IN THE HIGH COURT OF ESWATINI
JUDGMENT
In the matter Between: Case No. 55/19
SANDILE LANGELIHLE FAKUDZE Applicant
And
THE KING Respondent
Neutral citation : Sandile Langelihle Fakudze and The King (55/19) [2019]
SZHC 28 (21st February 2019)
Coram : M. Dlamini J
Heard : 20th February 2019
Delivered : 21st February 2019
Bail application : interest of justice – no disparity between evidence of applicant and crown such is likely to induce applicant to evade trial – crown witness known by applicant likelihood of interference at instance of applicant – unreliability of applicant – applicant blowing hot and cold at the same time – court cannot rely on his averment that he shall attend his trial.
Summary: By means of a certificate of urgency, a bail application serves before me. It is opposed by the Crown.
Background
[1] The applicant is an adult male of Ntontozi area. He was arrested by the Malkerns police on a charge of robbery. The robbery charge reads:
“RIDER “A”
COUNT 1
Accused person(s) 1, 2 and 3 are charged with the offence of ROBBERY.
In that upon or about 26/12/2018 at or near Malkerns Eagles Nest, in the Manzini District, the said accused person(s) each or both of them acting jointly in furtherance of a common purpose did wrongfully, unlawfully and intentionally rob one Elijah Dlamini by using force and violence, threatened to stab him with a knife and further tied him with a rope to induce submission by the said Elijah Dlamini of his property and with intent to steal did take away from him money in different currency being €8,000.00, $100 300.00 and R80, 000.00, the property of or in the lawful possession of Elijah Dlamini, thus did rob him the same.”
Applicant’s grounds for bail
[2] The applicant deposed on a number of grounds justifying his release from custody. Firstly, he averred that he suffers from ulcers. Correctional Services health personnel lack the necessary skill to attend to his condition. Secondly, he is the bread winner of twelve children including his wife who is heavily pregnant. He supports them by means of piece meal jobs. Thirdly, he is not connected to the offence facing him. His only sin is that he is an acquaintance of one Sandile Dlamini. Sandile Dlamini is reportedly to be one of the suspect under the charge of robbery. He is still at large. He deposed in regard to Sandile Dlamini.
“12.
However, I was not with him when he committed the offence and I do not know his whereabouts as we speak”
[3] The applicant vouched on his innocence of the charge. He urged the court to order his release from custody.
Grounds for opposition by the Crown
[4] Under the hand of Detective Constable 6446 Mxolisi Dlamini, the Crown deposed that there is overwhelming evidence against the applicant. It is this state of evidence that is likely to induce the applicant to:
“(a) Evade trial
(b) Interfere with one of the witnesses.”
[5] In the result, the crown attests, that justice shall not be served by granting applicant bail. It prayed that the application be declined.
Interest of justice
[6] Section 96 (1) (a) reads:
“an accused person who is in custody in respect of an offence shall, subject to the provisions of section 95 and the Fourth and Fifth Schedules, be entitled to be released on bail at any stage preceding the accused’s conviction in respect of such offence, unless the court finds that it is in the interests of justice that the accused be detained in custody.”
[7] Section 96(12) (a) and (b) stipulates:
“(a) 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;
(b) in the Fourth Schedule but not 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 the interests of justice permit his or her release.”
[8] It is evidence from the wording of the charge sheet that the offence facing applicant is classified under either the fourth or fifth schedule. The position of the law therefore is that applicant must be incarcerated until his trial except where he adduces evidence to the satisfaction of the court that the interest of justice would be served by his release from custody.
Issue
[9] Under the circumstance of this matter, would releasing applicant from custody serve the interest of justice?
Analysis
Applicant’s health
[10] In his founding affidavit the applicant has alleged:
“5.
I am desirous to be admitted to bail herein as I am a sickly person suffering from stomach ulcers and therefore I live by constantly seeing doctors. I am advised the correctional services facilities are not adequately equipped to cater for such illness.”
[11] On this ground, the Crown has answered:
“7.
The contents of this paragraph are denied and Applicant is put to strict proof thereof. I aver that Applicant has not attached supporting documents that he is indeed suffering from the alleged ailment and there are no medical reports from the alleged doctors he constantly sees to argument the seriousness of his alleged ailment. Applicant has further failed to attach supporting papers that his ailment cannot be addressed by the clinics at the Correctional Facility where he is kept. I am further advised that inmates are also taken to the Government hospitals for further treatment should the need arise. Consequently, Applicant has failed to provide this Honourable Court with documents to the effect that he has been to the Government hospitals and has not been assisted.”
[12] In his reply, applicant states:
“8.
I therefore reiterate the contents of my founding affidavit thereof.”
[13] From the above, obviously, applicant has dismally failed to support his own averment on his state of health. This grounds does not take applicant’s bail application any further as it lacks substantiated evidence therefore.
Evidence on the charge
[14] The applicant has attested both in his founding and replying affidavit that he is innocent to the charge. In support of this position he deposed:
“10.
The reason I am implicated in this offence is that I am a friend to one Sandile Dlamini who is still at large trying to evade arrest.”
[15] Applicant filed heads of arguments and highlighted:
“Applicant has even cooperated with the police in even apprehending the other accused person and further surrendered to the police what he handed on behalf of the fugitive Sandile Dlamini.”
[16] During the hearing of this application, Counsel for applicant urged the court to take into account the above averments. When asked why such evidence did not form part of his set of affidavits filed in his application, he urged the court further to consider the averments. In the interest of justice, the court is inclined to do so. This evidence by applicant must be viewed together with the evidence adduced by the investigating officer both in his answering affidavit and orally. The investigator asserted:
“9.1
I humbly aver that there is overwhelming evidence against Applicant which links him to the commission of the offence. The Applicant borrowed a grounder [sic] from one Nhlanhla Dennis Vilakati, who is a Crown witness, on the 26th December 2018 together with a locking and unlocking spanner with a peculiar feature being an extended bar. The accused persons in this matter forgot this peculiar spanner at the scene of crime and same was retrieved during the investigations.
9.2
Furthermore, the said Nhlanhla Dennis Vilakati during investigations confirmed that the grounder [sic] was returned by Applicant on the 27th December 2018 without the peculiar spanner. This witness has positively identified the said spanner found at the scene of crime as his.”
[17] He further attested:
“9.3
Furtherance, Applicant having been arrested pointed at some exhibits which include foreign currency that was retrieved from his homestead at Ntondozi Area.”
[18] On the type of currency, the investigating officer gave oral evidence. He justified that the applicant having been arrested at Mankayane hospital, he retrieved from the applicant a sum of R37 000 which was in his possession. The applicant then led the investigating team to a place covered by river sand. A sum of R30 000 was retrieved. He also led them to his homestead at a pit latrine where the sum of 100 Brazilian dollar and 100 Jamaican dollar were recovered. He further pointed out at a corner of his kitchen where upon digging it, a sum of R160 000 was retrieved. This recovery yielded a total of R235 000.
[19] Under cross-examination, applicant disputed the currency from overseas. Applicant submitted that the money retrieved had been buried by applicant upon the request of the suspect Sandile Dlamini who is still at large.
[20] The analysis of this evidence, without prejudice to the trial or defence, is that there is no variation between what applicant attests to and the investigation officer.
[21] This portion of the evidence leads me to enquire on the likelihood of applicant evading his trial. The answer must be found in the evidence supporting the charge. It is sufficient at this stage of the proceedings to state that on the analysis herein there is no evident disparity between the evidence of the applicant and the Crown as adduced by the investigator. This alone is sufficient to induce applicant to evade his trial.
[22] Needless to point out that applicant is facing a serious crime (robbery). Again, as correctly pointed out by Counsel on behalf of the Crown, the seriousness of a crime is attended with a stiff penalty. This is another factor which may induce an applicant to fail to attend to his trial.
[23] The third ground relates to witnesses. It is clear that applicant is acquainted to both his witnesses and accomplices. I appreciate that applicant deposed in his founding affidavit:
“12.
However I was not with him when he committed the offence and I do not know his whereabouts as we speak.”
[24] However, in his heads of arguments it is pointed out:
“4.
Applicant has even cooperated with the police in even apprehending the other accused persons and further surrendered to the police what he handled on behalf of the fugitive Sandile Dlamini.”
[25] During the hearing, he motivated the above by pointing out further that the two accomplices are accused No. 1 and No. 3 in the charge sheet who were apprehended by the police at his instance. He further directed the police to the whereabouts of Sandile Dlamini who was subsequently apprehended by the South African police in the Republic.
[26] On the investigator’s evidence that applicant borrowed a grinder and a specialised spanner from Dennis Nhlanhla Vilakati he replied:
“9.
Contents hereof are disputed.
However I prefer that such issues be dealt with at trial. In the meantime as per dictates of our constitution I am only a suspect until proven guilty in a court of law”
[27] This bare denial does not take applicant’s application any further in terms of the principles of the law on pleadings. Applicant ought to have specifically pleaded on this averment. The court is therefore inclined to draw the conclusion that he knows Nhlanhla Dennis Vilakati. Nhlanhla Dennis Vilakati appears to be the main witness. It is highly likely that applicant might interfere with this state witness.
Reliability
[28] There is another glaring feature in applicant’s application. As pointed above, he deposed that he did not know the whereabouts of Sandile Dlamini. However, during the hearing, his attorney submitted that the applicant informed the police that Sandile Dlamini who was at large, was in South Africa. Subsequently, on this information, the South African police were able to apprehend the said Sandile Dlamini. He lamented why he was not brought into the Kingdom. Now from the above, in one moment applicant does not know the whereabouts of Sandile. In another, he knows where he is. Applicant appears to be blowing hot and cold at the same time. His word is not reliable. He cannot be relied upon. His undertaking therefore that he will stand trial stands to be dismissed on his unreliability. In the circumstances, it would not serve the interest of justice to release him on bail.
[29] In the analysis of the above, I enter the following order:
- Applicant’s application for bail is hereby dismissed.
___________________________
M. DLAMINI J
For the Applicant : S. Mabila of Attorneys in Association with T.L. Dlamini & O.
For the Respondent : Ngcebo Lukhele Prosecuting Counsel, Director of Public Prosecutions CHBS.
