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IN
THE HIGH COURT OF SWAZILAND
CRIMINAL
CASE NO.134/98
In
the matter between:
GUY
ALLEN
VS
REX
CORAM: MATSEBULA
J
FOR
THE CROWN: MRS. M. DLAMINI
FOR
THE DEFENCE: MR DUNSEITH
JUDGEMENT
1. This
is an application for varying certain bail conditions imposed by the
Magistrate when the applicant appeared before it and was granted bail
pending finalisation of certain charges preferred against applicant.
Applicant prays that the bail conditions relating to the surrender of
his passport to the police and limiting his movements within the
borders of the Kingdom of Swaziland be varied so as to enable him to
travel to the Republic of South Africa for a period of three weeks,
to go and see his father who, according to him, is terminally ill and
he believes might not have long to live.
2. Applicant
has annexed to his application annexure "A" a letter from a
Dr. D.J. Hacking. Annexure "A" states the nature of the
ailment applicant's father suffers from and it states further that
applicant does, unfortunately, not have a current valid passport. A
request is made that applicant be assisted to obtain a travel
document in order for him to visit his father in South Africa.
3. Annexure
"A" does not reflect a true position as regards to
applicant passport.
4. Applicant
states in his affidavit that he has resided and worked in Swaziland
for 21 years. He is presently unemployed. He rents a house in Pine
Valley, Mbabane. He is not married but has two children born in
Swaziland from a
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longstanding
relationship with a Swazi woman. He regards Swaziland as his
permanent home.
5. Applicant
refers to charges alleged against him of housebreaking and theft
involving items valued at plus/minus E6, 000.00. He had asked the
Magistrate for a variation order of his bail conditions but this was
refused.
6. This
application is viciously opposed by the Crown who states that
application has not been candid with the Court. The Crown avers that
the applicant has apparently referred to a charge of housebreaking
and theft involving goods to the value of E6, 000.00 when infact
there is another charge involving E10, 000.00.
The
Crown also states annexure "A" was written by a person who
had been fed with incorrect information. Applicant has a current
passport and it is valid.
The
Crown has also raised certain points in limine. It is the Crown's
contention that since the application for a variation order was
refused by the Magistrate, applicant ought to have brought his
application by way of appeal against the refusal by the Magistrate.
I
have considered the arguments by the two counsel for and against the
application. I do not propose to deal with the matter at great
lengths. Mr. Dunseith urged the Court to show compassion for the
applicant who wishes to see his terminally ill father before he dies.
Mr. Dunseith stated his client is out on bail in any event. He was
granted bail because he was going to stand his trial.
Mr.
Dunseith said the Court can exercise is inherent jurisdiction and
dispose of the matter now that is before it.
It
is true that the High Court has an inherent jurisdiction, which the
Magistrate's court does not have. The High Court's inherent
jurisdiction is however not without limitations. The Common Law and
Statutes are some of the limitations. Whereas the inferior Court may
do nothing that the law creating it does not permit the High Court
may do anything that the law does not forbid. So that where a
particular matter is not provided for in the Rules of Court, the High
Court, will, in the exercise of its inherent jurisdictionary powers
deal with it. (See KING VS KING 1971(2) SA (O) 630 @634).
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Where
a Magistrate has made a ruling of a final nature, the ruling can only
be brought to the High Court through one of the recognised procedures
e.g. appeal or review as the case may be.
It
follows from the above that the application for the variation of the
bail conditions must fail.
J.
M. MATSEBULA
JUDGE
