IN THE HIGH COURT OF LESOTHO
In the Appeal of:
PHATELA MOSOTHOANE 1st Appellant LEKENA MATHIBELA
Delivered by the Honourable Acting Judge,
Mr. Justice M.L. Lehohla, on the 4th day of August,
This is an application for bail made by the two accused
charged with murder.
The application is brought on notice of motion. Service
of the notice was effected on the Director of Public Prosecutions'
on 14th May, 1986, according to date stamp of the latter
reflected on the papers. The matter was initially set down for 19th
1986. The Crown opposes this application.
While it would have been desirable to have had this
matter resolved long before today it appears two factors have
such an eventuality,i.e.
(a) first the file placed before me is styled "dummy"
- a nomenclature that denotes all the unsavoury
consequences greatly demurred at in Rex vs Sechaba Sello
(unreported) Review Order 15/86 at pages 8 - 10 relating to the
of the records. Small wonder that bar the 2nd
Applicant's replying affidavit all documents contained in my file are
(b) secondly, due process. As indicated in (a) above,
mine is a dummy file. Consequently as it bears no minutes by any
Judge who dealt
with the matter I had to rely on the information
provided and confirmed by applicants' and respondent's counsel
my brother Levy A.J. made an order on 8-7-86 that
evidence be given on oath by the Crown in support of its opposition
to this application.
Accordingly the first deponent Detective Sgnt. Jonase,
under cross examination, swore that he had filed opposing affidavit
matter in his capacity as an investigating officer; that he
was aware of the post mortem report in it and that no preparatory
has been held. He was neutral as to whether the
applicants knew the Crown witnesses. He did not know if the Court is
in a position
to impose suitable conditions to allay his fears that
applicants would either abscond or interfere with Crown witnesses in
that the former are granted bail. He stated that he was not
aware if the applicants ever attempted to either abscond or interfere
with Crown witnesses. He further averred that he didn't
know if, in Musetsi Thebe charged with and convicted of
ritual murder, extenuating circumstances were established at least on
Deponent further averred that he would not think
applicants would have spent a year in detention by 8th September,
1986, and maintained
they were arrested in October, 1985. It was put
to him that in his opposing affidavit he had not denied the fact that
by 8th September
they would have spent a year in custody. The
deponent said he thought he had.
However, on the papers before me although in the
applicants' affidavits, it was not so pointedly stated or stated in
to their counsel's question nowhere has the deponent
denied in his affidavit Applicant 1's averment ad Para.9 that
"I together with the 2nd Applicant herein were
arrested on or about 8th September, 1985, and have been in custody
without any progress to our case."
Applicant 2's averment in Para.4 reads
"1 am presently being kept in custody at Maseru
Central Prison since 8-9-85 in connection with the alleged death of
Nowhere was the crucial question of the date 8-9-85
denoting applicants' start of detention denied.
Suffice it to say that in its opposition the Crown has
relied on this deponent's affidavit and oral evidence given under
and that of Mr. Semapo Nkutu PEETE, the Director of
In the papers the first deponent avers that applicants
are charged with murder. He avers that the purpose for the killing
He further stated that applicants committed the said
crime together with four others who are at large except one of them
suicide after escaping from police custody.
Lastly, deponent asserts his opposition to the
application on the grounds that the charge they are facing being
ritual murder is very
grave, and that in consequence of the reliable
information he has applicants had clandestine contacts or meetings
with those still
at large prior to applicants' arrest, and that now
that applicants are in custody witnesses who had otherwise been
are now letting it spill as it were and
further that as there are accomplices originating from the same
village as that of applicants,
the latter are more than likely to
either abscond or definitely interfere with potential Crown
The Director of Public Prosectutions' affidavit if any
thing deriving from that of 1st deponent reiterates the averments
confirms the fears set out by the
In reply to the question put by the Court whether
deponent would have known if applicants either tried to abscond or
Crown witnesses, he said he would have.
Learned counsel for applicants submitted in argument
that applicants have established that this is a fit case
where bail can be granted. He pointed out that the
officer has failed to establish positive acts on which
his fears are based.
Relying on S vs. Bennett 1976(3) 652 at 655 he pointed
out that reasonable possibility that applicants will not may
Crown witnesses must be shown before applicants can be
denied bail. He further submitted that the Court must strike a
interests of justice and liberty of the subject.
The Court was referred to 500LA vs. Rex 1981(2) LL.R
Page 277 at 281 where in granting opposed bail to applicant facing a
Mofokeng J. pointed out that
"The Court will always grant bail where possible
and lean in favour of and not against the liberty of the subject
interests of justice are not thereby prejudiced. The
Court's duty is to balance these interests. Again the presumption of
operates in favour of the person seeking bail even where
there is a strong prima facie case against him."
Submitting that mruder is always serious and that courts
are ever alive to cases of this nature, applicants' counsel referred
'Musetsi Thebe vs R. C. of A. (CRI) 3/84 (unreproted) where
appellant was granted bail notwithstanding the fact that he was
a serious murder charge in consequence of which extenuating
circumstances were found to exist only at the Court of Appeal stage
one of the members of the Court dissenting on the issue.
Even before the ink had had sufficient time to dry on
it, judgment in CRI/APN/151/86 PHIRI MOHOLISA & ANOTHER vs REX
was referred to me. In that case, the applicants were
granted bail in the face of strong opposition by the Crown. At Page 9
Judgment in tackling the submission similar to the one in the
instant case that because applicants belong to the same village as
the Crown witnesses and therefore applicants ore likely to
interfere with the latter, the Court said
"That the accused belong to the same village as the
Crown witnesses cannot serve as a ground for refusing bail without
that they will, and such proof can only have foundation on the
basis that he has attempted interference with Crown witnesses."
It was further said at Page 7
"The body of authority firmly
shows that in the absence of proof that accused has
previously attempted to commit acts disentitling him to the grant of
the Court should not refuse him bail."
Mr. Thetsane for the Respondent referred me to KONG vs
ATTORNEY-GENERAL 1915 T.P.D. 221 at 224 where De Villiers, J.P. had
"The Court is always desirous that an accused
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
Basing its argument on the foregoing quotation, the
submitted that owing to the nature and gravity of the
offence with which applicants are charged they are unlikely to stand
released on bail and that there is real possibility of their
interfering with State witnesses.
Arguing that each case must stand on its own merits, the
Crown submitted that the Court should determine whether or not any
exists precluding applicants from bail and referred to a
passage in KONING vs ATTORNEY-GENERAL (supra) where Wessels J. said:
" in order to determine
this the Court must ascertain, as far as it can from the
circumstances, what the penalty is likely to be which will be imposed
the applicant. If the penalty is likely to be a severe term of
imprisonment, then the courts ought not to grant bail."
It was submitted that probabilities are that if
applicants are convicted no extenuating cirumstances will be found
owing to the nature
of the crime charged.
This submission seems to be at variance with the
observation made in MOHOLISA & ANOTHER vs REX supra at Page 9 to
the effect that
"The main test to be applied
is whether accused will stand trial not whether at the
end of the day he will be convicted."
In CRI/APN/125/81 MANAMOLELA & 11 OTHERS vs REX
Rooney J. pointed out that:
"in exercising its discretion in an application for
bail, the Court has to balance the presumption that the applicants
against the interests of justice."
He regarded as worthy of consideration two factors which
he set out as follows:-
the gravity of the charge and thepossible
consequences in the event ofconviction;
the nature of the allegation itself.
The Learned Judge summed up his observations as
"People who are suspected of participating in
murders of this nature are not unnaturally regarded with suspicion
and fear. If
such persons are permitted to move freely among the
public while the truth of the allegations against them have not been
they may be in a position to exercise powerful influence
over potential witnesses by their mere presence."
-9-Needless to state, the bail application in
MOHOLISA & ANOTHER vs REX supra concerned people charged with
robbery and not murder.
While taking note of the fact that in the celebrated
phrase of Vos.J. in S vs. Bennett supra "Attorney-General's ipse
be substituted for the Court's discretion", it is
not without significance that the Director of Public Prosecutions has
his hand in opposing the instant bail application. This factor
is borne out in the ruling expressed in Moletsane vs Rex 1974-75 LLR
at 274 where Cotran C.J. as he then was said:
"the Court relies upon the police and
counsel for the Crown not to make
statements without a full sense ofresponsibility."
It is in this connection that 1 think the objection by
the Director of Public Prosecutions must be carefully considered and
discarded. He is a responsible officer charged with
onerous duties. I have weighed carefully his averments. But, as
by Miller J. in S vs. Essack 1965(2) SA 161:
"this is not to say that whenever the
Attorney-General (Director of Public Prosecutions in this case)
opposes such an application
the Court will refuse to allow bail, for
opposition might often be justifiably offered out of considerations
The Crown has sought to show by implication that because
applicants have had secret meetings with those who
are still at large and unlikely to come and face charges
they will likewise seek this means to effect their escape.
J. succinctly rams the argument home by saying:
"It seems to me ... that
before it can be said that there is any likelihood of
justice being frustrated through an accused person resorting to the
to evade standing trial, there should be some evidence
or some indication which touches the applicant personally in regard
likelihood. General observations applicable to a certain
group of persons are undoubtedly relevant and entitled to some weight
the applicant is a member of that group, but they can never
be conclusive in themvelves.
if the offence is of
the type which leads to the
accused effecting his escape through familiar and well
known routes and if it
appears that his association
with others who have effected their escape when
similarly charged is sufficiently intimate to show a probability that
he would follow
suit, that might be sufficient ground for refusing
bail." (my underlining)
In S vs. Fourie 1973(1) SA at 101 Miller J. pointed out
" if there is any cognizable
indications that he will not stand trial if released
from custody, the Court will serve the needs of justice by refusing
bail, even at the expense of the liberty of the accused and
despite the presumption of innocence."
Diemont J. in S. vs. Mhlawli & Others 1963(3) SA
"where the inducement to flee is great .... and
where no extradition from the neighbouring protectorate would be
Court will not readily grant bail if the
Attorney-General (in this case the DPP) opposes the application."
I have considered the Thebe matter referred to above and
found that the question of his youth played an important role in his
granted bail and finally being lucky to have had the majority
in the Court of Appeal state that extenuating circumstances existed
in his case.
The Crown has done all at its disposal to ensure that
the trial be brought quickly. The fact that D.P.P. has ordered a
bespeaks his endeavour to let applicants' matter
supercede other pre-existing matters on the roll all in the name of
ensuring a post
haste dispatch of their trial.
There's no doubt in my mind that the authorities and
principles relied on by Mr. Ramodibedl are very strong and in an
case should carry the day; but the countervailing
circumstances advanced by the Crown seem to me to have placed
applicants not in
the right ball park.
Accordingly I have decided that in exercising my
discretion I should not admit applicants to bail pending their trial.
M.L. LEHOHLA ACTING JUDGE
For Appellant: Mr. Ramodibedi For Crown : Mr. Thetsane
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