CRI/APN/3/92

IN THE HIGH COURT OF LESOTHO

In the Application of:

NTSANE LIPHOLO 1st Applicant

THATO MKWANAZI 2nd Applicant

ELIA MANGIZE 3rd Applicant

and

DIRECTOR OF PUBLIC

PROSECUTIONS Respondent

J U D G M E N T

Delivered by the Hon. Mr. Justice B.K. Molai on the
15th day of April. 1992.

On 3rd January, 1992, the Applicants, who are detained
in custody pending a trial involving two counts of robbery, filed,
with the
Registrar of the High Court, a notice of motion in which
they moved the court for an order releasing them on bail.

The notice of motion, together with the founding
affidavits, was on the same day 3rd January, 1992 duly served upon
the Respondent.
On 7th January, 1992, the parties appeared before the
court which was verbally informed by Miss Morojele, counsel for the
Respondent,
that there was intention

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to oppose the granting of the order releasing the
applicants on bail. The court then postponed the matter to 10th
February, 1992 for
arguments with a directive that if he really
wished to oppose the granting of the order the Respondent should have
filed the opposing
papers by the 13th January, 1992.

It is significant that when, on 10th February, 1992, the
matter came for arguments the Respondent was no longer represented by
Miss
Morojele. Mr, Semoko appeared as counsel for the Respondent.
Neither notice of intention to oppose the granting of the order
releasing
the applicants on bail nor answering affidavit had been
filed by the Respondent or his representative. Only D/W/O Monyane who
claimed
to be the Chief Investigating Officer had filed an opposing
affidavit in which he averred that if released on bail the applicants
would certainly abscond and fail to stand their trial.

In support of bis averments D/W/O Monyane pointed out
that he knew for a fact that 1st applicant possessed two local
passports viz.
passport number M017294 issued on 14th August, 1991 in
the names of Richard Lebohang Ntlele and passport number M050081
issued on
10th October, 1991 in the names of Ntsane Richard Lipholo.
1st applicant might be having many more passports and therefore
likely
to abscond out of the country if released on bail. As regards
the 2nd and the 3rd

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applicants, they had been evading arrest from September
up to December, 1991 when they were eventually arrested and remanded
in custody
pending their trial.

In fairness to him, Mr. Semoko conceded that, in as much
as the Respondent did not file either the notice of intention to
oppose or
the answering affidavit, there was irregularity in the
filing of the opposing papers.

I am aware that both Miss Morojele and Mr. Semoko are
relatively new arrivals in the office of the Respondent. The need for
an experienced
counsel to assist them in the handling of matters as
important as the present application cannot, therefore, be
overemphasized.

Be that as it may, in their affidavits, the applicants
averred that they were citizens of Lesotho and holders of valid
passports.
According to 1st Applicant passport Number M017294
belonged to a cousin of his, Richard Lebohang Ntlele, and not to him.
He denied,
therefore, the averment that he was in possession of more
than one local passports. The 2nd and the 3rd applicants also denied
the
averment that they had been evading arrest. Indeed, the 3rd
applicant averred that he was arrested in December, 1991 at his place
of work at Maputsoe in the district of Leribe.

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The applicants conceded that they had been arrested in
December, 1991 albeit on false allegations that they had committed
two counts
of robbery. They were, therefore, prepared to abide by
whatever conditions might be imposed by the court in releasing them
on bail
and stand trial so as to be able to prove their innocence.

I fully agree with Mofokeng J. In Soola v. Director of
Public Prosecutions 1981 (2) LLR 277 where at page 280 the learned
judge had
this to say:

"The objection by the Director of Public
Prosecutions must be carefully considered by the court and not
lightly discarded; after
all he is a responsible officer charged with
onerous duties."

However, in the present case, the Respondent, who as it
has already been stated is the Director of Public Prosecutions, did
not deem
it necessary to file either notice to oppose bail or
answering affidavit in which he, at least, associated himself as it
is, indeed,
usually the practice, with the averments contained in the
affidavit deposed to by the investigating police officer. In short,
the
Respondent has simply not made any objection which must be
carefully considered and not lightly discarded by the court.

In the circumstances, I am of the view that there would
be no valid justification in denying the applicants bail which

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is accordingly allowed subject to the following
conditions:

1. 
   Each must pay M100 cash deposit.

   
   

2. 
   Surrender his passport to the police

   
   

3. 
   Report to the nearest police station
   (Maputsoe
   police station in respect of
   1st and 2nd applicants and Hlotse
   Police
   station in respect of the 3rd applicant)
   on every
   Saturday of the week at or
   before 12 noon.

   
   

4. 
   They must not interfere with crown
   witnesses.

   
   

5. 
   They must attend remands and stand
   their trial.

   
   

6. 
   Each must find an independent person
   to stand him
   surety in the amount of
   M200.00.

   
   

The arrangements to pay the M100 deposit and find surety
in the amount of M200 must be made at the magistrate court and not at
the
office of the Registrar of the High Court.

B.K MOLAI

JUDGE
15th April, 1992.

For Applicant Mr. Teele

For
Respondent: Miss Morojele.