Nothing exceptional in German’s bail plea – Crown
MBABANE – The Crown says there is nothing exceptional about an accused person claiming innocence, being sick, a breadwinner to minor children and employed, to warrant a court to release them on bail.
Acting Director of Public Prosecutions (DPP), Nomvula Hlophe said exceptional circumstances, which an accused person had to prove in order for bail to be granted, were not the usual challenges which were a natural occurrence resulting from incarceration that were nothing out of the ordinary.
Hlophe was arguing against the granting of bail to German Robert Dlamini yesterday. Dlamini was arrested together with a member of Swaziland Youth Congress (SWAYOCO) Ncamiso Mabuyakhulu, who is his nephew.
The third accused person is Philani Sihlongonyane, who is a member of Swaziland Liberation Movement (SWALIMO). Together they face a total of 29 charges.
The charges include the murder of State security officers, attempted murder, kidnapping, robbery and malicious injury to property.
Roadblock
Dlamini appears in six counts of contravening the Arms and Ammunition Act and two of the murder of two traffic police officers, who were killed near Grand Valley in Manzini, where they had mounted a roadblock. The Crown submitted that the murders were planned by the accused persons, who allegedly worked together in furtherance of a common purpose.
Dlamini, who is represented by Noncedo Ndlangamandla of Mabila Attorneys, filed an application for bail, which was heard yesterday by Judge Justice Mavuso.
The Crown raised a point of law on the failure to prove the existence of exceptional circumstances. Hlophe told the court that Dlamini had to comply with Section 96(12)(a) of the Criminal Procedure and Evidence Act 67/1938.
It states that; ‘Notwithstanding any provision of this Act, where an accused is charged with an offence referred to- a) In the fifth schedule, the court shall order that the accused be detained in custody until he is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence that satisfies the court that exceptional circumstances exist, which in the interest of justice permits his or her release’.
She told the court that the two counts of murder faced by Dlamini, as well as the charge of robbery, where an R4 rifle was taken from the two police officers who were killed near Grand Valley in Manzini, were fifth schedule offences.
Schedule
According to Hlophe, when a person is charged with a fifth schedule offence, the court has the discretion to grant bail and the accused person should prove the existence of exceptional circumstances. She informed the court that the onus of proof was on the applicant, as per the Act.
The acting DPP submitted that in the present case, Dlamini alleged that he was innocent, employed, sickly and a breadwinner to minor children, among others. “These cannot be said to constitute exceptional circumstances. They are nothing out of the ordinary,” said Hlophe.
She told the court that Dlamini attached a prescription note from a clinic, which was issued in 2021, and it was not for a critical condition. Hlophe said an urgent medical operation or a terminal illness could be an exceptional circumstance.
The acting DPP informed the court
that the Correctional Services did not file documentary evidence that in the event that Dlamini was ill, they would not be able to treat him, which the court could have considered to be an exceptional circumstance. She said the Correctional Services had a clinic and the officers also took inmates to Mbabane Government Hospital for further treatment.
Regarding Dlamini’s argument, that he was innocent of the charges, Hlophe said the accused faced murder charges where two traffic police officers were shot and killed, and robbed of a service rifle. The rifle, according to the Crown, was found in Dlamini’s possession.
“The accused cannot say he is innocent of the charges. The Crown has overwhelming evidence against him. He is not the only person charged with these offences. He and his two co-accused were acting jointly and in furtherance of a common purpose. He cannot tell the court that he is innocent,” said Hlophe.
The acting DPP submitted that Dlamini attempted to allege that the firearms were brought to his home by the first accused person, Mabuyakhulu. Hlophe said Dlamini was well-aware of the firearms and together with his nephew, Mthimkhulu, pointed them out to the police. “He cannot shift the blame to A1 (Mabuyakhulu). Evidence before court clearly shows that he pointed out the guns to A1. He hid them in different places.”
Hlophe applied that Dlamini’s application be dismissed. The court reserved its judgment in the matter.