CRI/APN/503/98
IN THE HIGH COURT OF LESOTHO
In the Application of:
MAOPELA MAKHETHA 1st Applicant
PHAKISO MOLISE 2nd Applicant
MATAMO LEUTA 3rd Applicant
TS'OKOLO MOSAE 4th Applicant
MALEBANYE SEEISO 5th Applicant
MOJALEFA MOSES PHUMANE 6th Applicant
NAKO B. LETSIE 7th Applicant
PHINEAS K. KHOMO 8th Applicant
MORAKE E. MOLEFE 9th Applicant
JOHA14NES B. FANI 10th Applicant
PHILLIP M. MASOABI 11th Applicant
MORAPELIA. CHAOLE 12th Applicant
MAKALANG RATEFANE 13th Applicant
MATAILANE A. 'MALEI 14th Applicant
MOEKETSI JANE 15th Applicant
TEBOHO MANTS'A 16th Applicant
KONYANARAMAROTHOLE 17th Applicant
PETER M MAFETO 18th Applicant
MOELETSI PETER KOEKOE 19th Applicant
THABISO B. MOTHOBI 20th Applicant
LEBONA Z. MOTSEARE 21 st Applicant
LEFATA F. RAMAKHULA 22nd Applicant
MASITISE MOHAPI 23rd Applicant
BERNARD SEFALI 24th Applicant
RETS'ELISITSOE RABALE 25th Applicant
JOHANNES LEKHARJ MOFO 26th Applicant
THABISO TSIANE 27th Applicant
KALACHANE MPOOA 28th Applicant
NTSANE MOLETSANE 29th Applicant
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LEHATACHAKA 30th Applicant
and
DIRECTOR OF PUBLIC PROSECUTION Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 5th day of February, 1999.
This is an application for an order releasing the applicants on bail during the hearing of their trial.
The founding affidavits were duly filed by the applicants. Although he intimated the intention to oppose the application and promised to file the answering affidavits, at a later stage, the respondent never filed any such affidavits. The court has, therefore, only the founding affidavits to rely upon for the decision in this matter.
It is, perhaps, convenient to mention, right from the beginning, that it is common cause that before the trial could commence, an application to release the applicants on bail was made in this matter. That application was, however, refused by a judge of this court. The present proceedings are, therefore, a re-application for bail. Again, it is worth mentioning, at this juncture, that when this matter came for argument, the court was informed that, for reasons that are not important for
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its decision, the 2nd and the 30th applicants viz. Phakiso Molise and Lehata Chaka, respectively, were withdrawing their application for fail. The court is, therefore, concerned with the applications of only 28 applicants.
Inasmuch as it is relevant, the facts disclosed by the founding affidavits are that following the police disturbances during the period January/February 1997, the applicants were arrested and detained at the Maximum Security of the Central Prison, here in Maseru. They had since remained in custody. The hearing of their trial started only in February, 1998.The trial itself was going to be protracted for months because, of necessity, it was going at a slow pace, the crown had publicly announced that it was going to lead the evidence of over one hundred (100) witnesses, the applicants themselves and their co-accused (32 in number) were likely to go into the witness box and testify in their defence. No act or omission on the part of the applicants contributed to the delay in the commencement or completion of the trial. Failure to release the applicants on bail, would, in the circumstances be a violation of their constitutional rights and an improper exercise of judicial discretion.
The applicants further averred that whilst they were accused of being a threat to the BCP government, that government had since been replaced by a new government (presumably LCD). There was no allegation that they (applicants) ever threatened the existence of the new government. Indeed, the applicants averred that they had no desire to threaten or disturb the good running of the administration of the Police Service of which they were still members.
According to them, the applicants were exposed to contiguous diseases because of the conditions under which they were detained at the maximum security
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of the Central Prison. They were for example detained under inhuman and unhygienic conditions in the sense that the cells in which they were detained were crowded, neither heated nor ventilated. There were no toilets in the cells and the applicants were provided with open rubber buckets to empty their bowels and urinate. The diet provided to the applicants at the prison was unbalanced and unhealthily handled.
In their averments, the applicants further told the court that they were paid only half of their salaries out of which they had to supplement their diet at the prison, pay for their legal fees, education of their children and the general maintenance of their families. The applicants' release on bail would make things a lot easier for them inasmuch as they would be at home and, therefore, able to share their meagre financial resources with members of their families.
According to the applicants, they were bom and brought up in Lesotho where they had all their families and possessions. If released on bail, nothing would entice them to jump bail and leave their country. Indeed, the applicants assured the court that they were prepared to abide by whatever reasonable conditions the court might impose for their release on bail.
It is significant to mention that the applicants and their co-accused are charged with serious offences of High Treason alternatively Sedition and Internal Security. In considering whether or not in the circumstances, they can be released on bail the court must attempt to strike a balance between protecting the liberty of the applicants and proper administration of justice (S.v MHLAWLI AND OTHERS 1963 (3)S .A. 795 ATP. 796b) As it has already been stated, earlier in this judgment, the only evidence made available to the court is that disclosed in
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the founding affidavits deposed to by the applicants. Although in his notice of intention to oppose the applications, he promised to file answering affidavits, the respondent never filed any such affidavits. This is, therefore, a case in which the respondent, who is the Director of Public Prosecutions has merely told the court that he opposes the bail applications and then rested. This he cannot be allowed to do. I do not for one moment overlook the fact that the Director of Public Prosecutions occupies a highly important and responsible position. The very fact that he intimates intention to oppose bail is a weighty consideration. However, this is not to say that whenever the Director of Public Prosecutions opposes bail application, the court will refuse to allow it. He must, like any other respondent file affidavits substantiating his opposition. Failure to do so will normally leave the court with no option but to exercise its discretion in favour of the applicant.
It is, however, to be borne in mind that, in their own averments, the applicants have previously applied to be released on bail. The application was admittedly refused by a judge of this court. The present case is, therefore, a re-application for bail. The question that immediately arises for consideration is whether or not I should exercise my discretion to free the applicants on bail, in the circumstances of this case. It was suggested in argument advanced on behalf of the applicants, that the answer to this question should be in the affirmative. In support of this suggestion, I was referred to the decision in S. v. ACHESON 1991(2) S.A. 805 where Mahomed, A.J. (As he then was) had this to say at p. 821G:-
"I am unable to agree with the suggestion that I am precluded from considering bail for the accused, merely because the accused was previously unsuccessful in this court.
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Each application for bail must be considered in the light of the circumstances which appear at the time when the application is made. A judge hearing a new application is entitled, and indeed obliged to have regard to all the circumstances which impact on the issue when the new application is heard."
It is significant to observe that in S.v. ACHESON. supra, the applicant, who was released on bail, had applied to be freed on bail pending trail i.e. before the commencement of the hearing of his case. In the present case the applicants applied for bail after the hearing of their trail had already commenced and the court heard the evidence of several crown witnesses. To that extent the two cases are, in my view, distinquishable. The decision in S. v. ACHESON. supra, is, therefore, no authority that where bail is applied for after the trial has already commenced (as is the case here), the court should be quick to exercise its discretion in favour of the applicants and release them on bail. Indeed, even assuming that the accused had already been liberated on bail, once they have taken plea and their trial has, therefore, commenced, their bails would automatically be terminated, in terms of the provisions of S.151 of the Criminal Procedure and Evidence. Act 1981 which reads:
"151. If the accused is indicted in the High Court after having been admitted to bail, his plea to the indictment shall, unless the court directs otherwise have the effect of terminating his bail and he shall, therefore, be detained in custody until the conclusion of the trial in the same manner in every respect as if he had not been released on bail."
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It was further argued, on behalf of the applicants, that the court had jurisdiction to exercise its discretion to free the applicants on bail at any stage of the proceedings i.e. even after the trial of their case had commenced. Reliance for the argument was presumably
based on the Criminal Procedure and Evidence Act 1981 of which S.109 reads :
"109. The High Court may, at any stage of any proceedings taken in any court in respect of an offence admit the accused to bail."
(My underlinings)
It is to be observed, however, that S. 109 of the Criminal Procedure and Evidence Act, supra, has since been amended by Order No. 11 of 1988. As amended, the section reads:
"109. Subject to section 103, the High Court may, at any of the proceedings taken in any court in respect of an offence admit the accused to bail."
I have underscored the words "any stage" in the old S.109 to highlight the fact that in its wisdom, Parliament has omitted them in the amended version of the section. Assuming the correctness of my view that the argument was based on the old S.109 of the Criminal Procedure and Evidence Act. 1981, it must be accepted that after Parliament had, in the amended version, omitted the words I have underscored in the old section, the argument cannot hold water.
It has already been pointed out earlier, that it is common cause that the applicants have previously applied for bail which was, however, turned down by another judge of this court. This is, therefore, a re-application for bail. In order to succeed in their re-application for bail, the applicants must, in my opinion,
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satisfy the court that new factors have arisen since the time when their first bail application was refused. To hold the contrary will imply that I am sitting here as court of appeal over the decisions made by other judges of this court. This I cannot be allowed to do.
From the affidavits placed before me, the facts on which the applicants base their re-application for bail are, in a nutshell, that their trial is going to take a long time to complete and the conditions under which they are detained at the maximum security of the Central Prison are not good.
It must be borne in mind that the applicants and their co-accused are charged with the crime of High Treason. It cannot, like a crime of common assault, be disposed of in a day. It is in the nature of the trial of High Treason to take a long time to complete particularly where the accused, 32 in number, are represented by three (3) counsels. This is not a factor that can be said to have arisen only after the applicants' first bail application was turned down. It is a factor which has always been there. However, if it becomes clear that there is a deliberate intention to give priority to other matters and delay the completion of this case in order that the applicants can languish in detention longer than it is necessary, the applicants should, on that basis, feel free to approach this court with an application for bail.
The High Court has, on a number of occasions, pointed out that the conditions, at the maximum security of the Central Prison, mentioned by the applicants in their affidavits, are not satisfactory and the authorities should do something to improve them. This is not,
therefore, a factor that has arisen after the applicants' previous bail application was turned down. It is, so to speak, an age
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long problem at the maximum security of the Central Prison in Maseru.
I am not persuaded that in their affidavits, the applicants have shown that new factors have come into existence since the time when their previous bail applications were refused by a judge of this court.
Finally, it must be noted that there are altogether twenty-eight (28) applicants before me in this matter, some of the applicants have not even disclosed where their homes are. The possibility that, if released on bail, one or some of the applicants may, for one reason or another, fail to show up in court cannot be ruled out. In that eventuality, the hearing of this trial will, for obvious reasons, come to a halt with the resultant frustration of the smooth administration of justice in this country.
y and large, I am of the opinion that releasing the applicants on bail in the circumstances will amount to taking unwarranted risk to delay the finality of this trial and, indeed, an improper exercise of my judicial discretion. In the result I come to the conclusion that this application ought not to succeed.
It is accordingly ordered.
B.K. MOLAI
JUDGE.
5th February, 1999.
For Applicant: Mr. Alberts
For Respondent: Mr. Mdhluh
