IN
THE HIGH COURT OF SWAZILAND
Crim.
Case No. 150/94
In
the matter between:
MNCEDISI
MADI 1st Applicant
DAVID
MTHOMBENI 2nd Applicant
XOLILE
LUKHELE 3rd Applicant
And
THE
KING Respondent
CORAM :
Bill, CJ.
Dunn,
J.
Twala,
J.
Zulman,
J.
FOR
APPLICANTS Mr. Ntiwane
FDR
CROWN Mr. Donkoh
Judgment
(17/8/94)
The
applicants seek bail pending their trial on a statutory charge, under
section 3(1) of the Theft of Motor Vehicles Act, 1991, (Act No. 16 of
1991) of stealing a motor car.
On
24th August 1993, the Non-Bailable Offences Order 1993 (Order No. 14
of 1993) ("the Order") was published in the Gazette. The
Order was enacted by The King-in-collaboration-with-the-Council, and
had received the Royal Assent on 18th August. By section 1, it was
provided that it should come into force on publication in the
Gazette.
Section
3 of the Order provided as follows:
2
"3.
(i) Notwithstanding any provision in any other law, a Court shall
refuse to grant bail in any case involving any of the offences in the
Schedule hereto.
"(ii)
The Minister may amend the Schedule from time to time."
In
section 2, the expression "Court" was defined to mean the
High Court or a Magistrate's Court and the expression "Minister"
to mean the Minister for Justice.
Nine
offences were set out in the Schedule. They included such crimes as
murder, rape, and robbery, but did not then include the contravention
of section 3(1) of the Theft of Motor Vehicles Act, 1991.
By
the Non-Bailable Offences (Amendment) Act 1994, (Act No. 4 of 1994)
("the Act") which came into force by publication in the
Gazette on 17th June 1994, section 3(i) of the Order was replaced by
section 2 of the Act by a subsection in the following terms:
"Bail
to be refused in certain circumstances. "3.(1) Notwithstanding
any provision in any other law, a court shall refuse to grant bail to
any person charged with any of the offences in the Schedule hereto."
Furthermore
the Act provided in section 1(1): "This Act may be cited as the
Non-Bailable Offences (Amendment) Act 1994 and shall be read as one
with the Non-Bailable Offences Order 1993 (hereinafter referred to as
'the principal Order')."
Subsection
(ii) remained unchanged.
Then
on 15 th July 1994, the Minister for Justice issued the Non-Bailable
Offences (Amendment of Schedule) Notice, 1994 (Legal Notice No. 139
of 1994). He did this in the exercise of the powers
3
conferred
on him by section 3 of the Order which, as previously mentioned, was
enacted, as an Act of Parliament, by the Act. Paragraph 2 of that
notice says:
"2.
The Schedule to the Non-Bailable Offences Order is hereby amended by
adding the following:
"10.
A contravention of Section 3(1) of the Theft of Motor Vehicles Act,
1991."
It
is to be noted that the amended section 3(1) omits the words "in
any case involving" where they appeared in the Order, and
substitutes the words "to any person charged with". This
amendment was no doubt prompted by reason of the decisions of my
brother Dunn J. in Methula and Another v. The King (Case No. 278/93),
Nkwanyane v. The King (Case No. 279/93) and Gumedze v. The King (Case
No. 305/93).
On
these present applications for bail, counsel for the applicants
contends that, in purporting to add to the Schedule to the Order
contraventions of section 3(1) of the Theft of Motor Vehicles Act,
1991, the Minister has exceeded his powers. Counsel's submission can
be summarised shortly in the following way.
Section
18 of the Theft of Motor Vehicles Act, 1991, as amended in 1992 (by
Act No. 7 of 1992), provides as follows:
"Provisions
as to bail.
"18
Where a person is charged with an offence under Section 3 or 5 the
amount of bail to be fixed by a Court shall not be less than half
the value of the Motor Vehicle stolen, and a deposit of the amount
of bail so fixed by the Court shall be made in cash only
notwithstanding any law to the contrary.
"(2)
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
4
the
Court from a Motor Vehicle dealer shall be taken to be the value of
the Motor Vehicle.
"(3)
Where a person is charged with any other offence under this Act the
amount of bail to be fixed by a Court shall not be less than half the
amount of maximum or minimum fine fixed for that offence.
"(4)
No person charged with an offence under this Act shall be released
on his own recognisance."
It
was submitted by counsel for the applicants that this Act therefore
contains its own provisions for the granting of bail, and confers a
right to bail on a person who is charged with an offence under
section 3 or section 5 of such Act. The Minister's notice under
section 3 of the Order is on the other hand a form of delegated,
subordinate legislation . On its proper construction, section 3 of
the Order does not delegate to the Minister the power to amend the
Schedule to the Order in such a way as to abrogate the provisions of
an Act of Parliament, i.e. in this case the 1991 Act.
In
support of the argument, counsel also submits that the right of a
person to bail being a matter that bears upon his personal liberty
and the presumption of innocence, the courts should construe
strictly, in favour of the individual, the delegation of power to the
Minister under section 3 of the Order.
Counsel
has brought this present application on the basis that if the
Minister's notice is not ultra vires for the reasons that he has
advanced, then the applicants, as persons who stand charged with an
offence under section 3(1) of the Theft of Motor Vehicles Act, 1991,
are not entitled to bail, and that the application must accordingly
fail.
Counsel's
argument that the Minister has acted ultra vires cannot in my view be
sustained.
5
The
Order, as later amended by the Act, and the Ministerial notice do
affect the jurisdiction of the High Court of Swaziland. The High
Court is by virtue of section 104 of the Constitution a superior
court of record having (inter alia) unlimited original jurisdiction
in civil and criminal matters. The views of the Judges were not
sought in the preparation of any of these measures. I am not aware
that it has been demonstrated by factual analysis, in public debate
or otherwise, that in respect of scheduled offences the granting of
bail - at least by the High Court - had led to a high percentage of
accused persons absconding, re-offending or interfering with Crown
witnesses, while at liberty on bail awaiting trial.
The
remanding of accused persons in custody, pending their trials, is a
practical, interim measure that involves the balancing of the
interests of the community against those of the individual. It does
not affect the fundamental principle of justice that an accused
person is presumed to be innocent unless and until he is found
guilty, after a proper trial, by a court of law. Especially where
there may be delay in bringing an accused person to trial, his remand
in custody in the meantime is a severe incursion on his civil rights.
Where a person is remanded in custody it is essential, if an
acceptable standard of criminal justice is to be observed, that he
should be afforded a trial as speedily as possible and that everyone
who is involved in the administration of justice should accordingly
strive towards that end. It is on the other hand a denial of justice
either to confuse accusation with guilt or to regard the refusal of
bail as a method of punishment.
Nevertheless,
it is unquestionably the duty of a court of law, in construing
enactments of the legislative authority, to give effect to the
intention of the legislature, subject only to any rules of
constitutional law that may deal with the exercise of that authority.
Swaziland does not have a constitutional bill of rights, and no
constitutional basis for impugning the notice has been advanced by
counsel for the applicants.
There
is also no doubt that the legislature may, by clear language in an
enactment, delegate to some other authority the power to make
6
subordinate
legislation. The power to declare that bail shall not be available to
persons accused of specified offences does in my view involve an
important point of principle concerning the personal liberty of the
individual. In some jurisdictions, it is recognised as a tenet of
good practice that ordinarily matters of principle should be enacted
directly by the legislature itself, i.e. in principal legislation,
and that delegated legislation should be confined to lesser matters
of detail or machinery. Nevertheless that is not a universal view,
and it is not a rule of law. It is the prerogative of the legislature
itself to decide to whom it shall delegate its law-making authority
and the extent to which it may choose to do so. There is no doubt
that, by clear language, the legislature may go so far, if it sees
fit, as to delegate to another authority the power to amend even Acts
of Parliament. If authority needs to be cited for that proposition,
it may be found in the case cited in argument by counsel for the
applicants themselves, i.e. Van Heerden and Others NNO v. Queens
Hotel (Pty) Ltd and Others 1973 2 SA 14 (R., A.D.) and especially the
authorities collected there in the judgment of Beadle, C.J. at pages
16 and 17, and the judgment of MacDonald J.P. at page 28 B-C.
The
canon of construction that judges should interpret strictly
legislation that affects the liberty of the individual does not mean
that it is open to a court of law to place an artificial or strained
construction on the words of a statute, in derogation from the
clearly expressed intention of the legislature. To embark upon that
course would be to usurp the functions of the law - making authority,
to confuse issues that are in reality matters of a political nature
with those that are true legal issues and, eventually, to compromise
the Judiciary's own proper authority. (of. for example, the remarks
of Holker, L.J. in Gibbs v. Guild (1882) 9 Q.B.D. 59 at page 75.)
In
the present case, it is quite clear that the legislature intended to
delegate to the Minister the power to add further offences to the
Schedule to the Order.
Section
3 of the Order is explicit. Subsection (1) says that "Notwithstanding
any provision in any other law", a court shall refuse
7
to
grant bail to a person charged with an offence specified in the
Schedule. (Cf. the remarks of Lewis, J.A. in Van Heerden (supra) at
pages 35 in fin to 36 A.) I am not able to agree with counsel for the
applicants that the Ministerial notice is in conflict with section 18
of the Theft of Motor Vehicles Act, 1991. That Act does not in my
view, on its proper construction, confer a right to bail. Its own
purpose was to restrict eligibility for bail in respect of the
offences to which it refers. The Order and its amendment went even
further, by curtailing eligibility for bail in respect of scheduled
offences. In that, there is in my view no conflict.
In
any event, the Order and the subsequent Act were enacted after the
Theft of Motor Vehicles Act, 1991, and after that Act's own
subsequent amendment. The legislature is to be taken as having had
the earlier Acts in mind in 1993. The introductory words
"Notwithstanding any provision in any other law" in section
3(1) of the Order are unlimited. They are, plainly, to be construed
as including the earlier Acts. Moreover, it was unnecessary for the
legislature also to insert those introductory words in subsection
(2). That subsection is meaningless unless it is read together with
subsection (1). The purpose of the first subsection is to stipulate
that bail may not be granted for offences that are for convenience
set out in a schedule, namely the Schedule to the Order. The point of
subsection (2) is, simply, to delegate to the Minister the power to
amend that schedule.
The
language of the statute under consideration in this case, i.e. the
Act of 1994, is clear and unambiguous. The duty of this court is to
give effect to it. As pointed out by Tindal, CJ. as long ago as 1832,
in Warburton v. Loveland (1832) 2 D and C1. (H.L.) 480, at page 489:
"Where
the language of an Act is clear and explicit, we must give effect to
it, whatever be the consequences, for in that case the words of the
statute speak the intention of the legislature."
8
For
these reasons, the applications for bail are dismissed.
DAVID
HULL CHIEF JUSTICE
I
concur.
BEN
DUNN
JUDGE
I
concur.
JUDGE
I
concur.
RALPH
ZULMAN
JUDGE
