CRI/APN/87/82 IN THE HIGH COURT OF LESOTHO

In the Matter between

SHADRACK NDUMO Applicant

v

THE CROWN Respondent

JUDGMENT

Delivered by the Hon. Mr Justice B.K.Molai on
the 24th day of January,1983.

The applicant and two others are allegedly detained in
gaol on charges involving High Treason, alternatively sedition or
contravening
the Internal Security (General) Act 1967.

The applicant makes this application for an order of the
court releasing him on bail pending trial before the High Court. The
application
is opposed by the Director of Public Prosecutions on
behalf of the Crown.

In his founding affidavit the applicant depones,. inter
alia. that he has no intention to evade his trial if released on
bail. After all, during the period between 16th September, 1982 and
24th
October, 1982 while'under police detention for interrogation, he
was not in the police cell and was allowed to stay outside the charge
office during day time. He did not then run away.He is a priest in
the Anglican Church. He has a wife, who has been in hospital
since
October, 1982. He has three minor children who are presently in the
care of relatives. He wishes to be released on bail so
that he can be
able to attend to his ill wife and minor children.

In his opposing affidavit, the Director Public
Prosecutions also depones, inter alia, that the applicant

2/ together with .......

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together with two others are now indicted before the
High Court for trial on serious charges of High Treason, seditior and
contravention
of the Internal Security (General) Act 1967. The
charges against .the applicant and others (many of whom are still at
large) are
as a result of their treasonable and seditious activities
against the State and. Government of Lesotho committed at the
National
University campus, Teyateyaneng, Maseru in Lesotho and also
at Foksburg and Senekal in the Republic of South Africa If released
on
bail the applicant is therefore likely to run away and not stand
his trial thus prejudicing the ends of justice.The Director of Public
Prosecutions further depone in his founding affidavit that most of
the witnesses who will testify in the pending trial against the
applicant and his co-accused are accomplices who participated in the
crimes of which the applicant is alleged to "have been
the prime
mover and ring-leader.The applicant as their leader and church leader
has considerable influence over the witnesses and
will, if released
on bail,interfer with the witnesses to the detriment of proper
administration of Justice.

Major Ramakhula Ramakhula of the Lesotho Mounted Police
who is the. investigating officer in the case against the applicant
and his
co-accused has also filed a similar opposing affidavit in
which he avers that his investigations have revealed, among others
that
the applicant is the Chief Architect of the so called L.L.A
activities in the northern districts of Lesotho.His investigations to
try and apprehend numerous of applicant's collaborators - still at
large -_are continuing.If released on bail the applicant is likely
to
flee the country and join his colla­borators some of whom are
operating outside Lesotho. Major Ramakhula further depones
that if
admitted to bail

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the possibilities, that in his position the applicant
will be able to interfer with Crown witnesses thus jeopardizing the
Crown case,are
high.

The applicant has filed a replying affidavit in which he
strongly denies that he intends evading his trial or in any way
interfer
with crown witnesses.

Section 109 of the Criminal Procedure and Evidence Act
1981 empowers the High Court to admit an accused person to bail even
where
he is charged with murder, High Treason or sedition which are
normally not bailable offences in the subordinate courts - see Se0c.
99 of the Criminal Procedure and Evidence Act, supra. However
in Moletsane v. Rex 1974 - 5 LLR 272 at p. 273 Cotran J.
(as he then was) is recorded as having said that the release on bail
on such offences is the exception rather than the rule and
there must
be good reasons shown for departing from the rule. I respectfully
agree.

It has been argued before me that while under police
detention for interrogations, the applicant was not strongly guarded
and could
have absconded if he had the intention to do so. This was
vehemently denied by the crown counsel who contended that according
to
the affidavit of Major Ramakhula, the applicant was at all
material times under the police guard and could not have escaped ever
if he wished to . There is clearly a dispute of facts on this issue
and it cannot therefore be satisfactorily resolved on affidavits.

The important thing however, is that the application is opposed by
the Director of Public Prosecutions. I have been urged during
arguments to give due weight to what the applicant has said under
oath in his

4/ affidavit.

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affidavit. This the Court has certainly done. However,
the court must likewise give serious consideration to what the
Director of
Public Prosecutions and the senior police officers say on
oath in application of this nature. They are responsible Government
officers
who play a very important role in the proper administration
of Justice. What they say on oath in affidavits must never be
slightly
discarded

as if it were a big joke. In the words of Ramsbottom.
J.

in Lobel and Another v. Classen 1956 (1) S.A. 531
quoted

with approval in Moletsane v. Rex, supra

"The court must rely upon what it is told by
representatives of the Crown in applications

of this kind , the court relies

upon the police and counsel for the Crown not to make
statements without a full sense of responsibility."

In his work, the Outlines of South African Criminal
Law and Procedure by A.V. Lanedown at page 215, the
learned Author has this to say on the subject of bail application :

"The main consideration in the decision of an
application for bail when it cannot be claimed as of right (as in the
present case),
is whether the granting of the application is likely
to prejudice the ends of Justice and in particular whether, having
regard to
the circumstances of the case, for instance, the nature of
the charge and the severity of the possible sentence, the accused is
released
would be likely to stand his trial or to endeavour to evade
trial by sacrificing his bail".

It cannot be seriously disputed that charges of High
Treason, Sedition and contravention of the Internal Security
(General) Act 1967
are serious charges. I shall not go as

5/ far as saying

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far as saying that the applicant is guilty of these
serious offences for this is a matter still to be tested in due
course at the
trial of the applicant and his co-accused. We must,
however, have a starting point some where. For this reason it can be
accepted
as a starting point that it is possible that at the close of
his trial, the applicant may be convicted on the serious charges he
and his co-accused are now facing.In that eventuality the sence is
likely to be a commensurately serious one. That being so, the
existence of the incentive to abscond must obviously be greater now
than it' was at the time when the applicant had not been served
with
any charge.

Moreover, the offences against which the applicant and
his co-accused are allegedly charged are political ones. It must be
borne in
mind that people who commit these political offences are
more often than not people of high political morals and ideals who
commit
them not for personal gains but because of their strong
political view points or beliefs. Offences of this nature may carry
for
a certain section of the community very little or no social
disgrace at all. They may even carry approval. There is therefore
great
incentive for political offenders to jump bail and avoid
standing trials in order to gain freedom to disseminate their view
points
more effectively. A serious averment has been made in the
affidavits to the effect that some of the alleged seditious
activities
of the applicant and his co-accused were carried out in
the Republic of South Africa, a country with which Lesotho has no
extradition
agreement. If on being admitted to bail the applicant

6/ were to. cross........

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were to cross to the Republic of South Africa, the ends
of justice would no doubt be seriously" jeopardized.

Mindful therefore that it is not the oolicv of our law
that accused person should be detained in gaol;, where it is
reasonably clear
that he will appear to stand his trial in due
course, I have nonetheless come to the conclusion that in the
circumstances of the
present application, it would be unwarranted
risk to release the applicant on the bail.I have no alternative
therefore but to refuse
this application.

B.K.MOLAI

24th January, 1983.

Mr.Maqutu for the Applicant,
Mr. Kabatsi for the
Crown.