to another contrary to
what I would call good practice.
the result, the Applicant is discharged in terms of Section 136 (2)
of the Act and that the Applicant abide by the conditions of bail
imposed by the Nhlangano Magistrate on the 16th February 2004.