Dlamini v. Rex

[2013] SZHC 2
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Appellants were appealing the denial of bail after being charged with armed robbery using firearms, attempted murder and violating a drug law.

The first appellant contended that he suffered from pneumonia and frequent sinus problems that required high levels of ventilation and protection from colds, which would not be provided when in custody. Both appellants stated that they were at risk of attracting further illness at the detention center because they would have to sleep on a mat.

With minimal analysis, the lower court rejected their request for bail due to lack of medical report of pneumonia and because the law imposes a high requirement for bail. A charge of a serious and violent offence, which includes robbery committed using firearms, imposed a requirement that the accused will be released on bail only after providing “evidence which satisfies the court that exceptional circumstances exist which in the interest of justice permit his or her release.” The defendants raised the right to bail contained in Article 16(7) of the Constitutional as granting discretion to the court to grant bail, but the court only stated have challenged the requirement as unconstitutional.

The Court held that both defendants had exceptional circumstances and were granted bail. The Court found that even with the higher requirement, courts still have the discretion to grant bail. “Exceptional” in this setting meantthat the circumstances were “more than unusual” but not necessarily unique. The Court found that the first defendant’s pneumonia and frequent sinus problems were “more than unusual” and thus fulfilled the requirement. Likewise, courts have a duty to “dispense justice” that the lower court neglected by requiring a medical report. The Court also found that a detention center requiring detainees to sleep on a mat is not what would be expected in a democratic country, and thus found it as an exceptional circumstance for the second defendant.

“[18] Section 16 (7) of the Constitution endorses the general principle thatbail is a discretionary remedy.For a person charged with an offence under the Fifth Schedule,section 96 (12) (a) of the Act requires that the court has to be satisfied that the applicant for bail has adduced evidence showing that exceptional circumstances exist which in the interest of justice permit his release.If the court is not satisfied bail is refused.However, section 96 (12) (a) of the Act does not take away the court’s discretion to grant bail. Itis the duty of the court in every bail application to determine if the facts and averments made constitute exceptional circumstances.The first appellant has adduced evidence that he suffers from pneumonia and frequent bouts of sinus both of which requires high levels of ventilation and protection from colds. He further argued that his continued incarceration would worsen his condition because at the Remand Centre they sleep on a mat.”

“[24] The evidence adduced by the second appellant is to the effect that the living conditions at Zakhele Remand Centre constitute a health hazard because they sleep on a mat which render them susceptible to attract various illnesses. In a democratic country such as ours, one would have expected that inmates be provided with at least mattresses and not sleep on mats placed on a cold cement floor. As the second appellant correctly stated, such a situation would inevitably attract various illnesses; to that extent it does constitute exceptional circumstances.”

“[25] Following the definition of exceptional circumstances by Magid AJA, inSenzo Menzi Motsa v. Rex (supra), it is our considered view that suffering from pneumonia with frequent bouts of sinus is a condition which is “morethan unusual” but rather less than unique; it is a condition that is “one of a kind”.The failure by the respondent to file opposing papers does not deprive this Court of its duty to dispense justice by determining whether or not the evidence adduced by the first appellant does constitute exceptional circumstances.To that extent the court a quo misdirected itself by holding as it did that exceptional circumstances did not exist merely because there was no medical report annexed to the bail application.”

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