Cops miscalculated value of items- accused
MBABANE – Four men who allegedly broke into Khuphuka High School have alleged that the police miscalculated the value of the stolen items to be E15 320 instead of E4 502.
This resulted in the magistrate fixing their bail amount at E8 000 in terms of Section 102A (b) of the Criminal Procedure and Evidence Act, 1938.
The section states that the amount of bail to be given by a magistrate in respect of theft or any kindred offence shall be one half of the property in respect of which the offence is committed, if the value of the property exceeds E2 000.
The accused persons are Sifiso Masilela, Ayanda Masilela, Nkosingivile Masilela and Bongani Masilela.
Their bail amount was fixed at E8 000.
They approached the High Court to review the bail amount.
Judge Nkosinathi Maseko yesterday reviewed their bail amount to E2 000. They were represented by Martin ‘Internash’ Dlamini.
Their contention was that the office of the director of public prosecutions (DPP) or the police allegedly erroneously added the value of the items in the second count to be E15 320.
They alleged that the amount should have been E4 502.
The accused persons argued that if the provisions of Section 102 were followed, half of the amount would be approximately E2 000.
“This miscalculation is not only numerically wrong but the same amounts are themselves an estimate value of the items because the value of the property stolen had not been proven by any credible testimony.
Absence
“Thus, for the first respondent to rely on the estimation by the prosecution and police in the absence of proof of value was disingenuous of the first respondent (Magistrate Nelsiwe Hlophe) leading to gross injustice in the process,” said Sifiso.
He said the magistrate was allegedly oblivious to Section 20 of the Constitution, which stipulates that there shall be no discrimination based on categorisation of anything on whatever basis, including crimes.
Sifiso told the court that it was absurd that a crime resulting in loss of life attracted bail of approximately
E3 000 together with surety yet a crime which involves loss of property is punishable with ‘exorbitant bail like in our case’.
In their application, the accused persons wanted a review of the judgment issued by Magistrate Hlophe granting them bail fixed at E8 000.
Alternatively, they wanted to be granted bail of a reasonable amount pending the review application, if their application was opposed.
Declaration
The accused further applied for a declaration that Parliament was in derogation of Section 20(1),(2) and (3) of the Constitution and has no authority to enact a law that brings an imbalance to society as dictated by Section 20(4) of the Constitution.
They also prayed that Section 102 of the Criminal Procedure and Evidence Act as amended as being in conflict with Section 20 of the Constitution is so far as it infringes the right to equality before the law and accordingly be reviewed and set it aside.
The Speaker of the House of Assembly, according to the accused, be directed to present to the House the judgment of the court and facilitated the necessary adjustment on the CP and E as directed by the court.
In a previous matter, two accused persons, who were ordered by a magistrate to pay half the amount of the items they allegedly stole, described the legislation as discriminatory in that it favoured the rich.
Veli Nxumalo and another were arrested for allegedly stealing items worth E150 000 from Eswatini Railways last year and their bail amount was fixed at E75 000 at the magistrates court.
The accused are still in custody despite being granted bail but failed to pay the bail amount that was fixed at half the value of the goods involved.
They challenged the constitutionality of Section 102 of the Criminal Procedure and Evidence Act which they submitted was not consistent with Section 20 of the Constitution.
Section 102A reads: (1) Notwithstanding the provisions of subparts A and B (l) of this part the amount of bail to be given by a magistrate in respect of theft or any kindred offence shall be - (a) E500 if the value of the property in respect of which the offence is committed is E2 OOO; or (b) one half of the value of the property in respect of which the offence is committed if the value of the property exceeds E2 OOO. Section 20 of the Constitution (Equality before the law) reads: 20 (1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law. (2) For the avoidance of any doubt, a person shall not be discriminated against on the grounds of gender, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion, age or disability.
The matter was heard by a full bench comprising Principal Judge Qinisile Mabuza sitting with Judge Mbutfo Mamba and Judge Mumcy Dlamini.
Dlamini applied that to withdraw the application in order to amend it.