Court name
High Court of eSwatini
Case number
234 of 2002

Simelane v R ( part III) (234 of 2002) [2011] SZHC 50 (14 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 50
Coram
Ota, J

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                                                 CASE NO.  234/2002

 

In the matter between:

 

THEMBELA SIMELANE                                          APPLICANT

 

VS

 

REX                                                                              RESPONDENT

 

 

JUDGMENT

 

 

 

 

OTA  J.

 

 

 

 

 

 

 

 

 

 

The brief facts of this application in the applicant to whom I shall refer to as the accused for ease of reference, was arraigned before the High Court of Swaziland per M.M. Agyemang J, charged with six counts of the crime of theft.

 

It is common cause that in the year 2001, the accused person and his brother one Bheki G. Simelane (deceased), who were both legal practitioners, ran a Law Firm known as Bheki G. Simelane and Company.  Between 1999 to 2001, six of the prosecution witnesses namely PW 7, Moses Thulani Shongwe, PW 2, Steven Sipho Maseko, PW 3, Jeneath Thembisile Dlamini, PW 6, Dick Ncongwane PW 4 Doctor Sinett Sithole and PW 5 Mumcy Nomsa Vilakati, ( hereinafter called complainants ) instructed the accused person to claim some monies on their behalf from the Motor Vehicle Accident Fund (MVA Fund).  Some of the claims related to personal injuries suffered in road accidents, while others were lodged by dependant’s of deceased person who met their death by motor accidents.  Armed with these instructions, the accused person lodged the respective claims with the MVA Fund.  The MVA Fund duly processed the claims and made out cheques to the firm of Bheki G. Simelane and company, in settlement thereof.  The cheques duly cleared and were paid into the trust account of Bheki G. Simelane and Company.  This was between 2000 to 2002.  The record demonstrates, that the said payment  by the MVA Fund, was made to the complainants in the following order

PW 2        -       E 250,000                -       10th April 2001

PW 3                -       E   81,060                        -       26th May 2001

PW 7                -       E 402,603                        -       17th December 2001

PW 6                -       E   26,800                        -       7th March 2002

PW 4                -       E   26,500                        -       30th April 2002

PW 5                -       E   66,397-25          -       3rd May 2002

(See exhibits A2,  B1,  E1,  F2,  C1 and D2 respectively).

It is common cause that these sums of money which were paid into the said Trust Account of Bheki G. Simelane and Company, were never paid to the complainants.   Failure to pay the said monies, engendered the complainants to make enquiries at the MVA, and upon being informed by the MVA that the monies had already been paid to the firm of Bheki Simelane and Associates, some of the complainants lodged complaints to the Law Society, whilst others took their complaints to the police.  An investigation ensued, which revealed that the money in the said trust account was insufficient to pay out the claims of the complainants.  The claims remained unpaid.  It is in consequence of the foregoing facts that the accused person, who was a partner in the said firm of Bheki Simelane and Company, was jointly charged with his elder brother Bheki G. Simelane (deceased), a senior partner of the firm with the theft of the several monies paid but by the MVA Fund, to the firm, on behalf of the complainants.  Upon the death of Bheki G. Simelane, the accused stood trial for 6 counts of theft.  The crown called 12 witnesses in proof of the prosecutions case.  Thereafter, the accused testified on oath and called one witness, one Mr Lucky Howe, appointed as trustee of the insolvent estate of Bheki G. Simelane and the accused, in 2000.

 

At the close of evidence, the trial count handed down its judgment on the 19th day of January 2010, wherein the Court found that the crown had proved beyond reasonable doubt that the accused person used monies belonging to the six complainants for the benefit of his firm,  Bheki G.  Simelane and company, of which he was a partner.  The Court convicted the accused of the crime of the theft of monies belonging to the complainants, and thereafter postponed the matter to the 22nd of January 2010 for counsel to make submissions in mitigation.  It is common cause that on the said date of mitigation and sentencing, the matter could not proceed, because learned defence counsel raised an objection, contending that some serious or fatal irregularity had occurred, in that the trial court had already sentenced the accused to five years imprisonment without the option of a fine, even before he could mitigate.  In consequence of these allegations, the trial Court referred the matter as a stated case to the Supreme Court, seeking for direction.  In the interim, the Court revoked the accused’s bail and remanded him in custody pending the outcome of the said exercise.  Aggrieved by the activities of the trial High Court, the accused commenced a bail application before another High Court Judge, per N. J. Hlophe J,  On the 8th of February 2010, Hlophe J, granted the accused bail pending the outcome of the stated case, upon the facts and conditions set out in that decision.

 

It is on record that the Supreme Court never dealt with the stated case, but merely referred the matter back to the trial court for sentencing.   It is also on record that the bail granted by Hlophe J, continued uninterrupted.

 

On the 2nd of July 2011, after hearing the plea in imitigation, the trial Court commenced the sentencing of the accused pursuant to Section 313 of the Criminal Procedure and Evidence Act 1938, as amended (CPXE)  The Court ordered the accused to pay the total sum of E 686,377-80, in the manner he had undertaken under oath to pay to the trustee, within 6 months, ending 2nd January 2011.  The Court released the accused person upon his own recognizance, ordering him to appear before the Court in the first day of Court sitting on the year 2011.  The trial Court postponed the matter to the first Court sitting of the 2011 legal year for continuation of sentencing.

 

It is on record that the legal year 2011, began on the 1st of February 2011.  It is also common cause that the accused failed to pay the said sum of  E 686,377-80 as ordered by the Court.  On the 22nd of February 2011, the trial Court passed its part 11 sentence upon the accused.  Wherein, for all the reasons contained in that sentencing regime, it passed the following sentence upon the accused.

        ‘‘  Five years imprisonment on count 1 of the indictment.

          On count 2 of the indictment five years imprisonment

          On count 3 of  the indictment five years imprisonment

          On count 4 of the indictment five years imprisonment

          On count 5 of the indictment five years imprisonment

          On count 6 of the indictment five years imprisonment

The sentences are to run concurrently.

In addition, the accused person is sentenced to a fine of

E 50,000-00  on all counts or in default, twelve months imprisonment on all six counts.  These sentences will also run concurently’’.

It is in consequence of the foregoing facts and in dissatisfaction thereof, that the accused lodged an appeal against his said conviction and sentence.  Thereafter, he commenced the application instant by way of notice of motion dated the 10th of March, 2011, praying for bail pending appeal upon such terms and conditions the court may deem fit, as well as further and alternative relief.

 

The application is founded on a 17 paragraph affidavit, sworn to by the accused person himself, to which is exhibited annexure ‘‘ T A S 1’’ – a copy of the Notice of Appeal, ‘‘ TAS 2’’ – sentence part II of the 22nd of February 2011.

For their part, the crown filed a Notice to raise points of law dated the 15th of March, 2011, upon grounds best summarized as follows:-

  1. Another Judge sitting in the same Court has no jurisdiction to review the decision of another Judge.
  2. Without the record of proceedings, the Judge cannot be in a position to say there are prospects of success.
  3. The accused has failed to show any prospects of success.

 

When this matter first served before me on the 16th of March 2011, the accused was represented by M Mabila and the crown was represented by The Director of Public Prosecutions, Mumcy Dlamini (DPP)  The DPP sought to argue her points in limine.  I however refused to entertain any arguments at stage on the consideration that substantial justice demands that the substance of the matter, should not be sacrificed on the altar of technicalities.  I also considered the fact that the transmission  of the record of proceedings to this Court, was the responsibility of the crown, who cannot turn around to rely on the absence of the same record, which they had failed to transmit to the Court, to seek to vitiate the proceedings.  Based on these facts, I ordered the Registrar of the High Court to transmit the record of proceedings to the Court not latter than noon on the 24th March 2011.  I also ordered the Respondents to file an Affidavit of merits by the 21st of March and Heads of argument on the 25th of March, respectively.  The accused was ordered to file a Replying Affidavit simultaneously with his heads, of argument on the 23rd of March.  Thereafter, I set down this matter for hearing on the 29th of March 2011, at 12 noon, on this date and time, the matter could not proceed because defence counsel was unavoidably engaged in a civil trial at the High Court.  I postponed the matter to the 4th of April 2011, on which date hearing proceeded in the presence of the accused and counsel on both sides.  The Court called upon the DPP to argue her points in limine.  The DPP informed the Court that she was abandoning said points in limine and proceeding on the merits.

I find it imperative before delving into the substratum of this application, to pause at this juncture, to restate the law on the application at hand, as demonstrated by statutes and case law, both within and without this jurisdiction.

Now, there is no doubt that the High Court is statutorily empowered to grant bail pending appeal.  The enabling statutes abound.  I will endeavor hereunder to reproduce some of the statutes expressly conferring this power upon the High Court, as well as, some from which this power can be inferred.

Now Section 95 (2) of the CP & E provides as follows

‘‘  95 (2) Notwistanding any other law the High Court may is subject to the provisions of this section and Section 96 of this Act, at any stage of any proceedings taken in any? Court or before any Magistrate in respect of any           offence, admit the accused to bail’’.

 

Furthermore, Section 13 (1) (a) of the Court of Appeal Act (94/1954) provides as follows:-

‘‘  13 (1) (a) The Court of Appeal or the High Court may on the application of an appellant and pending the determination of his appeal

  1. admit the appellant to bail’’

Similarly Rule 22 (1) and (2) of the Court of Appeal Rules provides as follows:-

‘‘  (1)  If the Court of Appeal or the High Court admits an appellant to bail pending the determination of his appeal, it shall specify the amounts in which the appellant and any surety shall be bound by recognizance, and such surety shall be approved by the Registrar of the High Court, as the case may be

  1. The recognisances of the appellant and any surety shall be taken before the Registrar or the Registrar of the High Court, as the case may be’’.

Then there is Section 327 (a) of the CP & E, which states as follows:-

‘‘  In any appeal against a conviction the Court of Appeal may without prejudice to the exercise by such Court of its powers under Section 82 of the subordinate Court’s proclamation (Cap 20) and under Section 5 of the High Court Act No 20 of 1054.

  1. Confirm the judgment of the Court below, in which case if the accused having been convicted and admitted to bail, is in Court, the Appeal Court may forthwith commit him to custody for the purpose of undergoing any punishment to which he may have been sentenced’’.

 

The litera legis of the totality of the foregoing legislation, put it beyond disputation, that indeed this Court has the power to grant bail pending an appeal.  This power of the Court is a discretionary power, which should however not be granting arbitrarily or capriciously, but judicially and judiciously, upon facts and circumstances which show that it is just and equitable to grant same.  It is in the view to ensure a judicial and judicious exercise of this discretionary power, that case law has over the decades, evolved certain principles as parameters to guide the Court in the exercise of this discretion.

 

Thus the Bostwana case of Salvado V The State (2001) 2 BLR 411 at 413, Nganunu CJ, distinguished the principles applicable to bail pending trial and bail pending appeal, in the following language.

‘‘  The presumption of innocence on the side of the accused falls by the way side when he is convicted at his trial.  It becomes a fact that the law considers him a criminal, until perhaps he succeeds to upset the conviction in any appeal he may make.  With the disappearance of innocence, also disappears the tilt of the Courts towards the liberty of that person in any bail application.  The law expects the convict to serve any term of imprisonment decreed by the Court.  To me this constitutes the fundamental divide between the approach of our Courts in pre-trial bail applications and those after a conviction and sentence of imprisonment.  In my view the principle followed by our Courts in post-conviction bail applications is that the applicant must show the existence of some exceptional circumstances in order to be granted bail, otherwise he is expected to serve his sentence instead of being on the street as a free man’’

 

In the case of the State V Sephiri and Kgoroba 1982 IBLR 211 Hannah J, demonstrated what constitutes exceptional circumstances in the following words:-

 

‘‘  The approach of the Court of Appeal in England when dealing with application for bail pending appeal is now clearly set out in R V Walton (supra).  In that case, the Court held that exceptional circumstances are the test and the two questions to be considered in determining whether exceptional circumstances exist are (1) whether it appears prima facie that the appeal is likely to be successful or (2) whether there is a risk that the sentence will have been served by the time the appeal is heard’’

See also Joseph Ncenje V The State Criminal Appeal No F33 of 2004 per Masuku J.

 

Similarly, in the earlier judgment granting bail in this case, on the 8th of February 2011, at page 29 thereof, Hlophe J, declared as follows in paragraph 4:-

‘‘ (4)  I reiterate therefore, that in my view the test on whether or not to grant bail in matters as the present is the one set out in the foregoing cases.  This is to say that this Court has discretion to exercise judicially whether or not to grant bail in such matters by balancing both the likelihood of the accused absconding and the prospects of success.  In doing so I confirm that the Court that the Court should lean towards allowing liberty to persons where that can be done without the Administration of Justice being endangered’’

 

One of the cases alluded to by Hlophe J, in his dictum ante, is the case of S V Williams 1981 SA 1170, where the Court stated as follows:-

‘‘  Different consideration do of course, arise in the granting of bail after conviction from those relevant in the granting of bail pending trial.  On the authorities that I have been able to find it seems that is putting it too highly to say that before bail can be granted to an Applicant on appeal against conviction, there must always be reasonable prospect of success on appeal.  Such cases as Meline & Erleigh (4) 1950 SA 601 (W) and R V Mthembu 1947 (B) SA 468 (1) stress the discretion that lies with the Judge and indicate that the proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice.  It is necessary to put in the balance both the likelihood of Applicant absconding and the prospects of success.  Clearly the two factors are inter connected because the less likely the prospects of success are the more inducement there is on an Applicant to abscond.  In every case where bail after conviction is sought the onus is on the Applicant to show why justice requires that he should be granted bail’’

 

Futhermore in  Rex V Meline and Erleigh (4) SA 601 at 603, referred ante, the Court stated thus

        ‘‘  A number of tests have been suggested but in the end the question in granting bail is one of the discretion of the Court -----on the evidence I have before me on affidavit the danger of the accurred absconding is not a serious one, and that is the main danger which has to be faced when the question of granting bail is considered.  I think that the Court should lean towards allowing liberty to persons where that can be done without any danger to the Administration of Justice’’.

Finally in R V Mthembu 1960 (3) SA 468 at 471 A-B, the Court declared as follows:-

‘‘  As I see it, the effect of section 368 is such that the grant of bail is in the discretion of the Court, even where the crime is a serious one.  I think that the law is that, if justice is not endangered, the Court favours liberty more particularly where there is a reasonable prospect of success’’.

 

It is therefore inexorably evident from the conspectus of the jurisprudence ante, that it is the judicial conscensus, that the fundamental principles that attend an application for bail pending appeal, are, the prospects  of the success of the appeal, as well as, the likelihood of the accused ‘’skipping’’ the jurisdiction.  However, in all circumstances the overriding discretion of the Court must hold sway, which disretion, to be judicial, must be exercised in favour of the administration of justice.

Since the onus is on the accused to demonstrate that justice demands that he be granted bail, the natural question thrown up at this juncture is:- Do the facts stated by the accused herein vindicate this application?

The facts upon which the accused contend this application are as stated in paragraphs 10.1 to 17 of the founding Affidavit, which are replicated in paragraphs 10.1 to 17 of the notice of appeal as follows:-

AD  CONVICTION

  1. The Court aquo erred both in fact and in law by convicting the Appellant an inference which was not reasonable and which was not the only one permitted by the proven facts.
  2. The Court aquo erred both in fact and in law by taking common facts which were irrelevant for the determination of the accused’s guilt putting weight on them and convicting him based on same.
  3. The Court aquo erred both in fact and in law by failing to appreciate that the Appellant bore no onus to prove his innocence.
  4. The Court aquo erred both in fact and in law that the Appellant’s version (defence) needed not to be true to be accepted by the Court the only issue being whether it was probable true or unless proven to be false beyond a reasonable doubt.
  5. The Court aquo erred both in fact and in law by failing to take into account (and to the benefit of the appellant) that almost all the complainants in the matter gave evidence to the effect that the Appellant gave periodic progress reports (including preparation of statements of account) pertaining to their respective claims and that after completion of their matters he made them aware of the quantum of their award.
  6. The Court aquo erred both in fact and in law by failing to take into account that there was clear and uncontroverted evidence that the complainant’s respective awards had been deposited into an overdrawn account belonging to Messrs Bheki G. Simelane & Company which account had been overdrawn way before the appellant joined the law firm.
  7. The Court aquo erred both infact and in law by failing to appreciate the clear evidence that every cheque issued by Messrs Bheki G. Simelane and Company had to first go through before the late Bheki G. Simelane (as senor partner) before being signed and thereafter forwarded to any client.
  8. The Court aquo erred both in fact and in law by finding and holding that because Appellant was a partner in the firm he was responsible for the theft.
  9. The Court aquo erred both in fact and in law by finding and holding that the crown had established that Appellant had an intention to permanently deprive the complainants of their ownership of the funds subject to the matter.
  10. The Court aquo misdirected itself in law by disregarding the numerous proven facts and actions on the part of the Appellant which were not consistent with a intention on his part not to pay the complainants.
  11. The Court quo erred both in fact and in law by failing to find and hold that, Appellant having not been charged with a general deficiency in terms of the Criminal Procedure and Evidence Act (67/1938) as amended,  it was incumbent upon the crown to prove subjective intention on each and every count faced by the Appellant. 

AD SENTENCE

  1. The Court aquo misdirected itself in law by sentencing Appellant to imprisonment despite having already sentenced Appellant in terms of Section 321 of the Criminal Procedure and Evidence Act which sentence had the effect of a civil judgment hence Appellant has been sentenced twice for the same conviction.
  2.  The Court aquo misdirected itself in law and acted unreasonably in applying Section 313 of the Criminal Procedure and Evidence Act sparingly by giving Appellant a period of about three (3) months to pay a sum of E686,377-80 (Six Hundred and Eighty Six Thousand Three Hundred and Seventy Seven Emalangeni Eighty Cents) when the Court had a discretion to give him a period not exceeding (3) years yet it is common cause that Appellant is an insolvent.
  3. The Court aquo misdirected itself in law by not accepting the Appellant’s explanation of failing to pay the said sum of E686,377-80 (six Hundred and Eight Sis Thousand Three Hundred and Seventy Seven Emalangeni Eighty Cents) within the period of about three (3) months as reasonably possibly true.
  4. Having regard to the peculiar circumstances of the matter including the defence traversed by Appellant at trial the sentence passed by the Court aquo is extremely severe and induces a sense of shock.

 

During the hearing of this matter on the 4th April 2011, Mr Mabila tendered argument in support of the accused’s case which is best summarized as follows:-

  1. This Court has the jurisdiction to entertain and determine the bail application.
  2. That the enquiry before the Court is not whether the appeal will succeed, but whether there is a possibility that another Court may find that the inference drawn by the trial Court in convicting the accused is not the only inference that can be drawn.
  3. That there are prospects of success of the appeal for the following reasons.
    1. It is possible that another Court may find that the accused was also a victim of fraud by his late brother, in that upon joining the company the accused discovered an account……………….. and unknown to him the complainants money was deposited in the deficit account.
    2. That the accused was sentenced pursuant to Section 313 Criminal of and Evidence Act 1938 (CP&E) to compensate the complainants.  That by Section 321 (4) of the CP&E, such a sentence becomes a civil judgment liable to be executed just like any civil judgment.  Therefore, the trial judge became functus afficio and had no jurisdiction to impose the custodial sentence of the 22nd of February 2011.
    3. That it is possible that the Supreme Court may find that the trial Court lacked the competence to impose the custodial sentence, after initially proceeding in terms of Section 313 CP&E.
    4. That it is possible that  the Supreme Court may find that the 6 months period within which the accused was ordered to pay the sum of E686,377-80 to the complainants was unreasonable.  Reason being that the accused is insolvent and that Section 313 allows compensation to be paid in three years.
  4. That what the Court should concern itself with is the grounds of appeal not the success or correctness of the grounds.  Therefore, the Court should disregard the Respondents heads of argument which dwelt extensively on the substance of the grounds, which matter is for the Supreme Court to decided .  He referred to pages 26 and 29 of Hlophe J’s judgment in support of this contention.
  5. That the accused has always been on bail from inception of this case, all through his conviction and initial sentencing, and has never violated same.  Therefore, there is no proof that the accused is a flight visk as is contended by the Respondents.  That the 3 occasions when the accused failed to attend Court are adequately explained in the Replying Affidavit.  That these factors should greatly weigh in favour of the accused in the present bail application.

It  was contended Replicando by the DPP in sum as follows:-

  1. That Mr Mabila’s submission that in determining the prospects of success of the Appeal, the evidence at the trial should not hold sway is inconceivable.  This is because whether the grounds of appeal disclose a prospect of success is hinged on the evidencealso, and not on the grounds of appeal alone.
  2. That the evidence revealed at the trial as contained in the Respondent’s heads of argument, show proof of the accused’s guilt beyond reasonable doubt, therefore, the appeal has no prospects of success.  (The DPP took the Court through the heads of argument).
  3. That Mr Mabila’s contention that proceeding under Section 313 of the CP&E, converted the trial Court first sentence into a civil judgment, is untenable.  That the trial Judge after pronouncing the sentence postponed the matter to a future date.  Therefore, she was not functus officio, and the accused was well aware of this fact, if not be could have noted an appeal at that stage
  4. That the contention that the 6 months period within which the trial Court ordered the accused to repay the sums owed is unreasonable, cannot hold sway.  This is because, it was the accused on oath in plea in mitigation that urged this period upon the Court.  Therefore, the accused’s failure to seek an extension of time within which to pay.
  5. That the contention that the Court did not give a specific date upon the said postponement after sentencing, as to justify the accused’s non appearance on 3 consecutive occasions, cannot hold sway.  This is because the Court postponed the matter to the 1st day of the new calendar year 2011.  Yet the accused failed to attend on Court that  date and on 2 subsequent adjournments. 

 

In reply Mr Mabila maintained that the accused did not  default in appearance for the reasons enumerated in the Replying Affidavit.  That the trial Court was functus officio when it imposed the custodial sentence.  That the Respondents did not say that if the Supreme Court comes to a conclusion that a different inference other that that drawn by the trial Court, could be drawn it will still dismiss the appeal.  He urged the Court to grant the reliefs bought.

 

It is worthy of note that Mr Mabila objected to the DPP’s submissions in relation to the proceedings during the in mitigation, on the grounds that, that portion of the record is not before the Court.  I allowed the submissions however, and thereafter, ordered the Registrar of the High Court to transmit that portion of the record of proceedings to this Court.  The said portion of the record proceedings,  which is duly certified by the Registrar of The High Court has been transmitted to this Court and now forms a part of these proceedings.

 

Be that as it may, I have carefully considered the totality of this application, that is the Affidavits filed of record, the heads of argument, oral submissions tendered, as well as the record of proceedings.  I find that the first task I must embark on is to dispel the notion created by Mr Mabila, in oral argument, that the evidence tendered at the trial has no place in this application.  He posited that what must hold sway is the grounds of  appeal simpliciter and that the correctness of the grounds of Appeal is not an issue before this Court and must abate the appeal to the Supreme Court.  I must say it straight away, but with respect, that I cannot countenance Mr Mabilas’s stance on this subject matter with either favour or grace.  The question is how is a Court to guage the prospects of the grounds of Appeal, even in the presence of the impugued judgment of the trial Court, without having recourse to the evidence tendered at the trial itself, from which the impugned judgment, emanated, in other to guage the substantiality or otherwise of the said grounds of Appeal?  The whole task as to whether it is possible that the Appellate Court can draw a different interference from that drawn by the trial Court in the impugned judgment, in my view. Must flow from the evidence tendered.  Determining the prospects of the appeal demands a weighing of the grounds of appeal therefore, against the impugned judgment founded upon the evidence at trial.  I apprehend that it is in appreciation of this fact that the accused himself, made copious references to the evidence at the trial in his grounds of appeal, as well as, founding affidavit.  If the correctness of the grounds of appeal is not a factor in determining the prospects of  the success of appeal, as is contended by Mr Mabila, then the whole question of the prospects of success of the appeal becomes a mere formality, an academic exercise.  I do not think that this is the intention of jurisprudence.

 

I am bound to state here also that the relevance of the record of proceedings is even more imperative in the application instant.  This is due to the fact that I was not seised with this matter at the trial stage, therefore, not au fait with the evidence tendered.  I apprehend that it is in appreciation of this difficulty that the Court stated as follows in S V Williams (supra).

‘‘  But despite this, it seems to me that in an urgent application of this nature there is far better chance of an informed decision from the Magistrate who has heard the case than from a Judge who has little knowledge of the facts and no notice or grounds of appeal and to whom no detailed criticism of the Magistrate’s reasons is offered ’’

 

The position is that the inquiry that I am expected to embark upon at this stage, is to determine whether the grounds of appeal disclose substantial issues of law and fact.  Substantial because they are triable, they are not merely frivolous.  The challenge in dealing with this requirement, is that the Court may find itself in a situation whereby it will be considered to be determining an appeal pending before a higher Court.  The problem that arises then is how does the Court draw the line, when dealing with this question, in order to avoid determining the substantive appeal?  It is difficult to know where to draw the line, as the Court at this stage is expected to come to a conclusion that the grounds of appeal disclose triable issues, or that there is a prospect of success in the appeal, before it can grant such an application.  There is no doubt that this exercise will require a proper and considered view of the grounds of appeal vis a vis the impugned judgment.  This Court will somehow is embarking on this exercise, pronounce on the merits of the appeal.  This is the problem.  This problem is further compounded by the way and manner, the application has been argued by both sides, as if the substantive appeal is being determined at this stage. 

I have decided to warn myself sufficiently of these situations, so as to set the limits of the province within which I am to operate, in determining this question.

 

I have viewed the grounds of appeal with microscopic lenses against the impugned judgment, and the facts contained in the record of proceedings, and I am convinced that the grounds of appeal do not disclose any triable issues.  I will not proceed to deal in details with each ground of appeal, to avoid the danger of dealing with the merits of the substantive appeal.  Suffice it to say that the facts as found by the trial Court to be established on the evidence, show that the grounds of appeal do not disclose a triable issue.

 

On the point of jurisdiction raised in relation to sentencing, that is, whether the trial Court could still impose the custodial sentence that it did, having initially proceeded pursuant to Section 313 (1) of the Criminal Procedure and Evidence Act, as amended, will reframe from dealing with this question for the same reasons.  On the principle that a Court in dealing with an interlocutory matter, should not prejudge the issues in the substantive matter.  However, I am constrained to say that I am not convinced that the point of jurisdiction is substantial.  I come to the inexorable conclusion in the light of the totality of the foregoing, that the accused has failed to disclose that he has any prospects of success in the appeal.

 

Now, the record demonstrates that after the accused was convicted on the 19th of January 2010, that his sentencing commented on the 2nd of July 2010.  On which date, the accused under oath, proposed to the Court to be given the leeway to pay the sums owed to the complainants in this transaction, pursuant to Section 313 of the CP & E.  The Court is consideration of the conduct of the accused, more particularly, his punctual attendance in Court on all adjourned dates, came to the conclusion that the accused had to be treated with leniency.  The Court, working with the accuse person, thus commenced his sentencing by ordering him to pay the sum of E686,377-80 within 6 months from the date of sentencing, according to the terms undertaken by the accused person himself under oath.

 

The Court then postponed the matter to the first Court sitting of the new legal year in 2011, which fell on the 2nd of February 2011.  However, the sentencing of the advised did not continue until the 22nd of February 2011, Suffice it to say that the accused person failed to honour the terms of his sentencing pursuant to Section 313 of the CP&E.  There is undisputed evidence that the accused paid the first deposit pursuant to the said sentence which is the sum of E24,000-00 on the 17th of February 2011.  On the 21st of February 2011, he paid E6,000-00 and on the 22nd of February, he paid E25,000-00 in Court.  Therefore, the accused waited until 7 months after sentencing commenced on the 2nd of July 2010, to pay the sum total of E55,000-00 out of the E686,377-80, he was ordered by the Court to pay within 6 months.  The sum of E55,000-00, I find a need to point out was paid between the 17th of February 2011 and the 22nd of February, 2011, a space of 5 days.  I must say that the impression that the accused bought to give during sentencing on the 2nd of July 2010, that he was willing and ready to pay the monies back to the complainants, which fact engendered the trial Court to proceed to sentencing pursuant to Section 313 CP&E, is completely defeated by his general conduct, after the matter was postponed for continuation of sentencing.  It shows that the accused was not serious.  He was not taking the Court seriously but was rather treating it wit lenity or as the trial Court stated the accused ‘‘ thumbed his nose’’ at the Court.  By the foregoing activities, the accused to my mind, showed himself up as being an unreliable person.  This whole sage to my mind, is compounded by the fact that the accused, who is presently resident in the Republic of South Africa, where he is gainfully employed, failed to attend Court on the 3 previous return dates, prior to the 22nd of February 2011.  I must say here that the explanation given by the accused, in paragraph 3.2 of his Replying Affidavit, for his absence in Court on the 2nd of February 2011, is not a true account of the facts of this case as is reflected in the record.  In the said paragraph 3.2, the accused bought to contend that this matter proceeded on the 3rd of February 2011 on which day he was in the Court premises, and not on the 2nd of February 2011.  This contention is however, completely at variance with the record, which shows that this matter served before the Court on the 2nd of February 2011, on which date I was personally seized of same.  The accused who was represented by Mr Manika was absent from Court.  I postponed the matter on the 10th of February 2011, and ordered the defence counsel to inform the accused of the return date.  It is clear from the record that the accused was also absent on the 14th of February 2011, when the matter served before the Honourable Chief Justice.  However, the record demonstrates that the absence of the accused on that occasion was on grounds of ill health.

 

It is my firm conviction from the conspectus of the circumstances of this case, that to release the accused person on bail will not serve the interest of the administration of Justice.  I say this notwithstanding the fact that the accused did not violate his bail conditions prior to conviction and sentencing, and the fact that my learned brother Hlophe J, as I have already demonstrated, deemed it fit to grant the accused bail after conviction and prior to sentencing in the wake of the stated case to the Supreme Court.  However, the distinguishing factor between the circumstances pervading when Hlophe J granted bail and the present circumstances, is that at the time of Hlophe J’s exercise of discretion, no sentence was imposed on the accused.  In the present circumstances, a mandatory custodial sentence of 5 years imprisonment, is imposed on the accused, hanging over his head like the sword of Damocles.  I therefore consider the accused a high flight risk.  I say this irrespective of the fact that the accused’s family stay in Swaziland, the accused person however resides abroad, in the Republic of South Africa, where he is of aimfully employed.  He is therefore not settled in the Kingdom.

 

He has no assets in the Kingdom.   By his own showing his property was sold in the wake of this sage.  He cannot practice as a legal practitioner in this Kingdom, since his name was struck off the roll of Legal Practitioners, in the wake of this saga.  He, by his own showing, attempted to find gainful employment in any other field of human endeavours, other than the legal, in the Kingdom, but was unsuccessful, because he had been stigmatized by the fact of this saga.  What then is the guarantee that if released on bail, the accused will come back to pursue his appeal.  More especially now that he has come and known the sentence, and considering the nature of the sentence, which the accused by his own showing in paragraph 10.15 of the founding affidavit, considers to be

‘‘ extremely severe and induces a sense of shock’’

I am therefore firmly convinced in the circumstances, that there is a high likelihood that the accused will not come back if released on bail.  On these premises, I find that this application lacks merits, and it is accordingly dismissed.  I make no order as to costs.