Dlamini v The King (481/2017) 2018] SZHC 247 (29 November 2018);

 

 

 

 

 

IN THE HIGH COURT OF THE KINGDOM OF ESWATINI

 

 

JUDGMENT

 

 

HELD AT MBABANE                                           Civil Case No. 481/2017

                  

SIBUSISO DLAMINI                                                         APPLICANT  

                  

 

and

 

 

THE KING                                                                       RESPONDENT

 

 

Neutral citation:           Sibusiso Dlamini v The King (481/2017) [2018] SZHC 247(16th November, 2018)

 

CORAM                         MASEKO J

FOR APPLICANT:                    IN PERSON          

FOR RESPONDENT:     MR S. MATSEBULA (DPP’S CHAMBERS)          

 

 

 

DATE OF HEARING:      02/07/2018        

 

DATE OF RULING:        29/11/2018

 

PREAMBLE:        Criminal Procedure – Bail – Robbery –fifth schedule offence – Onus to establish exceptional circumstances justifying grant  or - refusal to grant bail – unlawfully setting up residence in a foreign  jurisdiction to avoid arrest – Factors considered in granting or refusal to grant bail.

HELD:                  that Applicant is a flight risk and has also not discharged the onus of proving exceptional circumstances which in the interest of justice permit his release on bail pending his trial.  Bail is refused.

[1]      On the 15th November 2017 the Applicant filed a letter with the Registrar of this Court applying to be admitted to bail pending his trial at the Siteki Magistrate Court.  The Appellant is currently facing two counts; the first count being of theft of a firearm, to wit a Pistol Serial Number 49204159 valued at E1 800 and this offence was committed at or near Mpaka Complex on the 4th September 2017.

[2]      The second count is one of Robbery on one Thandi Dlamini of her property worth E29 757.00, such property being a Toyota Corolla motor vehicle worth E25 000 and other personal items.  This offence was committed at ka Shoba area on the 5th September 2017.  This robbery was committed using a firearm to induce submission on the said Thandi Dlamini.  There are also two counts of robbery which were committed at Gege area during or after September 2018, but after the commission of the first two counts in the Lubombo Region.

[3]      The Crown filed an opposing Affidavit of the investigating Officer 6417 D/Constable Mcolisi Mahlindza who deposed that the Applicant was a flight risk in that after committing the first two counts, he and his co – perpetrators proceeded to Gege area in the Shiselweni Region where they committed two robbery cases.

[4]      According to the Investigating Officer, the Applicant upon realizing that he was wanted by the police in connection with these offences then escaped to the Republic of South Africa.  Applicant only returned to Eswatini in an attempt to fetch his girlfriend and child so that he could to go and live with them in Naas in the Republic of South Africa (RSA) where he was renting a house with co – accused Musa Dlamini.  He was therefore arrested in Eswatini before returning to Naas with his family.

[5]      The Crown further opposed the application on the basis that the Applicant was facing Fifth Schedule Offences wherein he was legally bound to establish the existence of exceptional circumstances which in the interest of justice permit his release on bail pending his trial.  Infact the trial is already part - heard before the Learned Principal Magistrate Siteki, His Worship DR Magagula.

[6]      In an endeavour to discharge this onus, the Appellant informed this court that he was suffering from pneumonia and that he was being refused treatment at the Big Bend Correctional Facility.  I then requested His Majesty’s Correctional Services to clarify whether Applicant’s allegations were true. On the 10th July 2018, Assistant Commissioner of Correctional Services (ACCS) Makhosonkhe Simelane filed an affidavit stating categorically that the Applicant was presently not suffering from pneumonia and that their institution has adequate facilities to deal with cases of pneumonia and where there are complications, inmates are always referred either to Good Shephard Hospital or Mbabane Government Hospital for medical treatment.

[7]      I am truly grateful for this crucial information and the prompt response by His Majesty’s Correctional Services.

[8]      I am therefore of the considered view that the Applicant cannot be granted bail for the following reason:

  1. He is facing serious charges of Robbery under the Fifth Schedule.
  2. He has failed dismally to adduce evidence of the existence of exceptional circumstances which in the interest of justice justify his release on bail pending his trial.
  3. He is a flight risk having avoided arrest and unlawfully attempted to settle at Naas in the RSA immediately often committing these offences.
  4. The trials both in Siteki Magistrate Court in the Lubombo region and in the Nhlangano Magistrate’s Court in Shiselweni Region are part – heard and still pending.
  5. There is a high likelihood of him interfering with one of the Accomplice witnesses who is now testifying for the Crown.
  6. The Applicant is untrustworthy as he has falsely stated before this court that he suffers from pneumonia yet he does not.  Bail is based on trust amongst the Crown, Accused and the Police.  Applicant is untrustworthy and certainly not credible to be admitted to bail.

[9]      Bail Applications in the High Court are governed by Sections 95 and 96 of the Criminal Procedure and Evidence Act No. 67/1938 as Amended. (hereinafter referred to as the Act)

[10]    The Applicant is facing charges of Robbery with the use of violence and a firearm.  This falls within the Fifth Schedule of the said Act. For an accused to be admitted to bail he/she must adduce evidence to satisfy the court that exceptional circumstances exist to which in the interest of justice permit his/her release on bail pending his /her trial.

[11]    For ease of reference Section 96 (12) provides as follows:

“Notwithstanding any provision of this Act, where an accused is changed with an offence referred to –

  1. 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 the 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.

[12]    I have explained above that the Applicant was being untruthful when he stated that, he was suffering from pneumonia, and not being treated at Big Bend Correctional Services, because Mr. Makhosonkhe Simelane – ACCS explained that Applicant was not suffering from any pneumonia and most importantly that they are able to deal with cases of pneumonia themselves and that they refer the inmates either to Good Shepherd Hospital or Mbabane in the event there is a complication.

[13]    I must say that if the Applicant was suffering from a chronic illness which cannot be treated whilst he is in custody, I would consider that to be an exceptional circumstance, however even if that was the case the existence of the other factors that I referred to above are certainly not favourable to Appellant and thus I would still dismiss his bail application on the basis that he is a flight risk and would not stand his trial, as he has demonstrated by unlawfully establishing or attempting to establish a place of residence at Naas in RSA to evade arrest by the Royal Eswatini Police.

[14]    Section 96 (4) (b) (c) (d) of the Act as Amended provides as follows:

“(4)    The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established.

  1. ----------------------------------------------------------------------------------
  2. Where there is a likehood that the accused, if released, on bail, may attempt to evade the trial
  3. Where there is a likehood that the accused, if released on bail, may attempt to influence or intimidate witnesses or to conceal or destroy evidence.
  4. Where there is a likehood 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]    I have no doubt in my mind that if I were to release Applicant on bail he would not hesitate to abscond his trial and also interfere with his co – accused who are now accomplice witnesses in the trial.

[15]    In case of Rodney Masoka Nxumalo and others v Rex Criminal Appeal No.1 of 2014 MCB Maphalala JA (As he then was) sitting with Ebrahim JA and Odoki JA stated the following.

“Bail is a discretionary remedy, Frank J in S v Pinero 1992 (1) SACR 577 (NW) at page 580 said the following;

“In the exercise of its discretion to grant or to refuse bail, the court does in principle address only one all – embracing issue:  will the interest of justice be prejudiced if the accused is granted bail?  And in this context it must come in mind that if an accused is refused bail in circumstances where he will stand his trial, the interests of justice are also prejudiced.  Four subsidiary questions arise.  If released on bail will the accused stand trial?  Will he interfere with state witnesses or the police investigations?  Will he commit further crimes?  Will his release be prejudicial to the maintenance of law and the security of the state?  At the same time the court should determine whether any objection to release on bail cannot suitably be met by appropriate conditions pertaining to the release on bail”.

[16]    As observed above the Applicant is untrustworthy and has the propensity to evade his trial as he evaded arrest by the police when he went to unlawfully rent a house at Naas and was only arrested when he secretly come to the country to take his girlfriend and child to Naas, unfortunately for him the police had done their work and promptly arrested him.

[17]    On these basis I hereby order as follows:

  1. The Application for bail is refused and dismissed
  2. The Applicant is to remain in custody at his Majesty‘s Correctional Services pending completion of his trial(s).

It is so ordered.

 

 

NKOSINATHI MASEKO

JUDGE