HIGH COURT OF LESOTHO
MAKUBETSE 'MASERETSE Applicant
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Applicant: Mr Mpaka
Respondent: Miss Ntelane
by the Honourable Mr. Justice T. Monapathi on the 8th day of November
application the Applicant a taxi owner of above average means, seeks
to be released on bail on terms and conditions as set out in the
In bail applications:
Court is leans towards the liberty for the unconvicted accused rather
than towards incarcerating him, even to the extent of taking a risk.
A risk can be reduced by suitable conditions. Three main factors are
taken into account, namely -
risk that the accused might not stand trial;
chances that he might commit another offence before his trial; and
possibility that he might interfere with the corner of justice."
(First re-issue) para 211 at page 151.
submitted that Applicant has roots in this country and has vested
interest(s) within the jurisdiction of this Court. Secondly his
movements can be easily traced by police as he contended the evidence
had shown. Thirdly that there were no direct evidence linking or
implicating Applicant to any threats in Lesotho. The application was
strenuously opposed by the Crown.
forefront of the Crown's opposition was the ground that the Applicant
was unlikely to stand trial. In addition that the seriousness of the
crime would encourage him to abscond. Lastly, that there was an
extreme likelihood of his interfering with potential Crown witnesses.
is charged with two counts of murder and unlawful possession of a
firearm. The latter is a 357 Magnum revolver with a serial number
necessary at the onset to state that the Applicant has allegedly
killed his mother and his elder brother (Monyane). It was after a
feast at Mpatloane in
district of Butha Buthe. The dispute was allegedly over a piece of
land which was said to have been allocated to the Applicant's
deceased brother as a result of a family decision. It is said that
the Applicant ultimately built on the land without any consultation.
been tension between Applicant and his deceased brother over the
issue of the land. There was evidence that there were threats and
statements of ill-feeling by the Applicant and his eldest brother
(Letsoko). It is this eldest brother who pressurized for holding of a
family meeting over the disputed piece of land after the said feast.
The aftermath of this family meeting resulted in shooting of the two
deceased people by the Applicant immediately after or at the end of
witnesses testified, in this Court, to having been present during the
fight or were at the immediate vicinity. It was Mamolungoa Maseretse
(PW 2) (Applicant's younger wife) and Applicant's junior sister,
'Mataba (PW 6). It emerged that the Applicant was polygamous. It was
not disputed by Mr. Mpaka in the circumstances there would be
established a prima facie case by the Crown. This indicated (if
unrebutted) the likelihood of the Accused being convicted of serious
offences with which he stands charged.
said killing Applicant is said to have travelled back to Soweto
Gauteng in South Africa. He was after a few days arrested while at
the Caledonspoort border gate where he was going to renew his six
months border entry permit. Applicant said his intention was to
re-enter Lesotho and report himself at Butha-Buthe Police Station.
This supported that Applicant had before not taken any steps to
report the incident. Applicant said he had since learned that his
injured brother and mother had died.
common cause that the Applicant has an original family home and his
other home in Mpatloane in Butha Buthe where his second wife
'Mamolungoa resides. His real family roots are, as he said, in
Mpotloane, Butha Buthe district. Applicant is also resident in Soweto
Gauteng in the Republic of South Africa where he has a home and
another or senior wife.
considered that due to the seriousness of the offences and the
mobility of the Applicant he was more likely to be attracted to
making himself unavailable in the jurisdiction of this Court. While
the expectation of a heavy sentence may induce the Applicant to
abscond with or without a passport or identity document it may
equally induce him not to come to Lesotho while in South Africa.
without a passport the option of an accused persons are numerous in
view of the porous border between Lesotho and South Africa. I may
easily take judicial notice of the fact that without a working
extradition treaty between Lesotho and South Africa the situation is
even more desperate.
is in possession of South African identity documents having last had
a Lesotho passport in 1978. In those South African documents the
Applicant uses the name Kgotleng which is the family name of his
mother or mother's relatives. Indeed it was undeniable that Applicant
has been using the surnames Maseretse and Kgotleng interchangeably.
Even most witness who interacted with Applicant in the Republic of
South Africa generally used the name 'Maseretse. I thought the fact
of Applicant using another name was not so significant as long as
this was known and he had a fixed abode.
averred he is in the business of running long distance taxis on the
Butha-Buthe Gauteng route. As a result Applicant's frequents both
destinations almost daily due to the nature at his business
operations and family commitments. This was not denied by the
Respondent. At the same time it is unarguable that the Applicant has
a veritable foothold in South Africa which cannot be ignored for the
purpose of these proceedings. It is because it is a weighty
consideration. In any event every applicant will say under oath that
intention of failing to stand trial. As Kroon J says in S v Lukas and
Others 1991(2) SACR 429(E) at F-H:
"However, this in my view is not the end of the matter. In the
case of S v Hudson 1980(4) SA 145(D) one had a case in which a
similar situation occurred and at 148 Thirion J is reported as
"When an accused applies for bail and confirms on oath that he
has no intention of absconding, due weight has to be given to who
does not have such intention is hardly likely to admit it, implicit
reliance cannot be placed on the mere say so of the accused. The
Court should examine the circumstances."
directed that viva voce evidence be led into the inquiry. As the
commentator Saber Ahmed Jazbay about SCHIETEKAT v S  1 ALL SA
"Bail applications are sui generis. The State is not bound by
the same formalities in trial proceedings. It may place before the
Court any information of what an uncertain future bolds." (My
led the evidence of five witnesses in support of its opposition to
the application and the Applicant testified on his own behalf. The
six witnesses were Sakaria Sefali, 'Mamolungoa 'Maseretse, John
Lebaka, David Mokuena, Tsepo Matsaba and 'Mataba 'Maseretse.
submitted that the Crown case has established a credible case upon
which the Court ought to decline to exercise its discretion in favour
of releasing the Applicant out on bail. It based its submissions on
the following grounds. Firstly, the Applicant has killed two close
relatives which killings amounted to a serious crimes having been
committed on the flimsiest circumstances. I agreed with respect. I
say so because even if the family meeting failed to resolve the
misunderstanding it should have led to other lawful avenues for
example the village chief's intervention. I had a suspicion that the
family meeting had been urged for purposes of bringing about a
there was evidence on behalf of the Crown though the evidence of
witnesses John Lebaka, David Mokuena and Tsepo Matsaba who testified
that they were threatened with death. In particular Tsepo Matsaba
stated that he was shot at and chased by the Applicant. This resulted
in his seeking refuge with the police in Soweto. Although it is not
likely that the above witnesses would be used in the charge before
Court Applicant's attitude is indicated for what it is, of someone
who is likely to commit further crimes. What was shown beyond doubt
was (he propensity of the Applicant towards violence.
I had a
distinct impression that all these three witnesses were testifying to
the truth that the Applicant had threatened the witnesses and that
violent person capable of carrying out his threats. I believe their
testimony for its value. I however questioned whether Applicant's
conduct towards this witnesses was related to the offence with which
he is now charged. I however believed their fears were genuine.
Complaints had demonstrably even been filed with police in Soweto in
relation to some of the threats to the witnesses.
there was the credible evidence of Mamolungoa 'Maseretse (Applicant's
second wife) who stated that Applicant had wanted to kill her. The
witnessed death was scheduled as alleged to follow that of the two
deceased although the threat to this witness was made before the
actual killings. This witness is a clearly potential witness in the
main case against this Applicant. The Court clearly took note of this
evidence which ought to exercise this Court's mind. It did.
the considerations is whether or not the release of an applicant for
bail will not hamper the administration of justice. "Interference
with the course of justice could exist in tempering with prosecution
witnesses or with other evidence of the crime". See LAWSA (First
Re-issue) (211) page 151, approving R v Phasoane 1933 WLD 405.
As I have
already recorded the Applicant carries a South African passport
identity documents (see ID no. 64091 5649 084 -(South African
citizen) - attached to supplementary affidavit of Mamolungoa
Maseretse). This photostat copy of the document's cover, and page 1
(bearing names, date of birth and picture of the Applicant) was
attached to the said supplementary affidavit. This supplementary
affidavit was produced in response to the following statement in
paragraph 3 of the Replying Affidavit. It was to effect that:
"AD PARAGRAPH 8 THEREOF
I submit that although temporary resident in the Republic of South
Africa, Gauteng Province, I am a citizen of this Kingdom and has a
family at Mpatloane, in the Butha Buthe district. For all intents and
of purposes I have vested interests in Lesotho." (My emphasis)
underscored that which I judged to be factually untrue in the light
of what I have already said in connection with Applicant's possession
of a South African passport. I concluded that this was untruthful and
if indicated the disinclination of the Applicant to be candid with
the Court in this respect. In the end Applicant admitted that he was
in possession of the passport. It was under pressure of
information that Applicant had a South African passport seems to have
been in possession of the police. They followed the trail of the
passport having first attended at the Butha Buthe prison to inquire
from the Applicant as
whereabouts of the passport. This the Applicant so suggested although
it was not explicitly or otherwise confirmed by the prison officer
witness as shown below.
investigation by the police led to their going to interview the
Applicant in the Butha Buthe prison. Mr. Mpaka for Applicant
explained that what took place at Butha Buthe prison had been
underhand and had been a kind of interrogation by the police. This
was strongly denied by the Crown. Consequently the Crown called in
the evidence of Prison Officer Sakaria P Sefali on this aspect which
would ordinarily have been peripheral.
Sefali's evidence was as follows: On the 8th October 2000 police
officer Thole and Applicant's friend arrived at the prison to see
Applicant. They made to the Applicant a report in the presence of the
said prison officer. They told the Applicant that the Applicant's
homestead had been abandoned and that his taxis needed a safe place
to be kept. Applicant was asked if he could allow the taxis to be
kept at the Police Station or at his friend's place. Applicant
suggested that before taking any final decision his friend should
bring Applicant's drivers to talk to them before making any decision.
value of the above evidence was to corroborate that of
(Applicant's wife) and 'Mataba (Applicant's) sister that the
Applicant's vehicles and home are having no one to take care of. The
reason they said was the threats and the fear that the witness's had
for the Applicant.
prison officer ended testifying that he had not been aware of any
police officers who may have attended on Applicant in prison. This
surprised me for the reason that the attendance by police was not
irregular and in-permissible in terms of prison rules. Furthermore
the aspect of the alleged interrogation was no longer pursued by the
remarked at the lessening of the fervour with which the question of
police attendance at prison was pursued. Indeed as long as a prison
officer was present when police made any inquiry from the Applicant,
including the whereabouts of his passport as already intimated, I
would not have worried or marked that as irregular. It all depended
on whether undue pressure was applied and on what the prison
regulations prescribed for situations like that.
not for this Court to make any adverse conclusion merely by reason of
the visit by police. The value of the inquiry was that police had
been looking for the Applicant's identity document (as confirmed by
his wife 'Mamolungoa).
observed that not only was the Applicant prepared to disclose that he
African identity document, he was even reluctant to hand it over as
the Applicant himself testified. Applicant said one policeman had
confronted him with the information that there was such a document.
This alleged presence of the passport Applicant denied. The question
would be why he did not disclose all to the police including that he
used many names.
personality of this Applicant is as described by three witnesses as a
person who will most likely became violent when having given a
warning or signal that the intended to do so, the fears of all
witnesses including John Lebaka, David Mokuena and Tsepo Matsaba were
justified. I granted that the threats were not related to the
incidence of the crimes charged. I however could not ignore this as
showing the kind of volatility on the part of the Applicant that did
not augur well more particularly with regard to potential witnesses.
Incidentally the two potential witnesses 'Mamolungoa and 'Mataba
spoke for themselves to buttress the fact that such a fear existed.
submitted that he had roots in Lesotho and that he has vested
interest in Lesotho. Secondly, that there was no direct evidence
linking or implicating Applicant to any threats in Lesotho. Thirdly,
that Applicant's property was unattended and he was currently out of
I looked at a practical situation where as a result of his release in
the absence of a working extradition it could be virtually impossible
to summon the Applicant in Lesotho to attend at trial.
the crimes with which the Accused was charged were cumulatively so
serious and the circumstances such that they would not encourage
Applicant to stand trial.
I was inclined to believe on the evidence of PW 2 ('Mamolungoa) and
PW 6 ('Mataba) that the likelihood of interference with these
witnesses by Applicant was most probable.
considerations influenced me to exercise my discretion by refusing to
grant bail to the Applicant.
stringent bail conditions would not suffice to ensure Applicant's
attendance on his remands or subsequent trial as I concluded. Counsel
had suggested that the following were the terms and conditions. To
pay a substantial cash bail deposit to be determined by the Court.
Periodic reporting at Butha-Buthe police on days and at times to be
fixed by the Court. Submitting of all travelling documents to
Butha-Buthe police. And lastly, that Applicant be
to Butha-Buthe and should only leave when necessary and when
so by the magistrate.
concluded that the Crown had discharged its onus of showing that the
interest of justice require that the Applicant should not be released
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