IN
THE HIGH COURT OF SWAZILAND
IN
THE MATTER BETWEEN
:
CRIM. CASE NO. 6/99
THE
KING APPLICANT
VS
1.
KELECH ACHIKE UBA-JAMES MNADI 1st RESPONDENT
2.
MAGISTRATE NKONYANE - N.O. 2ND RESPONDENT
CORAM
: MATSEBULA J
FOR
THE CROWN : MRS. DLAMINI
FOR
THE ACCUSED : MR.
MDLADLA
JUDGEMENT
ON REVIEW
This
matter came on a certificate of urgency with the following prayers:-
Dispensing
with the time limits and forms of service prescribed by the rules of
this Court and hearing it as an urgent application.
Reviewing
and/or setting aside the ruling by 2nd Respondent under Case No.
16/99.
Further
and/or alternative relief.
One
Mumsy Dlamini filed the founding affidavit accompanying the
application.
On
11th March 1999 the matter was heard by Maphalala J, who granted the
application i.e. application for review proceedings and ordered the
Respondent to file their opposing papers within 7 days and thereafter
Applicant, if necessary, to file a reply within two (2)
1
days
of receipt of opposing papers. The matter was then to be set down on
the next contested court for full arguments.
The
next contested roll was on the 16th April 1999. On this day I
presided over the proceedings and there was no opposing affidavit
filed by any of the two Respondents.
In
view of the nature of proceedings and the fact that the criminal
proceedings at the Magistrate's court had stalled, whereas the First
Respondent was in custody. I ruled that prima facie the computer
print out was admissible. I indicated that written judgement on
review would follow.
I
have since read through annexure "A" - the recording of
proceedings by the learned Magistrate and also had a look at the
sections 244 and 245 of the CRIMINAL PROCEDURE AND EVIDENCE ACT
67/1938.
Section
244 deals with banker's books admissible in evidence in certain cases
and Section 245 deals with copies of entries as mentioned under
Section 244 are admissible after due notice.
Both
the above Sections do not attempt to deal with the nature of annexure
"B" i.e. the computer print out. Any attempt to bring a
computer print out under the auspices of Section 244 and 245 can
never be successful. The computer by its very nature is a device or
apparatus which is capable of receiving or absorbing data
instructions by electronic, electro-mechanical, mechanical or other
means supplied to it.
Computer
print out is the documentary form in which information is produced by
a computer. From what has been said above a print out is of a hearsay
nature and on that basis it is inadmissible. But as Mrs. Dlamini has
deposed in her affidavit and also infact when she submitted before
the learned Magistrate, the rule against hearsay evidence is to some
extent relaxed in bail application proceedings.
2
The
learned Magistrate misdirected himself in ruling that the computer
print out because of its hearsay nature and therefore violating the
rule against hearsay was inadmissible in bail applications.
Perhaps
it is high time the office of the Attorney General considered
drafting an Act which will deal specifically with the computer or any
device or apparatus connected with computers. This, in my opinion has
become long overdue.
J.
M MATSEBULA
JUDGE
3
