HIGH COURT OF SWAZILAND DUMSANI PHENYANE
Case No. 126/1997
S.B. MAPHALALA – J
the Applicant MR. J. MASEKO
the Respondent MRS S WAMALWA
Applicant has made an application before court in terms of Section
136 (2) of the Criminal Procedure and Evidence Act No. 67 of 1938.
Applicant avers in his founding affidavit that he is a Swazi male
adult of Piggs Peak within the district of Hhohho. On the 14th July
1997, he was arrested by the police from Piggs Peak Police station
and charged with the crime of rape.
the 13th March 1998, he was committed to this court for trial.
However, he has not been allocated a date of hearing and has been in
custody for over three years. He
avers that since his committal he has not been transferred to any
other court of - appropriate jurisdiction.
paragraph 9 of his founding affidavit he states that this application
is urgent in that he has been kept in custody for an unreasonably
long time and that he is suffering irreparably in terms of time lost
whilst in prison. Further that he has no other remedy other than the
one sought in the notice of motion.
Respondent as represented by the Director of Public Prosecutions
opposes the granting of this application and a notice to that effect
is filed of record. However, no opposing affidavit has been filed.
matter appeared before me on the 25th March 2004, where arguments
were advanced by counsel.
argument advanced for the Respondent from that bar is that since the
Applicant has not been granted bail in this matter he is not entitled
to be discharged in terms of the Section. The point is premised on
the dicta by Masuku J in the case of Celani Maponi Ngubane vs The
Director of Public Prosecutions, Civil Case No. 11/04 (unreported)
where the learned Judge held as follows at page 6-1 of the judgment;
and I quote:
is yet another issue which was not raised in court but which
exercised my mind as I wrote the judgment. This relates to the
purpose of this Section. According to Didcott J. in the Lulane case
(supra), the purpose of the Act, with which I am in full agreement,
is stated at page 208, by the learned Judge as the following:
object of this subsection is plain i.e. subsection (1). It is devised
to meet the situation in which an accused person is detained while he
awaits trial and unable to get bail in the ordinary way; and its aim
is to limit the period during which someone in the situation must
remain in custody", (my emphasis is mine),
is my considered view that before a person can move an application in
terms of sub-section (2), as the Applicant has done, he must have
satisfied the requirements of sub-section (1) and must not have been
afforded any relief thereunder, In particular, it must be clear that
has been unable to obtain bail in the ordinary way and that the time
limits in subsection (2) have been fully met.
posed a question to Mr. Dlamini regarding the status of the
Applicant's bail application and the answer, which is confirmed by
the file is that the bail hearing awaits determination. This to my
mind is an inducium that the Applicant has not shown that he cannot
be granted bail in the ordinary way and cannot before that is done
approach the court for the relief he seeks. The bail application
whether in terms of the provisions of Section 95 or 136 (1) is in my
view a condictio sine qua non for being granted relief in terms of
Section 136 (2)
am in respectful agreement with the above cited ratio decidendi and
would hold the view that the Applicant in casu has not satisfied the
requirements of the Section as he has not shown that he was unable to
obtain bail in the ordinary way.
the above reasons therefore the application ought to fail, I must
however, implore the office of the Director of Public Prosecutions to
urgently speed up the hearing of this case. The Applicant first
appeared before this court 7 years ago making his first appearance on
the 19th December 1997. He has made a total of 8 court appearances.
This delay in having this matter tried is highly undesirable, as
justice delayed is justice denied.