HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS RESPONDENT
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 12th
day of October, 1992.
Applicant : Mr. S. Phafane
Respondent : Mr. N. Qhomane, Senior Crown Counsel
& Ors. v DPP CRI/APN/320-321/91 (unreported);
v R (1906) T.S.659;
v R (1974 - 1975) L.L.R.272.
applicant stands charged with murder and with robbery. Re applies for
Director of Public Prosecutions opposes the grant of bail. It is in
the rarest of cases that he does so and due weight must
be given to
such opposition. There is an affidavit from the investigating officer
wherein the latter deposes that the applicant
is likely to abscond if
granted bail. He also deposes that the applicant faces other charges
with intent, stock theft and theft. Further there is an affidavit
from a Crown witness, an eyewitness to the murder
charged, who subsequently identified the applicant at an identity
parade. The latter witness deposes to a fear of being
if the applicant is released.
applicant has filed a replying affidavit in which he deposes that the
identifying witness who attended the identification parade
according to his observation, a child. The applicant also deposes
that the surrounding circumstances of identification, as
the witness' own affidavit, are such as to greatly weaken the
probative value of such identification and that the
identified another on the parade, and only identified the applicant
after a conversation with the police.
be very difficult for the Court at this stage to assess the probative
value of the identification. That can only be done
at the trial. The
point is that here is a witness who says she can positively identify
the applicant as one of two assailants who
robbed her employers of
money, and as the particular assailant who shot her co-employee in
cold blood in the course of that robbery.
That is a prima facie case.
Phafane points to the fact that the applicant voluntarily surrendered
to the police and to the fact that there was no interference
witness beforehand. Mr. Qhomane
that the witness only emerged as a Crown witness at the
identification, parade when the applicant was already in custody.
Phafane has referred me to a number of authorities, but each case
must be decided on the particular facts of that case. In this
I proceed only on the facts of the present charge sheet faced by the
applicant. I do not see that the existence of other
necessarily add to the Crown's case. As to the principles involved,
they are trite, and for convenience I adopt what I
said in Sehlabaka
& Ors. v DPP (1).
of the present case reveal the gravest combination of offences, a
murder committed in the course of an armed robbery,
in respect of
which the applicant, if convicted, faces the gravest of penalties.
clearly in such circumstances, there must be a reasonable
apprehension of interference with the sole identifying witness.
not necessary for any previous interference to have taken place for
such reasonable apprehension to exist.
As to the
risk of absconding, as Innes C.J. observed in the case of McCarthy v
"a man is always more likely not to stand his trial where the
indictment against him involves the risk of his life."
as I 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 detection.
Cotran J. observed in Moletsane (3), surrender of a passport, or
repeated reporting to the police, does not necessarily prevent
the circumstances I am satisfied that if released it is likely that
the applicant will interfere with the identifying witness
alternatively that he will abscond. I am accordingly satisfied that
it is likely that the administration of justice will be
the release of the applicant. The application is accordingly refused.
at Maseru this 12th Day of October, 1992.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law