HIGH COURT OF LESOTHO
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
by the Honourable Mr Acting Justice T. Nomngcongo On the 10th
application for bail was launched on the 25th July 2002 on a
certificate of urgency and set down for the following day. It did not
proceed that day. 1 assume the reason was that the state was going to
oppose the application and they needed time to file their opposing
papers. It was postponed to the 2nd August 2002.
reason, not apparent from the record it did not proceed on that day
either. On the 3rd of September it is recorded simply "Mr Mda
absent". The application was finally heard before me on the 11th
November, almost two and half months from its launching. I may also
indicate that when it was so launched the applicant had been in
custody for no less than twenty days.
here to ask what occasions the sudden urgency in moving this
application. The brief history outlined above evinces a singular
sense of leisureliness, yet when he moves court the applicant invokes
urgency. 1 close the chapter by remarking that the court frowns upon
being put on full alert when there is no imminent danger.
applicant is charged with the murder of Maile Mosisili allegedly
committed on the 11th February 2002. He was arrested on the 1st July
2002. Considering that the applicant is a member of the Lesotho
Defence Force who lives within the Maseru urban Area at Makoanyane,
this suggests to me that the investigations that led to his arrest
could not have been easy. It is common cause that shortly after his
arrest an identification parade was held. There he was identified b\
one Lineo Sello as the person who had asked her to lure Maile
Mosisili (the deceased) to a place where he
shot and killed him. As expected, it is categoritly denied by the
applicant that he shot and killed the deceased or that he in any way
participated in his murder as, at the time of the alleged murder, he
was busy with his thesis for a Masters Degree.
applicant says following his arrest he was severely tortured at the
hands of the police. Of course, the police would never admit this
sort of allegation and so it is denied by Inspector Sello Mosili in
his opposing affidavit, (par 4 thereof). He was finally formally
remanded in custody by a Magistrate on the 4th July 2002. One also
gathers from para 5 (g) of the petition that applicant is charged
together with one Paka Mahao a friend of his and another person who
is a stranger to him. He says he was never in their company on the
alleged night of the murder.
against this background that applicant asks this court to release him
on bail. He assures the court that as a Lesotho citizen, a member of
the Lesotho Defence Force with rather impressive academic credentials
he would never leave his beloved country and family. He is neither
desirous nor able to start a new life elsewhere. The administration
of justice will not suffer or be prejudiced if he is released on
opposition to this application Inspector Sello Mosili raises several
salient points: (1) Applicant was identified by Lineo Sello as
aforesaid earlier. I must point out there that it is also alleged
that Lineo Sello is well known to applicant. (2) Applicant pointed
out a gun from his residence at Makoanyane - I cannot ignore
suggestion here that it might be the murder weapon. (3) Applicant
pointed out the murder scene - the plain, though not stated
suggestion being that applicant had guilty knowledge. (4) Applicant
also pointed out Paka Mahao as being his accomplice in the murder.
applicant replies that Lineo is not known to him. He produced the gun
in question after interrogation regarding possession of a firearm
which he freely admitted to having. He was actually led to the scene
and not vice-versa. He never implicated Paka Mahao.
thus positioned themselves the applicant, and indeed the respondent
approached this application as if the Criminal Procedure and Evidence
(Amendment) Act 2002 Sec. 2 were applicable here. The section reads
"2. The Criminal procedure and evidence Act 1981 is amended by
inserting after section 109 the following new-section:
"power of court to certain accused on a charge of murder, rape,
Notwithstanding provision of this Act, where an accused person is
charged with :
(a) murder under the following circumstances
(i) the killing was planned or premeditated and the victim was.
A) a law enforcement officer performing his function as such whether
on duty or not at the time of the killing or is killed by virtue of
his or her holding such a position.
person who has given or was likely to give material evidence with
reference to any offence referred to in Part II of schedule I.
(ii) the death of the victim was caused by the accused in committing
or attempting to commit or after having committed or attempted to
commit rape, robbery, stock theft, theft of a motor vehicle, and
(iii) the crime was committed by a person group of persons or
syndicated acting in the purported execution furtherance of a common
purpose or conspiracy.
shall order that the accused person shall 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"
argument presented was almost entirely devoted to showing whether or
not "exceptional circumstances" exist which in the
interests of justice permit the release of the applicant and touching
on the constitutional implications thereof.
Now it is
clear from the reading of the amendment that it is not just any of
the crimes of murder, rape, or robbery for which it may he invoked.
It is for those crimes, but in the special circumstances listed in
it, namely that:
killing was planned or premeditated, and the victim was a law
enforcement officer about his duties or a person likely to give
material evidence in a case involving certain offences.
victim was killed in the commission on attempted commission of
crime was committed by a person or group of persons or syndicate in
the execution or furtherance of a common purpose or conspiracy.
within these limited confines that an accused persons must be called
upon to give evidence that "exceptional circumstances"
exist warranting his release. Now, it has not been shown to me either
on the charge sheet, the papers submitted for the applicant and the
respondent or indeed in argument that the circumstances envisaged by
the amendment exist. It follows therefore that this is an ordinary
application in a case of murder unattended by the prescribed
circumstances, so that the ordinary considerations in a case such as
this are to be taken into account in deciding it.
to be admitted to bail is recognized by the Common Law, the
Constitution of the Kingdom (sec.6 "5") and by Statute
(sec. 109 of the Criminal Procedure and Evidence Act 1981). If an
accused persons is able to prove that he will stand his trial and
that the interest of justice or society as it is sometimes put, will
not be prejudiced, then he must be released on bail. Thus it will be
seen that it is a less onerous burden than proving the existence of
"exceptional circumstances" as envisaged by the amendment
earlier referred to. It seems to me however that especially in the
case of opposed bail applications the crown, first of all must prove
that it has & prima facie case. In its turn, the crown's
this regard is lightened considerably compared to its normal proof
"beyond reasonable doubt" required in a criminal trial
proper. The reasons for this have been aptly put in S. v Shietekat
1998 (2) SACK 707 at 713.
"Bail proceedings are sui genesis. The application may be
brought soon after arrest. At that stage all that may exist is a
complaint which is still to be investigated. The state is thus not
obliged to produce evidence in the true sense. It is not bound by the
same formality. The court may take into account of whatever
information is placed before it in order to form what is essentially
a value judgment of what an uncertain future holds." Per
Slomowits A. J.
present case I respectfully adopt this approach what the state has
presented before me as implicating the accused in the commission of
the alleged murder falls far short of what may be called evidence in
the true sense. The alleged pointing out of the scene of accident and
the production of the murder weapon are as Mr Mda pointed out
colourless and they most certainly do not meet the requirements of
this type of evidence. The witness Lineo Sello is supposed to be well
known to the accused, yet the police find it necessary to hold an
identification parade. These are a very unsatisfactory aspects of the
case that the state says it has against the accused. But that is not
the proper approach at investigation level: These may just be leads
yet to be followed up. They cannot
out of hand in a bail application. In the circumstances I am not
prepared to say out right that the state has not made out a prima
facie case. This then puts the ball in accused's court so to speak.
says in motivating his application that he did not commit the offence
and was not at the scene of crime. Against this state has adduced the
sort of evidence I have just referred to above. He goes on to
indicate that at the time of the alleged commission of the offence he
was busy preparing his thesis for a Masters programme which he was
due to present shortly. This is confirmed by a letter emanating from
the relevant academic institution. His defence in short is one of an
alibi. I doubt that more could be expected of an accused in these
circumstances, especially one who is in custody and cannot be
expected therefore to gave confirmatory evidence.
accused says he has a mother whom he supports, he would never leave
his beloved country for any reason, has no connection with any
country outside Lesotho, and he has neither means nor desire to leave
this country. None of this is denied by the state. The opposing
affidavit of Inspector Sello Mosili is content with merely saying :
" I have the considered opinion that if the petitioner is
released on bail the gravity of the offence and the prima facie
evidence against him will ensure that accused absconds (sic) and does
not stand trial. I also have a real fear the witnesses relating to
this case will be interfered with as the accused knows the crucial
supporting affidavit of Crown Counsel Ms L. Makoko merely echoes the
above sentiments. It says
"I have read the docket in which the applicant is charged with
the crime of murder. I have also had the opportunity to interview the
investigating officer in the matter. It is my humble submission that
if released on bail, the applicant will hamper the course of justice.
Upon conviction he will face a long jail sentence. I humbly request
this honourable court (sic) not to grant bail as "Mole Kumalo
will abscond if granted such".
respect what the deponents do here is to state the obvious that
accused is facing a serious charge and from that draw all sorts of
conclusions: That he will not stand, he will interfere with
witnesses, he will hamper the course of justice. No attempt is made
to lay a basis in fact for these conclusion including that conviction
is a forgone. Why, Ms. L. Makoko says "upon conviction he will
face a long sentence". My underlining. The objection to this
kind of approach was staled thus by the Court of Appeal in Jonny Wa
Ka Maseko v Attorney General and another 1993 - 94, LLR & LB 207
"It is insufficient merely to state a conclusion without
supplying some information on which such conclusion or suspicion is
based." Per Ackermann J.A.
regards the conclusions of the D.P.P. represented by the deponent,
Crown Counsel Ms L, Makoko Steyn P. in Matsoso Bolofo & Others v
The Director of Public Prosecutions p. 118 at 139.
"The attitude of the D.P.P. is a relevant consideration, however
evidence is required in order to enlighten the court as to why he has
adopted such a view".
quoted with approval Didertt J. in S. v Limmane 1976 (2) 204 at 211
" Although the opinion of the Attorney General always commands
respect because of his experience and responsibilities of his office,
it seems to me that once it is evident that he is no belter informed
than the court, it is as good a position as he to assess the
likelihood as otherwise that an accused person will abscond".
considerations whether accused will abscond mentioned in Bolof's case
(supra) at 137 are and I quote"
"(a) how deep are his emotional, occupational and family roots
within the country where he is to stand trial."
accused has met and answered squarely: he loves his country, he is a
soldier and has a mother whom he supports.
"(c) what are the means that he has to flee the country"
and this is uncontroverted, that he has neither means nor desire to
I am also
attracted to another consideration, still in Bolofo's case
(j) how stringent are the conditions of his bail and how difficult,
it would be for him to evade effective policing of his movements.
applicant is a soldier who lives in the barracks. Surely it would he
easy enough to police him in such an environment.
it is said that the accused will interfere the witnesses "as the
accused knows the crucial ones." As far as we know, there is
only witness who is alleged to be known to the accused, Lineo Sello
and that is denied anyway. Which are the other "crucial ones"?
If it is Linco surely the accused had ample opportunity to interfere
with her in the period between the murder on the 11th February and
his arrest on the 4th July, when he must have known that serious
investigations were under way. There is not any indication that he
conclude that the applicant has discharged the onus of showing on a
balance of probabilities, that the interests of justice will not be
prejudiced by his release on bail and that he will stand his trial. I
accordingly grant him bail on the following conditions:
accused to deposit Ml,000.00 with the Registrar.
accused not to abscond, but to stand his trial and abide the
judgment of this court.
accused not to interfere with crown witnesses in anyway.
accused not to hamper police investigations.
accused to report himself to the officer in charge at the Makoanyane
barracks, daily between the hours of 6 a.m. and 12 noon.
recognizances be served upon such officer.
Thetsane - for Crown
Mda - for Defence
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