Court name
High Court of eSwatini
Case number
Criminal Case 173 of 2003

Bhembe v Rex (Criminal Case 173 of 2003) [2003] SZHC 121 (19 December 2003);

Law report citations
Media neutral citation
[2003] SZHC 121
Coram
Maphalala, J









1

THE
HIGH COURT OF SWAZILAND HOPEWELL BHEMBE


Vs


REX


Criminal
Case No. 173/2003


Coram S.B.
MAPHALALA - J


For
the Applicant MR. O. NDZIMA


For
the Respondent MR. A. MAKHANYA


JUDGMENT


(19/12/2003)


The
Applicant has moved an application before court seeking to be
released on bail on such terms and conditions as the court may deem
fit.


The
Applicant states in his founding affidavit that he is a Swazi citizen
from Lwandle area in the Manzini Region and that at the time of his
arrest he was employed at Sidvwashini in a company called Blue
Ribbon. The Applicant further states that he is prepared to abide by
whatever conditions this court may impose if granted bail, and
further that he is prepared to report weekly at the nearest police
station.


2


The
Respondent has filed papers in opposition and the affidavit of 1974
Detective Inspector F. Mabuza has been used thereto. The crux of the
opposition is that it is feared that Applicant will interfere with
Crown witnesses. It is alleged that the Applicant is aware of the
Crown witness's evidence and that most of them are well known to him.
To that the Applicant has filed a replying affidavit where he states
that he will not interfere with Crown witnesses nor interfere with
police investigations. He further states that he is not aware of the
crown witnesses and such witnesses have not been mentioned.


The
principles governing the decision to grant or refuse bail have been
stated in a number of authorities and the factors applicable were
lucidly enumerated in the case of S vs Acheson 1991 (2) S.A. 80S as
follows:


a) Is
it more likely that the accused will stand trial or is it more likely
that he will abscond and forfeit his bail?


b) Is
there reasonable likelihood that the accused will tamper with
relevant evidence or cause such to be suppressed or distorted?


c) How
prejudicial it might be for the accused in all the circumstances to
be kept in custody by being denied bail.


According
to Nathan CJ (as he then was) in the case of Ndlovu vs Rex 1982 - 86
S.

L.
R.
52 E

-
F
the principles applicable are as follows:


"The
two main criteria in deciding bail applications are indeed the
likelihood of the Applicant standing trial and the likelihood of his
interfering with crown witnesses and the proper presentation of the
case. The two criteria tend to coalesce because if the Applicant is a
person who would attempt to influence crown witnesses it may readily
be inferred that he might be tempted to abscond and not stand his
trial. There is a subsidiary factor also to be considered, naturally,
the prospect of success in the trial".


In
dealing with the nub of the crown's apprehension if the Applicant be
released, Mohamed CJ (as he then was) stated the following in S vs
Acheson (supra) at 822 - 823C:


3


"The
second question which needs to be considered is whether there is a
reasonable likelihood that, if the accused is released on bail, he
will tamper with the relevant evidence or cause such evidence to be
suppressed or distorted. This issue again involve an examination of
other factors such as;


a) Whether
or not he is aware of the identity of such witnesses or the nature of
their evidence;


b) Whether
or not the witnesses concerned have already made their statements and
committed themselves to give evidence or whether it is still the
subject of continuing investigations;


c) What
the accused relationship is with such witnesses and whether or not it
is likely that they may be influenced or intimidated by him;


d) Whether
or not any condition preventing communication between such witnesses
and the accused can effectively be policed".


In
the present case the gist of the opposition by the crown is that the
Applicant will interfere with witnesses. The evidence of Inspector
Mabuza reveals at paragraph 7 of the opposing affidavit as follows:


"7.1 He
is aware of the crown witnesses' evidence, and most of them are

well
known to him and it is likely that they may be influenced or
intimidated by him.


7.2 There
is still another suspect who is at large, who is being sought by the
police and is implicated in the same charges.


7.3 I
submit that there is a reasonable likelihood that if Applicant is
released on bail he will tamper with police investigations and
suppress relevant evidence".


I
have carefully assessed the evidence brought before me and also
considered the submissions made by counsel in this case. I am
inclined to agree with the Crown in this case that the Applicant is
likely to influence witnesses in this case. On the basis of the
submissions in the opposing affidavit of the Inspector I have come to
the considered view that Applicant is likely to influence witnesses
in this case.


In
the premise the application is dismissed and costs to follow the
event.


4


S.B.
MAPHALALA


JUDGE