IN THE HIGH COURT OF ESWATINI
JUDGMENT
Case No. 193/2019
In the matter between
Ndumiso G. Simelane
Menzi Patrick Mavimbela
V
REX
Neutral Citation: Ndumiso Simelane and Menzi Mavimbela V
Rex
(193/2019) [2019] SZHC 128 [16 July 2019]
Coram : MAMBA J.
Heard : 4 July 2019
Delivered : 16 July 2019
[1] Criminal Law & Procedure – Application for bail on a charge of murder which is third schedule offence in terms of the Criminal Procedure and Evidence Act 67 of 1938 (as amended). Applicant to establish exceptional circumstances that he ought to be released on bail. Being on ART, generally, is not such.
[2] Criminal Law & Procedure – Bail Application – overall consideration is, would the interests of Justice be served by admitting applicant on bail. If not bail must be refused.
[1] Both applicants have been charged jointly of the murder of Zinhle Mndzebele. It is alleged that the applicants committed the crime at or near kaPhunga area in the Region of Shiselweni on or about 29 April 2019. The Crown alleges further that in committing the crime the applicants were acting in furtherance of a common purpose with one Mbongiseni Nkambule, who is still at large.
[2] The deceased or victim of the said crime was the wife of the 1st applicant. It is alleged that the second applicant was hired by the first applicant to commit the crime.
[3] The crown further alleges that after their arrest and detention each of the applicants freely and voluntarily made a confession before a judicial officer. I note that both applicants, though admitting having made a statement before the said judicial officer, state that the admissibility of their respective statements is challenged on account of them having been forced or compelled to make such statements to the judicial officer.
[4] Following their arrest and detention, the applicants have filed this application wherein they seek to be released on bail pending their trial before this court. There is no indication on the papers before me when such a trial will take place. Both applicants have declared that they are innocent of the charge preferred against them and they shall plead not guilty upon arraignment.
[5] It is significant to note that the first applicant admits that prior to the death of his wife, he fell seriously sick or ill such that he consulted; on several occasions, Mr Jabulani Gcina Zwane of Matsapha who is a traditional healer. During one of such consultations with Mr Zwane, the first applicant was informed by Mr Zwane that his wife, the deceased was the cause of his sickness. Mr Zwane informed the first applicant that his wife was bewitching him. Again, the first applicant states that this revelation or devination by Mr Zwane came at a time when he and his wife ‘--- were experiencing some marital problems --- emanating from a child I had sired out of wedlock.’ Equally not insignificant or inconsequential regarding the same marital relationship between the 1st applicant and his wife at this time, is the revelation by the former that his wife ‘---told me that indeed she had hired someone to come and kill me but she was afraid to go on with the plan hence her failure to open the door and to answer her telephone that night. The motive of her wanting me dead was because she wanted a divorce but she did not want to leave the homestead we had recently purchased at KaPhunga since I was also refusing to move out.’ This revelation by the deceased was made at her house in Ngwane Park after she had failed to answer a persistent knock at her door and telephone call being made to her. This was at night whilst the two were together in Ngwane Park. Following this revelation or confession by the deceased, the first applicant abruptly ‘left her house in the middle of the night and returned to (his) workstation.’
[6] The first accused states that he ‘eventually forgave her for this scheming and machinations. She told Zwane about this forgiveness. He states further that he also informed him that his wife had been granted a loan of about E100,000.00 and it was this sum of money that enticed Zwane to hire people to go and rob the deceased (of this money).
[7] The first applicant also recounts an incident that took place in Nhlangano involving him and his co-accused on the one side and his wife and her friend on the other side, whereby the latter harassed and threatened them with physical violence. This was on 26 July 2013.
[8] The first applicant, it is common cause, is a citizen of Eswatini and is employed by the Government under the Ministry of Defence and is stationed or based at Nkoyoyo. Both applicants state that they fully co-operated with the police during their investigation, arrest and detention and they shall not do anything that would endanger or prejudice the interests of justice in this case. These include not interfering with crown witnesses or breaching or violating any of the bail conditions that this court may deem fit to attach to their release.
[9] The second applicant admits having been hired by Zwane to go and rob the deceased of the money she had allegedly received as a loan. He says he got Ngoloyi Nkambule to be his accomplice or companion in crime. Their first attempt failed as ‘there was no way into’ the house. On the following day, they entered the deceased’s house but were disturbed by the deceased who woke up and shouted for help. The second applicant immediately ran out of the house leaving Ngoloyi therein. He hid in the nearby bushes. It was at night. Later he returned to the house and there found Ngoloyi still ransacking the house and ‘the deceased hanging on the rafters ---.’ They did not find or take any money from the house.
[10] The second applicant denies any involvement in the murder of the deceased. He states that his only aim was to rob her of the money she allegedly had. He was hired by Mr Zwane to do so and he was the one who roped in Ngoloyi into the plan and execution thereof.
[11] Both applicants state that they are on ART and this fact alone, constitutes exceptional circumstances as defined in the relevant or applicable law.
[12] Their bail application is opposed by the crown or respondents. It is denied by the crown that being on ART constitutes an exceptional circumstance. I agree, entirely, with this rejection of this submission. Being on ART, when properly and faithfully taken and or administered poses no danger to life at all. Medical science has, it is now common cause, advanced in this field that although the relevant medication does not wipe out or eradicate the virus, it nevertheless supresses it such that the person taking it suffers no immediate danger of dying from it.
[13] Whilst I do take note of the fact that the applicants contest or challenge the admissibility of their confessions or statements made before a judicial officer; on the ground that they were unduly influenced or compelled by the police to record such statements, I find this hard to understand in view of the assertion by both applicants that they fully co-operated with the police in every step in or during their investigation and arrest. I shall, however, this being a bail application - not make any definitive finding on the admissibility or otherwise of these statements or the veracity or cogency of their assertions. In any event, these statements do not form part of these proceedings – other than the general assertion by the respondent that they were made – freely and voluntarily.
[14] It is common cause that in these proceedings, the applicants bear the burden of proving or establishing on a balance or preponderance of probabilities that exceptional circumstances do exist warranting their release on bail. They have both failed in this regard to establish such circumstances or factors. Being on ART is in the circumstances of this case, not such exceptional circumstance as defined in the applicable law. For this reason alone, both applications must fail and are hereby refused.
[15] The other ground for objection in this case is that the applicants will or are likely to interfere with the crown witnesses, namely Mr Zwane and Austin Shabalala. The latter is a neighbour of the first applicant and it is alleged that he was once approached by the first applicant with the request that Austin must kill the deceased. Austin refused to accede to this murderous request. The crown states that because of the closeness between the first applicant and Austin, the former would, if released on bail, interfere with this witness. The fact that the first applicant had the nerve or audacity to approach Mr Shabalala with the said request, makes it likely that he would interfere with his evidence. The mere fact that the Police have already taken down a full statement from Mr Shabalala, does not, in the circumstances, make this possibility less likely or unlikely. The fact that the witness has committed himself to a particular statement or version is, experience has taught this court and taught it well, no guarantee or assurance that, he would not be contaminated by the applicant. In any event, what the law requires is not actual interference but the likelihood of this occurring. In assessing this likelihood or factor, the court looks, amongst other things, the relationship between the accused and the witness, the seriousness of the evidence in the possession of the witness and the gravity of the crime faced by the accused or applicant. In the instant case, although the evidence of Mr Shabalala is circumstantial and not directly linking the applicant with the actual murder of the deceased, it is material in respect of the overall case for the crown against the applicant. Premeditated murder is, by all accounts very serious and attracts a heavy penalty in this jurisdiction.
[16] The other crown witness is Gcina Zwane. Both applicants have stated that they confided in him and he in them. He was their confidant. He is the traditional healer or medicine man of the first applicant. He, amongst other things, informed the first applicant that the deceased was the cause of the illness suffered by the first applicant. He revealed that the deceased was bewitching him and in turn the first applicant informed Mr Zwane that the deceased had (later) confessed to him that she had hired a hitman to kill him.
[17] The second applicant is equally close to Mr Zwane. Mr Zwane hired and transported the second applicant and Ngoloyi Nkambule to rob the deceased. This is the version given by the second applicant. Whether the intention was specifically to rob her of her money or to kill her, is, for purposes of this application, irrelevant. On whichever version the issue may be viewed, the deceased was killed by the hired and murderous duo. In the final analysis, the second applicant has, in his affidavit, firmly placed himself at the scene of crime; particularly on the conspiracy to commit a crime against the deceased.
[18] The investigating officer has stated that Mr Zwane lives in fear of the applicants. He states that his fears are based on the fact that it is clear from the evidence that he is the key witness. He was in contact and in conversation with both applicants in the period immediately prior to the murder of the deceased. Because of this role, he fears that the applicants would harm him should they be released on bail. His fears are, in my judgment, not unreasonable. There is indeed a real likelihood that the applicants would interfere with his testimony.
[19] From the above summary of the facts and the issues – both factual and legal – there is a likelihood that the applicants would interfere with the crown witnesses in the form of Gcina Zwane and Austin Shabalala. It would therefore not be in the best interests of justice that they must be released on bail. Additionally, prima facie, the crown has a strong case against both of them.
[20] Consequently bail is refused.
MAMBA J
For the Applicants :Ms N. Ndlangamanda
For the Respondents : Ms B. Fakudze
