HIGH COURT OF LESOTHO
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
This is a
matter of an application for admission to bail. On the 5th September
counsel for the applicant and for the respondent addressed the court
in respect of his application. After the perusal of the papers filed
of record and the hearing of the counsel's addresses, the application
for admission to bail was granted on the following conditions :
the applicant pays a bail deposit ofM500.00
the applicant attends remand and stand trial
that the applicant does not interfere with crown witnesses.
that the applicant reports at the PITSENG POLICE STA TION on every
Friday of the week between 6.00 a.m. and 6.00 p.m.
that the applicant surrenders his travel documents to the Clerk of
Court at the
indicated then that the reasons will follow. These are the reasons.
applicant was arrested on the 5th January 2001. He is not sure of
this date but he does not dispute that the police are correct to
allege that this is the exact date of his arrest. The applicant
insists that he was arrested soon after the commission of the alleged
offences. How soon is his soon? The counsel for the respondent argued
that it took a long time for the police to locate the applicant and
effect his arrest. He continued his argument on the basis that the
alleged offences were committed on 15th September 2000. This argument
is based on the allegations made in the opposing affidavit by
Detective Sgt Mosuhli of Lesotho Mounted Police Service attached to
the Criminal Investigations in Leribe.
of the charge sheet, attached to the founding affidavit, shows this
court that this applicant is facing two charges. In the first count,
he is charged with the crime of murder. The second count is the
charge of Armed Robbery. Both these crimes, are alleged to have been
committed, on the 15lh December 2000.
there is uncertainty, as regards the exact date on which the alleged
offences were committed. The applicant claims he was arrested around
January 2001. He adds, that his arrest happened soon after the
commission of the alleged offence. If the alleged offences were
committed on 15th September, the arrest happened after the period of
approximately four(4) months. On the other hand, if the alleged
offences were committed on 15th December 2000, the arrest which
happened after the commission of the alleged offences was effected on
5th January 2001, the period taken in order to effect such arrest in
approximately two weeks.
deponent of the opposing affidavit claims that it was a struggle to
arrest this applicant. What kind of struggle? What is the nature of
that struggle ? There is no description regarding the nature of the
alleged struggle. The charge sheet clearly shows that the alleged
offences were committed on 15th December 2000. There must be an error
committed by the police when calculating the time it took them to
arrest the applicant.
Even if I
accept that it took the police four months to locate the applicant
and effect his arrest, there must be an explanation by the police
which shows that the delay to locate and effect an arrest of this
applicant was caused by the applicant.
applicant does not question the lawfulness of his arrest. He merely
seeks to be admitted to bail while awaiting his trial.
of this case are not very clearly stated. But at this stage that is
not material because the inquiry now is concerned only with the
question of bail. In brief, this applicant and his companion, one
Ramaphike were found by the police, in possession of a dead body. The
police had earlier on, on the 15th December 2000, received a report
of Armed Robbery being committed presumably at Maputsoe because the
charge sheet indicates that as the place where the alleged offences
were committed. Their investigations led the police to Qoqolosing
where they encountered the motor vehicle they were looking for. The
occupants of that motor vehicle were identified by the police as this
applicant and his companion Ramaphike. They fired at the police who
returned the fire. The mini gun battle ensued. According to this
applicant, he ran away for fear of being caught in the cross-fire.
as reported by this applicant has small variations. He came to be in
that motor vehicle because he had been called to come and help the
person injured by Ramaphike. Ramaphike wanted to take his victim to
the hospital for medical treatment. He went to wake up this applicant
to come and help him. The applicant, Ramaphike and the injured person
travelled in that same car. The injured person died while on the way
to the hospital. Ramaphike and the applicant were still wondering
whether it would be best to take the deceased to the mortuary or
police station when police arrived. The applicant claims that the
police started firing at them and Ramaphike returned the fire.
Detective Sgt Mosuhli who deposed to the opposing affidavit, avers
that the applicant and his companion were still on the run. The
police believed, rightly and wrongly, that the applicant was in the
Republic of South Africa. The Detective Sgt expressed this believe by
the police, in order to support the allegation that they were not
able to arrest this applicant immediately after the commission of the
alleged offences. There was a further allegation that it was
difficult and the police struggled to arrest this applicant. What
caused the difficulty? What was the nature of the difficulty ? It is
not helpful to make unfounded and unsupportable allegations. There
must be a proper description of the problems or difficulties
encountered while in the process or at the time of making the actual
arrest. In other words the suggestion that the applicant is likely to
abscond, must have facts to support it.
applicant and the police had a second encounter on 5th January 2001.
The police immediately effected his arrested. Do the difficulties
alleged by the police relate to this time of actual arrest or are
they relevant to the whole period of four month when they believed he
was in the Republic of South Africa? There is no answer to this
question in the papers filed of record. There is no firm allegation
and the proof thereof that this applicant had in fact run away and
was hiding in South Africa. It is a mere belief by the police for
their failure to arrest the culprit timeously. The mere belief of
absconssion, without actual proof of the facts showing that the
person has absconded, cannot support refusal for admission of that
person to bail.
grounds on which this court is urged to refuse this applicant's
application for admission to bail are :
there is strong case against him
the applicant is charged with two serious offences.
the police struggled in order to arrest him
applications there is no requirement to prove the case against the
accused. This averment, that there is a strong case against this
applicant, begs of the requirement to prove the case that is alleged
to be so strong. The accused remains an accused until tried and
proven guilty. Until then the presumption that the accused is
innocent until proven guilty obtains. The strength of the case
against this applicant at the bail application proceedings may help
to indicate whether or not he will abscond. It cannot be said to
point at no other possibility but that of absconding.
seriousness of the offences with which this applicant is charged,
does not by itself preclude the consideration for his release on
bail. This court almost routinely deals with unopposed bail
application of the persons accused of committing exactly the same
type of offences. There seems to be an established practice by those
accused who are on bail, to attend remands and finally stand trial.
The main consideration for this type of application is whether or not
the accused, if released out on bail, will come back to court to
stand his trial or not. VAN DER BERG 1986 "BAIL - A
PRACTITIONER'S GUIDE PAGE 59. S V ESSAC 1965 (2) SA 161.
true that dangerous murderers and robbers must be kept in prison. But
at the stage where they are only accused, the court cannot by mere
seriousness of the cases they are facing, order their detention.
There must be proof that when released on bail, such accused will
commit similar or the same offences again while on bail. There was no
such suggestion in this application.
for these reasons that bail was granted.
APPLICANT : MR MOFOKA
RESPONDENT : MS L. MOFILIKOANE
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