IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIM. CASE NO.183/10
In the matter between:
SIFISO S. NCUBE Applicant
Date of hearing: 02 and 16 July, 2010
Date of judgment: 21 July, 2010
Mr. Attorney T.E. Fakudze (Amicus Curiae)
Mr. Attorney M. Mathunjwa/Ms. Attorney L. Hlophe
 The question for determination in this matter is one of law and it is crisp. It acuminates to this: Does a Magistrate’s Court have jurisdiction to entertain a bail application in respect of an offence involving the theft of a motor vehicle under the Theft of Motor Vehicles Act, 1991?
 The facts giving rise to the above question are fairly straightforward and can be summarised as follows:- The applicant was charged with a single count of theft of a motor vehicle under the Theft of Motor Vehicles Act (supra) it being alleged that on 6 January, 2010 and at or near the Mbabane Market, in the Hhohho District, he unlawfully and wrongfully stole a Toyota Hilux, registered SD 980 ZH, valued at E30,000, belonging to or in the lawful possession of Joseph Zikalala of Gobholo area, in contravention of section 3 (1) of the aforesaid Act.
 It is not contested though that he applied for bail before the Mbabane Magistrate’s Court but was advised that the offence in respect of which he was charged before that Court is one in respect of which this Court is one of first instance in line with the provisions of the Criminal Procedure and Evidence Act, 2004, as amended. I shall advert to the relevant provisions shortly.
 The question, in view of the foregoing is whether the Magistrate’s Court was correct in refusing to entertain the applicant’s bail application and whether it is correct that in relation to that offence this is the Court of first instance.
 I have had the privilege to read the heads of argument filed by both Counsel in this matter and for which I am most grateful. It would appear that Counsel have reached different conclusions on the question for determination. The Crown concluded that the Magistrate’s Court do have jurisdiction to hear bail applications in respect of offences involving theft of motor vehicles, whereas Mr. Fakudze reached a contrary conclusion. Both cannot be correct. It is now my duty to decide which between the legal opinions is correct. To answer that question, it is imperative to have recourse to the legislative regime applicable.
 The relevant provisions which are central to the determination of this question are section 95 (1) of the Criminal Procedure and Evidence (Amendment) Act, 2004 as read with section 96 (6) thereof. I shall henceforth refer to this legislation as “the Act”. Section 95 (1) provides as follows:-
“Notwithstanding any other law the High Court shall be the only Court of first instance to consider applications for bail where the accused is charged with any of the offences specified in the Fourth, the Fifth Schedule or under subsection 95 (6).”
 I interpolate to observe that car theft is not one of the offences listed in the Fourth or the Fifth Schedules. This is common cause and both Counsel are ad idem on this score. This position, at this stage inexorably leads to the conclusion that car theft, not being one of the offences listed in the aforesaid schedules, subject to the consideration of section 95 (6), is not excluded by the Act from being considered by Magistrate’s Court.
 I presently turn to the provisions of section 95 (6), which read as follows:-
“Where an accused person is charged with any offence other than the offences covered by the provisions of this section but not excluding an offence under the Theft of Motor Vehicles Act, 1991, the amount of bail to be fixed by the Court shall not be less than half the value of the property or thing upon which the charge relates or is based upon and where the value cannot be ascertained without any form of speculation the Court may, for purposes of this subsection, without or with the assistance of any person the Court deems could be of assistance to it, also fix an amount to be the value of the property or such thing.”
 I note with respect that when one reads section 95 (1), particularly the word “specified” occurring therein, one would have expected that section 95 (6), like the schedules mentioned therein, would also “specify” certain offences in respect of which Magistrates Courts are precluded from considering bail applications thereto anent. A proper reading of the sub-section would in my considered opinion show that the said sub-section was not drafted to “specify” offences in respect of which Magistrates Courts are precluded from considering bail applications but rather sets out the formula for determining the amounts of bail in respect of offences, including car theft under the relevant legislation.
 My conclusion would in the circumstances, be that because section 95 (6), unlike the Fourth and Fifth Schedules does not specify car theft or any offence for that matter, as one of the offences in respect of which only this Court may consider a bail application, it would appear, subject to one other consideration or exception, that Magistrate’s Court’s are perfectly entitled in terms of the law, to consider bail applications in respect of theft of motor vehicles. Their jurisdiction to deal with bail is to that extent not ousted.
 It would appear to me therefor that the reference to section 95 (6) in section 95 (1) was erroneous. I would therefore recommend that because section 95 (6) does not specify any offence as one in respect of which only this Court can consider a bail application, reference to it in section 95 (1) should be deleted.
 In his impressive heads of argument, Mr. Mathunjwa referred to the works of du Plessis, Interpretation of Statutes, Butterworths, 2002, where the learned author deals with the presumption that statute law does not interfere with or oust the jurisdiction of the Courts. The raison d’etre for this presumption, continues the learned author, is “to ensure access for individuals to the courts and to adjudicative procedures”. I cannot agree more. This is an issue I turn to later in this judgment.
 In his heads of argument, from which he later tergiversated, Mr. Fakudze had submitted, after traversing the legal terrain relating to bail, that the intention of the Legislature was to exclude Magistrates’ Courts from hearing bail applications relating to the theft of motor vehicles. This can not be correct regard being had to the language used by the Legislature in the legislation under scrutiny. This is more so when one considers the canon of interpretation called “unius est exclusio alterius” i.e. the express mention of one thing excludes the other. The offences in respect of which Magistrates are precluded from hearing bail applications are expressly stated. Those excluded from express mention are those to which the exclusion does not apply.
 It should be mentioned that traditionally Magistrates were not excluded from entertaining bail applications in relation to car theft. Testimony to this is to be found in section 2, as read with section 18 (1) of the Theft of Motor Vehicles Act (supra). Section 2 defines Court as “a magistrate’s court or the High Court”, whereas section 18 (1) prescribed for “the Court”, to fix bail at half the value of the motor vehicle alleged to be stolen. The jurisdiction of Magistrate’s Courts in granting bail was to be removed by the Non-Bailable Offences Order, 1993 and Decree No.3 of 2001, both of which were subsequently held by the Courts to be unconstitutional. This is a historical fact. See Professor Dlamini v The King Appeal Case No.41/2000 and Ray and Lucky Gwebu v The King Appeal Cases No.19 and 20 of 2002, respectively.
 In view of what I have stated above, and finally, with the concurrence of Counsel on both sides, the only conclusion that I can arrive at and which I must say is as inexorable as death, is that a reading of section 95 (1) as read with section 95 (6) shows indubitably that bail in respect of theft of a motor vehicle is not one of the cases Magistrates are precluded from hearing in terms of the Act. For that reason, it is clear that the learned Magistrate who held to the contrary fell into error.
 It is important, before making some final observations on this matter, to mention one critical issue. Section 95, when read in conjunction with the Fifth Schedule precludes Magistrates Courts from dealing with the offence of robbery where it inter alia involves the taking of a motor vehicle. As it appears, this does not apply in a case of theft simpliciter but one of robbery in which a motor vehicle is stolen in the process. It is this distinction that I felt I was in duty bound to mention.
 Finally, I wish to make certain observations as foreshadowed in paragraph  of this judgment. First, the effect of section 95 is to deprive Magistrates the jurisdiction to deal with bail applications in respect of matters which they are not precluded by law from trying. If one looks at the provisions of section 95 before the amendment in issue was effected, it is clear that Magistrates were only precluded from dealing with cases which they were by law excluded from trying i.e. murder and treason. This was clearly on account of their seriousness.
 The decision to preclude Magistrates from dealing with bail applications in relation to offences which they have jurisdiction in law to try has had deleterious consequences particularly regarding issues of access to the Courts and inevitable delays. First, Magistrate’s Courts are littered around the country and are for that reason easily accessible in some remote areas. This is not so with the High Court which only sits in Mbabane with only seven Judges available to deal with the ordinary other matters, including bail applications during motion Court once a week.
 It is an ineluctable fact that there are more Magistrates than Judges in the High Court and it is also a historical fact that the High Court has a serious manpower shortage and infrastructure difficulties. Furthermore, the procedures in the High Court are more complicated than in the Magistrate’s Courts where remand hearings are conducted and the accused persons are entitled to make oral applications for bail even on the first occasion they appear before that Court.
 Rendering the High Court the Court of first instance in bail application in relation respect to the specified offences impedes easy and ready access to the Courts, considering the presumption of innocence enshrined in section 21 of the Constitution. The concomitant effect of this is that the High Court, on account of the number of Judges and Court rooms vis-à-vis its other heavy case load, hardly has time or sufficient time to deal with contested applications in which bail is opposed. The bulk of bail applicants would be unrepresented and their rights may unwittingly be trampled upon as a result of the difficulty to access the High Court in respect of both distance and procedures.
 Furthermore, once the High Court has refused bail, or has fixed an amount which the applicant considers it tantamount to excessive bail, that applicant has to wait for one of the two annual sittings of the Supreme Court. This is a view I express on first principles without having undertaken the necessary research. The urgency that attaches to bail, considering issues like employment and family considerations simply evaporate into nothingness. This could be avoided if Magistrates could be given back their power to deal with bail in those cases as they have the jurisdiction to try those cases after all.
 Another disconcerting and unjust consequence of this legislation, is that in cases of minors and children who are charged with committing the specified offences, the Magistrate’s Courts hands are literally tied. Magistrates are the closest to the majority of the people including the minors’ parents and guardians. Notwithstanding their vulnerability, these young people have to wait in a long queue for their matters to be heard by this Court, at times after months, thus losing precious schooling opportunities and being exposed to reprobate adult traits and tendencies as I have established that they are mingled with adults, which should not be the case.
 Furthermore, section 95 has deleterious financial, security and manpower consequences as well. This is because every Friday when this Court is to hear bail applications, bail applicants from all over the Kingdom converge in Mbabane at enormous cost to the taxpayer. In this regard manpower must be released to take charge over the applicants from the various correctional facilities. The security of the applicants, having to travel in some instances, for hours to Mbabane, may pose a danger, as happened on one occasion, where a correctional institution vehicle was intercepted and fired at, resulting in some accused persons escaping.
 There are more issues that arise as a result of the promulgation of this law. These include the pressure on prosecutors who often receive bail applications late without sufficient time to get instructions from the relevant police stations. This results in delays which kick in the famous idiom, “Justice delayed is justice denied”. It is my view that this law is in a serious need of overhaul which will allow Magistrates a free and full course over the matters which they are entitled at law to try.
 Last but by no means least, whatever the laudable intentions were when this law was promulgated, the concentration of powers relating to bail on this Court is not consistent with the principle of devolution and decentralization of governmental functions and powers stipulated in section 57 (2) of the Constitution. The law should be aligned to the directive principles of State policy, amongst other measures.
 The foregoing constitute the reasons why I issued the Order for the applicant herein to apply for bail at the Mbabane Magistrate’s Court.
 I order a copy of this judgment to be distributed to the Their Worships in the Magisterial Bench. It would also be in order to circulate same to the Honourable Minister for Justice, the Attorney-General, Director of Public Prosecutions and the Presiding Officers of Parliament. These are matters in urgent need of review.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 21ST DAY OF JULY, 2010.
JUSTICE OF THE HIGH COURT
Applicant in person
Directorate of Public Prosecutions for the Respondent
Messrs. Fakudze Attorneys Amicus Curiae.