CRI/APN/27/83

IN THE
HIGH COURT OP LESOTHO

In the
matter of :

REFUOE
SHESHE Applicant

V
DIRECTOR OF PUBLIC PROSECUTIONS Respondent

JUDGMENT.

Delivered
by the Hon. Mr.Justice M.P. Mofokeng on the 20th day of April. 1985.

This is
an application for ball. The applicant is charged with the murder of
one Mosese. The death occurred on the 26th November
1982. The
preparatory examination has been concluded and Crown Counsel has
informed the Court that the applicant's case is set
down on the roll
for cases to be heard during October. At present the applicant is
being kept at a remand Centre of the Central
Prison, Maseru.

There is
no dispute that the applicant is about 19 years of age.

The
applicant states in his affidavit that he fought with the deceased at
Hotel Mount Maloti at Hlotse and that in all "probability"

the deceased died of the injuries caused during the said fight. He
further states that the said fight was caused by assaults on
him by
the deceased;

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deceased
threatening him with his pistol. These assaults, he states, were
unprovoked. At the time of this episode he had just returned
from
Venterspost where he worked in order to save enough money to enable
him to return to school. He resides at Lisemeng in the
township of
Hlotse. He undertakes among other things, if granted ball, to
surrender his travelling document; not to interfere with
Crown
witnesses; to stand trial and abide by any other conditions that this
Court may impose.

Detective
Sgt. Thoora Lepelesana in an affidavit in opposition to the
applicant's application does not deny what the applicant has
averred
but states that he is in charge of the criminal investigations in the
"Criminal case in which the applicant is charged
with murder of
Lance sergeant Sello Samuel Mosese who was, at the time of his death,
attached to my department (My underlining).
In his opinion the
applicant is likely to abscond if granted bail because he is a member
of a "Street gang calling themselves
"HLOTSE FIGHTING BOYS"
who have "uneasy relationships with the police." Applicant
will, so he concludes, not
abide by the conditions of bail. It is not
explained what the phrase "uneasy relationships" mean in
the context in which
it is used here.

After
interviewing this "investigating officer," the Director of
Public Prosecutions makes an affidavit and solemnly says
that he is
"of the opinion that it would be prejudicial to the interests of
justice if the accused were to be granted ball,
regardless of the
condition.

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In reply
to these affidavits the applicant, as he was entitled to do, denies
that he was a member of the said gang which, in any
case was formed
in his absence and he "never subscribed to it in any way."
He repeats that he resides at Hlotse and can
report at Hlotse Police
Station in as "many occasions as this Honourable Court should
direct." He denies that he is going
to abscond and aays he shall
stand his trial.

It is
unfortunate that the investigating officer in this matter is a person
who was so closely associated with the deceased. It
is therefore
obvious that he cannot approach the question of what has befallen his
colleague with a detached mind. It were far
better if another officer
from another station were brought in to conduct the investigations.
As it is, the assessment of Detective
Sgt.

Lepelesana
cannot be said to be colourless, however much one may wish. It can
never be seen as such by an ordinary person of the
class of the
accused. He is an interested party as far as the applicant is
concerned. In my view, he has not done enough to negate
the facts
placed before the Court by the applicant.

It has
been held that an affidavit by the Director of Public Prosecutions
must be seriously considered. (Meyer v Director of Public

Prosecutions. 1977 LLR. 161 at 164) but when his only source of
information is, in his own words: "the officer in charge of
the
investigation" i.e. Detective Sgt. Lepelesana, who has an even
greater interest in the outcome of the case, and cannot
be said to be
impartial, then the opinion of the Director

of Public
Prosecutions

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cannot,
in my view, be said to have been well founded. His apprehensions in
the circumstances cannot be said are justified coming
as they do from
such a source. (Soola v Director of Public Prosecutions. 1981(2) LLR.
277 at 280).

As was
said by the Chief Justice T.S. Cotran in Meyer's case (supra) at page
163 :

"The Courts, as well known, lean towards the liberty of the
subject in bail applications pending trial, but it is necessary
to
strike, a balance, as far as that can be done, between on the one
hand the liberty of the individual, and safeguarding and ensuring
the
proper administration of justice on the other. (See Essack 1965(2)
S.A. 161 (C) at p.162).

The main
considerations are said to be :

1. Will
   the accused stand trial or will his freedom give him the incentive
   to flee.

   
   

2. Will
   he interfere with the Crown or other witnesses in an effort to
   thwart or defeat the course of justice.

   
   

3. Is
   the nature of the crime and its punishment serious enough to warrant
   incarceration before trial."

   
   

Considerations
(a) and (b) have been adequately dealt with by the applicant in his
affidavits. He has been candid with the Court.
He has not, for
instance denied that he caused the injury which probably led to the
death of the deceased. The Crown by now knows
the line of defence he
will adopt at his trial. He has been fair to everybody concerned. It
is perhaps informative to refer to
the Court's file and note the
endorsements therein by the Honourable The Chief Justice end the
Honourable Mr. Justice Molai respectively.
On the 22nd March 1983 the
endorsement reads: "Peete to

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to study
docket." By then the preparatory examination had been held and
completed on the instructions of the Director of Public
Prosecutions.
Yet Crown Counsel is only going to study the docket. However, the
application was postponed to the 28th March 1983.
But on that date
the following endorsement appears : "Mr. Kolisang before Court.
Mr. Peete (Crown Counsel) not in attendence."
The application
was, in the absence of the Crown's representative postponed to the
5th April 1983 and on that day it was by consent
postponed to the
18th day of April 1983 when it was finally heard.

The
applicant could rightly, in my view, have insisted that his
application be disposed of when Crown Counsel was absent and no

reason being given. The applicant was plainly being thwarted in
exercising his legitimate right. But because he had nothing to
hide,
he wished to afford the Director of Public Prosecutions the
opportunity he required. This is again demonstrated by the fact
that
the founding papers were served at the offices of the Director of
Public Prosecutions on the 16th March 1983 notifying him
that the
application would be heard on the 22nd day of March 1983 at 9.30 a.m.
But a notice of intention to oppose was only, filed
on the 24th March
1983 and that being its date on which it was signed in the Director
of Public Prosecutions' office and so were
the two affidavits. This
is briefly the treatment accorded the applicant from the moment when
he lodged his present application.
As I said earlier, despite this
treatment meted out to him, he remained fair to everybody concerned.

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As to (c)
the killing of a person is always regarded as a serious matter
whatever that person's station in life. But even in serious
cases the
courts never use that as the sole creterion for disallowing bail
applications. That would be arbitrary. Persons have
been granted bail
even where gruesome crimes have been committed. In the words of
Rooney, J. in Ramakatane v Rex. 1979(2) LLR.
531 "the general
principles governing the grant of bail as set out in many cases are
that the court must uphold the interests
of justice .... The Court's
task is to balance the reasonable requirements of the state in its
interest in the prosecution of alleged
offenders, with the
requirement of the law as to the liberty of the subject. The
presumption of innocence operates in favour of
the person seeking
bail even where it is said that there is a strong prima facie case
against him. If on the other hand there are
indications that the
proper administration of justice may be defeated if an accused is let
out on bail a Court would be fully justified
in refusing ball."

I am not
satisfied with the Director of Public Prosecutions apprehensions. The
applicant is a juvenile; he has discharged the onus
which rests on
him on a balance of probabilities; he has been candid with the Court.

I order
as follows:-

(i) that the applicant be released on ball on payment of a sum of
M100.00 to the Registrar;

(ii) that he surrenders his passport and all his travelling documents
to the Registrar;

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(iii) that he shall not leave the Hlotse area without the written
permission of the Clerk of the Court first had and obtained;
except
when attending his trial or in connection therewith;

(iv) that he shall not communicate directly or indirectly with any
person known to him to be a witness for the prosecution (other
than a
member of his own immediate household) from the time of his release
to the conclusion of the trial;

(v) that he shall report to the police Station at Hlotse every
Monday, Wednesday and Friday between the hours of 6.00 a.m. and
12.00
noon.

(vi), that he shall attend his trial whenever required to do so.

JUDGE

20th
April, 1983.

For the
Applicant : Mr. Kolisang

For the
Crown : Adv. Peete.