IN THE HIGH COURT OF ESWATINI
CASE NO. 54/2018
HELD IN MBABANE
In the matter between:
WANDILE SYDNEY NKAMBULE APPLICANT
THE KING RESPONDENT
Neutral Citation: Wandile Sydney Nkambule vs The King [54/18]  SZHC 188  (17 August 2018)
Coram: M. LANGWENYA J.
Heard: 13 April 2018; 17 April 2018
Delivered: 17 August 2018
Summary: Criminal Procedure-bail-the applicant is charged with two counts of robbery and four counts of housebreaking with intent to steal and theft-applicant applies to be admitted to affordable bail since he is unemployed-says he will avail himself to court when ordered to do so-alludes to his personal circumstances-the application was opposed by the prosecution-not in the interest to admit the applicant to bail-applicant may influence Crown witnesses-witnesses likely to be influenced named and known by the applicant-applicant’s response is that the prosecution does not have tangible evidence connecting him with the commission of the offences charged
Section 96(12) of the Criminal Procedure and Evidence Act 1938-applicant must prove exceptional circumstances-exceptional circumstances not proved.
Right to personal liberty entitles the applicant to be released on bail unless doing so would prejudice interests of justice-interests of justice sought to be protected are that the applicant should attend trial-that the applicant should not interfere with evidence of the Crown.
Crown argues applicant will interfere with witnesses-Crown names witnesses-applicant is aware of witnesses and nature of evidence they will give.
 On 13 April 2018 the matter served before me. I delivered an ex tempore judgment on 17 April 2018 where I refused to admit the applicant to bail. I undertook to provide my reasons for refusing to admit the applicant to bail in due course. Below are my reasons.
 Through a letter dated 13 February 2018, the applicant applied to be admitted to bail citing the following reasons:
‘I was arrested on the 4th February 2018 by the Manzini Police officers and I was charged with six counts namely: armed robbery, four counts of housebreaking and theft and one count of robbery.
I submit before the honourable Court that I have been advised by the Manzini magistrate court to seek or forward my bail application to the High Court. I therefore humbly request the honourable Court to grant me bail on this matter. It is with immeasurable and immense humility that I humbly request the honourable court to consider granting me an affordable bail amount since I am currently unemployed and in short of funds.
I promise the honourable Court that should I be granted or admitted to bail in this matter, I shall not attempt nor interfere with any of the state witnesses diligently. I shall abide by all the bail conditions imposed or fixed and I shall avail myself at all times before Court when ordered to do so.’
 The application is opposed by the Director of Public Prosecutions and the opposing affidavit of 5041 D/Constable Absalom Ngwenya is filed in opposition of the application. In turn, the applicant has filed replying papers dated 6 April 2018 and received by the Registrar of the High Court on 9 April 2018.
 On 4 February 2018, the applicant was arrested by members of the Royal Eswatini Police based in Manzini and subsequently charged with two counts of robbery, four charges of housebreaking with intent to steal and theft.
 The applicant is currently being kept at Zakhele Remand Centre in Manzini where he is awaiting trial and in the interim he is desirous of being admitted to bail.
 The applicant avers that if he is admitted to bail he will not interfere with Crown witnesses but will abide by all the bail conditions the Court may attach to his release. He avers further that he is desirous of being admitted to affordable bail as he is currently unemployed and is in short supply of funds.
 The facts advanced in opposition of this application are found in the opposing affidavit of 5041 D/Constable Absalom Ngwenya. The officer deposes that the applicant is charged with two counts of robbery and four counts of housebreaking with intent to steal and theft. He submits that five accused persons are involved in the commission of these offences and two of them are still at large. It is the officer’s evidence that during the commission of the robberies, the applicant was armed with a gun and a knife.
 In respect of the first count of robbery, the applicant is said to have attacked the complainant by assaulting and kicking him on the head resulting in him suffering head injuries which necessitated him undergoing an operation on his head in his home country in Egypt. When the applicant was subsequently arrested he was found wearing the complainant’s jacket and other proceeds of the first count of robbery were found in the applicant’s possession.
 With regard to the second count of housebreaking with intent to steal and theft, the applicant is said to have broken into the house of Mlungisi Manyatsi where he made off with various household property including but not limited to a flat screen colour television and a home theatre. The television was recovered from Shabangu at kaZombodze who bought it for a song from the applicant. The applicant was found in possession of the home theatre.
 With regard to counts three, four and six-being housebreaking with intent to steal and theft charges some of the stolen property was sold by the applicant to Hlophe and to Shabangu and to people in Mozambique. Some of the property stolen by the applicant was recovered by the police and most of it was not.
 Count five is one of robbery where the applicant is said to have invaded the house of the complainant at 2030 hours and threatened the complainant with a knife before stealing property valued at E9 150.00 including a Black HP which was recovered having been sold by the applicant to Hlophe.
 It is the Crown’s contention that it is not in the interest of justice that the applicant be released on bail as he may likely influence or intimidate Crown witnesses- namely Hlophe and Shabangu as he knows the witnesses and has close connections with them.
 The Crown contends further that there is overwhelming evidence against the applicant.
 The applicant filed his answering papers and avers that it is in the interest of justice that he be released on bail because there is no tangible evidence connecting him with the commission of the offences charged.
 The applicant avers that with regard to complainant’s jacket that he is said to have been found wearing in count 1, he had no knowledge the jacket belonged to the complainant in count one. The applicant states that apart from the complainant’s jacket, no other stolen items were recovered in his possession.
 The applicant then alludes to his personal circumstances as reason for him to be granted bail. He states that he has minor children who are dependent on him. He singles out the first born child who is five years old. He says the five years old child currently lives with the applicant’s mother at Nhlambeni. According to the applicant, his mother is physically and mentally unstable. The applicant avers also that he is responsible for the payment of his late brother’s child’s school fees.
 The applicant submits also that he is LiSwati and has no relatives or friends outside the country. That he has no intention of compromising the interests of justice. He submits that he will avail himself to Court whenever required to do so.
 The prosecution argues that the applicant must not be released on bail because there is overwhelming evidence linking him to the commission of the offences charged. The prosecution avers that when he was arrested, the applicant was wearing the complainant’s jacket. It is also the submission of the prosecution that most of the recovered property had been sold by the applicant to different people who are known to him. For the reason that the buyers of the stolen property are known to the applicant, the prosecution submitted-it will not be in the interest of justice that he should be allowed out on bail because he is likely to interfere with the prosecution’s witnesses.
 In support of its contention the prosecution cited Section 96 (12) of the Criminal Procedure and Evidence Act which states as follows:
‘Notwithstanding any provision of this Act where an accused is charged with an offence referred to:
- In the fifth schedule the court shall order that the accused be detained in custody until he or she is dealt with in accordance with law unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interest of justice permit his or her release.’
 The prosecution submitted that the applicant has not shown that exceptional circumstances exist for him to be admitted to bail. In casu in order to be released on bail the applicant has to establish that exceptional circumstances exist warranting his release from custody. The applicant had to adduce evidence which seeks to show that it would be in the interests of justice to release him on bail. From the papers filed by the applicant and from the oral submissions he made no exceptional circumstances were shown to exist to warrant his release in this matter.
Consideration of bail on the facts
 I have considered the submissions made for and against this application. The important questions that the court must address in an application for bail were articulated in the case of S v Bennet in the following terms:
- If released on bail will the accused stand trial?
- Will he commit further crimes?
- Will his release be prejudicial to the maintenance of law and order?
- Will he interfere with state witnesses or the police investigations?
 From the facts presented to the Court, it would appear that the applicant in this matter falls under head (iv) that is-will he interfere with the Crown witnesses.
 The right to personal liberty is entrenched in the Constitution of ESwatini. The right to personal liberty entitles the accused to be released on bail unless doing so would prejudice the interests of justice. In its determination of bail, the Court exercises a discretion in a judicious manner by weighing the accused right to liberty against the interests of justice. It is an established principle of law that the interests of justice sought to be protected in a bail application are two-fold: first, is that the accused should attend trial; second, that the accused does not interfere with the evidence of the Crown.
 In S v Schietekat the Court held as follows:
‘ Furthermore, a bail hearing is a unique judicial function. It is obvious that the peculiar requirements of bail as an interlocutory and inherently urgent step were kept in mind when the statute was drafted. Although it is intended to be a formal court procedure, it is considerably less formal than a trial. Thus the evidentiary material proffered need not comply with the strict rules of oral or written evidence. Also, although bail, like the trial, is essentially adversarial, the inquisitorial powers of the presiding officer are greater. An important point to note here about bail proceedings is so self-evident that it is often overlooked. It is that there is a fundamental difference between the objective of bail proceedings and that of the trial. In a bail application the enquiry is not really concerned with the question of guilt. That is the task of a trial court. The court hearing the bail application is concerned with the question of possible guilt only to the extent that it may bear where the interests of justice lie in regard to bail. The focus at the bail stage is to decide whether the interests of justice permit the release of the accused pending trial; and that entails, in the main protecting the investigation and prosecution of the case against hindrance.’
 It was argued on behalf of the prosecution that if admitted to bail the applicant is likely to interfere with Crown witnesses. In this regard, I have had to examine the following factors: first, whether or not the applicant is aware of the identity of the Crown witnesses or the nature of the evidence the said witnesses will lead. Second, whether or not the Crown witnesses have already made statements to the police and further committed themselves to testify during the criminal trial or whether the matter is still being investigated by the police. Third, what the nature and extent of the relationship between the applicant and the Crown witnesses is such that they are likely to be influenced by the applicant. Last, whether the court may impose effective bail conditions to prevent possible communication between the Crown witnesses and the applicant.
 The Crown submitted that the applicant sold the stolen property to the Crown witnesses namely Hlophe from Ekudzeni and Shabangu from kaZombodze and that the witnesses are well known to the applicant. It was the submission of the Crown that the applicant sold a television set which is the subject of count 2 to Shabangu and he sold the fussion television set to Hlophe and a black amplifier, both items are the subject of counts 3 and 6 respectively. During submissions the Crown pointed out that both Shabangu and Hlophe have made statements to the police and have undertaken to give evidence when the trial resumes. It was submitted that the witnesses were known to the applicant and that the relationship between the applicant and the witnesses is a close one. The applicant did not dispute the averments by the Crown pertaining Hlophe and Shabangu.
 The applicant is charged with two counts of robbery-crimes which are by nature accompanied by violence. There is evidence that links the applicant with the commission of the offences if the affidavit of the investigating officer is anything to go by. The seriousness of the charges of robbery and the fact that the complainant in the first count is still recovering from the injuries that were inflicted by the applicant tilts the scales against this court granting the applicant bail.
 For the foregoing reasons and considerations I make the following orders:
The applicant’s application for bail be and is hereby dismissed.
JUDGE OF THE HIGH COURT
For the Applicant: In Person
For the Respondent: Ms N. Masuku
 Section 16 (1) and (4) of the Criminal Procedure and Evidence 67/1938; Section 16 of the Constitution/2005.
 S v Schietekat 1999 (4) SA 623 (CC) at 641 at paragraph 11
 S v Acheson 1991 (2) SA 803 NHC at 822-823