LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD IN MASERU
C OF A (CRI) 10 OF 2024 CRI/APN/0065/2024/ND
In the matter between –
MOTHUSI SELLO 1ST APPELLANT
BOTHAKA MPHATŠOE 2ND APPELLANT
TEBELO MPHATŠOE 3RD APPELLANT
TJABOLANE SEBAEA 4TH APPELLANT
THOBI THOBI 5TH APPELLANT
AND
THE DIRECTOR PUBLIC PROSECUTIONS RESPONDENT
CORAM: DAMASEB, AJA
CHINHENGO, AJA
VAN DER WESTHUIZEN, AJA
HEARD: 17 NOVEMBER 2024
DELIVERED: 1 NOVEMBER 2024
Summary
In an application for bail a number of factors have to be considered. Murder committed with a common purpose is dealt with in terms of section 109A of the Criminal Procedure and Evidence (Amendment) Act 10 0f 2002. Bail may only be granted if an applicant adduces evidence establishing exceptional circumstances that permit bail in the interest of justice.
JUDGMENT
J VAN DER WESTHUIZEN, AJA:
Introduction
[1] This is an appeal against the refusal of bail by Mokhoro J in the High Court. The matter was heard by the High Court on 3 June 2024; an order was made on 12 June 2024 and a reasoned written judgment delivered on 9 October 2024, seven court days before the hearing of this matter.
[2] The appellants, the petitioners before the High Court, were charged with murder. According to the particulars of the charge, they – acting with a common purpose – fatally shot the deceased with a 9 mm parabellum firearm on 31 March 2024.
The High Court
[3] The learned judge points out that the petition was not an ordinary one for bail in terms of the Criminal Procedure and Evidence Act of 1981. It was specifically governed by section 109A of the Criminal Procedure and Evidence (Amendment) Act 10 of 2002.
[4] This provision deals with murder “… committed by a person, group of persons or syndicate acting in the purported execution or furtherance of a common purpose …”. Because of the common purpose, the court considering whether to grant bail must order “that the accused be detained in custody …, 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”.
[5] The High Court therefore considered whether the petitioners had shown exceptional circumstances permitting their release in the interest of justice. It did so, by analysing the circumstances that had led to their arrest; their defence; the likelihood or otherwise of the petitioners absconding; their personal circumstances; an affidavit by the “Headman” of Kolokong (‘Mamojela Moshoeshoe); and the opposition of the respondent, the prosecuting authority.
[6] The High Court considered the exercise of judicial discretion, inter alia with reference to the judgments of Mahomed AJ in S v Acheson (1991(2) SA 805 at 822 to 823) in South Africa and Monapathi J in Moloantoa Mafatla v Director of Public Prosecutions (CRI/APN/723/2007) in Lesotho, as well as other case law.
[7] The High Court concluded that the petitioners had failed to discharge the burden on them to show exceptional circumstances. It found that there was strong evidence that they would abscond and disturb the peace and safety of their communities. Mokhoro J mentioned the court’s social responsibility and “decided to exercise its discretion in favour of the greater societal interests against the petitioners’ rights to bail”.
This Court
[8] Counsel for the appellants largely stood by his written heads of argument. This fairly lengthy document deals with the personal circumstances of each appellant; domestic and foreign case law; international law; the question of the likelihood that the appellants may evade trial; the interest of justice; and the impact of section 109A, referred to above. He requested the appellants’ release on bail.
[9] With reference to the Criminal Procedure and Evidence Act, as well as Rule 12(5) of the Court of Appeal Rules, counsel for the respondent argued that a High Court decision to refuse bail was not appealable to this Court. After some debate with the Bench, she abandoned this submission. It is not necessary to reach a determination on this point.
[10] According to counsel for the respondent, the High Court did not err by denying bail to the appellants. She relied extensively on case law, some of which is referred to below.
Disposition
[11] Not all legal systems know the institution of bail for accused persons. In jurisdictions largely based on the English model of criminal procedure it is based on the legal presumption that every accused person is presumed innocent until proven guilty in a court of law. Thus, no accused is supposed to be incarcerated, before being sentenced to serve time in prison.
[12] However, reality justifies the limitation of the right to freedom while being presumed innocent. While awaiting trial, accused persons often interfere with witnesses and other evidence, commit further crime, or flee to escape trial. Therefor the legislature enacts laws, like the Criminal Procedure Act, in the interest of justice, including a fair trial, the safety of the community and even an accused’s own safety.
[13] In a thorough judgment, the High Court duly considered all relevant factors in order to determine whether special circumstances exist and what the interest of justice demands. No substantial error or misdirection is to be found in the judgment. It is unnecessary to repeat every aspect in detail. Only a few are emphasised here.
[14] Murder is a serious crime. The appellants are accused of having committed it with a common purpose. In Lesotho and elsewhere legislatures have considered it fit to make the granting of bail in common purpose cases more difficult than, for example, with regard to murder because of passion or other very personal circumstances. The aim of the higher bar includes the serious threat posed by gang activity.
[15] In this case the above-mentioned Headman of Kolokong stated under oath that both the fourth appellant and the deceased were members of different Likobo Gangs. The fourth appellant disturbed the peace and security in his village and instilled fear in her community by befriending members of Likobo gangs in other villages.
[16] This is, of course, hearsay evidence about the appellant’s gang membership and alleged intimidating effect on the community. The High Court was not ceased with a criminal trial that could result in a conviction, though, but a bail hearing. In the interest of the safety of the community the Court could hardly ignore the warning words of the community leader.
[17] The High Court’s finding that the appellants represented a flight risk was partially based upon the fact that they had no permanent employment. The appellants submitted that for that very reason they have to stay put in order to work part-time in order to make a living. The opposite is mostly accepted by courts: A permanent job is something not easily to give up by fleeing. Unemployed people are more likely to leave their area or even the country, to pursue part-time work or criminal activity, even outside the country.
[18] The fact that an accused person is married and has a family does not constitute a special circumstance. Sad as the consequences of crime may be for an accused’s family, many criminals have families.
Conclusion
[19] The appeal must be dismissed. To the extent that costs might have been in the picture, counsel for the respondent did not ask for any.
Order
[20] The appeal is dismissed.
_________________________________
J VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
I agree:
____________________________
PT DAMASEB
ACTING JUSTICE OF APPEAL
I agree:
______________________
M H CHINHENGO
ACTING JUSTICE OF APPEAL
For the Appellants: ADV KE NHLAPO
For the Respondent: ADV M masepole