IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CR.
CASE NO.69/93
In
the matter of:
DUMSANE
DLAMINI 1st Appellant
ENOCK
MDLULI 2nd Appellant
And
THE
KING Respondent
C
O R A M : DUNN J.
FOR
THE APPELLANTS : MR MLANGENI
FOR
THE RESPONDENTS : MR SIGWANE
JUDGMENT
4th
June 1993
The
two appellants to whom I shall continue to refer as the accused
appeared before the senior magistrate, Manzini on a charge of robbery
involving a sum of E45,000.00. The accused who were unrepresented,
moved an application to be released on bail before the senior
magistrate. The senior magistrate fixed bail at E22,500.00 in respect
of each accused with further conditions as to surrender of the
accuseds' passports to the police; non-interference with potential
crown witnesses and confinement of the accused to the Manzini Region
pending their trial.
The
accused filed a joint application to this court for "free bail
or a reduction of the bail amount of E22,000.00." This
application was not proceeded with but was followed by a formal
Notice of Appeal in terms of Section 104 of the Criminal Procedure
and Evidence Act No.67 of 1938 (the Act) against the senior
magistrate's order. This Notice of Appeal was filed on behalf of the
accused by Mr Mlangeni. The Notice reads -
2
On
the 19th February 1993. the above Honourable Court made an order
granting bail to each of the accused in the sum of E22,500.00.
Be
pleased to take notice that the two accused hereby note an appeal to
the High Court on the following ground:
1.
That the amount of bail is excessive in the circumstances of the case
and must be reduced.
Heads
of Argument were filed with the Notice of Appeal and the arguments
put forward are as follows:
The
effect of Section 102 as read with Section 103 of the Criminal
Procedure and Evidence Act is that courts still do have a discretion
in deciding the amount of bail. In the present case it is the
failure to exercise this discretion that made the magistrate to
grant excessive bail.
It
is injustice to require an accused person to pay bail that he
obviously cannot afford, in that the whole purpose of bail is
defeated.
The
new section 102(A) introduces the concept of "value" of
the goods in question. In cases involving money, the equivalent
would be "amount".
The
procedural effect of this is that the crown must lead at least prima
facie evidence to establish the "value" or "amount"
as the case may be, otherwise bail would be decided on speculative
grounds.
3
The
matter was set down for hearing in the motion court and not on an
appeal day. I directed that the Notice of Appeal be served on the
Senior magistrate to enable him to file his reasons in the normal
way. The Senior Magistrate duly filed his reasons but for some reason
the matter was not immediately returned to me for further action.
The
Senior Magistrate sets out in his reasons that bail was fixed in
terms of Section 102 A(l)(b) of the Act as amended by Act No. 14 of
1991 which came into effect on the 20th November 1991. The amending
Act introduced a subpart B(2) to Part VIII of the Act dealing with
bail in the Magistrates' courts. The new subpart B(2) which is headed
Bail in Respect Of Theft And Kindred Offences provides - 102 A(l).
Notwithstanding
the provisions of subparts A and B(l) of this Part the amount of bail
to be given by a magistrate in respect of theft or any kindred
offence shall be –
E500
if the value of the property in respect of which the offence is
committed is E2,000; or
one
half of the value of the property in respect of which the offence is
committed if the value of the property exceeds E2,000.
Robbery
falls within the definition of theft and kindred offences (Section
102 (A)(3)).
Section
103 of the Act which was headed "Excessive bail not required"
was replaced with the following -
4
Subject
to section 102(A), the amount of bail to be taken in any case shall
be in the discretion of the court or judicial officer to whom the
application to be admitted to bail is made:
Provided
that no person shall be required to give excessive bail.
The
first two points argued on behalf of the accused do not call for
consideration. Magistrates are obliged, subject to the requirements
of the section being satisfied, to apply the section. They have no
discretion in the matter. The prohibition against excessive bail has
to be read subject to section 102(A). The section, it must be pointed
out, is confined to the Magistrate's courts and different
considerations apply in cases where application for release on bail
is made directly to the High Court or the High Court acts in terms of
section 105 of the Act.
In
fixing bail under section 102(A)(l) a Magistrate is obliged to take
into account "the value of the property in respect of which the
offence is committed" (my underlining). This the magistrate can
only do upon production by the prosecution, of the relevant evidence.
This means that it is incumbent upon the crown to adduce evidence of
–
the
value of the property in question; and
the
commission of the offence.
See,
in this respect the judgment of Rooney J in MARY DLAMINI v. THE KING,
REVIEW ORDER NO. 126/91 where, in dealing with an almost identically
worded section (18(1)) under the Theft Of Motor Vehicles Act No. 16
of 1991 the learned judge stated -
5
Before
the section can be applied to an application for bail, it must first
be established that the terms of the section are met. A charge sheet
proves nothing. If the crown wishes to rely upon section 18 it must
establish by evidence and beyond reasonable doubt that the motor
vehicle is stolen and that its value can be determined. This involves
the calling of witnesses. An accused person must be given an
opportunity of challenging such evidence in the ordinary way.
I
agree fully with the statement of the learned judge and endorse his
statement as being equally applicable to applications for bail under
section 102 (A)(l) of the Act. I should point out that following that
judgment the Theft of Motor Vehicles Act 1991 was amended to make
provision that "where there is a dispute as regards the value of
a stolen motor vehicle the book value of the motor vehicle at the
time of the theft as ascertained by the court from a motor vehicle
dealer shall be taken to be the value of the motor vehicle." It
will be noted, however, that nothing was done in the amending Act
regarding the second requirement namely that the prosecution should
establish the commission of the offence.
The
position in the present case is that the prosecution had to lead
evidence to satisfy the two requirements.
Turning
to the record kept by the senior magistrate, there is no indication
of any evidence having been led. The obvious person to have been
called would have been the complainant. All that the record contains
are entries relating to the remand in custody of the accused between
the 5th February 1993 and the 19th February 1993. On the latter date
an entry appears that the accused were granted bail in the sum and on
the conditions set out earlier in this judgment.
6
There
was in the circumstances no compliance with the requirements of
section 102(A)(l). The order fixing the amount of bail and the
conditions thereto is hereby set aside. If the accused have not as
yet been tried they are at liberty to renew their applications either
in the Magistrates Court or in the High Court.
In
conclusion it is necessary to point out that the duty of this court
has been to interpret the relevant section as drafted. For very
obvious reasons the section has to be given a strict construction. it
is open to the Legislature as in the case of the Theft of Motor
Vehicles Act to attend to the wording of the section. As matters
stand, Magistrates are obliged to proceed in terms of this judgment
whenever the prosecution seeks to invoke the provisions of section
102 (A)(l). I do appreciate the fact that the procedure to be
followed will result in further congestion of cases and possible
duplication of evidence (proof of the commission of the offence at
the bail application and subsequently at the trial) in the
subordinate courts but that is a matter for the Legislature to deal
with.
Copies
of this judgment are to be furnished to the Director of Public
Prosecutions and the Attorney-General.
B.
DUNN
JUDGE
