IN THE HIGH COURT OF ESWATINI
JUDGMENT
CASE NO. 440/18
HELD IN MBABANE
In the matter between:
VUSANI MANCOBA MHLANGA APPLICANT
And
THE KING RESPONDENT
Neutral Citation Vusani Mancoba Mhlanga vs The King [440/18] SZHC 231 [2018] (27 November 2018)
Coram: M. LANGWENYA J.
Heard: 23 November 2018
Delivered: 27 November 2018
Summary: Criminal Procedure-Bail-Applicant to show on balance of probabilities-granting of bail in interest of administration of justice-factors for consideration-section 96(4) of the Criminal Procedure and Evidence Act, 1938-important facts to consider when serious crime committed-strength of the Crown case-prima facie strong case against the applicant-offence allegedly committed against applicant’s employer by the applicant-not in interest of administration of justice to admit applicant to bail- application refused.
JUDGMENT
[1] On 2 November 2018 the applicant approached the Court on a certificate of urgency for an order to be admitted to bail. The respondent opposed the application. Both parties were given time lines within which to file their papers and the matter was argued on 23 November 2018.
[2] It is the version of the applicant that on 11 October 2018 he was at work when he was arrested by the police and charged with one count of robbery. The applicant avers that he has been kept in custody since and that he is desirous to be admitted to bail.
[3] The application is opposed by the Director of Public Prosecutions and the opposing affidavit of 4505 Assistant Inspector Bhekisisa Simelane is filed in opposition of the application. In turn, the applicant has filed replying papers dated 19 November 2018.
Factual Background
[4] On 11 October 2018 and at Limkokwing University, Mbabane, the applicant was at work when he was arrested by the police and subsequently charged with one count of robbery.
[5] The applicant is alleged to have acted in common purpose with two other accused persons in robbing his employer of the sum of E600 000.00 (Six Hundred thousand Emalangeni).
[6] The applicant is currently being kept at Sidwashini Remand Centre in Mbabane where he is awaiting trial and in the interim he is desirous of being admitted to bail.
[7] The applicant avers that he is innocent of the charge and that when the trial resumes he will plead not guilty.
[8] It is the applicant’s contention further that it is not in the interest of justice that he be kept in custody pending trial because there is no likelihood that if he is released on bail he will endanger public safety or commit any offence listed under part 2 of the first schedule.
[9] The applicant avers further that he will not evade trial if released on bail because he is a bona fide LiSwati with ancestral and family roots in ESwatini. It is the applicant’s contention that he is married and has two minor children who are entirely dependent on him for support as his wife is unemployed.
[10] The applicant submits further that if released on bail he will not influence the witnesses of the prosecution because they are unknown to him as he still haven’t been served with a summary of evidence containing the list of the Crown witnesses. What he omits to say though is that some of the witnesses- Sabelo Kunene and Fisokuhle Nkambule- are known to the applicant as he worked with them at the University prior to his resignation.
[11] He contends also that there is no likelihood that if he is released on bail he may undermine the objectives of the criminal justice system because he has cooperated with the police throughout their investigations of this matter.
[12] The applicant is a law abiding citizen who is not likely to undermine the public peace or security as such no exceptional circumstances exist to preclude him from being admitted to bail-so the argument goes.
[13] The facts marshaled in opposition of this application are found in the opposing affidavit of 4505 Assistant Inspector Bhekisisa Simelane. The officer deposes that the applicant is charged with one count of robbery. He submits that two of the applicant’s co-accused are still at large. It is the officer’s evidence that during the commission of the robbery two firearms and one spray gun were used against the security guards who were manning the institution on the night the offence was committed.
[14] With regard to the offence charged, the officer submits that the applicant organized people from outside the University to come and carry out the robbery after he had been informed by one of the workers in the Finance Department that there was a lot of money in the office paid by students for graduation gowns and for the graduation ceremony. The applicant came to the Finance Department and surveyed the office under the pretext he was fixing an air conditioner. The applicant subsequently came at night in the company of some of his co-accused and robbed the institution.
[15] It is the police officer’s averment that the applicant is aware of the people who participated in the commission of the offence. The applicant was informed by Sabelo Kunene an employee at the University that there was a lot of money in the Finance department; the applicant said he will talk to certain people some of whom were Mphumuzi Nkambule to come and rob the University of the cash-so the officer avers.
[16] The applicant is said to have come to the university with the said Mphumuzi Nkambule to show him where the money was kept. It is the officer’s contention that the applicant drove Mphumuzi Nkambule out of the University and promised to meet with him later in the night when the robbery would be committed. Mphumuzi Nkambule is still at large.
[17] The respondent argues that on the night the robbery was committed, the applicant and his co-accused returned to the University to carry out the robbery using firearms and a spray gun.
[18] The respondent contend that the co-accused of the applicant are a dangerous group who terrorise the community as such are susceptible to commit further crimes if released on bail. This assertion does not refer to the application. Only his associates are of violent disposition.
[19] It is the respondent’s averment further that the applicant is likely to abscond trial if released on bail because he faces a very serious offence and that as the master mind, the applicant is the author of the inconvenience that has been suffered by the victims of his criminal conduct.
[20] The prosecution witnesses are known to the applicant namely Sabelo Kunene and Fisokuhle Nkambule who are both employees of the University.
[21] In his replying papers the applicant disputes and denies ever being party to the commission of the offence charged. The applicant contends that the issue for determination at this stage is that of bail and not of delving into the merits of the case.
[22] It is the case of the applicant that he never went to the University to commit the offence charged; that he does not own a firearm nor does he know how to use one.
[23] The applicant contends further that the fact that his co-accused are dangerous people does not mean that he is also a danger to society.
[24] It was submitted on behalf of the applicant that he is in no position to interfere with prosecution witnesses because he has since resigned from work.
[25] In bail proceedings the prosecution is not obliged to prove its case against the accused, all it needs to do is to show on a balance of probabilities that the evidence in its possession will prove the guilt of the accused. This is what the prosecution has done in the present case. The nature of the evidence against the applicant is set out in the investigating officer’s affidavit. The applicant’s response to Assistant Inspector’s Bhekisisa Simelane’s allegations is a bare denial.
[26] In considering the applicant’s evidence being a denial of guilt, against the strength or apparent strength of the prosecution’s case there appears to be a real likelihood that the Crown will succeed in proving its case in respect of the count charged. Bearing in mind the kind of sentence that would probably follow the conviction, this certainly increases the risk of the applicant deciding to abscond.
[27] Having come to this conclusion, it would mean that there is prima facie proof that the accused is implicated in the commission of the offence charged.
[28] The burden to establish exceptional circumstances justifying his release by adducing the necessary facts to the Court lies squarely on the shoulders of the applicant. On the facts before me the prosecution case can by no means be said to be subject to serious doubt. It is not a remote possibility that the applicant may be convicted. If that should occur, he undoubtedly faces lengthy incarceration.
[29] In my view his founding affidavit falls short of establishing his alleged ancestral and family roots to the country. The applicant has also failed to establish how now that he has resigned from his job and will have no independent financial means-he will be able to provide support and maintenance of his family.
[30] In my view there is no guarantee that even stringent bail conditions would provide an adequate safeguard against the risk of the applicant absconding trial.
[31] In conclusion, the applicant’s claims of being innocent and denials that he will abscond, considered against those factors relied on by the Crown in its opposition of the bail application, are not very reassuring. All the evidence taken into account, I am not persuaded that the applicant has shown on a balance of probabilities that it would be in the interest of the administration of justice that he be admitted to bail pending finalization of his trial.
[32] In the result, the application for bail is dismissed.
___________________
M. LANGWENYA
JUDGE OF THE HIGH COURT
For the Applicant: Mr. S. Jele
For the Respondent: Ms. B. Fakudze
