IN THE HIGH COURT OF SWAZILAND
Criminal Case No. 369/2010
In the matter between
MEFIKA MATSEBULA 1ST APPLICANT
SOLOMON MALAMBE 2ND APPLICANT
Neutral citation: Mefika Matsebula and Another v The King (369/2010)  SZHC 197 (26 September 2017)
Coram: MAMBA J
Heard: 18 August 2017
Delivered: 26 September 2017
Criminal law – Application for bail pending appeal – factors to be considered.
 The applicants herein were jointly indicted on a charge of attempted murder before this court on 10 July 2017. They were both found guilty as charged by my brother and Learned Colleague Hlophe J on 12 July 2017 and on 20 July, they were each sentenced to a custodial period of 3 years. Their sentences were ordered to run with effect from 15 July 2017; to take into account the period of five days each had spent before being released on bail whilst awaiting trial.
 In passing sentence, the trial court referred to Section 313 (1) of the Criminal Procedure and Evidence 67 of 1938 and observed that having been found guilty of attempted murder, the court could neither postpone nor suspended the sentence or portion thereof in respect of the applicants.
 The applicants are adult male Swazi persons from Nkaba and have their respective homes in that area. They were charged with the offence in 2010 and were on bail pending trial. They, it is common cause, strictly observed the bail conditions imposed on them when they were granted bail in 2010.
 The charge against them emanates from a shooting of one of the community members at e-Nkaba following a dispute over a homestead situated in that area.
 During the trial, the applicants were not legally represented. They have now, with the help of Counsel, filed or noted an appeal against their conviction. The substance of their appeal, as I understand it, is that the court erred in finding that they acted in furtherance of a joint, common or shared purpose or design, and, that they were not acting with intention of arresting the complainant who was, at the time of the shooting, driving away in a motor vehicle after the applicants had called the police to the scene. In this application for bail pending appeal, they both submit that there are reasonable prospects of success in their appeal. They argue or aver that, at the very least, their appeal is arguable and because of this fact, they ought to be granted bail pending their appeal to the Supreme Court.
 The Crown, however, disputes the contention that there are reasonable prospects of success in the appeal. It was further argued by the Crown that in the absence of the full record of the trial proceedings, this appeal was irregularly before the court. Counsel for the Crown submitted that in the absence of the said court record, this court could not make an informed and reasoned judgment on whether or not there were reasonable prospects of success in the appeal. The court has the benefit of the judgment by Hlophe J and the parties were in agreement that the facts as stated in the judgment were accurately captured by the trial court. That being the case, this court sees no useful purpose to be served by going through the record of the trial proceedings. The judgment is sufficient for this exercise. In any event, I know of no rule of procedure that stipulates that an application such as the present, may not be properly adjudicated upon in the absence of the actual record of the trial appealed against. Such rule would be rather formalistic and perfunctory. It would place form above substance. (Vide Hewitt (infra).)
 In Mphumelelo Mamba & 3 Others (138/2009)  SZHC 80 (19 November 2013, this court stated:
‘ In an application for bail pending appeal the applicant must establish that inter alia, there are reasonable prospects of success in his appeal and or by the time that his appeal would be heard he would have spent a significant portion of his sentence. His situation is clearly different from a person who is yet to be tried to determine his guilt or otherwise. As a rule, once an accused has been convicted and sentenced appropriately by a competent court, he is expected to serve his sentence immediately.
 In R v Tunwashe (1935) 2 W.A.C.A 236, Butler-Lloyd ACJ said:-
‘From a careful examination of the reported cases it is clear:-
(1) That bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(2) That in dealing with the latter class of case, the court will have regard not only to the length of time which must elapse before the appeal is heard but also the length of the sentence to be appealed from and further that these two matters will be considered in relation to one another. To put it in another way, in the absence of special circumstances bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard.’
(See Charles Myeza v R (117/06)  SZHC 280 (9 September 2013), and the Botswana case of Laing v The State 1989 BLR 54 (HC) and the authorities therein cited).
 In S v De Villiers En ‘N Ander 1999 (1) SACR 297, the court emphasized though that bail should not be refused on the sole basis that there are no reasonable prospects of success in the appeal.’
See also Beetfe v The State (925/12)  ZASCA 1 (11 February 2013) and the cases therein cited.
 It is not the duty of this court to determine whether or not the trial court correctly assessed and determined the evidence and the law before it. That is the province of the Supreme Court, in the appeal. The duty of this court is, amongst others, to determine whether there are reasonable prospects of success in the appeal or the case as presented by the applicants would be arguable on appeal. In other words, this court has to determine whether the appeal is not for the purpose of delay or frivolous. If the appeal raises a substantial question of law or fact that is likely to result in the appeal being upheld, the court would, if the other considerations pertaining to the general interests of justice are met or satisfied, grant the application.
 In S v Hudson 1996 (1) SACR 431 (W) at 433 – 434, which was quoted with approval in Hewitt v S (SS91/2014)  ZAGP JHC 173;  3 All SA 784 (GJ) (22 June 2016) the court explained how it goes about determining the issue of reasonable prospects of success:
‘I will place no reliance on (but am aware of) the dictum in S v Williams (supra at 1172H) which reads: ‘It is putting it too high to say that before bail can be granted … there must always be a reasonable prospect of success on appeal.’ In S v Richardson 1992 (2) SACR 169 (E) Erasmus J explained why the desirability that sentence be served as soon as possible if there is no reasonable prospect of success on appeal, ‘should be applied with circumspection and care, and only in clear-cut cases’. (My emphasis.) In S v Anderson 1991 (1) SACR 525 (C) Marais J. with reference to a case where there is no reason to be concerned about whether or not the applicant will abscond, did not support an enquiry whether there ‘is’ a reasonable prospect of success. He said that if the appeal is ‘reasonably arguable and not manifestly doomed to failure’, the lack of merit in the appeal should not be the cause of a refusal of bail. I agree. I add that if the conclusion that the appeal is manifestly doomed to failure can be reached only after what is tantamount to or approximates a full rehearing, the appeal should ordinarily for purposes of considering bail be treated as an appeal which is arguable. The question is not whether the appeal ‘will succeed’ but, on a lesser standard, whether the appeal is free from predictable failure to avoid imprisonment. Cf S v Moeti 1991 (1) SACR 462 (B) wherein it was said that the applicant for bail must convince that there is ‘a reasonable possibility’ that the appeal will avert imprisonment.”
 In the present application, there are no indications or suggestions that if the applicants are released on bail pending appeal, the interests of justice would be adversely affected or prejudiced.
 For the above reasons, I granted the application for bail on the same terms and conditions that were imposed on the applicants whilst awaiting trial.
FOR THE APPLICANTS: MR. J. MAVUSO
FOR THE RESPONDENT: MR. S. DLAMINI