THE
HIGH COURT OF SWAZILAND
Criminal
Case No.43/04
In
the matter between;
BRIAN
MDUDUZI QWABE Applicant
And
REX
Respondent
CORAM
: MASUKU J.
For
the Applicant : Mr Z.Magagula
For
the Respondent : Mrs S. Warnala
JUDGEMENT
20th
April, 2004
This
is an opposed bail hearing. The Applicant, a Swazi male adult who
describes himself as a resident of Mbagweni, Hhohho District, was
arrested on the 17th March 2004, by Police Officers from the Mbabane
Police Station.
He
was charged with stock theft, a charge to which he protests his
innocence as he denies any involvement in theft of any cattle.
Regarding his personal circumstances, he states that he is 29 years
old and is married to a woman, whom the Court was told at the hearing
had a newly bom baby. He states further that he runs a shop, which
due to his incarceration, has no one to take care of and that it
constitutes the main means of his livelihood. He furthei undertakes,
in his Founding Affidavit, to abide by all the conditions that this
Court could be minded to impose, in admitting him to bail.
2
The
basis of the opposition is tersely put in an affidavit. This was
either supplemented or embellished in evidence by the Investigating
Officer 3475 Detective Inspector Clement Sihlongonyane,
From
the evidence adduced by Detective Inspector Sihlongonyane, the
following appear to be the major grounds of opposition: -
that
the investigations are not yet complete as some of the accused
persons known to the Applicant have not yet been arrested:
that
the accused is likely to abscond as he fraudulently prepared a
travel document in order to facilitate the encashment of a cheque,
which was used in the purchase and sale of the stock in question.
There
is another matter involving a beast allegedly sold by the Applicant
and in respect of which investigations are yet to be completed;
That
the accused is likely to meet and influence his co-accused in order
for them to evade arrest. Furthermore, he is likely to meet with and
to influence some Crown witnesses, particularly one Sikhumbuzo
Hleta, who is the Applicant's friend.
The
Law Applicable
It
is clear that in matters of bail, the onus lies with the accused and
it is to be discharged on a preponderance of probability. He must
show that he will not abscond or interfere with Crown witnesses. The
principles applicable were stated by Nathan C.J. in NDLOVU VS REX
1982 - 86 SLR 51 at 52 E-F as the following; -
"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 the 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
3
and
not stand trial. There is a subsidiary factor also to be considered,
namely, the prospects of success in the trial."
On
the other hand, J. van der Berg, "Bail (A Practitioner's Guide)
Juta, states the following principles as being applicable: -
The
risk that the accused might not stand trial;
The
chances that he might commit another offence before trial; and
The
possibility that he might interfere with the course of justice.
It
must be remembered that in granting or refusing bail as the case may
be, the Court does not approach the matter on the basis of mere
possibility but from the viewpoint of likelihood. These are different
tests. See R VS MARK M. SHONGWE 1982-86 SLR 193 at 194H (per Nathan C
J.)
Regarding
the risk that he might not stand his trial, issues that require
consideration are the following: -
how
deep his emotional, occupational and family roots with this country
are;
his
assets in the country;
means
he has to flee;
his
ability to forfeit his bail deposit.
travel
documents at his disposal to enable him to flee;
extradition
arrangements in case he flees;
inherent
seriousness of the offence with which he is charged
strength
of case against him and the inducement offered thereby for him to
abscond;
severity
of sentence likely to be visited on him; -see S VS ACHESON 1991 (2)
SA 805 (NmHC).
There
is nothing to gainsay that the Applicant is a Swazi and that he has
deep, emotional and family roots in this country. Furthermore, his
allegation under oath that he runs a business
4
has
not been effectively challenged and it therefor stands. Whereas he
can easily skip the border, particularly to the Republic of South
Africa, as some people do (not only accused persons) without using
the designated entry and exit points, an extradition treaty, should
such eventuate, exists between this country and the Republic.
Furthermore,
the charge in relation to which he has been indicted is extraditable.
The offence, in the hierarchy of serious offences is not regarded as
inherently serious and the sentence likely to be meted out on
conviction, is in my view not likely to induce the Applicant to flee.
The strength of the Crown's case was not sufficiently demonstrated as
the officer called to testify, in large measure, relied on hearsay
evidence which is inadmissible, even in bail hearings.
I
am, in view of the foregoing, of the view that the Applicant has
demonstrated on a balance of probability that he is likely to stand
trial. The aggregate of factors in his favour, in this regard,
outweigh those working against him.
Regarding
the Applicant tampering with relevant evidence or witnesses if
admitted to bail, factors to be considered include the following: -
(i)
the identity of and nature of the evidence of the witnesses;
(ii)
whether the witnesses have already made their statements and
committed themselves to testify or whether it is still the subject of
continuing investigations;
(iii)
the relationship between the accused and such witnesses and the
likelihood
that
the witnesses may be influenced or intimidated by him; and
(iv)
whether conditions imposed regarding communication can be policed
effectively. See S vs ACHESON (supra)
According
to the Investigating Officer, the Crown witnesses have made their
statements and which have been recorded. There is no indication that
the accused, if ordered not to do so, can intimidate or influence
these witnesses, neither is it shown that the relationship between
them is such that they are likely to be influenced or intimidated by
him.
5
The
one issue that deserves mention is that the Investigating Officer
stated that the investigations are not complete because some of the
Applicant's co-accused are still at large. This in my view is not
synonymous with saying that investigation are in complete. If there
are suspects still at large, I am of the view that this cannot be
equated with investigations being incomplete. This would mean that if
the said suspects are not apprehended, the Applicant would be held in
custody ad infinitum, a proposition that offends against my sense of
justice and fairness.
Regarding
the other matter allegedly pending and in respect of which
investigations are still continuing, no sufficient information was
disclosed. It is not clear what is outstanding and whether or not the
accused has been charged, neither has the Court been told of the
nature of these continuing investigations. This allegation was not
included in the Opposing Affidavit, to enable the Applicant to
respond to it. It was only revealed in oral evidence when the
Applicant could not be given a sufficient opportunity to respond to
it.
I
am of the view that the Crown has failed, on the evidence presented
from shaving that there is a reasonable fear that the Applicant may
interfere with witnesses and evidence. It cannot, on the evidence be
judged that the fear is reasonably founded.
The
last factor to be considered is how prejudicial it might be for the
accused in all the circumstances to be kept in custody by being
denied bail. Issues that come to the fore include the following: -
the
period already spent by the accused in custody;
the
period he is likely to spend in custody before trial;
the
cause of the delay in completion of his trial and his contribution,
if any,
to
the delay;
the
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;
the
health of the accused. See S v ACHESON (supra)
The
period already spent by the accused in casu is relatively short, but
in view of the charge he faces there is no reason why there should be
any further length of time the accused, who it
6
must
be remembered is innocent until he is proved otherwise, should
continue to spend in custody. '
The
accused, from present indications is likely to spend some time in
custody before completion of his trial. I say this with some element
of diffidence, because Ms Wamala submitted that new Magistrates have
been appointed and this case will serve before them in the not too
distant future. I, in the circumstances, am unable to answer this
question with any degree of certainty. The accused, it must be
recalled runs a business and it was submitted on his behalf that he
will be prejudiced in engaging legal assistance for his defence if he
is not admitted to bail. It is also undeniably correct that his wife
has given birth to a new baby and needs his assistance in this
post-natal period. This, in my view indicates that given the entire
circumstances of this case, that it would be more prejudicial for the
accused to be kept in custody, considering also, that he accounts for
no part in the delay for the trial to commence.
In
R VS MARK M. SHONGWE (supra) at page 194 F-G, Nathan C. J. cited with
approval the remarks of Miller J. in S VS FOURE 1973 (1) SA 100 (D)
at 101G and 103 H, which had the following rendering: -
"It
is a fundamental requirement of the proper administration of justice
that an accused person stand trial and if there is any cognisable
indication that he will not stand trial if released from custody, the
Court will serve the needs of justice by refusing to grant bail, even
at the expense of the liberty of the accused and despite the
presumption of innocence ...But if there are no indications that the
accused will not stand trial if released on bail or that he will
interfere with witnesses or otherwise hamper or hinder the proper
course of justice, he is prima facie entitled to and will normally be
granted bail. As I have already mentioned, the likelihood of conduct
which may endanger the security of the State, or public safety, has
been held to constitute an exception to the general principle that an
accused person should not be denied bail unless the administration of
justice would be prejudiced by granting it.'
7
With
the above sentiments in mind, I am of the view that there is not
indication that he will not stand trail nor that he is likely to
interfere with the course of justice or endanger State security and
public safety.
The
Applicant be and is hereby admitted to bail on the followings terms;
-
To
deposit with the Treasury Department the sum of El 500.00 (One
thousand five hundred Emalangeni).
To
surrender his passport or other valid international travel document
to the investigating officer herein at the MBABANE Police Station
and not to apply for a new passport/travel document,
To
report fortnightly following his release on bail in person at the
charge office Mbabane Police Station between the hours of 0800hours
and 1600hours. The first such report shall be the first Friday after
his release thereafter, every last Friday of the fortnight.
To
refrain from speaking to or communicating with or otherwise
contacting
or
interfering with any prosecution witnesses in the case against him.
In the event he does not know their identity, they be ascertained by
him from the investigating officer.
To
remain within Swaziland.
To
provide the investigating officer with his residential address
forthwith on release, for interalia, purposes of domicilium citandi.
To
attend Court wherever and whenever directed so to do, pending
finalisation of the
case
against him.
8
Non-compliance
with any of the above conditions shall effect an estreatment of bail
forthwith.
T.S.
MASUKU
JUDGE
