HIGH COURT OF LESOTHO
Application of :
BERNARD MAHASE Applicant
OF PUBLIC PROSECUTIONS Respondent
by the Hon. Mr. Justice B.K. Molai on the 24th day of February, 1987
applicant herein has moved the court for an order admitting him to
bail on conditions set out on the notice of motion. The Respondent
has intimated the intention to oppose this application. Affidavits
were duly filed by the parties.
appears from the affidavits that in 1984, the applicant was detained
at Mafeteng prison in connection with two charges viz, an
robbery committed at Frasers' shop at Mapotu and a double murder
committed at Ribaneng, presumably in the course of another
trial was proceeding before the Mafeteng magistrate court in respect
of the Mapotu armed robbery, the applicant approached
the High Court
with an application for bell in respect of the double murder charge.
However, on 8th March, 1984 while the trial
at the magistrate court
was continuing and before the High Court could give its decision on
the bail application, the applicant
escaped from lawful custody. When
on 13th March, 1984 the High Court granted his application for ball,
the applicant was, therefore,
no longer in gaol. It is alleged that
he escaped into the Republic of South Africa.
to him the applicant escaped from lawful
because he was being tortured and maltreated. He did not, however,
report to either the local magistrate or the police,
nor is there any
indication that the applicant went to a medical doctor for treatment
as a result of the alleged torture and maltreatment.
I find the
applicant's story of torture and maltreatment unconvincing.
as it may, it was not until 4th February, 1985 that the applicant was
re-arrested and taken back to Mafeteng, presumably
to answer a charge
of escaping from lawful custody and enable the magistrate court to
complete the armed robbery trial, Why it
has taken so long to
re-arrest the applicant it is not clear from the papers. It can only
be assumed that he was hiding from the
July, 1984 the applicant was transferred from Mafeteng prison to
Maseru Central Prison where he is still awaiting trial.
He has now
approached the High Court for an order as aforesaid.
say I do not find it very clear, from the papers, on what charge the
applicant is being detained in prison. It cannot be
on the double
murder charge for on 13th March, 1984, the High Court released him on
bail in respect of that charge. Whether or
not when it did so the
court was aware that the applicant had unlawfully escaped from
custody does not seem to effect the decision
which liberated him on
bail. The applicant cannot, therefore, apply to be liberated on bail
in respect of the double murder charge
while the High Court judgment
which was given on 13th March, 1984, i e. after the applicant had
already escaped from lawful custody,
being so, I can only assume that the applicant is detained in prison
in respect of the charge of escaping from lawful custody.
offence of escaping from lawful custody is bailable before the
magistrate court. There is no explanation given as to why
application should be made at the High Court and not the magistrate
court where the applicant is detained on a charge which
before the latter court.
wished the court to grant him the relief he is
for, in my view, the onus rests with the applicant to take the court
into his confidence and disclose all the material facts.
present case, it is very material for the applicant to disclose to
the court the charge for which he is being detained.
He has not
clearly done so.
result I would dismiss this application.
Applicant : Mr. Sooknanan
Respondent : Miss Moruthoane.
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