THE COURT
The appellant, facing a large number of charges and being imprisoned in respect of those charges, brought an urgent application for
bail. He was imprisoned by virtue of the Non-Bailable Offences Order No. 14 of 1993 it being common cause that many of those charges
prevented the appellant from being admitted to bail under the said Order.
However, the appellant brought an urgent application for the following relief:-
“1.
Declaring the Non-Bailable Offences Order No. 14 of 1993 as amended ultra vires Article 7(a)
of the African Charter on Human and Peoples Rights in so far as the said Order violates the applicant (sic) fundamental rights as
recognised and guaranteed by the Charter, Universal Declaration of Human Rights and international human rights customary law and
principles.
2.
Declaring the Non-Bailable Offences Order No. 14 of 1993 as amended ultra vires Article 7(b) of the African Charter on Human and People’s
rights (1968) in so far as the said Order violates the principles of presumption of innocence.
3.
Committing the applicant to bail.
4.
Further or alternative relief.”
The application was refused by the learned Chief Justice who filed his reasons for so doing some time later. It is against that refusal
that this appeal is brought.
Before we deal with the merits of this manner, there are two preliminary observations that we wish to make. It is clear both from
the relief sought and from the appellant’s affidavit that the basis of the attack on the Non-Bailable Offences Order No. 14
of 1993 rested at that stage solely and exclusively on the contention that it was ultra vires the aforesaid two articles of the African Charter on Human and People’s Rights. Despite this, grounds 1 and 2 of the grounds
of appeal read as follows:-
“1.
The Court a quo erred in law and in fact in holding that the Non-Bailable Offences Order No.
14 of 1993 as amended is not ultra vires section 104 of the repealed Constitution which was saved by Decree No. 7 of the King’s
Proclamation of the 12th April, 1973 in as much as the Non-Bailable Offence Order takes away the Court’s inherent jurisdiction whether or not to grant
bail.
2.
The Court a quo erred in law and in fact in holding that the Non-Bailable Offences Order No. 14 of 1993 as amended is not null and
void in as much as the King’s Proclamation of the 12th April, 1973 as amended provides that any law inconsistent with it shall to the extent of inconsistence be null and void.”
The issues sought to be raised in the above grounds of appeal were not part of the relief sought in the court a quo, were not raised in the affidavits at all, and, not surprisingly, are not mentioned in the judgment of the Court a quo. This Court has time and time again warned practitioners that, save in exceptional circumstances, it will not countenance the practice
of allowing them to raise new points on appeal by raising them for the first time in the grounds of appeal when they were not raised
at all in the Court appealed from. We shall return to this point presently.
The other preliminary matter to which we wish to refer is this. Before the matter was argued, the Attorney General brought an application
to be joined as a respondent in view of the fact that the relief sought in prayers (a) and (b) of the notice of motion is of the
nature of a declaratory order in which the Government of Swaziland has an interest and, as pointed out by the Director of Public
Prosecutions in his affidavit, it is the constitutional duty of the Attorney General of Swaziland to advise both the executive and
the legislature on these matters.
The application for joinder was opposed by the appellant on the basis that the applicant had no authority to represent the Kingdom
of Swaziland as Attorney General in that:
“The applicant does not qualify to be appointed as a judge of the High Court of Swaziland in as much as he was only admitted as an
attorney of the High Court of Swaziland on the 27th day of June, 1997 contrary to the provisions of Section 119 of the repealed Constitution of Swaziland as amended and saved by decree
No. 5 of the King’s Proclamation of 12th April, 1973, as ….appears in the applicant’s certificate of Admission and Enrolment annexed herein marked ‘PD1.’”
“PD1” reflects that the applicant for joinder Phesheya Mbongeni Dlamini was so admitted on 27 June 1997. No further reply was
filed in response to this allegation and the point is not referred to at all in the judgment of the learned Chief Justice. There
is nothing in the papers to indicate whether the application for joinder was granted or refused but ground 6 of the grounds of appeal
assumes that it was granted. However that may be, the matter was in any event properly before the High Court and this Court may therefore
deal with it on appeal. Furthermore this point was not persisted in by counsel for the appellant and need not be considered further.
We turn to the first preliminary matter. The notice of appeal is dated 26 December 2000. On 29 March 2001 the appellant filed a notice
to amend the notice of motion. Paragraphs 1 and 2 of the original notice of motion became paragraphs 2 and 3 of the amended notice
and are in substantially the same terms. A new paragraph 1 is sought to be added in the amended notice of motion and reads as follows:
“1.
Declaring the Non-Bailable Offences Order No. 14 of 1993 as being null and void and of no force
and effect on the ground that it is contrary to the provisions of Decree No. 3 of the King’s Proclamation (Amendment) Decree
of 1987 which is the Supreme Law of Swaziland by removing the inherent jurisdiction of the High Court to hear and determine bail
applications.”
In support of the application the appellant’s attorney has sworn an affidavit in which he states that the issue sought to be
raised in the new prayer was raised in the court below by the appellant as appears more fully from his heads of argument which are
annexed (and which do raise the point). He accordingly submits that no prejudice will be suffered by the respondent in the event
of the application being granted as prayed. Counsel for the respondent did not oppose the application which the court granted.
Although the point raised in the papers concerning the African Charter on Human and People’s Rights is raised in the heads of
argument this point was not raised at all in the argument before us and need not be considered further.
The point which was argued before us was that the Non-Bailable Offences Order deprives the High Court of its inherent jurisdiction
as vested in it by the King’s Proclamation and is, to that extent, ultra vires. Part 1 of Chapter 9 of the repealed Constitution of Swaziland is saved by Decree No. 7 of the King’s Proclamation of 12 April
1973 where it is stated to “again operate with full force and effect.” Part 1 of Chapter 9 deals with the establishment,
powers and functions of the Judicature.” With regard to the jurisdiction of the High Court Section 104(1) provides:
“The High Court shall be a superior Court of record and shall have –
(a)
unlimited original jurisdiction in civil and criminal matters.”
Reliance is also placed on Decree No. 3 of the King’s Proclamation (Amendment) Decree, 1987 which provides:
“It is furthermore hereby reaffirmed that the King’s Proclamation
to the Nation dated 12th April 1973 (as amended from time to time) is the supreme Law of Swaziland and if any other Law is inconsistent
with the said Proclamation, that other Law shall to the extent of the inconsistency be null and void.”
It is contended that the Non-Bailable Offences Order is inconsistent with Section 104(1) of Part 1 of Chapter 9 of the Constitution
and is therefore null and void. Such an argument was rejected by this Court in Bhembe v Rex (Criminal Appeal No. 27/1996) in which judgment ws given on 7/4/1997. In rejecting the argument KOTZE, JP said
“As we have already indicated this (order) does not contradict the provision that the jurisdiction of the High Court is unlimited in
criminal matters. It merely makes a law which the High Court has unlimited jurisdiction to enforce. We therefore agree with Mr. Ngarua’s
submission that the Non-Bailable Offences order No. 14 of 1993 as amended limits discretion but not its jurisdiction.”
When this matter was first argued before us Mr. Maziya, then acting on behalf of the respondent, conceded that Bhembe’s case had been wrongly decided. We were subsequently informed by Mr. N'garua, the Director of Public Prosecutions, that Mr. Maziya was not authorised to make such a concession and we allowed the matter to be re-argued on this occasion by Mr. N’garua himself to whose argument we shall presently refer.
As has been said earlier herein, in Bhembe’s case the following was stated in relation to the Order:-
“…..this order does not contradict the provision that the jurisdiction of the High Court is unlimited in criminal matters. It merely
makes a law which the High Court has unlimited jurisdiction to enforce”.
With respect, we do not understand the abovementioned passage. The true enquiry before the Court was whether the unlimited jurisdiction
of the High Court had been ousted, not whether the order was a law “which the High Court had unlimited jurisdiction to enforce.”
It was correctly contended on behalf of the appellant that the law is a draconian one, is inconsistent with the presumption of innocence
and is an invasion of the liberty of the subject.
Mr. N’garua submitted that the order did not oust the jurisdiction of the High Court. It only limited its discretion. He contended that the High
Court was entitled, and indeed obliged, to enquire into the question as to whether the applicant for bail had been properly charged.
This argument cannot be sustained. The order uses the word “charged” not the phrase “properly charged”. Furthermore
if the court were to enquire into the question as to whether a person was properly charged it would have to hear all the evidence
i.e. conduct the trial itself, which is manifestly not the intention of the order.
In our view the order does indeed oust the jurisdiction of the court to grant bail in certain cases for it prevents the Court from
hearing such cases at all. If, for example, a person charged with a scheduled offence applied to the High Court for bail, that court
would be obliged to hold that under the order it could not entertain the application at all. This is not simply a fettering of discretion;
it is a complete ouster of the jurisdiction of the High Court and is thus in conflict with Section 104(a) of Part 1 of Chapter 9
of the Constitution.
However, Mr. N’garua had another string to his bow. He contended, in the alternative, that the Non-Bailable Offences Order was an order by the King in Council, assented to by His Majesty himself and if it in effect amended the Constitution that was an exercise of the Royal
Prerogative which could not be impugned by a Court of Law. He relied upon a decision of this Court in Khulu vs Rex (Appeal Case No. 13/1998).
In Khulu’s case this Court held that a King’s Order in Council was not an inferior law for once it had been assented to by His Majesty
himself that was an exercise of the Royal Prerogative. Accordingly it was held that the establishment of the office of the Director
of Public Prosecutions, although such establishment amended the constitution, could be effected by a King’s Order in Council
and did not have to be established by decree. The reasoning in Khulu’s case was that the relevant phrase which fell to be interpreted was “may by decree” and that the word “may”
did not mean “must”.
For the reasons which follow we have come to the conclusion that Khulu’s case may well have been correctly decided but for the wrong reasons.
In the Proclamation of the 12th April 1973 Sections A and B read respectively as follows:-
“A.
The constitution of Swaziland which commenced on the 6th September is hereby repealed.
B.
All laws, with the exception of the Constitution hereby repealed shall continue to operate with full force and effect and shall be
construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with
this and ensuing decrees.”
The phrase “to bring them into conformity with this and ensuing decrees” appears again in other sections of the proclamation.
Section 10(2) of the Proclamation provides:
“Section 144 of the repealed constitution shall continue to have force subject to the following:-
(a)
The definition “Act of Parliament” is replaced with the following:-
“Act of Parliament” means an Act of Parliament of Swaziland established by law and includes an “Order-in-Council”.
That sub-section (which is not referred to in Khulu’s case) equates a King’s Order-in-Council with an Act of Parliament and such an order is an inferior law in that it is inferior
to a decree issued by the King.
It is the proclamation of the 12th April 1973 and its successors which are stated to be the supreme law of Swaziland. Thus Section 14 (A) (1) of the Proclamation of
12th April 1973 reads:-
“This proclamation is the supreme law of Swaziland and if any other law is inconsistent with this proclamation, that other law shall,
to the extent of the inconsistency, be null and void.”
It seems to us that “such other law” would refer to an Act of Parliament or a King’s Order-in-Council.
Paragraph 14A(2) of the 1973 Proclamation provides:-
“The King may, by Decree published in the Gazette, amend or repeal this Proclamation…………and he may by decree
amend any other law”.
The King’s decree No. 1 of 1982 (the establishment of the Parliament of Swaziland Order ) again provides that that proclamation
is the supreme law of Swaziland and that in Section 14(2) “The King may, by decree published in the gazette, amend or repeal this proclamation.”
The commas appearing after the words “may” and “Gazette” suggest that the word “may” relates to
a decision by the King as to whether or not to amend the proclamation, but once he decides to do so he must do so by decree published
in the gazette. The contrary view expressed in Khulu’s case means that the phrase “by decree published in the gazette” is entirely superfluous. There seems to be no warrant for taking such a view. The whole thrust of the proclamations by the King is
that amendments to the constitution will be effected by decree. Moreover Khulu’s case did not have regard to Section 10(2) (supra).
Accordingly we have come to the conclusion that the reasoning in Khulu’s case is incorrect and that where the constitution is amended by the King that must be done by decree published in the gazette.
For the sake of completeness it should be noted that in section 4(2) of the 1982 proclamation “Act of Parliament” is defined as “an Act of Parliament of Swaziland established by Law and includes an Order-in-Council”.
As was mentioned earlier herein we are nevertheless of the opinion that Khulu’s case may well have been correctly decided. In Khulu’s case it was assumed that the creation of the office of the Director of Public Prosecutions by the King’s Order-in-Council No.
17 of 1973 was an amendment to the constitution. Indeed both sides argued the case upon that footing.
Upon reconsideration we are of the opinion that it was probably not a constitutional change properly so called but merely a structural
change, i.e. a change in the functions performed by a functionary. Before the amendment the functionary namely the Attorney General
had two functions, i.e.
1)
As Principal legal adviser to the King and the Government;
2)
As the prosecuting authority in criminal cases.
No doubt in order to improve the functioning of the Attorney General’s office it was decided to effect a structural change by
the creation of an additional functionary, the Director of Public Prosecutions who would thenceforth be the sole and exclusive prosecuting
authority.
The constitutional functions and duties remain precisely the same, the only difference being that they are split in two by the amendment.
In these circumstances the amendment may well not be a constitutional one and the office of the Director of Public Prosecutions would
therefore not be unconstitutional. The structural change brought about by the amendment does not in our view appear to be inconsistent
or incompatible with the relevant provisions of the constitution. That is why Khulu’s case does appear to be correctly decided but for the wrong reasons.
From what we have said earlier herein it follows that the non-Bailable Offences Order is unconstitutional, that the appeal must be
allowed and the case remitted to the High Court to decide whether or not to admit the appellant to bail.
We would add only this. We fully appreciate that in certain cases it would not be proper for a Court to grant bail. Such cases would
include the probability of an accused interfering with crown witnesses, the danger of an accused escaping before trial and the seriousness
of the offence. There is no reason why legislation should not be introduced that, where an accused person is charged with a scheduled
offence, the Court hearing an application for bail, will be obliged to record its investigation regarding, and justify its findings
on, the criteria set forth in the legislation, when granting or refusing bail.
______________________
LEON, JP
I AGREE
_________________________
STEYN, JA
I AGREE
________________________
VAN DEN HEEVER, JA
I AGREE
________________________
BECK, JA
I AGREE
_______________________
SHEARER, JA
DATED AT MBABANE this…………..day of June, 2001
