HIGH COURT OF LESOTHO
RASEKONE FIRST APPLICANT
KHATALA SECOND APPLICANT
OF PUBLIC PROSECUTIONS RESPONDENT
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 25th
day of September, 1992.
Applicants : Mr. M.F. Fants'i
Respondent : Mr. L.L. Thetsane, Senior Crown Counsel
& Ors. v P.P.P. CRI/APN/321 & 330/91 Unreported;
v Attorney-General & Anor. (1941) WLD 43;
v R (1906) T.S. 659;
v R (1974) - 1975) L.L.R. 272.
applicants are jointly charged with the murder of one Majakathata Moi
on the 30th June, 1991 at Ha Mothebesoane in the district
They made separate applications for bail, but it is convenient to
deliver a composite judgment.
common cause that the death of the deceased arose out of the arrest
of the son of the second applicant, by a group calling
"Anti Stock Theft Unit", on 29th June, 1991. On 30th June a
group of mounted and armed men, including both
pursuit. The first applicant's founding affidavit in part reads thus:
"5. At Ha Rakoto we saw the men. They started shooting at us and
deceased was near me. He was hit and died instantly. Thereafter
fight stopped. We attended to the deceased. I must mention that when
we left home I had taken my 303 rifle however when the
started I tried to use it but it was not in working condition.
After the fight we went to Sefikeng Police Station. I was arrested
and questioned about my gun. I explained everything. Thereafter
released and told to report at the Police Station every week. I have
done that from June, 1991 until I was arrested on the
1992 and charged with murder of deceased.
have not killed anybody - my gun was out of Order on the unfortunate
date. I undertake to stand trial. In any event I have been
myself for over a year at Sefikeng Police Station post."
second applicant's founding affidavit in part reads thus:
"6. On the 30th June, 1991 the chief detailed a group of my
village men to find where my son was and the deceased was one
I must mention that we were armed and I had my 303 rifle.
Ha Rakoto we saw the men and even before anything was said they
started shooting at us. The deceased was hit by their bullet
died instantly. The fight stopped.
the fight we went to Sefikeng Police Station post and made a report.
I was released and told to report every week. I have
every week from June, 1991 until I was arrested on the 6th August,
1992, and charged with murder of the deceased."
of the two affidavits, which in the extracts above bear similarity,
creates the distinct impression that the deceased
was a member of the
pursuing armed group. The Crown opposes the application however, and
have filed opposing affidavits from four
potential witnesses, three
of whom depose that the deceased was a member of the Anti Stock Theft
Unit. That aspect is not denied
by either applicant in their replying
The effect of their founding affidavits therefore is to deceive the
Court into thinking that the deceased was killed
by other than any
member of the pursuing group.
opposes the grant of bail on the sole basis of a well grounded fear
that the applicants, if released, will interfere with
Crown witness, a member of the Anti Stock Theft Unit of Berea,
deposes that the first applicant threatened her and
her husband, in
May and July of this year. Some days after the first threat, someone
set fire to their house. As her husband works
in the mines she feared
living alone, and went to live with her husband's family.
Crown witness, aged 86 years, also a member of the Anti Stock Theft
Unit, deposes that on the occasion when the deceased
met his death,
the first applicant said that he and the second applicant were going
to "fix" the deponent and his companions.
On 1st July, 1991
the applicant carrying a rifle, came to the witness and said
"... that he had since been gunning for my blood and that he was
going to fix all the so-called anti-stock theft unit members
further threatened to burn my houses .... Ever since applicant made
these threats my houses got burnt on three occasions
then another affidavit from a 63 year old member of the Anti Stock
Theft Unit, who deposes that on 30th June, 1991, apparently
deceased had met his death, he and some colleagues were surrounded by
the group of armed men, including both applicants,
and were driven to
the police station, en route to which they were severely assaulted by
their attackers. He maintains that it
was he and his companions and
not the applicants, who were detained for four days by the police.
investigating officer has also sworn an affidavit deposing that
"there have been numerous mysterious cases of arson affecting
people who are potential witnesses for the prosecution" and that
the delay in arresting and charging the applicants was caused
fact that witnesses were in fear and were reluctant to come forward.
applicants in their replying affidavits deny that they made any
threats or were in any way involved in the burning of any houses.
I observed in the case of Sehlabaka & Ors. v P.P.P. (1) at p.56,
there was in that case, as there is in this case, at least
evidential burden upon the applicants in the matter. Two matters put
me cm enquiry. Firstly, the applicants have plainly attempted
deceive the Court in their founding affidavits; secondly they are, on
their own affidavits, men of violence, who were prepared
to resort to
firearms and to take the law into their own hands, that is, if it
could be said that the
applicant's son had been unlawfully arrested in the first case.
circumstances I am satisfied that if the first applicant is released
there is a reasonable possibility of interference
with witnesses. As
to the second applicant, even his founding affidavit, in the way it
is framed, reveals a close alliance with
the first applicant, and
while there is no evidence of his threatening any potential
witnesses, I consider in all the circumstances
that there is a
reasonable possibility of such interference.
has made no allegation that the applicants are likely to abscond. But
that is not conclusive. The Court nonetheless has
a duty in the
matter: see the case of Maserow v Attorney General & Anor. (2)
per Murray J. at pp.45/46, to which I referred
in Sehlabaka (1) at
I do not
wish to enquire into the evidence in this case. Nonetheless, I must
be in a position to assess its strength to some extent.
It is rare
that the Director of Public Prosecutions opposes bail, and as the
Court considered at length in Sehlabaka (1) the Director's
must weigh heavily with the Court. In the present case, a Crown
Counsel has filed an affidavit on behalf of the Director,
in which he
opines that "there is more than overwhelming evidence that the
applicants committed the crime with which they
On the papers before me
no evidence as to who killed the deceased. What emerges however is
that he was killed by one or more members of an armed
mob, who set
out on horseback, armed with rifles, with the plain intention of
doing violence. There is a strong prima facie case
of common purpose.
There is then a strong prima facie against both applicants in respect
of a crime committed in the gravest of
C.J. observed in the case of McCarthy v R (3),
"A man is always more likely not to stand his trial where the
indictment against him involves the risk of his life."
observed in Sehlabaka at pp.51/52,
"This consideration always operates, no matter what assets or
family ties or obligations the accused may have. It is for that
reason that "in cases of murder great caution is always
exercised in deciding upon an application for bail". It is a
notorious fact that it is a matter of relative ease to cross the
borders of Lesotho in mountainous regions, without detention.
Cotran J. (as he then was) observed in Moletsane v R (4), surrender
of a passport, or repeated reporting to the police, does
necessarily prevent escape."
the circumstances I am also satisfied that if the applicants are
released, it is likely that they will abscond. I am accordingly
satisfied that it is likely that the administration of justice will
be prejudiced by the release of the applicants. In all the
circumstances therefore the
at Maseru This 25th Day of September, 1992.
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