HIGH COURT OF LESOTHO
MONKOE RUDOLPH MAHASE 1ST APPLICANT
MPALINYANE PAULOSI 2ND APPLICANT
NTAKANA MOLUNGOA 3RD APPLICANT
MATETE ALPHONS TSEPE 4TH APPLICANT
LIJANE MICHAEL KALOKO 5TH APPLICANT
MOKOANYANE JOSHUA LETSIE 6TH APPLICANT
KHOJANE MAKHELE 7TH APPLICANT
PHATSOANE THABISI 8TH APPLICANT
MOSHOESHOE MAKEBE 9TH APPLICANT
NDABA JOSEPH NDABA 10TH APPLICANT
TSOEU TSUKULU 11TH APPLICANT
LEKHANYA LEKHANYA 12TH APPLICANT
THESELE MAJORO 13TH APPLICANT
MALEFETSANE MOTENE 14TH APPLICANT
QETHANE MOREMA 15TH APPLICANT
TSEPANG LINONO 16TH APPLICANT
LEFU SAMUEL THULO 17TH APPLICANT
FEFE CHARLES LEFOSA 18TH APPLICANT
PALO ANDREA KOPO 19TH APPLICANT
NTHAKO 20TH APPLICANT
MOTLATSI LEFOKA 21ST APPLICANT
LEBATLANG JANE 22ND APPLICANT
TEBOHO KHETSI 23RD APPLICANT
LEFA MOPELI 24TH APPLICANT
PAKISO GERARD NTENE 25TH APPLICANT
KHONYO MOTLOMELO 26TH APPLICANT
PULE NKETEKETE 27TH APPLICANT
TLALA PAUL RANCHOBE 28TH APPLICANT
LEKHOBA JOBO TUMANE 29TH APPLICANT
RAFELILE MOKOTJO 30TH APPLICANT
NTSANE RAMABELE 31ST APPLICANT
SEHLABATHEBE PETER MORETHI 32ND APPLICANT
SENTSO ELLIAS LENKOANE 33RD APPLICANT
GERARD LELALA 34TH APPLICANT
THABO DANIEL MASITA 35TH APPLICANT
SEEQELA MOTSOANA-KABA 36TH APPLICANT
PHOKA NATHANAEL PHOKA 37TH APPLICANT
TOHLANG ALPHONS MOTSOANE 38TH APPLICANT
KATLEHO MALATALIANA 39TH APPLICANT
IKANENG LAWRENT LETSIE 40TH APPLICANT
MOCHEMA SABASTIAN MOCHEMA 41ST APPLICANT
OF PUBLIC PROSECUTIONS 1ST RESPONDENT
DEFENCE FORCE 2ND RESPONDENT
OF LEGAL SERVICES 3RD RESPONDENT
HEALTH INSPECTOR 5TH RESPONDENT
by the Honourable Mr. Justice G.N. Mofolo on the 30th day of June,
have approached this court on an urgent basis for an order in the
the Honourable Court dispense with forms and
service provided for by the Rules of Court, regard being had to the
urgency of this matter;
Applicants be released on bail on such terms and conditions that may
be stipulated by this Honourable Court.
TO ABOVE PRAYER:
TAKE NOTICE THAT an application will be made on behalf of the
above-mentioned applicants for an Order in the following terms:-
second respondent forthwith to furnish or instal heating and
lighting facilities in the applicants cells.
second respondent forthwith to provide applicants with beds for
second respondent forthwith to repair the walls and cement floor in
applicants' cells where cracks appear, and in particular
at the top
of the walls where water is coming between roof joints and the
second respondent to discontinue the practice of the applicants
sleeping with urine and excrement in buckets at night,
and to instal
flush water toilets in the cells so that excrements can be washed
the second respondent to establish an internal communication system
between the applicants in the cells and their officers
second respondent to instal efficient water warming facility in the
applicants prison block, to put the existing toilet
in a working
condition and to repair the taps.
second respondent to provide applicants with facilities for washing
their clothes and hanging them.
fifth respondent to inspect whenever necessary, and as frequently as
possible, compliance with the above mentioned prayers,
and to report
progress to the Registrar of this Honourable Court.
second respondent to allow applicants to receive periodic visits
from Churchmen of different denominations, particularly
second and third respondents to pay for the costs hereof in respect
of the alternative application.
applicants further and/or alternative relief as may be deemed fit.
5th May, 1999 respondents had opposed the application and the court
had issued a Court Order that:
file their Answering Affidavits on or before 18 May, 1999.
Affidavit or before 21st May, 1999.
Matter to be argued on the 26th May, 1999.
to pay respondents wasted costs of postponement.
May, 1999 the matter had been argued. Mr. Phoofolo for the applicants
had submitted that the application had come to this
court because the
Court Martial would have no jurisdiction as it merely tries
persons and had nothing to do with their liberty. Applicants had come
to court to seek their liberty in connection with
constitutional rights and these rights could only be determined by
this court. He says there is no provision for the grant
of bail in
either the Defence act or its regulations. He says while this court
can interpret the Constitution a Martial Court has
no such power nor
can a Court Martial order the release of detainees. He further says
in the military law there is no provision
dealing with the release of
suspects on bail.
to Mr. Phoofolo applicants had been detained since October, 1998 and
their trial had commenced on 31 March, 1999 but adjourned
to 6 June,
1999 though this was to read 07 June, 1999 because 6 June was a
Sunday. He says the function of the Judge Advocate is
and he is not one of the Presiding Officers and as the adviser was
going to be absent the matter had to be postponed.
He says the
postponement which cannot be put on the door of the applicants
prolongs the trial and applicants incarceration. Mr.
said there is no reason for the further incarceration of applicants
in that the political situation has improved in
the country and in
any case SADC forces are superintending stability in the country and
moreover, the Commander of Lesotho Defence
Force was in a position to
contain any turmoil or related insurrection in the country.
Phoofolo has further submitted that applicants responded positively
to a call to report for duty and there was no prospect of
jumping their bail. According to him, if applicants were not amenable
of the law, they would not have responded to the call to report for
duty and hand over their arms. The claim that they
would be dangerous
to the command structure was personal. He says the court is to
balance the interests of detainees and their
liberty and interests of
the community at large. As there were cordial relationships between
South Africa and Lesotho and in any
event extradition arrangements
between Lesotho and South Africa were in place, there was no fear of
applicants not being apprehended
should they jump their bail.
alternative prayer Mr. Phoofolo has said that applicants are entitled
to a warm, ventilated cell and proper ablutions and
only responded on receipt of the application. According to him, there
has to be regular inspection of the suitability
of the premises by a
Health Inspector and all applicants are saying is that they do not
need policing. Mr. Phoofolo applies for
an inspections-in-loco of the
premises and although at first Mr. Mollyneaux opposed the application
he requests to take instructions
in this regard. Mr. Phoofolo has
said as the alternative prayer is in the nature of a civil
application this prayer be granted
with costs. The matter had been
adjourned to the afternoon and when the court resumed at 2.30 p.m.
Mr. Mollyneaux had informed
the Court there was no objection to
inspection-in-loco taking place.
had gone on an inspection in loco and having compiled its report had
read it to counsel for applicants and respondents
had proceeded to Maseru Maximum Prison, a wing of the
pointing out process the plaintiffs were represented by Cpl. Makhele
and the respondents by Lt. Col. Leoatla the Provost
provides security for the applicants.
Makhele has said when it's raining the heavy downpour goes through
openings in the roof down the wall causing water marks and
on the walls with a groundswell of moisture on the floor. Mr.
Mollyneaux has observed that one can't discern the roof
and the top
wall thus giving the impression that rain does not go through the
roof and down the walls as alleged. As far as this
concerned, except in cell 7 where there are traces of running water
on the walls, no watermarks and splotches were observed
in any of the
opened with difficulty though as pointed out by Mr. Mollyneaux in
some windows spot welding has been removed and in others
resulting in windows not opening. The court has observed that
reasonable bedding is provided, there is electric light
in all the
occupied cells and in some there is adequate ceiling facility against
drips. Buckets for the relief of nature are kept
in the cells. Lt.
Col. Leoatla has said that they are prepared to put everything in
order once a report is made. As for it being
cold in the cells, there
were enough blankets to be distributed equally though the tendency
was for some inmates to give themselves
more. He says windows require
greasing. But there was a project officer responsible for inspections
from time to time. Unfortunately
applicants were barring Lt. Col.
from entering their cells. Mr. Phoofolo has said that the floor in
cell 4 is damp and indeed there were traces of such dampness
it had become dry.
In cell 5
it appeared there was an uplifted iron sheet and Sgt. Qacha has
admitted to War. Officer Mokolokolo saying there was such
letting in rain. Cpl. Makhele has said wall rafters shake when it's
windy -here windows open. Lt. Col. Leoatla says
no rain comes down
walls when it's raining.
Makhele has said the walls of cell 6 shudder threatening to collapse
when it's windy and it rains. He says rain also comes
down the walls.
Repairs appear to have been carried out. The northern window opens.
Mr. Mollyneaux has observed that though there
were two cracks these
were exterior and the court subscribed to this. Adjoining cell 6 are
washrooms and 3 toilet seats which flush.
There are 3 showers; the
geyser is small requiring water to be properly rationed as Lt. Col.
Leoatla has said. Cpl. Makhele says
the night soil bucket is used as
such and also as a stool and others are also used to back up toilet
facilities. Toilet windows
open. Cpl. Makhele also says when it's
raining the floor becomes soaked with water making the building cold.
There is also a sewerage
system behind the cells for refuse and waste
matter and as it is never removed there is piling contamination which
has become a
breeding place for flies and poisonous insects making
the surroundings a health hazard for the inmates.
The roof has openings which would well let in rain as is
by watermarks down the walls. Cpl. Makhele says whenever there is
torrential rains the cell is a pool of water and the
saturated with water with subsequent subsidence. He says the faeces
smell and they are close by. There are, however,
airbricks in the
cell and windows open easily.
Cells 8 -
10 are in fairly good condition. In cell 12 there is a gap between
the roof and wall and it is agreed that though no water
wind comes through bringing in dust. Cell 13 has what appears to be
proper ceiling and cells 14 - 30 it is agreed
are in similar or same
condition and cell 21 is not occupied.
was asked to have a look at some applicants' physical if health
condition and found variously that there was considerable
all over the body of an applicant; on one there were bulges, lumps,
blotches and puffiness on skin and face. Applicants
this to the unhealthy conditions prevailing at the prison cells
occasioned most probably by the sewerage which
is never removed
becoming a breeding place for flies and poisonous insects to say
nothing of the offensive smell wafting into the
cells and outside
them day and night.
applicant has also said although medicines have been dispensed over a
long period of time he has had no relief to his cold. Another
has stress and medication had not restored his health. Another
applicant having fallen had a fracture which was plastered.
taken too long a time to remove the plaster his leg was aching and he
had removed the
He had refused X-ray examination because he was in fetters. There are
now clothing lines.
Mollyneaux has said applicants have not said why they are suffering
the various diseases. Mr. Phoofolo says applicants say because
degrading conditions it is the reason they are suffering these
Phoofolo was of the view that the press is to be allowed to witness
the proceedings of loco-inspection. The court had ruled
court was going to go on an inspection-in-loco. Counsel had nothing
to add on observations of the court regarding the
Mollyneaux for respondents after making corrections to the record has
submitted that while this court has jurisdiction it is
whether the court is at present seized with the matter for at present
the Martial Court is seized with the matter and
though there is no
specific authority vested on the martial court to grant bail the
granting of bail is to be treated as an ancillary
relief. He says
there is no authority that a person appearing before the martial
court can be granted bail by the High Court for
in the event the High
Court has no jurisdiction. According to him, though the jurisdiction
of the High Court is not exclusively
ousted, it can be excluded by
implication as was the case in Rantuba's case. (Commander of Lesotho
Defence Force & Ors and
'Mantsilele Rantuba v 2 Ors - C of A
(CIV) No.33 of 98). This court does not agree. Rantuba's case had to
do with access and had
nothing whatsoever to do with the jurisdiction
of the High Court and in particular whether by implication the
jurisdiction of the
High Court could be
Mr. Mollyneaux says where there is conflict between the constitution
and the Defence Act, the Defence Act prevails. There
can be nothing
further away from the true state of the law for the constitution is
understood to be the supreme law of the land.
He has said it is not
in the interest of the community that applicants be released. Mr.
Mollyneaux has also said that as there
are other soldiers at large,
it is risky to release applicants on bail. According to Mr.
Mollyneaux, the Provost Marshall much
as an investigating officer can
do, can grant bail and according to him a unit commander can give
authority whether a detainee
will be released or not; he says these
are species of bail as it is merely freeing a person from detention.
Mr. Mollyneaux has
said if applicants are released on bail and jump
bail, this would bring the whole justice system to a standstill and
anything, this would be mockery of justice. He has also
said that it is not in public interest that applicants should be
on bail. Like Mr. Phoofolo, Mr. Mollyneaux has quoted
several cases in support of his submissions. In this regard all that
court is prepared to say is that while it is true the police and
possibly the military structures can release a suspect on bail,
is before and not after the suspect has been remanded in custody and
his case is due to proceed before a court of law.
Wessels v. General Court Martial & Or. 1954 (1) S.A. 220 (E)
without applying directly to the court martial the applicant
applied to the Eastern District Local Division to have proceedings of
a court martial postponed.
of the applicant Mr. S.G. Rein had submitted that while a
court having jurisdiction to review or on appeal will be slow to
exercise any power, whether mandamus or otherwise, upon
unterminated course of proceedings in a court below, it certainly has
power to do so, and will do so where grave injustice
result or where justice might not by other means be attained.
J. had to consider whether at the particular stage he had the right
to interfere with and interdict proceedings of the
court martial in
the sense of compelling postponement of the proceedings. He found in
regard to review a court martial stood in
no other position than any
other statutory body as regards the court's right to review and more,
that it is the power of a superior
court to ensure 'that a court
martial does not act outside its jurisdiction or does not act in
violation of its rules' - see Mocke
v. Minister of Defence and
Others. 1944 C.P.D. 280 at p.221. Reynolds, J. had continued:
These cases clearly indicate, as I have already said, that the court
martial is in no other position than any other statutory body,
there is no qualification stated in the decisions as to this being in
all matters the position of the court martial, the court
therefore interfere on any grounds upon which it would interfere with
the proceedings of a statutory body and, I think, also
ground on which it would interfere with most voluntary associations
where they exercise in their proceedings some form
'But the decisions quoted are cases dealing with the power of the
court to intervene by way of review at
the final stage, and do not deal with the power to interfere at this
as above Reynolds J. adds a rider:
'But it seems to me on principle that the court's power must be
exactly the same now as at the final stage. It would be strange
indeed if an irregularity could occur and the court not correct it at
the proper stage.'
to the learned Judge, if the court could not correct the irregularity
when it occurred though the irregularity was fundamental
future proceedings, it would mean that if a court had no power to
correct an error save at the final stage, the proceedings
could go on
and become abortive in the end, costing the court martial and the
state considerable amount of money, and could seriously
petitioner. According to the learned Judge, it was not only clear on
principle that there must be this power but, moreover,
seemed to confirm the view. In support of these propositions cases of
Elirson v. Magid and the Second Civil Magistrate
1908 T.S. 588. and Rascher v. Minister of Justice, 1930 T.P.D. 810
were quoted and the learned Judge had gone
on to say that the
statement of law contained at p.588 of Gardiner and Lansdown, S.A.
Criminal Law and Procedure (5th Ed.) was
correct that the court had
power to interfere at this stage. Note that Reynolds, J. says that
the court has power to intervene
where there might be an injustice or
prejudice to a petitioner or applicant.
Reynolds, J. says on some occasions the court has refused
intervene, he goes on to say that if these cases are examined it will
be found that they were cases where the irregularity was
sufficient at the particular stage or the irregularity could not
prejudice the accused at all.
Reid-Daly v. Hickman and Others, 1981 (2) S.A. 315 (Z.HJ) the point
to be decided by the court was whether the Disciplinary Regulations
and in particular s.28 prevented the plaintiff from his claim being
heard by the civil courts. If was said neither the Defence
Chap.94 nor the Regulations made under it contained express statement
ousting the jurisdiction of the court to entertain a
claim such as
the plaintiff's. It was said the question arose whether such ouster
of jurisdiction arose by necessary implication.
Fieldsend, C.J., 'there were many cases which state the proposition
that legislation will not lightly be construed
as taking away the
jurisdiction of the court and in this regard Pyx Granite Co. Ltd. v.
Ministry of Housing and Local Government
and Others, 1960 AC. 260 by
Lord Simonds was quoted where he said at p.286:
It is a principle not by any means to be whittled down that the
subject's recourse to Her Majesty's Courts for the determination
his rights is not to be excluded except by clear words.'
Justice also quoted Welkom Management Board v. Leteno, 1958 (1) S.A.
490 (A) at 503 in which it was said it did not mean
that there were
to be express words but, where there were no express words, the
inference that the court's jurisdiction is ousted
must be clear and
Having set out provisions of the Defence Act and Regulations, the
learned Chief Justice came to the conclusion that
the Defence Act.
Chap. 94 (2) did not by implication take away the jurisdiction of
civil courts to hear an action based on delict
alleged to have been
committed by one officer of the army against another even in the
To put a
stamp of approval on the role of civil courts regarding the military
Fieldsend, C.J. quoted from Cockburn, C.J. in Dawkins
v. Lord F.
Paulet. 189 LR 5 OB 94 at 108 where he said.
I cannot bring myself to believe that officers in command would
hesitate to give orders which a sense of duty required, or to enforce
obedience and discipline in the due exercise of authority from any
idle apprehension of being harassed by vexatious actions. Men
to command would do their duty, as EYRE B expresses it fearless of
consequences' and would trust to the firmness of Judges,
honesty and good sense of juries to protect them in respect of acts
honestly, though possibly erroneously, done under a
sense of duty.'
In so far
as the Lesotho Defence Force Act, 1996 is concerned, the law is to
'Powers of civil courts
a person subject to this Act
been tried for an offence by court martial; or
been charged with an offence under this Act and has had the charge
dealt with summarily, a civil court is not empowered
to try that
person for an offence substantially the same as that offence, but
apart from that, nothing in this Act shall be
restricting the jurisdiction of any civil court to try a person
subject to this Act for any offence.'
be seen that the jurisdiction of the court is expressly excluded
concerning charges that lie before the court martial and
under the act. Bail is not an offence, it is a procedure to free an
accused and at the same time to put in place measures
to ensure that
he stands trial. In a bail application before a civil court, the
court does not interfere in any way with the offence.
this, there is no provision whatsoever for the grant of bail in the
Defence Force, Court Martial Rules, 1998 nor is
there such a
provision in the Lesotho Defence Force Act, 1996 and this court is
doubtful whether the granting of bail is an ancillary
relief as Mr.
Mollyneaux has submitted.
authorities quoted above it is amply clear that a civil court can
interfere with proceedings of a martial court. Apart
from this, there
is no express statement neither in the Defence Force Act, 1996 nor
Defence Force (Court-Martial, procedure) Rules,
1998 ousting the
jurisdiction of the
entertain bail application. Bail is a right enshrining a value
principle by no means to be whittled down that the subject's
to His Majesty's courts can be excluded except by clear and
undue and unnecessary interference with functions of courts of law
where, for example, as in the magistrate's court, proceedings
bail are removed to the High Court before they are finalised except
proceedings outside the jurisdiction of the magistrates'
martial court is already proceeding against applicants on the offence
of mutiny and as this court is seized with this
crime it would seem
the martial court is the proper court to grant bail provided it has
jurisdiction to do so or the Defence Force
Act or Martial Court rules
have such provisions regarding the grant of bail.
to the authorities, it appears the Supreme Court has jurisdiction to
hear any matter arising from this court's sitting
except those specified in s.123 of the Defence Force Act, 1996 and of
course matters that come to the High Court
by review or appeal. For
the matter to be properly before the superior court or High Court,
the applicant is to show prejudice.
It can safely be said that in the
instant application there is such prejudice shown though even were
this not shown, from the surrounding
circumstances there is
possibility of prejudice were bail heard by the martial court for
some members of this court are none other
than colleagues of
applicants and officers who may have had brushes with applicants.
Britain courts of law charged with the granting of bail are the
Court and the Magistrates court save offences of homicide and rape.
It is expected that whenever accused persons appear before
the court must consider whether bail should be granted whether or not
an accused makes an application. Accused persons
have appeared before the Court-Martial eversince this court was
seized with their trial but there has never
been an intimation by the
court as to the granting of bail thus lending credence to the
presumption that a court martial has no
powers to grant bail.
Noticeably, it is criminal courts that are vested with the power of
a Crown Court supersedes the jurisdiction of former Assize Courts and
is part of the Supreme Court with jurisdiction
throughout England &
Wales and is a superior court of record. Any High Court judge,
circuit judge or recorder sitting alone
with justices of the peace
may exercise necessary jurisdictional powers.
is a former colony of Great Britain and our legal system and
jurisprudence is primarily sourced from British judicial system.
Therefore, in as much as in Great Britain courts vested with the
granting of bail whatever the offence are Crown Courts and the
Magistrate Courts, in Lesotho courts with such powers are the High
Court and the Magistrates Courts.
this court holds that it has jurisdiction to entertain bail
applications pertaining to the applicants.
of the applicants Sgt. Monkoe Mahase has inter alia deposed as
follows in his Founding Affidavit:
'5.1 We were arrested from October, 1998 at different times and
'5.2 On the 15 October, 1998 myself and some of my co-accused were
gathered with other soldiers at Ratjomose Parade____We were
we were being arrested in connection with the events of the 11 th
September, 1998____we have since October,
1998 been detained in the Maseru Security Prison.'
'6.1 Our trial commenced on the 23rd December, 1998. However because
of various preliminary arguments and rulings, it was only
on the 26
February, 1999 that we were made to plead to the charges against
'6.2 On or about 29 March, 1999 the Learned Senior Counsel for the
prosecution applied for adjournment of our trial for three months
until the beginning of July, 1999.'
'6.3 On the 31st March, 1998 the Court Martial ruled that the case be
adjourned to the 6th June, 1999. The postponement of our
case to the
6th June left us entirely in the mercy of our custodians.'
7.1 The long adjournment of our trial is an injustice to us because
such adjournment was not by reason of any fault or circumstances
pertaining to any of us.'
" 7.2 Due to this loss of time, and the fact that there are
forty-nine of us, our trial is likely to last a very long time.
is because all of us are likely to testify in our defence and the
state has intimated that it is likely to call 21 crown
witnesses____.' If we remain in custody throughout the unforseen
trial period, we would be suffering indirect punishment even before
we are found guilty or not guilty___.'
sub-paragraphs 7.3 - 7.7 the deponent has recapitulated the unsavoury
living conditions subject-matter of the loco inspection.
paragraph 8 the deponent has enjoined the Court to strike a balance
between interest of justice on the once side and the community
other and the liberty of the applicants and moreover that the
political security in the country was normalised; that they
Lesotho citizens with families and will stand trial.
Sekhobe Letsie and Director of Public Prosecutions, 1993-94 LLR &
LB p.387 cited in Matsoso Bolofo & Others vs. DPP 1997(8)
1135 (as quoted by Mr. Phoofolo) and Mahomed, A.J. (as he then was)
in the Namibian decision of S. v. Acheson, 1991 (2) S.A.
805 at 811
Steyn, P. said the considerations which are to be borne in mind are
well stated by the learned Mahomed, A.J. at pp.
'An accused person cannot be kept in detention pending his trial as a
form of anticiparatory punishment. The presumption of the
law is that
he is innocent until his guilt has been established in court. The
court will therefore ordinarily grant bail to
an accused person unless this is likely to prejudice the ends of
then catalogued considerations among which were;
deep are his emotional, occupational and family roots within the
country where he is to stand trial;
arrangements exist or may later exist to extradite him if he flees
to another country and
stringent are the conditions of his bail and how difficult it would
be for him to evade effective policing of his movements.
regard to (1) and (2) above applicants are Basotho with deep family
roots in the country and as there are friendly relations
Lesotho and South Africa with accompanying extradition arrangements
there is no fear of accused not being re-arrested should
had, in the course of its judgment, raised another issue namely how
prejudicial it would be for accused to be kept in
custody by being
denied bail and the court said this depended on:
duration of the period during which he has already been
duration of the period during which he will have to be in custody
before his trial is completed;
cause of delay in the completion of the trial and whether or not
accused is partially to blame for such
extent to which accused needs to continue working in order to meet
his financial obligations.
(a), it appears applicants were incarcerated from October, 1998 to
the present which is roughly a period of nine months;
having regard to the number of crown witnesses and should applicants
have to defend themselves it is anybody's guess
how long the trial
will take except calling this a marathon trial. (c) The delay appears
to be at Crown's behest and it cannot
be said that applicants are in
any way responsible, (d) I understood Mr. Phoofolo to say that the
entire bill for the crown and
defence is footed by the government.
learned President of the Appeal Court had gone on to premise other
considerations namely, notwithstanding the DPP's objection
bail, which opposition was to be founded on evidence properly placed
before the court, .
The court must never allow itself to abrogate its responsibilities in
this respect. It, and it alone is to balance the scale, weighing
conflicting interests of the community on the one hand and that of
the accused's fundamental rights to freedom on the other.
attitude of the DPP is a relevant consideration; however evidence is
required in order to enlighten the court as to why he
such a view -
see S. v.
Lulane, 1976 (2) S.A 204 at 211 (N) where Ditcott, J. is said to
remarked though it was represented by Mr. Hodgson that the A.G. was
firm that accused would flee if released there was no suggestion
the information in this connection was available to A.G. which the
court lacked because its disclosure was not in public interest
had conceded the A.G. was in no better position than the court and
that the attitude of the A.G. was per se the reason to
The learned President of the Appeal Court had gone on to say that
although the opinion of the A.G. always commanded
respect because of
his experience and responsibilities of office, it was evident that
once he was no better informed than the court,
the court was in as
good a position as he was to assess the position and the likelihood
or otherwise that an accused person would
abscond. (See R.v. Mtatsala
& Or. 1948 (2) 585 (E) at p.587; Leibman v. A.G., 1950 (2) S.A.
161 (D)at p.163 H.
also the learned President of the Appeal Court's view that ideas
aired by Guni, J. as to 'political connotation' demanded
to observe fairness in the manner in which their application for bail
pending trial was dealt with' see pp. 132-141
Bolofo's case above.
According to the learned President of the Appeal Court, the
perception was never to be created that they are
of their alleged unlawful activities', a factor that can become
vested in the broader community.' (P.141 ibid).
As to the
delay and its destructive impact on the principle of fairness,
considered the foundation and touchstone on which the criminal
is based, Ackerman, J.'s dictum was quoted where at pp. 23 - 24 of
Letsie's case supra the learned Judge said:
'The other side of the coin requires justice for the people as a
whole. It is in the public interest that justice be not delayed.
Confidence in the judicial system, particularly in the criminal
justice system is of paramount importance for the ethos of justice
and human rights and, indeed, for the general well-being of society.
It is a notorious fact that loss of confidence in the working
judicial system tempts people to take the law into their own hands.
Justice must not only be done, it must manifestly be
seen to be done.
Undue delay in finally disposing of a criminal case, where the
accused is languishing in gaol, can lead to the
perception that there
is an ulterior motive behind the delay.'
although for different reasons the Appeal Court did not grant bail,
the court nevertheless observed that the DPP had made a
undertaking to proceed immediately with the prosecution of the
accused and, moreover, the court noted that there was no
on good cause the applicants cannot apply before the trial Judge if
further delays are at the behest of the prosecution.
court might seem reluctant to grant bail at this stage, this has
nothing to do with the possibility of applicants committing
crimes should they be released on bail; it is, in the main, a case of
balancing interests of the state against those of
justice and the
liberty of the accused persons particularly because as was said in
the English and Empire Digest, Vol. 14 p. 174;
'The test for refusing bail is not whether an accused is likely to
commit or repeat a crime while at liberty
pending trial, but whether it is probable that he will attempt to
is said to have added:
If the guilt of the accused is in dispute, he should not be denied
bail merely because, from the past record, it appears that he
commit some further crime if released from custody.'
applicants have depended on their depositions in their application
for bail and this court in order to exercise its
dependent on their affidavits without hearing from applicants or any
one of them what might influence the court
into granting them bail.
As demonstrated above, there has to be sufficient information to
enable the court to exercise its discretion
in a judicial manner for
the inquiry whether or not to grant bail is investigative and
according to the judgment in Bolofo's case supra no explicit
provision was found in the Lesotho Constitution, perhaps
Steyn, P. was expressing the view that this in no way affected the
validity of the approach outlined concerning the procedure
followed in both the van Heerden Ellish cases - an approach
consistent with that of Ackermann, J.A. and Mahomed, A.J. in
and Archeson cases respectively.
heard counsel on both sides, this court comes to the conclusion that
at this stage it would be inadvisable to grant applicants
accordingly bail is refused. Should, however, good cause be shown
especially should there be further delays at the behest of the
prosecution, applicants are allowed to renew their application
bail. As this is in the nature of criminal proceedings, there will be
no order as to costs.
the alternative relief, applicants representative admitted that since
the launching of this application there had been
improvement to applicants living conditions. Counsel for the
applicants has made no suggestions for the improvement
conditions of the applicants over and above current improvements.
This court can only recommend that to upgrade present
conditions authorities endeavour to improve living conditions to free
applicants from the perceived inhuman treatment of
the applicants as
is envisaged by the constitution.
court was unhappy with the health condition of the applicants and
more particularly the sewerage disposal arrangements. It
that there be in place sewerage disposal facilities at least once a
month. Moreover, a Health Inspector is to inspect
the premises often
and at more reasonable periods of time not outside every three (3)
months. As there is grave misunderstanding
between Lt. Col. Lefosa
and the applicants, it is ordered that another officer replace Lt.
Col. Lefosa. As largely the application
is in the nature of a
criminal application, there will be no order as to costs.
Applicants: Mr. Phoofolo
Respondents: Mr. Mollyneaux
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