IN
THE SWAZILAND COURT OF APPEAL
In
the matter between:
MNCEDISI
MADI First
Appellant
DAVID
MTHOMBENI Second
Appellant
XOLILE
LUKHELE Third
Appellant
and
REX
Respondent
KOTZé
J.A.:-
This
is an appeal against an order of the full bench of the High Court
which dismissed an application for bail by the appellants pending
their trial on the statutory charge of the theft of a motor vehicle
in contravention of section 3(1) of the Theft of Motor Vehicles Act
No 16 of 1991 (the Act). The basis of the High Court's decision was
that the Non-Bailable Offences Order No 14 of 1993 (the Order)
precluded the grant of bail involving an offence of the contravention
of section 3(1) of the Act.
2
The
relevant statutory provisions are as follows The order (which
received the Royal assent on 18 August 1993) provides in section 3(i)
that "notwithstanding any provision of any other law, a Court
shall refuse to grant bail in any case involving any of the offences
in the Schedule hereto."
"Court"
is defined as the High Court or Magistrate's Court. The offences in
the . Schedule are termed "Non-bailable offences". They are
nine in number and include the three common law offences of murder,
rape and robbery and certain statutory offences.
Section
3(ii) provides that
"The
Minister (i.e. the Minister of Justice) may amend the Schedule from
time to time."
In
exercise of the powers conferred by section 3 of the Order the
Minister by Legal Notice No 139 of 1994 declared
"The
Schedule to the Non-Bailable Offences Order is hereby amended by
adding the following 10.A contravention of Section 3(1) of the Theft
of Motor Vehicle Act, 1991."
3
In
their heads of argument the appellants raised a main submission and
an alternative submission.
Crisply
stated amend" in section 3(ii) of the Order should be
restrictively interpreted as vesting the Minister with limited powers
of legislation confined to the introduction of minor improvements,
the correction of errors in the Schedule and that a power to add
substantive provisions is not conferred.
The
alternative submission is that the Act contains a specific provision
as to bail, that it adequately provides for bail, is in conflict with
the insertion provided by Legal Notice 139 and was by implication not
intended ever to be inserted in the Schedule by way of amendment.
In
argument before us Mr Fine, on behalf of the appellants, wisely
refrained from pressing the main submission. Having regard to the
far-reaching effect of the legislative power contained in section
3(ii) of the Order I consider it desirable briefly to deal with the
meaning of the term "amend" in the sub-section. Although
according to the Concise Oxford Dictionary the ordinary meanings of
the term are "(a) to make minor improvements in a text ... (b)
to correct an error or errors (c) to make better, improve", in
legal terminology, the word has a wider meaning. A cogent and
instructive discussion of the term is to be found in the "Right.
Word at the Right Time" edited by Dr John Ellison Kahn (sv.
emend). The relevant portion reads:
4
"To
emend is far more restricted in meaning than to amend. To amend ...
can have the general sense of 'to correct, or at least improve, by
changing or adding to': to amend the second chapter. More
specifically, it means 'to change or add to the wording of' (a
parliamentary bill, for instance) ... an amendment is a change
forward to a new and better state. Amendments often take the form of
additions as well as corrections or alterations: the Amendments to
the Constitution of the United States, for instance, include not just
alterations to the original ... but also , additions to the original
(such as the Bill of Rights)".
The
American example is instructive: the original Constitution of the
United States was characterised by a manifest weakness viz. the
absence of a Bill of Rights. Soon after the Constitution was approved
it was amended to include guarantees of private rights and personal
liberties. These additions are specifically referred to as
amendments. Presently there are in excess of twenty-four such
amendments. In conformity with the above, "to add to" is,
in my view, the meaning to be assigned to the word "amend"
in section 3(ii) of the Order.
I
now pass to the alternative submission on which Counsel took his
stand. The provision relied on is section 18(1) which provides
5
"Where
a person is charged with an offence under section 3 or 5 the amount
of bail to be fixed by a Court shall not be less than half the value
of the motor vehicle stolen.
The
offences referred to in section 3 of the Act are (a) the theft of a
motor vehicle and (b) the receiving of a motor vehicle knowing it to
be stolen and those referred to in section 5 refer to other dealings
in connection with motor vehicles. Basic to the alternative
submission is the contention that the addition introduced by Legal
Notice 139 is in conflict with section 18(1) of the Act. It is clear
that the only impact of Legal Notice 139 is on the theft and
receiving offences referred to in section 3 of the Act. The other
offences referred to in the Act remain extant. A comparison between
the substance of section 18(1) of the Act on one hand and the
provisions of section 3 (ii) of the Order on the other hand reveals
the flaw in this argument: Section 18(1), earlier in time than
section 3 (ii) of the Order, determines a ceiling below which the
quantum of bail may not be fixed- for the entire range of the section
3 and section 5 offences whereas the provisions of the Legal Notice
is confined in its operation to the provisions of section 3(1) of the
Act. Thus it is clear that the two provisions deal with different
situations. The Legal Notice is not in conflict with section 18 of
the Act. At best it renders nugatory section 13(1) of the Act.
6
Section
3(ii) of the Order vests the Minister with unlimited power to amend
the Schedule to the Order. Any amendments or additions therefore
become part and parcel of the Schedule. The extended list contained
in the Schedule becomes vested with full legal force and effect
"notwithstanding any provision of any other law" (emphasis
added). The emphasised words are unlimited in their scope and in the
view that I take of the matter envisage the conferment of unlimited
legislative power to amend the Schedule by adding thereto. In the
result I am of the opinion that the alternative submission also
fails. The appeal is dismissed.
JUDGE
OF APPEAL
I
agree
7
I
agree
I
agree
