CRI/APN/275/85
IN THE HIGH COURT OF LESOTHO In the Application of
MOEKETSI SEFALI AND 9 OTHERS Applicants
v.R E X Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice J.L Kheolaon the 13th day of January, 1986
This is an application for bail in a case in which the applicants are charged with contravening the provisons of section 7 of the Internal Security (General) Act of 1984, In his opposing affidavit the Director of Public Prosecutions deposes that from the perusal of the police docket he has formed an opinion that the criminal acts and activities allegedly committed by the applicants are of a serious and treasonable nature in relation to the security of the State. He further states that according to the evidence in the possession of the police the applicants haboured and actively assisted certain members of the Lesotho Liberation Army who kidnapped a certain policeman, one Trooper Tsemane, and abducted him into Transkei in the Republic of South Africa, a country with which Lesotho has no extradition arrangements.
The First Applicant states that at midnight on the 24th August, 1985 he was awakened by a knock at the door. When he got out he found seven men one of whom was in a Lesotho Mounted Police uniform and the rest were wearing blankets. They asked him to accommodate them in his house for the night. This he did as it is customary in this country. He avers that he did not know that those people were members of L.L.A. and that they were kidnapping a policeman.
/In their ....
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In their affidavits the rest of the applicants depose that they never assisted members of L.L.A. in any manner and that they do not know anything about the kidnapped policeman.
The applicants are jointly charged with eighteen (18) other people whose bail applications were refused by this Court in CRI/APN/258/85 dated the 18th December, 1935 . I do not propose to repeat in detail the reasons why I dismissed the applications in that case. The reasons I gave in that case apply to the present case because the applicants are jointly charged. Bail will not be granted if the interests of justice will be prejudiced, as where it is likely that the accused will abscond In considering whether the accused is likely to abscond the Court is guided by the nature of the crime charged, the severity of the punishment which may be imposed and the probability of a conviction (Kok v. R. 1927 N.P.D. 267). I have not been persuaded that the offence created by section 7 of the Internal Security (General) Act 1984 is not a serious offence. One has only to look at the penalty section of the Act and there will be no doubt that the Legislature regards the offence as a very serious one. A minimum sentence of R10,000 or five years' imprisonment is prescribed by the Act.
I entirely agree with the Defence Counsel that a charge of murder is more serious than the offence under section 7 of the Internal Security (General) Act 1984, but it must be borne in mind that in almost all bail applications involving murder charges it is never alleged that in the commission of the murder the accused collaborated with certain people who fled into the Republic of South Africa and are now living there. In the present case there is an allegation that the people who were assisted by the applicants in the kidnapping of the policeman are now living in the Republic of South Africa where the L.L.A. has its base. Consequently, the likelihood of the applicants is to abscond is always very great where the applicants' collaborators have already fled into the Republic of South Africa.
/Mr Sello
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Mr. Sello for the applicants drew the courts' attention to the fact that two people jointly charged with the applicants were granted bail - by Levy, A J. on the 11th December, 1985 and that those people are still observing the conditions of their bail. I have now had the opportunity of checking the file in CRI/APN/255/85 but unfortunately no written reasons were filed. Mr. Kamalanathan for the Crown who appeared for the Crown in that application informed the Court from the bar, that the applicants were granted bail for the simple reason that they were very old people The first applicant was 75 years old and the second applicant was 79 years old. Both applicants were frail and sickly. I am of the view that in that application the Court was justified to exercise its discretion in favour of the applicants. It is most unlikely that such old people can abscond. Starting a new life in a foreign country would almost be impossible for such old people. In the present case the fourth applicant is 70 years of age and in poor health, the fifth applicant is 75 years of age, he was arrested on the 2nd September, 1985 and released on the following day. He did not flee out of the country until the 14th November, 1985 when he was re-arrested. If the fifth applicant intended to abscond he would have done so after his release.
The seventh applicant's right leg was amputated in 1961 and he alleges that as a result of brutal assault upon him by the police when he was arrested the amputated leg has begun to hurt very badly. I am of the view that a one legged man is most unlikely to attempt to flee out of the country, more especially because he lives in the interior of the country.
The sixth applicant is a young woman of 29 years of age, she is nine months pregnant. I do not think that a woman in that advanced stage of pregnancy may decide to abscond. It would cause a lot of inconvenience for the prison staff to care for the baby and its mother.
The rest of the applicants are normal people and there are no special circumstances which compel me to treat them differently from the
/applicants....... .
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applicants in CRI/APN/258/85.
For the reasons I have stated above the application is granted
in respect of the following applicants
The Fourth Applicant (Tebalo Makoko), The Fifth Applicant (Reuben Mohoshela), The Sixth Applicant ('Maliepollo Makhetha), The Seventh Applicant (Motiki Makhetha),
The conditions -(1)Each applicant shall pay a cash bail deposit
of R250-00.
(2) Each shall report himself/herself at hernearest police station on Mondays, Wednesdays
and Fridays, between the hours of 9 a.m. and 2 p.m.
They shall surrender their passports to the police,
They shall attend all hearings of the chargesagainst them,
(5) They shall not interfere with Crown witnesses.The applications of the rest of the applicants are refused.
J.L. KHEOLA JUDGE.
13th January, 1986.
For Applicants Mr. Sello
For Crown Mr. Kamalanathan.