IN THE COURT
OF APPEAL OF SWAZILAND
HELD AT
MBABANE Appeal Case No. 2472/99
In the
matter between
ROBERT
MAGONGO Appellant
Vs
THE
KING Respondent
Coram
Leon, JP
Tebbutt,
J A
Shearer,
J A
For
Appellant Mr. C.S. Ntiwane
For
Respondent Mrs. M. Dlamini
JUDGMENT
13/ 12/
2000
TEBBUTT, J
A
Can a court
grant bail to an accused person after his or her conviction and
pending an appeal against such conviction of an offence for which no
bail may be granted prior to such conviction? That is the issue in
this appeal before this Court.
2
The
appellant was charged before Sapire, C.J. in the High Court with
theft of fifteen bags of dagga and with two charges under the
Pharmacy Act No. 38 of 1929, as amended by Act 11 of 1983, (the Act)
viz of contravening Section 12(1) (b) i.e. of conveying dagga and of
contravening Section 12(2) i.e. of dealing by way of sale in dagga.
He was convicted of all three charges and sentenced on the theft
charge to three years imprisonment without the option of a fine plus
a fine of E15 000.00 or two years imprisonment. On the contraventions
of the Pharmacy Act, he was, on each count, sentenced to a fine of
E15 000.00 or two years imprisonment, each sentence to run
concurrently with the sentence on the theft charge. The appellant has
noted an appeal against his convictions and sentences.
On 12
October 2000 the appellant applied to the High Court to admit him to
bail pending the outcome of his appeal.
The
application came before Sapire, CJ who on 16 October 2000 in a
written judgment refused the appellant bail on the basis that there
were no reasonable prospects of success in the appeal against the
appellant's convictions and sentences. He adverted to, but did not
decide, what is the main issue before this Court viz the question of
admitting to bail, after conviction, of an accused who was charged
with a non-bailable offence. The matter comes before this Court on an
appeal from the refusal of the learned Chief Justice to grant the
appellant bail.
The
Non-Bailable Offences Order No. 14 of 1993 (the principal Order),
which came into effect on 24 August 1993, defines "Non-Bailable
Offences" as "any offence listed in the Schedule to this
Order" (Section 2) and provides in Section 3(i) as follows:-
3
"3(i)
Notwithstanding any provision in any other laws, a Court shall refuse
to grant bail in any case involving any of the offences in the
Schedule hereto " (emphasis added).
On 8 June
1994 an amendment to the said Order 14 of 1993 was assented to by the
King in the Non-Bailable Offences (Amendment) Act No. 4 of 1994 in
which the aforesaid Section 3(1) was replaced with the following:
"Bail
to be refused in certain offences 3(1) Notwithstanding any provision
in any other law, a Court shall refuse to grant bail to a person
charged with any of the offences in the schedule hereto "
(emphasis again added).
Subsequently
a further legislative enactment was added to the aforegoing by the
Non-Bailable Offences Order Legal Notice No. 93 of 1997 which reads:-
"the
Schedule to the Non-Bailable Offences Order is hereby amended after
paragraph 11 by adding the following paragraph - (b) Any offence
under the Pharmacy Act 1929 relating to the possession, dealing, sale
or conveyance of any quantity of poison or potentially harmful drug."
It is common
cause that dagga is such a drug.
It is clear
therefore that once an accused person, as was the appellant, is
charged with the conveyance or sale of dagga he cannot be admitted to
bail. It was, however, the submission of Mr. Ntiwane, who
4
appeared for
the appellant that once an accused person is convicted of such
conveyance or sale, the picture changes and if he or she intends to
pursue an appeal against such conviction, such person may be admitted
to bail as he or she is no longer "charged" with the
offences in question. In elaboration of his submission Mr. Ntiwane
referred to the well-known principle that where a statute interferes
with an individual's elementary human rights including the right to
liberty, a strict construction must be placed on such statutory
provision. (see Dadoo Ltd and Others v Krugersdorp Municipal Council
1920 A.D. 530 at 552). He also referred to a decision of the South
African Appellate Division in which it was held, with reference to
Section 34(1) of the South African Act 25 of 1913, that the words "is
being charged with any crime or offence" in that section were
equivalent to "is being tried for any crime or offence"
(see Attorney General Transvaal v Additional Magistrate Johannesburg
1924 AD 426).
He submitted
that if the legislature wished to deprive a person of his or her
liberty in respect of the offences in question it should have stated
clearly that the non-bailability provisions also apply after
conviction. Its failure to do so was an indication that it did not
intend to do so.
It is, of
course, obvious that by the amendment to Section 3(1) of the
principal Order the scope of the Order was narrowed, the words "any
case involving" being of wider ambit than "any person
charged with". This said, however, the fact remains that the
legislature intended to deny the granting of bail to persons facing
charges of contravention of non-bailable offences. Those charges do
not disappear but remain in esse both at conviction and thereafter.
The conviction is a conviction of the
5
accused
person of the offence on which he was charged. Even on the
interpretation of the words "being charged with" being
equivalent to "being tried for" (which I do not necessarily
agree is the meaning of "charged", the case cited by Mr.
Ntiwane being one in reference to a particular Section of the South
African Children's Protection Act 25 of 1913 which is not in pari
materia with what is concerned here) the conviction is part of the
trial. It follows that any appeal against such conviction is an
appeal against the conviction of the accused person of the offence on
which he was charged. His appeal is concerned with no other charge.
A further -
and to my mind - highly pertinent consideration is one advanced by
Mrs. Dlamini in her argument on behalf of the Crown. It is this. It
is a well-known canon of construction in the interpretation of
statutes that -
"that
construction should be adopted which is more consonant with and
better calculated to give effect to the intention of the enactment".
(see e.g.
per Hoexter J A
in South African Transport Services v Olga and Another 1986 (2) SA
684(A) at 697) It is an equally well-known principle that in
interpreting a statute the Court will avoid an interpretation which
would result in an absurdity (see Venter vs Rex 1907 T.S. 910 at 919;
Shenker vs The Master and Another 1936 AD 136). As Mrs. Dlamini
submitted, to say that a person should be a bonded man or woman where
prior to conviction such person is in law presumed innocent but can
be a free man once found not innocent would be a manifest absurdity
and result in a mockery of the criminal justice system.
6
The
legislature, in my view, intended to deprive persons who commit
non-bailable offences of access to bail. To so deprive such persons
both prior to and, also, pending appeal after conviction, would
result in an interpretation of the Non-Bailable Offences Order which
would be more consonant with and better calculated to give effect to
the enactment and would also avoid an obvious absurdity.
It follows
that the appellant is not entitled to bail pending his appeal. It is
accordingly not necessary to consider whether the Court a quo was
correct or not in holding that the appellant had no reasonable
prospects of success on appeal.
The appeal
against the refusal by the Court a quo to grant bail to the appellant
pending his appeal is accordingly dismissed.
P.H.
TEBBUTT, J A
I AGREE
R.N.
LEON, J P
I AGREE
D.L.
SHEARER, J A
