THE
HIGH COURT OF SWAZILAND
Crim.
Case No.64/03
In
the matter between:
REX
Vs
JOSEPH
MGUNGU QWABE
CORAM
: MASUKU J.
For
the Crown : Mr N.M. Maseko
For
the Accused : Mr S.C. Simelane
JUDGEMENT
8th April 2004
Sir,
Frank Kitto, in his article, reported in the Australian Law Journal,
Vol.66 (1992) entitled, "Why Write Judgements?", said the
following:-
"Publicity
in the soul of justice. It is the keenest spur to exertion and the
surest of all guards against improbity. It keeps the judge himself,
while trying, on trial".
This
case is, from the background given below, simple and straightforward
in terms of the facts and the law applicable, such that it would
otherwise have been unnecessary to write a reasoned judgement. The
attitude of the Directorate of Public Prosecutions in this matter,
and to which. 1 will make reference to later, has necessitated that
this judgement be written and delivered, in order to dispel any
aspersions that may be cast regarding the relief sought and
eventually granted.
2
Background
The
accused, an eighty-year-old man stands before me charged with the
crime of murder, it being alleged that he wrongfully and
intentionally killed one Solomon Mhlanga, at Mbhuleni on the 18th
October, 2002.
It
became unnecessary for the accused to plead because it became evident
that the accused is in a very bad state of health. I observed, when I
entered Court that contrary to established custom, he failed to stand
up. Mr Simelane, who represents the accused expressed his
apprehensions regarding the trial proceeding because in his view,
formed from previous consultations that the accused, on account of
his health would be unable to follow the proceedings, He further
informed the Court that the accused had grave difficulty talking, was
unable to stand unassisted and this his bowels were seriously
malfunctioning.
A
testimony to this state of affairs was that the accused had a
chaperon, in one of the inmates, who attended to him
continuously, supporting him and rendering all the necessary
assistance. A warder from the Mbabane Correctional Institution, at
the invitation of the Court also confirmed that the accused is
seriously ill. although he was receiving some medical treatment.
In
view of the seriousness of the accused's condition, Mr Maseko, as an
officer of the Court and in his pursuit of the course of justice with
sensitivity, asked that the matter stand down to the following day to
enable him to confer with the Correctional Service authorities
together with the Acting Director of Public Prosecutions, regarding
the fairest and most humane way of dealing with the matter in the
light of the accused age and his sick disposition. Mr Simelane,
suggested that the charges be withdrawn and the accused released,
until such time that his health improved, whereupon, the charges
could then be reinstated.
Mr
Maseko, on his return informed the Court that the instructions from
the Acting Director of Public Prosecutions were that the matter be
postponed to some other date to afford the accused time to
recuperate, with the accused remaining in custody in the interim
period. 1
3
emphasise
that these were the instructions given in the face of and in full
appreciation of the condition of the accused described above.
Concerned
about the accused's state of health, I ordered that he be taken to a
medical practitioner for an opinion on his state of health regarding
his fitness to stand trial and to continue in detention at the remand
centre. This was promptly done as Dr Austin Ezeogu, the Acting Senior
Medical Officer of the Mbabane Government Hospital, on the some day,
i.e. 31st March 2004, examined the accused and his conclusion was
that the accused is not physically and medically fit to stand trial.
He further opined that the accused's continued stay in custody could
accelerate the deterioration of his health. I wish to commend Dr
Ezeogu for his prompt and efficient attention to this sorry case.
Bail
Application
In
view of the unfortunate turn of events ushered in by the instructions
of the Acting Director, Mr Simelane, indicated that he would move an
application for the accused to be admitted to bail. This is permitted
by the provisions of Section 96 of the Criminal Procedure and
Evidence Act No. 67 of 1938. Due to the accused's state of health and
difficulty in communicating, Mr Simelane, moved the application from
the bar a course that I allowed in view of the peculiar and sad
circumstances surrounding this case. Mr Maseko, for the Crown, again
exhibiting his sense of dutiful fairness, supported this course.
Mr
Simelane asked the Court to admit the accused to bail. He submitted
that in view of the accused's age and the medical report from Dr
Austin Ezeogu that it is in the interests of justice that the accused
be released. He further submitted that the accused, would stand
trial, in view of his very poor state of health. Since he is unable
to walk unassisted, he could therefore not abscond. He submitted
further that in any event, the accused had a good defence to the
charge, which fact would not induce him to flee even if his physical
and medical condition permitted.
In
the alternative, Mr Simelane, urged the Court to release the accused
on his own recognisance, a course that he implored the Court to give
first preference. He submitted that this option was the most viable
in view of the fact that the accused is a man of straw and had no
means of livelihood, hence he could not afford bail, shot of putting
cap in hand as it were.
4
Mr
Maseko, again acting under instrucrions, opposed the granting of the
accused to bail. In this regard, he called 1974 Inspector Fondololo
Mabuza. The main thrust of his evidence was that he opposed the bail
on the grounds that the accused, if admitted to bail, is likely to
interfere with Crown witnesses, in particular, one Nonhlanhla
Simelane, a granddaughter to the accused and who, according to
information at his disposal, resides at the accused's home in
Mbhuleni. This is the only basis upon which the Crown opposed the
bail application.
The
Law Applicable to Bail
In
terms of the provisions of Section 104 (1) (a) of the Independence
Constitution, which was saved after its in 1973 this Court has
unlimited original jurisdiction in civil and criminal matters. This
includes bail. Section 105 of the Criminal Procedure and Evidence
Act. 1938, vests this Court with power, at any stage of the
proceedings taken in any Court or before any Magistrate, in respect
of any offence to, admit the accused to bail.
The
onus, in matters of bail, lies with the accused. He has to satisfy
the Court on a balance of probability that he will not abscond or
tamper with Crown witnesses. If there are substantial grounds for
opposition, bail will be refused. See SEAN BLIGNAUT VS DIRECTOR OF
PUBLIC PROSECUTIONS CASE NO. 1549/01 (unreported judgement of Masuku
J.) at page
3
The
applicable law was adumbrated by Nathan C.J. (as he then was) in the
following terms in NDLOVU VS REX 1982-86 SLR 51 at 52 E-F ;-
"The
two main criteria in deciding bail applications are indeed the
likelihood of the applicant not 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
trial. There is a subsidiary factor also to be considered, namely the
prospects of success in the trial. "
5
I
can say without fear of contradiction in this case that I am well
satisfied that if admitted to bail, it is highly unlikely that the
accused would abscond. I say this because it has been ably
demonstrated that his condition of health does not permit him. He
cannot stand on his own, has malfunctioning bowels and is generally
in a very poor state of health. It is not surprising therefor that
the Crown did not oppose the grant of bail on this ground for the
writing is on the wall that an account of his advanced age and his
debilitating state of health, chances of him absconding are next to
nil.
The
question now to be determined is whether the accused is likely to
interfere with the Crown's witnesses if released on bail. The
relevant questions to be answered in this case, were enumerated by
Mahomed J. (as he then was) in S VS ACHESON 1991 (2) SA 805 (NmHC)
822 - 823C as follows;-
"The
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
whether
or not he is aware of the identity of such witnesses or the nature
of their evidence;
whether
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;
what
the accused's relationship is with such witnesses and whether or not
it is likely that they may be influenced by him; and
whether,
or not any condition preventing communication between such witnesses
and the accused can effectively be policed. "
It
must be pointed out that in casu there is no evidence or allegation
that he might tamper with any physical evidence. It would appear that
he is aware of the witnesses to testify against him. In particular,
it is clear that the said Nonhlanhla Simelane made her statement to
6
the
Police and has committed herself to give evidence. This was
exemplified by Inspector Mabuza's evidence that she was present in
Court ready to testify for the Crown. It would also appear, in the
accused's favour, that investigations in this matter were finalised,
hence the accused had been brought to trial.
Regarding
the relationship between the accused and the witness, it is clear
that she is his granddaughter and she resides at the accused's home
On the face of it, these two factors would appear to militate against
the accused being granted bail. It is however important to note that
Nonhlanhla, who is now estimated to be 21, cannot be regarded as an
impressionable and vulnerable child at the mercy of the accused.
It
was put to Inspector Mabuza, and he was unable to deny, that
Nonhlanhla does not derive any material or other support from the
accused because he has no source of income. This factor viewed
against her age makes her less susceptible to influence. This is more
pronounced when viewed against the accused's state of health. He is
unlikely to intimidate and influence her, given that he encounters
difficulty in oral communication. He is also not in a state to
physically assault Nonhlanhla with a view to forcing her to change
her story.
The
question regarding whether effective communication can be policed,
although it weighs against the accused in casu, is in my view
outweighed by the factors mentioned above.
The
next question, according to Mahomed J. in S VS ACHESON {supra) is
couched as follows:-
"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 denied bail. This would involve again an examination
of other issues such as for example.
the
duration of the period during which he is or has already been
incarcerated, if any;
the
duration of the period during which he will have to be in custody
before his trial is completed;
the
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;
the
extent to which he might be prejudiced in engaging legal assistance
for his defence and effectively preparing his defence if he remains
in custody;
the
health of ike accused. "
I
am of the view that it would be highly prejudicial to the accused in
all the circumstances, to be kept in custody by being denied bail. I
add that it would also not be in the interests of justice to keep him
in custody any longer. I say the latter in view of the medical report
especially that continued incarceration, will exacerbate his already
bad physical and medical condition. It is clear that if he is taken
back to custody, it will be like sentencing him to death, in view of
the rampant overcrowding and debilitating conditions in our
correctional institutions and of which I am entitled to take judicial
notice. Justice cannot be served by worsening the accused's physical
and medical condition, but rather, by seeking to improve it so that
he ultimately stands to face his accusers in a fit state. No one,
including the Crown, and the deceased's relatives, will be elated by
the accused dying before he stands trial. All should therefore be
done to enhance that chance than destroying it altogether, which
appears to be the result if he is denied bail, as the Crown has
implored the Court to do.
The
accused has not, according to our standards (which are poor), been
incarcerated for a long time. But for a man of his age and poor state
of health, the period from October, 2002, is long. Further, it is
uncertain when he will be certified fit to stand trial, since this is
contingent on his health improving, an unlikely event, given the
conditions in our correctional facilities. I dare say that the
impending winter, severe, as it threatens to be, from present
indications, will render the accused's chances of recovery much more
slim. It is well to state in regard to the other questions posed by
Mohamed J. that the accused is not to blame for the delay in the
commencement of the trial, rather it is his poor medical and physical
state of health. All in all, I can come to no other conclusion than
that it will be prejudicial to both the accused and the interests of
justice if the accused is denied bail.
8
I
am of the view that the. accused has shown, on a balance of
probabilities that he should be released on bail. The factors that
militate against such an Order being made, are outweighed by the
other factors in his favour. I would therefore grant the Order prayed
for.
I
should however mention that as I was ready to determine the
conditions to be attached to his bail and before considering the
propriety of releasing the accused on his own recognisance, the Crown
made an urgent request for the Court to convene. This was done and Mr
Maseko, to the relief of everybody concerned, announced a volte face
in his instructions. He advised the Court that his instructions were
now to withdraw the charges against the accused in terms of the
provisions of Section 6 of the Criminal Procedure and Evidence Act,
1938, as amended, a course that was suggested very early in the
proceedings, but thrown out with both hands by the Crown. The charges
were accordingly withdrawn.
I
wish to record the Court's appreciation to both Counsel, Mr Maseko,
in particular for his avowed stand for justice and fairness. He
exhibited his unwavering commitment to prosecuting the accused person
and not persecuting him. It remains for me to remind those who have a
heart and an ear, the timeless remarks which fell from the lips of
Lord Hailsham of St. Marylebone that:-
"
Prosecuting Counsel was not an avenging angel but an instrument of
justice. "
See
MANGISI HLATSHWAKO AND OTHERS VS THE KING CRIM. APPEAL 53/96
(unreported judgement of Dunn J.)
This
attitude and sense of fairness must exude and if necessary, extrude
in all the activities and conduct of all criminal proceedings in this
and all the other Courts. Justice and fairness are interwoven
concepts which should not be dismembered or removed from any
proceedings for any reason whatsoever. I say this in the light of the
matter of R VS NHLOKO ZWANE AND OTHERS, CRIMINAL CASE NO.36/2003 in
which the Police vigorously opposed the granting of bail to the
accused persons and after a fully blown bail application hearing the
charges were eventually withdrawn. The circumstances of the accused
in that case do not remotely resemble the seriousness of the
accused's circumstances in this case. What is sauce for goose must be
sauce for the gander.
9
In
view of the developments which occurred at the tail end of the
Judgement, I therefor find it unnecessary to issue an Order regarding
the issue of bail or the release of the accused on his own
recognisance, if the latter were at all permissible in casu.
T.S/MASUKU
JUDGE
