CRI/APN/392/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between :-

LEFU
NTOBO APPLICANT

AND

DIRECTOR
OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered
by the Honourable Mrs Justice K.J. Guni on the 2nd day of August 1999

This is
an application for bail. The applicant, LEFU NTOBO is accused of
murder of one ABDUL RAUF ABUBAKER. The deceased was brutally
shot and
killed by assailants who came to his house on 9th June 1999. They
posed as messengers of court who had come to serve the
deceased with
some court papers. They were welcome into his home between the hours
of 09 a.m. and 10 a.m.. It was in his own living
room that the
deceased, in the presence of his

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wife, was
shot dead.

At 04.00
hrs on the morning of 12th June, 1999 this accused was arrested at
his home. He is awaiting trial at the Maseru Central
Prison. The
Director of Public Prosecutions has filed a NOTICE OF INTENTION TO
OPPOSE this application. There were two affidavits
filed in
opposition to this application. The first Opposing Affidavit is by
Sergeant William Sello Mosili - The Chief Investigator
in this
matter. The second affidavit is by the DPP - Godfrey Siphosihle
Mdhluli.

The Main
reason for which this application is opposed is fear that this
applicant will not stand his trial. Although as it appears
on the
PREPARATORY EXAMINATION sheet attached to the Founding Affidavit and
referred to as the charge sheet, there are two accused,
but in the
evidence of Sergeant William Sello Mosili there appear to be three
other accused who are still at large. In short there
are quite a
number of accused involved in this murder case. One of the accused,
ABDUL WAHAB ABUBAKER is already on bail.

he fear,
that this particular accused will not stand his trial if released on
bail, was brought about, and developed to this extent,
of opposing
his release on bail, during the investigations of this case after the
other accused, ABDUL WAHAB ABUBAKER had already
been released on
bail. The other three accused according to the chief investigator of
this case have already left this country.
Those alleged accomplices
are according to detective sergeant Mosili fugitives from the law.
Though the law is always said to have
the long arm which is expected
to reach them, the illusiveness of their precise whereabouts at any
given time, in this neighbouring
state, has sufficiently provided
them with the cover from the law. The investigations are complete.
The matter of their trial should
be able to take off before the end
of this coming session. It is desirable that all the accused in this
matter should be tried
together. The absence of the others and
attempts to catch and bring them to book are the only obstacles in
the process of bringing
all the accused to a speed trial together at
once. The Director of Public Prosecutions who appeared personally to
argue the crown
case against the release of this accused on bail has
undertaken to ensure that even if the other accused who are still at
large
are not found the court will be approached and asked to proceed
against this one accused before the end of this session of the High

Court.

There
must be grounds on which the fear to abscond by this accused, is
based. First of all the other accomplices have already left
Lesotho.
The detective sergeant in charge of the investigation fears that this
particular accused will also run away and join his
co-accused in
flight. It will take more time and resources to look for increased
number of fugitives. It is the evidence of this
witness that it was
very difficult to arrest this accused. It took real commitment and
dedication to duty by detectives who work
with him to way lay at such
ungodly hours and catch this accused at 04.00 hrs a.m. when he
arrived at his home. He further indicated
to the court that in his
experience as a detective (although he did not specify the exact
length of the period for which he had
been a detective) he acquired
knowledge that the fugitives from the law make calls or visits at
their homes at such times when
they think everyone is fast asleep.
This detective mentioned that he was part and parcel of the
investigation team in the criminal
matter of Sekhobe Letsie and
Others V Rex which happened in the eighties. Although not precise,
that is some indication of his
experience. He did impress everyone as
an intelligent, keen, perceptive and enthusiastic detective. He may
be said to be in the
league of distinguished detectives such as
Sherlock Holmes of Scotland, considering his degree of perception.

In his
evidence, detective sergeant William Sello Mosili, has told this
court, that his further investigations so far has disclosed
that this
applicant is a hired assassin. Those who hired him are not at all
pleased by the fact that he has been arrested and also
has caused
their arrests. The evidence of this detective is to the effect that
this

5

accused
will not only be running away from the law; but he will also be
running away for his dear life. This detective is convinced
that
those who hired this accused to kill ABDUL RAUF ABUBAKER will seek to
eliminate this accused as well because they are not
at all happy with
his performance. Being part of the conspiracy and also the leader of
those who perpetrated the actual killing,
according to the chief
investigator, fears of his accomplices to be implicated in the crime
and the consequential possibility of
conviction of one of the most
serious crimes, can drive the desperate man to extreme limits. This
brings me to the other ground
which continues to build up the fear
that this accused will abscond.

The
accused is charged with a very serious crime. LIEBMAN V A.G. 1950 (1)
SA 607. In this Kingdom, there is an ultimate sentence
of death in
respect of certain murder cases where there are no extenuating
circumstances. Section 298 (1) CP & E Act No. 9of
1981. There is
no greater loss than life. There appears to be two prong attach
directed at this accused. In the first place those
who hired him to
do their dirty job according to the evidence of the chief
investigator, are after his life for letting them down
by getting
caught and as a result implicating them in this crime. If they fail
to get him there is a possibility that the rope
will get him. This
must inflict the real fear for life in this man's mind. Taking to his
heels is likely to be a more attractive
option than waiting for his
fate in those circumstances.

6

All the
issues considered and discussed in S v Acheson 1991 (2) SA 805;
particularly at page 822 paragraph B - E have been carefully

considered by this court. I am satisfied in the first of those issues
and have found in favour of the accused. For example, he
has deep
emotional occupational and family roots in this kingdom. He has his
fixed abode at Mazenod. He has his parental home at
Qoaling. He has a
wife and two minor children. He has made no mention of any assets may
be at his age, he is just starting out
in life. His assets are not of
much significance. The case that is under investigations is that of
murder of ABDUL RAUF ABUBAKER.
There is not much investigation
conducted by the detective in respect of the accused's means within
or outside this country. It
would come as a surprise if after dealing
with this application it is discovered that he had Swiss bank account
or bank accounts
in South Africa. South Africans are complaining
about the presence, in their country of foreigner or aliens from
Africa. South
Africa attracts a lot of people as a land of honey.
Rich and poor Africans come to make South Africa their home. May be
one does
not necessarily need a lot of money to make a start in life
in South Africa. S.A. is the only country within close proximity to

Lesotho. This applicant is expected to run to South Africa. This is
where his co-accused are said to be hiding. The fear is that
they
have mingled with the South Africa populations within which they
blended in without difficulties. Existence or non-existence
of money
in this case will not be such a

7

determining
factor because I do not believe it plays such a major role. A lot of
Basotho work in South Africa. They live there.
There was no
requirement of possession of assets in order to leave or work there.
He has not mentioned any friends and/or relatives
in South Africa.
Aren't his co-accused his Mends? Evidence of the chief investigator
is to the effect that they are believed to
be hiding in South Africa.
How are they managing to hide from the law? Wouldn't it be wise for
them to assist and make sure their
co-accused does not come to stand
trial and continue to implicate them?

The
factors which are important include the severity of the likely
punishment, [Matsoso Bolofo and others v Rex C of A (CRI) No.8
of
1996] coupled with the knowledge the accused possesses of the amount
of evidence which implicates him and has already been collected.
The
accused is aware, according to the chief investigator, that there is
overwhelming evidence against him in connection with the
alleged
crime. The murder weapon was handed to the police by this accused.
The ballistic tests whose results are already out show,
with
certainty, that the 3 shells found by the detective in the deceased's
living room, where he was shot, came from that 99 mm
gun, which this
accused handed to the police. The two dead bullets found in the same
house and room also came from that gun. When
post mortem examination
of the deceased was carried out, the dead bullet which

8

definitely
caused his death was retrieved from his body. It is the bullet fired
from that same gun.

here is
probability of conviction - without usurping the trial court's
function the handing over by this accused of that hot and
smoking gun
coupled with his presence at the murder crime scene at the time it
was committed this court is satisfied that there
is likely conviction
at the trial. NELL 1911 NP.D210.

This
evidence according to Advocate Mahao was improperly extracted from
the accused. Having been obtained irregularly, the argument

continued, it is inadmissible. MABOPE and Others v Rex C of A (CRI)
No.5 of 1986. The accused has made accusations of torture against
the
police in his founding affidavit. If this court has to make a finding
whether or not it accepts this accused was tortured,
there must be
evidence to assist it to reach such a conclusion properly. Apart from
that bare allegation there is no proof of any
torture having taken
place. The detective who is the chief investigator in this case,
denied emphatically that this accused was
ever tortured. He was
adamant that in his presence, which was the whole time prior to the
accuse's making of those indications
which led to the hand over of
the gun, nobody laid a finger on this accused. The accused although
he did not testify before court,
he was present in

9

court. He
was pointed out to the court. He had no mark or any sign whatsoever
to indicate that he had been manhandle as alleged.
He is in court,
denials are made of the allegation of torture. Accused declines to go
into the witness box to testify on the ground
that he has nothing to
prove, and that the burden of proof does not rest on the accused. I
have great difficulty accepting that
the accused who has made an
allegation of torture has nothing to prove. There is no ground on
which this court can without proof
accept that bare allegation
especially when observations are made in court of the accused person
who appears perfectly normal without
any physical signs of torture.
THE STATE V MASIA 1962 (1) SA 541 (A.D.) There is a burden of proof
resting on the accused, to a
lesser degree, that is, on the balance
of probabilities, that he was tortured. He failed to discharge that
burden.

He
appears to have no scratch or bruise. Of course suffocation would not
result in bruises or scratches. Torture of that kind or
any other
kind is denied. The policeman alleged to have perpetrated all kinds
of torture stood cross examination. His evidence
was duly tested and
it stood the test. Consequently I accept the denial of torture. I
refuse to accept that this accused was tortured.

The
detective urged the court to consider the length of the period in
which this

10

accused
was in custody before he made those self incriminating indications.
It is

in the
common cause that the accused made those indications which led to the
handing over of the murder weapon to the police within
11/2 (one and
Half) hours or so after his arrest.

The
attorney who appeared for accused at the hearing of the application
at the stage when oral evidence was led Mr K. Sello cross-examined

the detectives about the apparent conflict in his evidence that this
accused who was according to the detective cooperative will
now
abscond instead of cooperating to the end of the matter with the
police. In reply the witness pointed out that he feared that
the
accused will have to run for his dear life because those who hired
him want to eliminate him. He may stand his ground but run
the risk
of being eliminated. In either way he will not be available at his
trial. This statement has to be considered seriously.
Evidence of
this detective showed this court that the police received information
that there is a plot to kill the deceased in
the same way they
received information that those killers of deceased now want to kill
this accused. For a while the deceased was
placed under guard or
surveillance of some kind. Nothing happened. Because of shortage of
manpower police removed security around
the deceased. Regrettably
that gave the assassins an opportunity to carry out their plan.
Unfortunately ABDUL RAUF ABUBAKER is
no more. There must be a

11

genuine
worry to avoid the repetition of the similar occurrence so soon.
There are instances where the accused would be safe in
custody. This
detective told the court that as a policeman he has a duty to protect
this accused even though this accused may not
like such protection.
As a policeman he is not only responsible to investigate crimes, he
must also endeavour to prevent the crime
from occurring. He opposed
the granting of bail not only to ensure that the accused stand his
trial but also to prevent similar
crime from being committed against
this accused. Prevention of crime is one of the main functions of the
police. Maintenance of
Law and Order is the responsibility of the
police. Section 147, Constitution of Lesotho. Courts must not be seen
to hinder police
but must play their part towards the achievement of
the same goals, the prevention of crime.

Bail
refused.

K.J.GUNI

JUDGE

2nd
August 1999

For
Applicant: Mr Mahao

For DPP:
Mr Mdhluli