THE
HIGH COURT OF SWAZILAND AUSTIN HLATSHWAYO
Vs
REX
Criminal Case No. 33/2003
Coram
S.B. MAPHALALA – J
For
the Applicant MR. O. NDZIMA
For
the Respondent MISS N. LUKHELE
RULING
(On
application for reduction of bail) (17/09/2004)
Before
court is an application for the reduction of bail. The Applicant is
charged with the offence of theft before the Manzini Magistrate Court
under Case No 317/2003. He was granted bail of E5000-00 by that
court.
He
now seeks to have the amount fixed by the Magistrate Court reduced on
the basis that he cannot afford to raise the amount of bail posted by
the Magistrate Court. An affidavit to this effect is filed of record.
2
The
Crown opposes the application and has raised a point of law in limine
that the application is improperly before court. This is an
application for bail reduction which, therefore, questions a judicial
decision of the court a quo. Hence same should be brought under
review.
When
the matter came for arguments Mr. Ndzima who appeared for the
Applicant contended that the application is brought in terms of
Section 104 of the Criminal Procedure and Evidence Act, (as amended).
The Section provides as follows:
Appeal
to High Court against refusal of or excessive bail.
"If
an accused person considers himself aggrieved by the refusal of any
Magistrate or Magistrate's Court to admit him to bail, or by such
Magistrate or Court having required excessive bail, he may apply in
writing to a Judge who shall make such order thereon as to him in the
circumstances of the case seems just"
The
argument appears to be that the court a quo required excessive bail.
However there are no averments in the Applicant's affidavit in
support of this argument as it was merely raised from the bar by
counsel.
According
to Swift"s Law of Criminal Procedure, 2nd ED at 164 on a
discussion of a similar provision in the South African Criminal
Procedure Act of 1955 state that where a court is asked under this
Section to reconsidered a refusal by a Magistrate to grant bail, one
of the documents which should be before the court showing the reasons
of the Magistrate for refusing bail, because whenever a court is
asked to reconsider the decision given by some other body, the
reasons which actuated that other body are obviously of importance,
even though further facts may be presented to the court in asking it
to reconsider the matter, (see also R vs Mclnnes 1946 W.L.D. 386; Fry
and others vs Attorney General, Transvaal 1954 (3) S.A. 794 (w) and R
vs Deetlefs, 1960 (1) S.A. 388 (GW)).
It
appears to me on the facts of this case that Applicant cannot
succeed. I say so because the Applicant has not advanced a sufficient
case in terms of Section 104 in his affidavit. Secondly, the
Applicant was granted bail in terms of the Theft and Kindred Offences
Act and the Magistrate a quo was bound by this statutory provision,
3
hence
the amount of bail granted. If I may say so, the Magistrate a quo
operated outside the statute in granting the Applicant the bail of
E5, 000-00. The Magistrate had no discretion at all under the Act.
Following what was held in the South African case of Mazibuko vs
Attorney General, Transvaal 1963 (2) S.A. 118 (T) in an appeal (or
application) under this Section the court is not entitled to make any
order which the Magistrate was not competent to make.
For
the afore-going reasons the application for bail reduction is
refused. I make no order as to costs.
S.B
.MAPHALALA
JUDGE
