CRI/APN/731/02

IN THE
HIGH COURT OF LESOTHO

In the
matter between

MAKHOATHI
SHANI TEKESELA APPLICANT

And

DIRECTOR
OF PUBLIC PROSECUTIONS RESPONDENT

JUDGEMENT

Delivered
by the Honourable Mrs. Justice K. J. Guni on the 27th September. 2002

This is
an application for bail. This applicant in his affidavit does not say
exactly where he is being detained. He claims that he was informed in
the presence of his attorney at Maseru subordinate court that he is
charged with the crime of robbery and was incarcerated. He avers that
all along he had been informed that he is facing the charge of
stocktheft. There

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was never
a time when the police gave him the impression that they are
investigating a crime of robbery. It is only at the subordinate court
that the prosecutor preferred a charge of armed robbery against him.
This the applicant alleges was for the sole purpose of ensuring his
incarceration longer than it would be normal in cases of ordinary
stocktheft

This
application is opposed. The deponent of the opposing Affidavit
Inspector Letooane has expressed fear that if this accused is
released on bail he is likely to interfere with the investigations.
The investigator has found that the people are afraid to give
information which might cause them to be called as witnesses or lead
the police to complete to their satisfaction the investigations of
the case. The people seemed to fear reprisal from the accused.
Furthermore there is a statute which authorises the court to detain
the suspect who is alleged to have committed the offence charged with
the use of firearm.

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The
prevalence of stocktheft in this country is spreading like wildfire.
It has devastated the economy of this country. The parliament of
Lesotho has appealed to the government to engage the assistance and
support of the Lesotho Defence Force in its fight against
stocktheives. The piece of Legislation which was enacted recently was
intended to enable law enforcement agencies at least to contain if
they fail to irradicate stocktheft altogether.

This
application is made in terms of Section 109 CRIMINAL PROCEDURE and
EVIDENCE ACT N0.9 of 1981. In terms of this section, this court has a
discretion at any stage of the proceedings taken in any court in
respect of offence to admit the accused to bail. Recently Parliament
found it necessary to temper a little with that discretion. In cases
where the firearm has been used in the commission of the alleged
offence, the court is compelled to order the detention in custody of
the accused person, unless there are exceptional circumstances which
permit and justify the release of such

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accused.
The relevant portion of the amendment reads as follows:-

"109.A.(1) Notwithstanding any provision of this act, where an
accused person is charged with......... (C) robbery and the robbery
involved (1) the use of a firearm by the accused,-------- —.
The court shall order that the accused person be detained in the
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." (My underlining.)

The
applicant in his affidavits seems to be questioning the proprietary
of the charge preferred against him. He claims that the members of
the Lesotho Defence together with the complainant arrived at his
residence on 27th July 2002. There the complainant recognised and
identified 4 sheep and 37goats as his.

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Those
identified animals were together with the applicant taken to MOFOKA
POLICE STATION. At this police station the applicant found 275 sheep
which the police have collected from his cattle post. Amongst this
livestock the complainant recognised and identified 21 sheep as his.

After
this search and find, the applicant was advised by the police to go
home and to report himself at MABOTE POLICE STATION on Monday. The
search and finding of the recently stolen livestock must have been
conducted during the weekend. The offence of robbery is alleged to
have been committed during the month of April 2002. The Act-(CRIMINAL
PROCEDURE and EVIDENCE (Amendment) Act 2002) was enacted on 23rd
April 2002. The prevalence of the Commission of this type of offence
put pressure on Parliament to enact this law. It is ironical that as
the parliamentary debate on the subject matter of violent crimes went
on, so was the commission of the alleged offence.

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The
perusal of the affidavits and annexures filed of record shows that
this applicant has been accused on a few occasions of stocktheft. He
claims that everytime he was accused of stocktheft he was always
released. This time the prosecutor has with possible malace contrived
to charge him with robbery for the purpose of securing his detention
longer than normal.

The
applicant is entitled to rely on the police previous practice. But he
must also realise that if the practice has not been helpful for the
purposes of enforcing the law such practice will be changed. The
change was brought about by the passing of the statute. It was not of
the personal making of the public prosecutor. The law was changed by
Parliament. Perhaps it is a general feeling that since the thieves
seem to over power herdboys by using firearms when they forciably
take and remove from them the stock under their care the crime
committed is therefore serious enough to warrant equally serious
measures to contain it.

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The
criticism levelled against the police and/or public prosecutor does
not help this application. It is the right of the prosecutor to
choose to charge the accused of the offence disclosed by the facts in
his or her possession. The applicant in his affidavit does not adduce
evidence which satisfy the court that the exceptional circumstances
exist which in the interest of justice permit his release. The choice
of the charge to be preferred against the accused is the prerogative
of the public prosecutor. The accused is in no position to challenge
the authority and/motive of the public prosecutor. It is his/her
exclusive right and previledge to prefer the charge disclosed by the
facts before him or her.

The
applicant herein is charge alone. His allegation of discrimination
has no basis. There might have been others who were questioned by the
police for their possession of the stock suspected of being stolen.
Their case is not before court for the consideration. The
circumstances surrounding their release is a matter between them and
the police. There also

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might be
those occassions where as the applicant claims, he was told by the
police that the livestock found in his possession is suspected of
being stolen. What the police claim to be investigating is not
necessarily the change which the Public Prosecutor must prefer
against the said accused. The explanation given by the public
prosecutor that it is the perusal of the docket which disclosed to
her that the firearm was used in the commission of the alleged
offence; therefore she felt, correctly I must add, that the charge of
robbery is a competent one in the circumstances. The said charge was
not preferred purely for the purposes of securing the incarceration
of this applicant. This applicant has directed his attack on the
competency of the charge preferred against him. He has not shown as
required under the statute that there are exceptional circumstances
which justify his release. In this respect this application must
fail.

The
applicant has not shown to the satisfaction of this court that there
are exceptional circumstances which would in

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the
interest of justice permit an order of his release. Therefore the
application is dismissed.

K.J. GUNI

JUDGE

For
applicant - Mr. Sello

For
respondent - Ms. Nku

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