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

3

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

4

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

5

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.

6

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