IN THE HIGH COURT OF LESOTHO
In the Application
THABO KHOALI .............. 1st Applicant
SECHABA KHOALI............. 2nd Applicant
DIRECTOR OF PUBLIC
Delivered by the Hon. Mr. Justice B.K. Molai on the 30th day of March, 1988.
On 4th March, 1988 the applicants herein filed with the Registrar of the High Court an application in which they moved the court for an order releasing them on bail. Intimation to oppose the application in respect of the 2nd applicant was filed. No.1 applicant's application was, however, not opposed and he was accordingly released on bail on the same day, 4th March, 1988.
The 2nd applicant has filed the founding and replying affidavits. Notwithstanding intimation to oppose application by the 2nd applicant, the Respondent himself filed no answering affidavit. Only the police investigating officer filed an affidavit.
Be that as it may, it is common cause from the facts disclosed by the affidavits that some time in December, 1987 one Isdora Khoali, a relative of the 2nd applicant, disappeared from his home and was subsequently found deed in his arable land next to St. Monica's in the district of Leribe.
According to D/Sgt Kaka, the investigating officer who has deposed to an answering affidavit on behalf of the respondent, a meeting of all the villagers was convened to inquire into the cause of the death of the deceased. The 2nd applicant did not attend the meeting. The police had to look for him and it was only after a thorough search that they were able to arrest him at some very obscure place where he had been hiding. D/Sgt Make further deposed that his investigations had revealed that the 2nd applicant had
relatives in Johannesburg end Cape Town in the Republic of South Africa. He believed that if released on bail the 2nd applicant was likely to abscond to the Republic of South Africa and fall to stand his trial.
In his affidavits the 2nd applicant denied that the police had found him at some very obscure place where he had been hiding. He averred that he was a hawker by profession. After the deceased had disappeared from home he had to go to a place called Llotloaneng where he warn openly selling, soft goods. On the night of 19th February, 1988 he was sleeping at the home of one Mrs 'Mathobo Lara at Liotloaneng when the police came and arrested him in connection with the death of the deceased, Mrs. 'Mathabo Lara was a friend of his family and there was nothing obscure about his sleeping at her place. When he told them that he had nothing to do with the death of the deceased the police assaulted him until he had to tell them a lie that he and the 1st Applicant had killed the deceased.
The 2nd Applicant denied that he had relatives in Cape Town. He, however, conceded that he had relatives in Johannesburg. He had a wife and a minor child here in Lesotho. He would, therefore, stand his trial rather than abscond to the Republic of South Africa leaving his wife and minor child. Consequently he prayed that the Respondent's apposition to bail be dismissed.
As has been rightly pointed out by Mofokeng J. in Soola v. Director of Public Prosecutions 1981(2) LLR. 277 at p. 280
"The main principles governing the granting of bail are that the courts must hold the interests of justice. The court will always grant bail where possible and lean in favour and not against the liberty of the subject provided the interests of justice are not thereby prejudiced. The Court's duty is to balance these interests. Again the presumption of innocence operates in favour of the person seeking ball even where there is a strong prima facie case against him."
In this case bail is opposed firstly on the ground that after the deceased had disappeared from his village and was subsequently found dead in his arable land the 2nd applicant could not be found in the village. It was only as a result of the police search that he wag found hiding at some obscure place. Secondly
that the 2nd applicant has relatives in the Republic of South Africa where he is likely to abscond to and thus prejudice the proper administration of justice.
It is, however, significant to note that the 2nd applicant has explained the reason why he was not in his village when, fallowing his disappearance from the village, the deceased was found dead in his arable land. According to him,the 2nd applicant is a hawker who goes from place to place selling goods. At the time the deceased disappeared from home, the 2nd applicant had to go and carry out his business at a place called Liotloaneng where the police found him at night whilst sleeping at the home of 'Mathabo Lara, a family friend.
Assuming the correctness of the 2nd applicant's averment that he is a hawker who goes from place to place selling goods it may well be true that at the time the deceased went missing from home he had to go to Liotloaneng to carry out his business. There is therefore, nothing unreasonable in the 2nd applicant not being present in his village at the time the dead body of the deceased was found in his arable land.
I must say I find D/Sgt Maka's averment that the 2nd applicant was arrested at some very "obscure place" where he had been hiding somewhat umbiquous. Was the 2nd applicant perhaps arrested in a forest, a donga or some other place where a person in his position would not be expected to be? In an application of this nature it was the duty of the ditective sergeant to take the court into his confidence and explain what exactly he meant by the "obscure place" where the 2nd applicant had been hiding. In the absence of any such explanation, it is sensible to accept the 2nd applicant's averment that he had been arrested in the village of Liotloaneng where he was spending the night at the home of 'Mathabo Lara, a family friend. That being so, I fall to apprehend how, by any stretch of imagination, it can be said that the 2nd applicant was arrested at some "obscure place" where he had been hiding.
The 2nd applicant has conceded that he has relatives in the Republic of South Africa. He has however, deposed that he does not intend absconding to the Republic of South Africa leaving his wife and minor child here in Lesotho. In my view if he had the intention to abscond to the Republic of South Africa the 2nd applicant could have easily done so at the time he left his village following the disappearance of the deceased. He did not do so. Instead he went to Liotloaneng where, according to him he was openly gelling his soft goods. The fear that if released on boil the 2nd applicant is likely to abscond to the Republic of South Africa cannot, in my opinion, be supported by the facts disclosed in the affidavits.
I must say it is common practice in applications of this nature that after intimating intention to oppose bail the Director of Public Prosecutions files an answering affidavit in support of his opposition. In the instant case I find it strange that the Director of Public Prosecutions has filed no affidavit in support of his opposition. I am told in argument that in fact the post of the Director of Public Prosecution is vacant and nobody has so far, been gazetted to act in that position. In the absence of either the Director of Public Prosecution or anybody officially acting in his place, it may well be argued that this application is, in fact, not being opposed by the Director of Public Prosecutions.
From the foregoing it is obvious that the view that I take is that the fear that, if released on ball, the 2nd applicant is likely to abscond and fall to stand his trial is unjustified.
I would, therefore, order that the 2nd applicant be released on bail provided he observes the following conditions
He must pay M200 cash deposit,
He must surrender his passport to the police,
He must report to the nearest police station, which is Maputsoe police station, on every Wednesday and Saturday of the week at or before 12 noon.
He must not interfer with crown witnesses,
He must attend remands and stand his trial,
He must find two independent persons to stand him security in the amount of M200 each. The arrangements to pay the M200 deposit and find two securities in the amounts of M200 each must be made at the magistrate court and not at the office of the Registrar of the High Court.
30th March, 1988.
For Applicant Mr. Ramolibeli,
For Respondent Mr. Mokhobo.
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