IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
APPEAL
CASE NO. 179/93
In
the matter between
THE
KING APPELLANT
VS
EDWARD
MNCINA 1. RESPONDENT
THEMBI
NSIBANYONI 2. RESPONDENT
WILLIAM
HLAZO 3. RESPONDENT
THOMAS
MAVIMBELA 4. RESPONDENT
THANDI
KUNENE 5. RESPONDENT
CORAM :
DUNN J
FOR
THE APPELLANT : MR DONKOH
FOR
3RD & 4TH RESPONDENTS : MR DUNSEITH
JUDGMENT
20 MAY 1994
This
is an application by the prosecution in terms of Section 92 of the
Magistrate's Court Act No. 66/1938 to set aside a decision of the
senior Magistrate, Mbabane striking the case of the 3rd and 4th
respondents from the roll and releasing the said respondents from
their bail bondage. The application has been overtaken by events and
the reason for the crown proceeding with it was for purposes of
guidance in future.
The
respondents were jointly charged with the possession of counterfeit
currency in contravention of Section 3(1)(c) of Act No. 31/1974.
Counterfeit notes with a face value of R1 160 000.00 were alleged to
be involved in the case. The 3rd and. 4th respondents made their
first appearance before the senior magistrate on the 18th February
1993.
2
They
were remanded in custody until the 25th February for a hearing of an
application for their release on bail. The application which was
opposed by the crown was duly heard and the senior magistrate
reserved his ruling until the 26th February when he granted the
application. The conditions for the release of the respondents were
fairly stringent and the respondents were unable to meet them. They
continued, in the circumstances, to be remanded in custody for
periods not exceeding 8 days at a time in terms of Section 102 of the
Criminal Procedure and Evidence Act No. 67/1938 (the C.P. & E).
It appears that on the 26th March 1993 the trial of the respondents
was set for the 23rd June 1993. The record reflects that the public
prosecutor was to issue summons to the two respondents and their
co-accused who had been released on bail. The trial date is reflected
on each of the days when the two respondents appeared for remand
between the 1st April and the 13th May 1993. The record reflects that
the respondents complained on several occasions, that the trial date
was too far off and requested that an earlier trial date be arranged.
The senior magistrate did not make any enquiries from the prosecution
as to whether or not the prosecution would be in a position to
proceed if an earlier trial date was available.
On
the 19th May 1993 Mr Dunseith, for the two respondents, made his
first appearance since the 1st April. The following appears in the
record for that day-DPP states that she applies for a remand in
custody till 26th May 1993 as trial is on the 23rd June 1993 but she
is not sure in which Court. Stood down at 11.30 a.m.
3
Matter
resumes at 11.50 a.m. DPP states that she applies to stand it down
for 5 minutes as the Acting Director of Public Prosecutions is
coming. Dunseith states that he applies that it be struck off. That
is all.
Struck
off as this matter has not yet been set for trial and albeit there is
a tentative trial date.(23rd June 1993) it has not been disclosed as
to which Court is involved. Accused Nos. 1 and 2 to be refunded
their bail.
It
appears from the senior magistrate's reasons for striking off the
case that Mr Dunseith attended Court on the 19th May following a
letter which he had addressed to the DPP on the 4th May 1993. The
relevant portion of the letter (the rest being in very poor taste and
for which a retraction and apology were subsequently made) reads-
You
are hereby placed on notice that unless my clients are brought to
trial within 14 days, I shall apply for the matter to be struck off
to enable them to at least be released whilst you attempt to make a
case against them.
The
upshot of the senior magistrate's order was that the two respondents
were released from custody. They returned to the Republic of South
Africa, their country of origin. The DPP was subsequently granted an
application for the summary trial of the respondents in the High
Court in terms of Section 88(bis) of the C.P & E. The case was
set down for hearing but could not be proceeded with because the
whereabouts of the respondents was not known.
Section
92 of the Magistrate's Court Act which is headed "Review of
decisions" provides-
4
If
a decision is given by a magistrate's Court in a Criminal case on a
matter of law, and the Director of Public Prosecutions or his
representative is dissatisfied with such decision, the Director of
Public Prosecutions or his representative may seek the ruling thereon
of the High Court, and the High Court may set down the matter to be
argued before it.
The
section does not set out the procedure by which the prosecution may
approach the High Court in order to obtain a ruling. The present
application was served on the Registrar and the respondents attorney.
It was only when the matter was placed before me that I directed that
the application should be served on the senior magistrate to enable
him to file reasons for the order be made. In the absence of any
direction as to the procedure to be followed under the Section, the
proper approach by the crown should be by way of review under Rule 53
of the High Court Rules. I should point out that this aspect of the
application was not argued before me as the interests of the crown
lay in the merits rather than the form of the application.
The
submission by the prosecution is that the senior magistrate "
misdirected himself on points of law resulting in a gross miscarriage
of justice in the following respects-
The
Honourable Magistrate erred in law when striking off this matter
from the roll after the crown had applied for its postponement to
the 26th May 1993, in as much as the Honourable Magistrate does not
have such powers in law.
The
Honourable Magistrate when dismissing the charges against the
accused, could only have acted under Section 277 of the Criminal
5
Procedure
and Evidence Act No. 67 of 1938, which Section, in the circumstances
of this matter, does not apply.
The
Honourable Magistrate erred in law
when
discharging the accused persons from their bail bondage in as much
as the Director of Public Prosecutions had clearly indicated to the
Court that he was persuing the prosecution.
In
giving his reasons, the senior magistrate set out the history of the
application and stated-
"By
and large, I struck off the matter as it was clear that the Crown had
not properly set down the matter for trial in as much as it was not
aware which court would hear the matter notwithstanding that it had
set it as early as the 26th March 1993. The court has jurisdiction to
strike a matter off the roll in as much as it has the power remand
the very matter. It is common cause that the crown applies for
matters to be struck off every day in court and one wonders why it
seems prudent to now challenge such power. Due to the short period
of time I had in preparing these reasons I cannot refer to any
specific statute but I am of the view that the court has power to
strike off a matter. However, it is not Section 277 of the Criminal
Procedure and Evidence Act No, 67/1938 as that section refers to the
dismissal of a charge in default of prosecution. Finally, the court
discharged accused persons from their bail bondage since their matter
was no longer pending before any court. Once a matter is struck off
it follows that the matter is no longer pending unless it has been
referred to another court, which is not the case herein."
6
Section
277 of the C.P.&.E provides-
If
the prosecutor (whether public or private) in the case of trial by
the High court has given notice of trial and does not appear to
prosecute the indictment against the accused before the close of the
session of the court before which he gave notice of trial or, in the
case of a trial by a magistrate's court, does not appear on the court
day appointed for such trial, the accused may move the court to
discharge him, and the indictment or summons may be dismissed, and if
the accused or any other person on his behalf has been bound by
recognisance for the appearance for the accused to take his trial,
may further move the court that such recognisance be discharged, and
such recognisance may thereupon be discharged.
Section
278(2) provides-
Any
person who has been acquitted on any indictment or summons in a
magistrate's court or whose case has been dismissed for want of
prosecution shall" forthwith be discharged from custody.
The
trial date was fixed and recorded as the 23rd June 1993. It is not
clear as to when or how this date became a "tentative date".
The respondents were aware of the date and had, according to the
record, made representations to the senior magistrate and the DPP
regarding an earlier trial date. Bail conditions were set by the
senior magistrate and it was upon the respondents to meet these
conditions in order to secure their liberty pen ing their trial.
7
The
DPP is the person responsible in terms of Section 3 of the C.P.&.E
for all criminal prosecutions in the country . It is the DPP who
decides, subject to Section 88 (bis) of the C.P.& E, the level of
court in which to prosecute any given case. The DPP is a senior
officer of the Crown and the court and his decision to prosecute in a
particular court should be taken seriously and accorded the necessary
respect. If as appears from the senior magistrate's reasons,
importance was placed on the need for the DPP to indicate the court
in which the respondents were to be tried, the DPP should have been
given the courtesy of the five minute adjournment which the
prosecutor requested. The DPP would have had the opportunity of
dealing with the question of an earlier trial date and the court in
which the respondents were to be tried. The DPP may for example have
been awaiting the outcome of an application for a summary trial in
the High court or there may have been problems with obtaining an
early trial date in the Principal Magistrate's Court. There may on
the other hand have been difficulties and delays with regard to
forensic analysis of the exhibits. Such matters could only have been
clarified by enquiries involving all concerned.
It
is no secret that there is a serious backlog of cases at all levels
of our courts. Accused persons are forced to wait lengthy periods
before they are tried. This is a problem to be addressed by the
Ministry charged with the responsibility of providing the wherewithal
for the judiciary to function effectively.
8
The
trial of the respondents was set for hearing within 4 months of their
arrest. Taking into account the backlog I have referred to this was
a comparatively short period.
The
points raised in the application must, in the circumstances be
answered in favour of the crown. A date had been fixed for the trial.
The two respondents had not satisfied the conditions for their
release on bail. The crown was not in breach of any lawful conditions
set by the court. If the Senior Magistrate was in any doubt regarding
the trial date he should have made the necessary enquiries from the
DPP. The two respondents were properly before the court for remand
and the senior magistrate should have proceeded in terms of Section
102 of the C.P.& E. The release of the accused from their bail
bondage was improper and irregular in as much as the provisions of
Section 277 could only have been invoked on the date appointed for
the trial namely, the 23rd June 1993.
The
order of the senior magistrate of the 17th May 1993 is set aside.
B.
DUNN
JUDGE
Black Friday 19 