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
-2-
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
-3-
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.
-4-
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
-5-is accordingly allowed subject to the following conditions:
Each must pay M100 cash deposit.
Surrender his passport to the police
Report to the nearest police station(Maputsoe police station in respect of1st and 2nd applicants and Hlotse Policestation in respect of the 3rd applicant)on every Saturday of the week at orbefore 12 noon.
They must not interfere with crownwitnesses.
They must attend remands and standtheir trial.
Each must find an independent personto stand him surety in the amount ofM200.00.
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.