Judgment in deputy sheriff’s bail application reserved
MBABANE – The High Court has reserved judgment in the bail application filed by the deputy sheriff, who allegedly killed four women and injured another one at Goje Township in Ezulwini.
The matter was heard by Judge Sabelo Masuku on Thursday. The Deputy Sheriff, Vusi Mncina, wants the court to release him, either conditionally or with reasonable conditions.
He is facing murder charges and one of attempted murder for the murder of his girlfriend and her friends in October last year.
The deceased are the accused’s girlfriend Khulile Shongwe, Lungile Shongwe, Nonhlanhla Thwala and Fikile Shongwe. Thuli Mkhwanazi survived.
Mncina is represented by Azi Hlatshwako of L.N. Dlamini and Associates. Crown Counsel Nqobile Mhlanga appears for the Crown.
arguments
In his arguments, Mncina told the court that his bail application was predicated on Section 16(7) of the Constitution.
The section provides that: “If a person is arrested or detained as mentioned in Subsection (3) (b) then, without prejudice to any further proceedings that may be brought against that person, that person shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that that person appears at a later date for trial or for proceedings preliminary to trial.”
He said it was clear that the Constitution, in mandatory language; commanded the court to release an accused person, who is detained pursuant to being suspected of having committed an offence or is about to commit one.
He said the offence referred to in the section includes an offence listed in the fifth schedule. He argued that the section served one function; that of emphasising the presumption of innocence. Mncina also told the court that the Legislature did not subject it to any other law.
“The Legislature simply removed the discretion of the court in so far as releasing an accused person is concerned.
“The only part to which discretion of the court remains intact, is with respect of releasing an accused person unconditionally or upon reasonable conditions,” Mncina submitted.
BOund
According to Mncina, the court is to apply Section 16 (7) not as a choice but as a must.
He said the court was bound to do so by virtue of Section 14 (2) of the Constitution.
Section 14(2) provides in part that: “The fundamental rights and freedoms enshrined in this Chapter, shall be respected and upheld by the executive and the Judiciary and other and shall be enforceable by the courts as provided in this Constitution.”
“The above Honourable Court is implored to consider exercising its discretion in so far as the second leg of Section 16 (7) is concerned. And the second leg is that of either stipulating
conditions or not.
“The court’s discretion in so far as the question of releasing the Applicant does not arise at all,” said Mncina.
The accused pointed out that the Crown sought to base its opposition on the provision of Sections 95 and 96 of the Criminal Procedure and Evidence Act, 1938 (CP&E).
He informed the court that this argument overlooked one issue, ‘and the issue is that the CP&E cannot be interpreted to take away a right enshrined in the Constitution.
The accused also argued that the emphasis and the interpretation ascribed to Section 96 (12) (a), that an applicant for bail fails in application to adduce evidence of assistance of exceptional circumstances, without any further ado, that applicant could not be released from custody is fallacious.
According to the Crown, the fact that Mncina has eight children and an unemployed wife to support is not an exceptional circumstance.
ailment
The Crown denied that Mncina’s ailment amounts to an exceptional circumstance.
Parliament, according to the Crown, enacted Section 96(12) (a) to deter and control violent crimes and limit the right of an accused person to bail in the interest of justice.
The Crown also informed the court that Mncina is facing numerous charges which may induce him to flee because of the stiffer sentence that might be imposed by the court ‘as there is overwhelming evidence that the applicant committed the offences he is charged with.
Murder on conviction attracts more than 20 years imprisonment’.