Court name
High Court of eSwatini
Case number
234 of 2002

Simelane v R (234 of 2002) [2002] SZHC 26 (05 September 2002);

Law report citations
Media neutral citation
[2002] SZHC 26
Coram
Maphalala, PJ

THE HIGH COURT OF SWAZILAND

 

THEMBELA SIMELANE

 

Vs

 

REX

 

Criminal Case No. 234/2002

 

Coram                                                                                     S.B. MAPHALALA – J

For  the Applicant                                                                   MR. S. MDLADLA

For the Respondent                                                                MR. L. NGARUA (The Director of Public Prosecutions)

 

JUDGEMENT ON BAIL

(05/09/2002)

 

Before me is an application for bail.  The application is not per se opposed by the Crown as represented by the Director of Public Prosecutions, Mr. Ngarua.  The only difficulty the Crown has on the application is that the application for bail should have been moved in the Magistrates Courts as the applicant’s first port of call.  Mr. Ngarua expressed concern that if this application was to be entertained by the court that would open floodgates for other people and thus flood the High Court with a flurry of such applications.

 

Mr. Mdladla on the other hand argued au contraire that this was not the first application for bail where the High Court exercised its inherent jurisdiction and granted bail.  He contended that there is plethora of such cases over the years.  Mr. Mdladla’s second point was that there is no law that says that bail applications should be moved at the Magistrate Court only.  Thirdly, he contended that the court cannot act under any threat that once it has granted bail, Parliament will pass another law prohibiting that.

 

The nub of the matter therefore is whether or not there is any law which states that bail applications are to be heard first by the Magistrate Court.

 

I have considered the issues in this matter and consulted with legal authorities on this point and the answer is in the negative.

 

According to Dunn J (as he then was) in the case of Dumsane Dlamini and another vs The King – Criminal Case No. 69/93 (unreported) the learned Judge pointed out inter alia on such matters as follows: at page 4;

 

“The Section [102], it must be pointed out, is confined to the Magistrate’s Courts and different considerations apply in cases where application for release on bail is made directly to the High Court or the High Court acts in terms of Section 105 of the Act”. (my emphasis).

 

Section 105 of the Criminal Procedure and Evidence Act (as amended) No. 67 of 1938 provides as follows:

 

“Power of the High Court to admit bail

105 save as otherwise provided the High Court may, at any stage of any proceedings taken in any court or before any Magistrate in respect of any offence, admit the accused to bail, whether such offence is or not one of the offences specifically excepted in Section 95” (my emphasis).

 

It appears to me, to be abundantly clear from the above-cited authorities that the High Court has the power to hear bail applications at the first instance.  The requirement that matters should first go to the Magistrate Court seems to me to be based on administrative considerations rather than on law.  Any accused person has a right to approach this court under Section 105 and he cannot be deprived of that right because other people would follow suit and flood the High Court with such cases.  In my considered view each case should be decided on its own merits.

 

Having disposed of this hurdle that the court has the power to entertain this bail application I proceed to determine the amount of bail to be fixed by the court.

 

The purpose of bail is to strike a balance between the interests of society (the accused should stand his trial and there should be no interference with the administration of justice) and the liberty of an accused (who, pending the outcome of his trial, is presumed to be innocent). In Nagel (ed) Rights of the Accused (1972) 177 – 8 the following valid remarks are also made (my emphasis):

 

“The basic purpose of bail, from society’s point of view, has always been and still is to ensure the accused’s reappearance for trial.  But pre-trial release serves other purposes as well, purposes recognized over the last decade as often dispositive of the fairness of the entire criminal proceeding.  Pre-trial release allows a man accused of crime to keep the fabric of his life intact, to maintain employment and family ties in the event he is acquitted or given a suspended sentence or probation.  It spares his family the hardship and indignity of welfare and enforced separation.  It permits the accused to take an active part in planning his defence (sic) with his counsel, locating witnesses, proving his capability of staying free in the community without getting into trouble … In the past decade, studies have shown that those on pre-trial release plead guilty less often, are convicted less often, go to prison less often following conviction than those detained before trial.  This is true even when the study controls for factors such as employment at the time of arrest, retained or assigned counsel, family ties, past record and present charge.  The factor of pre-trial release alone shows up as a vitally controlling factor in the outcome of the trial and sentencing …”

 

In S v Petersen and another 1992 (2) SACR 52 © 55e Cooper J pointed out that the purpose of bail is to minimize interference in the lawful activities of an accused.

 

In casu, after viewing all the personal circumstances of the applicant and the factors outlined above it is my considered view that a sum of E20, 000-00 as bail would be appropriate in the circumstances of the applicant.  The applicant has not attempted to abscond after his firm, where he is a partner disintegrated in the face of serious allegations against him and his partner.  He has remained in the country.  He is a Swazi citizen with a family, wife and children all resident in the country.

 

In the result, the applicant is granted bail of E20, 000-00 and to enter into recognizances with the Crown as may be agreed to by the parties.

 

 

 

 

S.B. MAPHALALA

JUDGE