Court name
High Court of eSwatini
Case number
2173 of 2001

Zulu v Commissioner of Police (2173 of 2001) [2004] SZHC 15 (10 February 2004);

Law report citations
Media neutral citation
[2004] SZHC 15

 

THE HIGH COURT OF SWAZILAND

Crim.Case No.l 16/02

 

 

In the matter between:

 

MUSA NQABENIDLAMINI Vs

KING



 

 



 

 

CORAM

 

For the Crown For the Accused

: MASUKU J.

 

: Mr P. DIaxnini : Mr J.W. Maseko



 

 



 

 

RULING ON APPLICATION FOR POSTPONEMENT 4th FEBRUARY 2004

Preface

 

On the 28th January 2003, I granted a postponement of this matter to the 22nd March 2004 and further indicated that reasons for the Ruling would follow in due course. They now follow.

 

 

Introduction

 

This is an application by the Crown for this postponement of the matter for a period of about four weeks to enable the Crown to obtain results of blood samples which were transmitted by the Royal Swaziland Police (hereinafter called "the R.S.P.), to the Forensic Science



 

 



 

 

Laboratory (hereinafter called the "F.S.L.") of the South African Police Service (hereinafter

referred to as "the S.A.P.S.).

 

 

Background

 

The accused appears before me charged with eight counts of rape and/or indecent assault, which the Crown alleges were perpetrated by the accused on pupils he taught at Mambane Primary School, where he was the Head teacher. The Crown's case is that these offences were committed upon the said pupils on various dates, ranging between May 2000 and

August 2001.

 

The trial commenced in earnest on the 27th January 2003, exactly one full year ago. The Crown, up to the 6th February 2003 had led the evidence of thirteen witnesses. It was at this juncture that the Crown applied for a postponement of the matter to enable it to obtain D.N.A. evidence in connection with one of the Counts in which it is alleged that the accused impregnated the complainant. This application was granted notwithstanding opposition by Mr Maseko. The accused was admitted to bail and was fortunately released. He is presently on bail. I say fortunately because other accused persons who were admitted bail by this and other Courts were denied their freedom in the face of Court orders in their favour. This has been the subject of criticism against the Government for over twelve months.

 

On the 16th July 2003, the Crown was granted an Order in terms of which it was permitted to obtain the accused's blood samples for analysis. The matter was again called before me on the 5th November 2003 and it was postponed to the 26th November, for continuation of trial. On that date, the Crown led the evidence of Dr Aby Philip and sought a further postponement for the reason that the results of the DNA analysis had not be received by the R.S.P. from the F. S. L. This application was vigorously opposed by Mr Maseko. The Court, after weighing the arguments and the circumstances again granted the application for a postponement to the

27th January 2004.

 

This application for a postponement was granted on the express understanding that the matter would proceed on the 27th with or without the report, unless some unforeseen eventuality of major proportions intervened. When the matter was called, again Mr Dlamini sought a further postponement of the matter to enable the Crown to obtain the DNA analysis report.



 

 



 

 

In support of this fresh application, Mr Dlamini argued that the R.S.P. had done all that was required of them and in that regard referred to certain exhibits which were admitted by consent. In his argument Mr Dlamini stated that these reflected that the R.SJP. had done all that they could and that the reason that the results were not in hand was totally outside their control.

As indicated, the Court Order, Exhibit F. was granted on the 16 July 2003, but was only signed by the Registrar of this Court on the 16th September 2003. According to Exhibit Fl, the register for exhibits received from Police Stations, the samples in issue were received on the 26th September, and were, according to Exhibit F2, dispatched to S.F.L. on the 3rd October, the very day the receipt of the samples was acknowledged by S.F.L. via Exhibit F 4.

The R.S.P. by Exhibit F3, dated 13th November 2003, wrote to F.S.L. requesting that the samples be examined as a matter of priority due to the incarceration of the accused (which I note had by then fallen away). There is a further letter exhibit F 5 by S.F.L. dated 3rd December, again acknowledging receipt of the exhibits and requesting the R.S.P. to seek a postponement of this matter to allow completion of the D.N.A. analysis.

The last letter is exhibit F6 from the F.S.L. dated 8th January 2004, indicating that the blood samples are currently in the DNA analysis and that they should take twelve (12) to sixteen (16) weeks to complete. Mr Dlamini further informed the Court that the F.S.L., in a recent conversation have undertaken, in view of the urgency that attaches to the matter, to expedite the process and to finalise the analysis by the end of February 2004. It was on that basis that Mr Dlamini sought a postponement of the matter to a date in March.

 

Mr Maseko argued that his client, although out of custody, has been inconvenienced for a long time as he is sitting at home and earning no salary. I interpose to state that if this is the case, it is illegal because according to the provisions of Regulation 38 read with 39 of the Civil Service Board (General) Regulations, 1963, he is entitled at least to half of his normal emoluments. Mr Maseko also fired a broadside on the Crown for laxity in dealing with the matter and that the period between the granting of the Order for extracting the accused's blood samples and the dispatching of the same to F.S.L. is not accounted for. He submitted that his client has been waiting for about a year and half for the matter and in any event, the



 

 



 

 

Crown, if acting diligently, ought to have foreseen that blood samples would be necessary and would have applied for their extraction in good time without interfering with the smooth flow of the case. He emphatically asked the Court this time to refuse the application and to do justice to the accused's interests.

 

 

This is the nature of the issues I am called to rule upon.

 

 

Principles Governing Postponements

 

The applicable principles were enunciated with absolute clarity and authority by Mokgoro J. in NATIONAL POLICE SERVICE UNION AND TWO OTHERS VS THE MINISTER OF SAFETY AND SECURITY AND THREE OTHERS CCT. 21/00 (unreported), at page 2 paragraphs 7 to 9, where the following important excerpt appears:

 

"The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the Court. Such postponement will not be granted unless this Court is satisfied that it is in the interests of justice to do so. In this respect, the Applicant must show that there is good cause for the postponement. In order to satisfy the Court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that give rise to the application. Whether a postponement will be granted therefore is in the discretion of the Court and cannot be secured by mere agreement between the parties. In exercising that discretion, this Court will take into account a number of jactors, including (but not limited to): whether the application has been timeously made, whether the explanation given by the Applicant for postponement is full and satisfactory, whether there is any prejudice to any of the parties and whether the application is opposed. All these factors will be weighed by the Court to determine whether it is in the interests of justice to grant the postponement.

 

(9) what is in the interests of justice will in turn be determined not only by what is in the interests of the parties themselves, but also by what, in the opinion of the Court, is in the public interest. The interests of justice may require that a litigant be granted



 

 



 

 

more time, but account will also be taken to the need to have matters before this Court finalised without undue delay. "

 

See also in MYBURG TRANSPORT v BOTHA t/a SA TRUCK BODIES 1991 (3) SA 310 (NmSC) at 314 F - 315 J, as per Mohamed AJA.

 

 

Application of principles to the facts

 

In considering the arguments advanced on behalf of both parties and the legal principles enunciated above and which govern the issue relating to postponements, there are a few matters that cry out for observation. These are the following: -

 

Firstly, although the time since the accused was charged and committed to this Court is long, it is equally true that the accused's case has not been unreasonably delayed. As indicated elsewhere above, this trial commenced only a year ago. The one and a half years referred to by Mr Maseko is therefor not an accurate reflection of the considerations that we have to take into account at this stage.

 

Secondly, whilst I entirely agree with Mr Maseko that there are delays which the Crown has not adequately explained or at all e.g. the period between the granting of the Order and the dispatch of the blood samples to Pretoria, to which criticism correctly attaches, I am of the view that these are issues which were already in existence at the grant of the last postponement and were given due consideration before the application was granted.

 

What we have to consider in my view at this stage is whether since the last postponement, the Crown is responsible or guilty of neglect or put differently, whether there are any traces of lackadaisical handling of the matter on their part. This of course will have a bearing on the entire circumstances of the case.

 

From the exhibits filed before Court, I am of the view that since the exhibits were submitted to the S.F.L. in October 2003, admitting of course the delay in so doing, the Crown has done all in its power, recognising the accused's personal circumstances, as specified in Exhibit F 4, to expedite the processing of the analysis and thereby drawing this matter to a close and ameliorating the accused's hardship.



 

 



 

 

There is no reason to sustain an attack on the Crown's diligence in pursuing the matter at that stage. Clearly, once the exhibits are submitted, the finalisation of the DNA process is totally out of the RSP's hands. The completion of the analysis will of course depend on the S.F.L.'s load of work at the time. In casu, exhibits F5 and F6 bear testimony to this fact.

 

As correctly stated by Mr Dlamini, the receipt of the DNA results will go a long way in assisting the Court in determining the innocence or guilt of the accused. The interests of justice in my view require that the application be granted and that the advances in medicine be harnessed to assist resolving legal quandaries that confront the Court in casu - See S v R AND OTHERS 2000 (1) SACR 33 (WLD) at 39 C, per Willis J.

 

In my view, totally understanding the accused's frustration, it is however in the public interest that this piece of evidence be allowed in. Very young girl children have levelled unsavoury allegations against their Head teacher and more importantly, one of those alleges that the accused fathered her child. Such allegations have serious implications for the accused and his family and for that reason, it is in the interests of justice and in the public interest that his family, complainants and their families, the authorities of the school and the community, the Ministry of Education and the teaching fraternity at large should know the truth and fallacies of the allegations levelled. In that regard whatever evidence can be availed should be availed to either exonerate the accused and to show the child in question to be a liar and highly imaginative or to confirm her evidence as true and worthy of belief. Justice demands that the truth be unearthed for the parents and the ministry, and teachers in general to separate the facts from the fiction.

 

I also consider that the Crown has asked for a postponement which is not lengthy and they have made assurances that the results should be available in the next four weeks.

 

I am also of the view that the Crown has given good cause for the application. It is clear in my mind that the Crown has not moved the application as a dilatory ploy nor a tactical manoeuvre engineered to obtain an advantage. It would appear to me also that the issue would have been different if the accused were in custody but he is not. He may not be receiving a full salary at the moment but the normal practice is that on acquittal he will



 

 



 

 

normally be paid all his dues. In my view, the postponement sought by the Crown and its length are reasonable and do justify the granting of the Order as prayed.

 

I realise, as I have said the inconvenience to .the accused and which I have addressed above. For that reason, the postponement will not be carte blanche I am alive to the need to bring matters to finality. In view of the previous postponements applied for by and granted to the Crown, this is final a postponement. No other reason will now persuade the Court otherwise. The matter shall have to proceed on the day to which the matter has been postponed. It would be unfair and unjust to have the matter stalled more than it already has.

 

As an aside, one cannot help but sympathise with the R.S.P. who are called upon to collect evidence, cause it has to be analysed and timeously presented in Court in a fit and proper state but are not given the necessary tools to effectively and efficiently carrying out their daunting tasks. The setting up and equipping of a modem forensic laboratory in this country is long overdue. It is also necessary in this regard to recruit duly qualified personnel, train them, if necessary for this specialised work. Dependence on the S.A.P.S., who themselves have a lot of analyses to do given the size of their country, stifles progress and speedy resolution of some cases as evidenced in casu. This is a matter that in my view warrants urgent action and must be brought to the attention of the Minister responsible for the Police.