Court name
High Court of eSwatini
Case number
Civil Case 2204 of 2003

Ntshalitshali v King and Another (Civil Case 2204 of 2003) [2003] SZHC 116 (05 December 2003);

Law report citations
Media neutral citation
[2003] SZHC 116
Coram
Maphalala, J









THE
HIGH COURT OF SWAZILAND


CAIPHUS
NTSHALINTSHALI


Applicant


And


THE
KING


1st
Respondent


THE
ATTORNEY GENERAL


2nd
Respondent


Civil
Case No. 2204/2003


CORAM :
S. B. MAPHALALA - J


For
the Applicant : Mr P. Gwebu


For
the Respondent : Mr S. Khuluse ( attached to the


Attorney
General Chambers)


JUDGEMENT


(0512/2003)


The
Applicant has instituted motion proceedings for a refund of the sum
of E15,000.00 which he paid as bail in respect of Case No. 133/94.
The criminal case was tried at the Magistrates Court


2


Manzini
after which the Applicant was found guilty of fraud and sentenced to
six years imprisonment. The Applicant appealed against conviction and
sentence and he applied for bail pending appeal to this

court
which admitted him to bail on the 12th August 1997.


The
appeal was argued on 13th December 1995, 14th December 1995 and 15th
May 1997 respectively after which judgement was reserved. The matter
appeared before former Chief Justice Sapire and the late Mr Justice
Dunn but judgement was never delivered.


The
Applicant avers that it will be impossible for judgement to be
delivered because both Judges are no longer available, the one having
died and the other having resigned. He avers that in the
circumstances he is entitled to demand that he be acquitted of the
charges against him because the appeal is in effect a continuation of
trial; and since the Judges who heard the appeal are no longer
available the proceedings have become abortive and have lapsed.


The
defence put forth by the Respondent is that it is possible for
judgement to be delivered in this

matter
regard being had to the provisions of section 291 (1) bis of the
Criminal Procedure and


Evidence
(Amendment) Act No.3 of 2000. The argument in this regard is that the
matter may be

referred
to a Judge of this court and/or full bench of the court for a
direction as to what should happen to the matter. Alternatively, a
judgment may be handed down by the present Judges of the Court after
the consideration of the record on appeal in line with the provision
of Section 291 (1) bis

(b)
(ii)
of
the
Act.


When
the matter came for argument two points were made in support of this
application on behalf of the Applicant. Firstly, it was contended
that the Act relied upon by the Respondent does not apply because it
does not appear that this law is now in operation as the section
thereof provides that it will only come in force once the date of its
commencement has been published in the Government Gazette. Secondly,
it was argued that the Act only applies in a situation where a trial
has been held but sentence cannot be passed by the judicial officer
who returned the verdict. To this end the court was referred to the
textbook by CAMPELL AND LANSDOWNE, SOUTH AFRICAN CRIMINAL PROCEDURE
at page 622.


Mr
Khutuse argued au contraire on behalf of the Respondents and without
further ado I agree in toto with his submissions in this case. I say
so for two reasons. Firstly, the matter is still pending


3


before
court and unless and until a verdict either way has been given or
sentence passed, Applicant is not entitled to the refund of El
5,000.00 he paid as bail.


Secondly,
Applicant must first seek for his discharge in terms of Section 155
(5) of the Criminal Procedure And Evidence Act 67/1938 before he can
launch the present application. I agree with Mr Khuluse's very
incisive observation that in casu what the Applicant has sought to do
herein is to place the can before the horse.


Section
155(5) of the Act provides as follows:-


"Any
person who has once been called upon to plead to any indictment or
summons shall, save as is specially provided in this Act or in any
other law, be entitled to demand that he be either acquitted or found
guilty. "


It
appears to me that for the applicant to approach this Court for a
refund he must have been discharged in terms of Section 155 (5) of
the Act. This is his first hurdle. In my mind, it appears that the
question of whether or not Section 291 (1) bis (b) applies would be
addressed by the presiding officer seized with a proper application
in terms of Section 155 (5) of the Act. It would be premature for
this Court to determine the applicability or otherwise of Section 291
(1) bis (b) outside the realm of Section 155 (5) of the Act.


For
the aforegoing reasons I find that the Applicant has failed to prove
a case for the relief sought. In the result the Application is
dismissed with costs.


S.B.
MAPHALALA


JUDGE