THE
HIGH COURT OF SWAZILAND
WAYNE
KGASI
Vs
REX
Criminal Case
No. 127/04
Coram
S.B. MAPHALALA – J
For
the Applicant MR. S. MNGOMEZULU
For
the Respondent MR. DLAMINI
RULING
(15/10/2004)
Before
court is an application for bail brought under a Certificate of
Urgency. The Applicant is a juvenile of 16years charged with rape
allegedly committed on or about the 25' September 2004, at or near
Magevini in Matsapha. He is presently awaiting trial and is held at
the Zakhele Remand Centre in Manzini.
The
Applicant avers in his founding affidavit that on the 30th September
2004, his parents instructed attorneys from Sibusiso B. Shongwe &
Associates to move an application before the Matsapha Circuit Court
for his release to the custody of his father one David Kgasi with
whom he resides. The Matsapha Circuit Court refused the aforesaid
application and ordered that he should move a bail application at the
High Court.
2
The
Applicant avers further at paragraph 9.1 of his founding affidavit
that the matter is urgent by virtue of the fact that deprivation of
liberty is urgent by its nature. At paragraph 9.2 that he is being
prejudiced by Ms continued detention in custody in that he cannot
attend classes at school and that he is not allowed to study yet
final examinations are around the corner.
He
avers further at paragraph 9.3 that he cannot be afforded substantial
relief in due course and that he has no alternative remedy save to
seek the order before this court.
The
Crown has not filed any opposing papers in this case. However, it was
submitted from the bar on behalf of the Crown that bail is not
opposed per se and that whatever amount is fixed by the court should
be in line with the provisions of the recent amendment to the
Criminal Procedure and Evidence Act, more particularly Section 95 (3)
and (4) of the said amendment. The Sections reads as follows:
(3)
Subject to the provisions of this Act, the High Court shall, where an
accused person is charged with any of the offences listed in the
Fourth Schedule, if it determines that the circumstances warrant that
the accused may be admitted to bail, admit the accused to bail and
fix the amount of bail in an amount not less than E15, 000-00
(Emalangeni fifteen thousand), in addition to any other conditions it
deems fit.
(4)
Where the court is satisfied that substantial and compelling
circumstances exist which justify that the amount of bail be fixed in
an amount less than E1S, 000-00, it shall enter these circumstances
on the record of proceedings and may thereupon fix the amount of bail
at such lesser amount.
The
Crown somewhat conceded in argument that in casu there are
substantial and compelling circumstances as referred to in subsection
(4) cited above but that whatever lesser amount the court arrives at
should take into consideration the provisions of sub-section 3 cited
above.
Mr,
Mngomezulu for the Applicant argued that in the circumstances of this
case the Applicant ought to be released in the custody of his father
who is in loco parentis. That the Applicant is a 16years old minor
who is still in the care of his parents and that it has not been
shown that if given bail he will not stand trial. Mr. Dlamini for
3
the
Crown however, opposed this application that Applicant be released to
the custody of his father.
I
have considered the facts of this matter and the arguments advanced
for and against the application. It is common cause that in the
present case there exist substantial and compelling circumstances to
justify that the amount of bail be fixed in an amount less than E15,
000-00.
It
is my considered view that an amount of E1,000-00 as bail would be
appropriate in the circumstances of this case.
In
the result, bail is fixed at El,000-00 and the Applicant is to abide
by whatever conditions to be imposed by the Crown.
S.B
MAPHALALA
Judge
