IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE Criminal Case No: 422/2015
In the matter between:
JABU DLUDLU : APPLICANT
v
THE KING : RESPONDENT
Neutral Citation : Jabu Dludlu v The King (422/2015) [2015]
SZHC 04 (4TH FEBRUARY 2016)
Coram : Q.M. MABUZA
Heard : 30/10/2015
Delivered : 04/02/16
JUDGMENT
MABUZA -J
[1] The Applicant seeks to be admitted to bail. The application is opposed by the Crown.
[2] The Applicant was arrested on the 21st June 2015 and charged with the crimes of murder and rape.
[3] In the opposing affidavit deposed to by 5911 Detective Constable N. Mdziniso it is stated at paragraph 5 that there is a likelihood that if the Applicant is released on bail he will not stand trial as he is a flight risk.
[4] It is further stated that after the Applicant committed the offence of rape, he evaded arrest and escaped. He was eventually arrested and assaulted by members of the community after he had committed the crime of murder who handed him over to the police.
[5] The opposing affidavit also stated that there is overwhelming evidence against him as the victim is known to him with regard to the crime of rape and that when he committed the murder he did so infront of witnesses. The Crown fears that he will interfere with these witnesses.
[6] It is submitted by the Respondent that because of his behavior after commission of the crimes, it would not be in the interest of justice to admit the Applicant to bail as there is a likelihood that he will not stand trial as he is a flight risk.
[7] The Applicant filed a reply in which he refuted the allegations of the Crown. He denied that he would not stand trial and that he was a flight risk. He further denied that he evaded arrest in respect of the rape charge.
[8] He states that when the police went to arrest him he was not at home. They found his brother who is sickly and informed him to advise him that they were looking for he Appellant.
[9] His brother was admitted to the Raleigh Fitkin Memorial Hospital. Applicant received the messages and waited for the police at his house but they did not arrive.
[10] The Applicant in his reply states that he will not interfere with Crown witnesses if he is granted bail and that he will abide by all bail conditions and will make himself available whenever he is requested to do so.
[11] The right to bail pending trial is guaranteed by section 16 (7) of the Constitution Act of 2005 which states that:
“If a person is arrested or detained (as mentioned in subsection (3) (b)) then, without prejudice to any further proceedings that may be brought against that person, that person shall be released either conditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that that person appears at a later date for trial or for proceedings preliminary to trial.”
[12] Equally section 95 of the Criminal Procedure and Evidence Act No. 67/1938 as amended also empowers this Court to grant bail to an accused person pending his trial.
[13] However, section 96 (4) of the Criminal Procedure and Evidence Act No 67 of 1938 gives the Court a guide as to what factors would justify a refusal to grant bail and warrant the detention of an accused in custody in the interests of justice. It sets out inter alia the following circumstances:
“(4) (d) where there is a likelihood that the Accused, if released on bail, may undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system.”
[14] The Applicant evaded arrest and escaped when the police wanted to arrest him. He was arrested by community members after he had committed another offence of murder.
[15] The Crown is apprehensive that he will not stand trial and is a flight risk. The Crown also fears that he might not comply with the bail conditions and might commit another offence.
[16] I am persuaded by the Crown’s submissions and am of the view that the interests of justice would be better served if the Applicant remains in custody pending his trial.
[17] In the event the application for bail is refused and the application dismissed.
Q.M. MABUZA
JUDGE OF THE HIGH COURT
For the Accused : In person
For the Crown : Miss L. Hlophe
