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IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE
NO.157/98
In
the matter between
DARLY
WYNE SMITH APPLICANT
And
THE
KING RESPONDENT
Coram S.B.
MAPHALALA - J
For
Applicant MR. P. SHILUBANE
For
Respondent MISS S. NDERI
JUDGEMENT
(25/11/98)
The
matter came before court with a certificate of urgency for an order
in the following terms:
1. Dispensing
with the forms and service and the time limits prescribed by the
rules of court and hearing this matter urgently.
2. That
rule nisi be hereby issued returnable on a date to be determined by
the court calling upon the respondent to show cause, if any, why?
2.1 The
respondent should not be ordered to release the following property to
the applicant.
a) One
viking boat and trailer
b) Fishing
equipment
c) Registration
and sale agreement in respect of a Nissan Sani 4
x
4.
d) Applicant's
identification document.
2.2
The respondent should not be ordered to pay the costs of this
application.
3. Alternative
relief.
The
application is supported by the founding affidavit of the applicant.
The crown opposes this application and has filed respondent's grounds
of opposition and filed an opposing affidavit of one Assistant
Superintendent Jomo Mavuso. The respondent raised four points in
limine. Firstly, that applicant is not entitled to bring the present
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application
by way of notice of motion and his application is incompetent in as
much as the application for release of the items was made in the
Magistrate's court. The applicant's recourse is either by way of
review or appeal. Secondly, the applicant's application is not urgent
nor does it disclose any cogent reasons of urgency. The applicant's
attorney on record have represented the applicant and show every
indication of continuing with the same. The payment of their fees is
therefore not urgent and in any event cannot properly be determined
before the services are rendered and attorneys see applicant through
his defence. Thirdly, the applicant is charged with a non-bail-able
offence and will have to await trial in custody, it is unlikely that
he be receiving his pension from the South African Defence Force
while incarcerated. Lastly, that the items have evidential value
crucial to the crown's case and are therefore exhibits properly held
by the police. Their return would jeopardize the interest of justice
in the intended trial. The interests of the applicant cannot override
those of justice.
The
matter came before me for submissions on the 12th November 1998. Miss
Nderi maintained the crown's stance as reflected in their opposing
papers in arguing the points in limine.
On
the other hand Mr. Shilubane for the applicant submitted that the
affidavit by police officer Mavuso was defective in that it was
attested before an officer of the Attorney General and that this
created a conflict of interest. Secondly, he contended that the
Magistrate did not make a final order and that the applicant could
re-open the application for the return of the exhibits on the 23rd
November 1998. Thirdly, that the procedure followed at the
Magistrate's Court was wrong, as it is not sanctioned by law. In this
regard he directed the court's attention to Lansdown and Campbell on
"South African Criminal Law and Procedure (Vol. (v)) at page 173
and to the case of
Dobringer
vs Minister of Justice 1969 (1) S.A. 65. Mr. Shilubane also referred
the court to Section 51 of the Criminal Procedure and Evidence Act
(as amended) No. 67 of 1938. He contends that the crown has not shown
that the items had to do with the offence applicant is charged.
Further that the affidavit of the police officer who deposed to the
opposing papers is inadmissible more particularly paragraph 8 which
is hearsay and should be strike out in terms of the law. He referred
the court to Herbstein and Van Winsen "The Civil Practice of the
Supreme Court of South Africa (4thED) at page 369 to buttress this
point.
On
points of law Miss Nderi submitted that the authorities cited by
counsel for the applicant are irrelevant as here we are not talking
of money but we are dealing with items which are connected with the
commission of the offence. She contended further that the affidavit
of the police officer was properly attested in terms of the law. To
support this proposition she referred the court to the case of
Bhekwako Dlamini vs Attorney General Civil Case No. 3111/96 were Dunn
J was confronted with a similar question and he ruled as follows:
"The
office of the Director of Public Prosecutions was established by the
Director of Prosecution Order 1973. The office is concerned with the
institution and prosecution of criminal proceedings. The interest
which the Commissioner Mr. Nduma, may have in the present litigation
arises from his employment by the Swaziland Government on the
strength of the decision in Magagula's case (Supra). The Commissioner
was not precluded from
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attesting
the affidavit of Simelane. The decision in Dlamini case (supra) in
the present case for reason that the Commissioner is not the
government's attorney (in the case the office of the Attorney
General) or an agent, partner or clerk of such attorney".
She
argued furthermore that in interlocutory proceedings hearsay evidence
can be admitted. Lastly, that this matter is still under
investigation.
These
are the issues before me. It is my view that the issue of paramount
importance is whether or not the application before court is proper
in terms of the law. In the event the court finds that it is proper
the court will then be obliged to consider the other points raised.
However, in the event the court finds that the application was not
brought in accordance with the law the court will be obliged to
dismiss the application forthwith.
I
have perused through the papers before me and also considered the
submissions made by both counsels. My view in the matter is that the
application before court is incompetent in that the Magistrate court
is still seized with the matter as evidenced by the Magistrate ruling
in Case No. B.613/98. The Magistrate ruled that as the investigations
were still underway it would not be proper for the court to order the
release of the said exhibits and ruled further that the applicant was
at liberty to approach the same court on the 23rd November 1998. In
other words the matter is still pending before the learned
Magistrate. The Magistrate had not made a final ruling in the matter
to entitle applicant to appeal or apply for review of the
Magistrate's decision. It is also noteworthy that the application
before the Magistrate was moved by the same applicant being
represented by Mr. Shilubane and I find it strange that Mr. Shilubane
would argue that the procedure adopted at the magistrate court was
wrong when they are the ones who initiated it. It is clear to me that
the applicant has compromised the doctrine of "clean hands"
by adopting a double-burrel approach.
For
this reason alone I dismiss the application and order that the
applicant approach the Magistrate who is still seized with the
matter.
The
applicant to pay costs of the respondent.
S.B.
MAPHALALA
JUDGE
