Selby Musa Tfwala v. Rex

Selby Musa Tfwala v. Rex (383/2012 [2013] SZHC146) (2013) 8th August 2013
Download Judgment: English
Country: Swaziland
Year: 2013
Court: Swaziland High court
Health Topics: HIV/AIDS, Prisons
Human Rights: Right to health


Selby Musa Tfwala applied for bail while awaiting trial for a serious offence. He argued that the living conditions while in custody in combination with his HIV/AIDS positive status was detrimental to his health and was an “exceptional circumstance” under section 96(12)(a) of the Fifth Schedule of the Criminal Procedure and Evidence Act for the granting of bail. The Court found that a terminal illness like HIV/AIDS constitutes an exceptional circumstance for which bailshould be granted.


In 2010, the applicant, Selby Musa Tfwala, tested positive for HIV and AIDS and had since been on anti-retroviral medication. While awaiting trial for a Fifth Schedule offence, Tfwala applied for bail, but the court dismissed his application as he failed to provide evidence demonstrating exceptional circumstances justifying his release from custody under section 96(12)(a) of the Fifth Schedule of the Criminal Procedure and Evidence Act (“the Act”). In his subsequent bail application, Tfwala argued his HIV/AIDS status constituted an exceptional circumstance for the granting of bail because the living conditions at the Remand Center were not suitable for a person suffering from his medical condition. In particular, he claimed that he was made to sleep on the floor and was not protected from contracting further illnesses given the compromised state of his immune system. He also included his medical report in his application to substantiate these concerns. The issue raised before the High Court was whether this evidence was sufficient for the applicant to satisfy his burden in demonstrating that his illness was an exceptional circumstance under section 96(12)(a) for bail to be granted before trial.
Section 96(12)(a) of the Fifth Schedule of the Criminal Procedure and Evidence Act

“(12) Notwithstanding any provisions 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 or she is dealt with in accordance with the law, unless the accused having been given a reasonable opportunity to do so adduces evidence which satisfies the Court that exceptional circumstances exist which in the interest of justice permit his or her release.”
The Court held that a terminal illness like HIV/AIDS constitutes an “exceptional circumstance” under section 96(12)(a) of the Act for which bail should be granted to the applicant. While the Court noted that while the statute did not define what was an “exceptional circumstance,” it examined the jurisprudence on the definition and accepted that an exceptional circumstance was something more than merely unusual, but not necessarily one of a kind. By following prior decisions which held that pneumonia resulting in frequent bouts of sinus infections was considered an exceptional circumstance, the Court concluded that a terminal illness also constituted such a circumstance.

“The Criminal Procedure and Evidence Act No. 67 of 1938 as amended does not define what constitutes ‘exceptional circumstances.’ The definition of Magid AJA in Senzo Menzi Motsa v. Rex…means ‘something more than merely unusual but rather less than unique which means in effect one of a kind.’ In the Wonder Dlamini case…, the Supreme Court adopted a definition made by Horn JA in S. v Jonas 1998 (12) SA SACR 667 where the learned judge said: ’15….The term “exceptional circumstances” is note defined. There can be as many circumstances which are exceptional as the term in essence implies. An urgent serious medical operation necessitating the accused’s absence is one that springs to mind. A terminal illness may be another. It would be futile to attempt to provide a list of possibilities which will constitute such exceptional circumstances…’” (Para 11)

“In the Wonder Dlamini case the Supreme Court concluded that suffering from pneumonia with frequent bouts of sinus is a condition which is ‘more than unusual but rather less than unique, and that it is a condition that is one of a kind’ as defined by Magid AJA in Senzo Motsa v. Rex....In view of the authorities considered, it is apparent that suffering from a terminal illness constitutes an exceptional circumstances as contemplated by section 96 (12) (a) of the Criminal Procedure and Evidence Act.” (Para 13)