CRI/APN/151/86

IN THE HIGH COURT OF LESOTHO

In the matter of:

PHIRI MOHOLISA 1st Applicant MPHO MOHOLISA
2nd Applicant

vs
REX Respondent

JUDGMENT

Delivered by the Honourable Acting Judge, Mr. Justice
M.L. Lehohla, on the 4th day of August, 1986.

This is a bail application brought on notice before this
Court. In their founding affidavits the two applicants aver that they
have
been kept in custody since 6th June, 1986. Their arrest followed
an allegation of armed robbery committed against the Metro in Butha
Buthe.

Both applicants are Lesotho citizens. Each swears that
he is the sole breadwinner in his household. They are both married.
Applicant
one avers that he has three dependants. Applicant two avers
that he has two dependants. Applicants are both brothers aged 27 and
24 respectively.

The Crown opposes the bail application and has relied on
the affidavit of the investigating officer Detective Trooper
Mofilikoane
in support of its opposition.

The grounds advanced by the deponent: for his opposition
are that evidence at the trial will reveal the

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complicity of the applicants in the commission of
robbery with which they are charged.

Further that three fire arms were used in the robbery
and only one has been recovered, thanks to the pointing cut of that
one by Applicant
one, and that the amount involved is substantial
footing up to M14.883.13 no portion of which has been recovered to
date. The deponent
has further indicated that an amount of about
M2.000 was deposited in Applicant 1's pass book on the day of the
robbery. It was further
deponed that as potential Crown witnesses
reside at Hlotse some fear existed that applicants if released would
interfere with Crown
witnesses.

It is further averred that while Applicant one is facing
a case of robbery in Leribe Subordinate Court Applicant two has laid
claim
to a Toyota vehicle presently a subject of police
investigations for theft.

The deponent verily believes that if released applicants
would not only interfere with Crown witnesses but are likely to
abscond and
thus evade trial.

In argument Mr. Ramodibeli for the applicants submitted
well thought out reasons in support of the release of applicants on
bail.
He referred me to S vs. Bennett 1976 (3) SA 652 at
655-6. In that case Vos.J. strongly stated that

"In application for bail the State cannot arrest in
order to complete the investigation

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He further expressed the view that in such applications
the

"Attorney-General's ipse dixit cannot be
substituted for the Court's discretion."

Relying for the authority of S. vs Bennet supra
Mr. Ramodibeli submitted that it is not enough to make a
general statement that applicants would abscond without the Crown
laying solid foundation
on the reasonable possibility that applicants
would abscond.

The reasonable possibility to abscond as amplified in
the text laid down by Vos.J. relying on R. vs Kok 1922 NPD
267 at 269 consists in evidence of prior attempt by accused to
abscond. It seems also that fear of interference with Crown witnesses
would be well founded if there is proof of prior attempt to interfere
with such witnesses according to the views expressed in the
two cases
stated above. It has been urged on me that even if there is a risk
that the Court takes in releasing an accused on bail
the Court is at
large to impose conditions to meet such risk. Seola vs D.P.P. 1981
LL.R 277 at 281. While I most heartily endorse the spirit on
which these views are based and lengths to which Courts of law are to
go
in pursuit of jealously guarding the liberty of the subject, it is
also incumbent upon me to consider, weigh and evaluate grounds
advanced by the Crown in opposing the application for bail.

Apart from the arguments advanced in favour of granting
bail to the accused, counsel for applicants has laid great store oh
the fact
that the Director of Public Prosecutions

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has not filed any affidavit by way of registering his
own opposition to the application. Furthermore he submitted that the
charge
preferred against the accused being robbery is triable before
the subordinate courts. The mere fact that bail application relating
to what is termed armed robbery is restricted to the High Court
should not in any way constrict the exercise of the Court's
discretion
to grant bail, as indeed even in more serious crimes of
murder the Court has always been granting bail.

In reply Mr. Lenono for the Crown submitted that
the fact that D.P.P. has not submitted opposing affidavit should not
be weighed against the Crown.

Relying on the authority of Makalo Moletsane vs R
1974-75 LL. R at 272 Mr. Lenono argued that release on
bail with regard to categories of offences not bailable before
magistrates' courts is an
exception rather than the rule. Section 88
of the CP & E and as amended in terms of Act 33/84 in Gazette
No.42/84. It is in this
regard that the onus is on the accused to
show why discretion should be exercised in his favour, so the
argument went on.

Regarding the argument based on the fact that the trial
of this matter falls within the ambit of magistrate's court, Mr.
Lenono while
not denying that fact stated that there is high
probability that after all this may be tried by the High Court on
account of the
fact that fire arms were used and substantial amount
of money stolen.

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Mr. Ramodibeli sought to indicate that the Makalo
Moletsane case supra could not apply in the present matter because it
was not having
to do with robbery but High Treason. Unlike treason,
robbery is triable in the subordinate court. Moreover nothing in the
papers
has been shown to suggest that the robbery referred to in this
matter is of aggravated form.

My view of the matter is that on a proper consideration
of the facts placed before it, although the absence of the DPP's
opposing
affidavit in an application opposed by the Crown is not
without significance it should be remembered that in order for him to
submit
his own statement he relies on the statements of police and
investigating officers. Nothing prevents him from handing down his
powers
to make representa­tions before Court to representatives
of the Crown besides himself.

Having said so much it remains to point out that as was
said in Moletsane vs Rex supra at 274

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

The applicants in this case have been in custody for
well nigh two months. In the Makalo Moletsane case at the time of
their application,
the accused had spent 14 months in custody. Indeed
any length of time spent in jail is a long time, yet one's sense of
responsibility
compels

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that practical obstacles to the Crown's efforts to bring
the matter to trial as quickly as possible should not be either
overlooked
or taken lightly.

In McCarthy vs Rex 1906 T.S. 657 at 659, Innes
C.J.

said:

The Court "is always desirous that an accused
person should be allowed bail if it is clear that the interests of
justice will
not be prejudiced thereby, more particularly if it
thinks upon the facts before it that he will appear to stand his
trial in due
course."

In S. vs. Fourie 1973(1)5.A. 100 at 101 Miller
J. pointed out that

"It is a fundamental requirement of the proper
administration of justice that an accused person stand trial and if
there is any
cognizable indication that he will not stand trial if
released from custody, the Court will serve the needs of justice by
refusing
to grant ball, even at the expense of the liberty of the
accused and despite the presumption of innocence."

While Vos J. in the case referred to earlier boldly sets
out Factors which can justify refusal of bail as prior attempts by
accused
to either abscond or interfere with Crown witnesses Miller
J. in S vs Fourie contents himself with the existence of
cognizable indication of these factors as justifying refusal to grant
bail.

In my view the existence of such indications requires
proof. If no proof is established of their existence the

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Court remains with no other alternative but to grant
bail.

In cases where bail was refused on the grounds that
accused might flee I have found that usually, though not always, such
cases are
of a political nature where the Attorney General or the D.P
.P. has in his possession information that he is disinclined to
furnish
to the Court on grounds of either State security or public
safety. S. vs. MHLAWLI & OTHERS 1963(3) S.A. 795 and
MAKALO MOLETSANE vs R. 1974-75 LLR 272.

In S vs Mhlawli & Others supra in refusing
bail, the Court took into account an additional factor namely that

"where the inducement to flee is great

and where no extradition from the neighbouring
protectorate would be possible the Court will not readily grant bail
if the Attorney-General
opposes the application."

I have already indicated at least by implication that no
question of either public safety or national security is involved or
has
been raised as likely to be endangered by applicants' release in
the present case. The body of authority I have considered in
preparing
my judgment in this matter firmly shows that in the absence
of proof that accused has previously attempted to commit acts
disentitling
him to the grant of bail than the Court should not
refuse him bail.

Even in S vs. HLONGWA 1979(4)S.A. where as in the
instant case the Court was referred to the investigating officer's
opinion, there the Court having considered that,
depending on the
circumstances, the Court may rely on the

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investigating officer's opinion that the accused will
interfere with State witnesses if released on bail and refuse bail
even though
his opinion is unsupported by direct evidence yet Howard
J. at Page 114 in considering grounds for refusal to grant bail
brought attention to the following:-

If on accused released on bail

1. 
   fails to appear at the place and on
   this date and
   the time

   
   

2. 
   (i) appointed for his trial or
   (ii) to which
   proceedings relating to

   
   

the offence in respect of which the accused is released
on bail are adjourned, or

(b) fails to remain in attendance at such trial or at
such proceedings.

Although the above remarks by Howard J. seem to
be begging the question they cannot per se be ignored if only
to the extent that they point to the central theme of this judgment
namely that unless accused has been proved
to have committed a
positive act which is at variance with his release on ball, he should
be granted bail.

In the instant case as pointed above, the accused are
citizens of Lesotho and do have families of which they are sole
supporters in
respect of each. Even if there can be risk of either of
them or both committing acts confirming the Crown's fears and
apprehensions,
in S vs. Bennet supra Vos J. is adamant that it
is up to the Court to impose

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conditions which should meet such risk. The fact that
one of the weapons was discovered through Applicant one's agency
cannot count
against him but should rather count in his favour. That
he is facing a robbery charge in Leribe is discounted by authorities
cited.
As for Applicant two, the fact that he lays claim to a Toyota
vehicle, a subject of theft under police investigation, is too
little
to the point to be worthy of consideration.

That no amount of M14,883.13 has been recovered and that
M2,000.00 was deposited in Applicant 1's pass book are factors which
should
be taken into account by the Court charged with the
responsibility of determining

accused's guilt in relation to the facts which will
arise as

evidence at the trial in due course. The main test to be
applied in considering whether

bail is to be granted or not, it seems to me, is whether
accused will stand trial not whether at the end of the day he will be
convicted.
Vos J. in the case quoted above has rejected
outright the submission that accused be kept in jail in order to
afford the Crown an opprotunity
to complete investigations. That the
accused belong to the same village as the Crown witnesses cannot
serve as a ground for refusing
bail without proof that they will, and
such proof can only have foundation on the basis that he has
attempted interference with Crown
witnesses. It does not sound proper
that having refused to grant bail the Court should turn round and say
should accused apply again
his or her application may perhaps be
viewed in . a better light than previously. Bail should either be
granted or refused. I am
informed that applicants stay near the
Hlotse

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Police Station.

I am not unmindful of the strong submissions made by the
Crown in this application. The effect of the cognizance I give to
them will
be borne out in the next paragraph below.

Consequently both applicants are admitted to bail on the
following conditions:

1. Payment of M300 cash deposit in respect
of each
applicant.

2. 
   Production of one surety (acceptable
   to the
   Registrar) by each applicant
   binding himself in the sum of
   M300
   (not cash) per surity.

   
   

3. 
   Surrender of each his passport to
   the Hlotse Police
   Station.

   
   

4. 
   Report by each applicant every day
   at Hlotse Police
   Station between

   
   

6 a.m. and 6 p.m.

5. 
   Non-interference with Crown witnesses.

   
   

6. 
   Attendance of remands and finally

   
   

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standing trial.

M.L. LEHOHLA ACTING JUDGE

4.8.86.

For the Applicant: Mr. Ramodibeli
For the Crown :
Mr. Lenono