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 Kheola
on
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 ....

-2-

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

-3-

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....... .

-4-

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 her
nearest
police station on Mondays, Wednesdays

and Fridays, between the hours of 9 a.m. and 2 p.m.

3. 
   They shall surrender their passports to the police,

   
   

4. 
   They shall attend all hearings of the charges
   against
   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.