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CRI/APN/128/92

IN THE HIGH COURT OF LESOTHO

In the Application of:

'MASEHLOHO KAO . Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS... Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on
the 29th day of June, 1992.

The applicant herein moves the court for an order
releasing her on bail pending trial. The Respondent has filed a
notice of intention
to oppose the granting of the order. Affidavits
have been duly filed by the parties.

It is common cause from the affidavits that the
applicant is a civil servant attached to the Ministry of Foreign
Affairs in the Government
of Lesotho. On 16th March, 1992 she was
arrested, detained and subsequently charged of contravening S.3
(l)(c) of the Official Secret
Act, 1967 it being alleged, inter
alia that she had communicated the contents of a secret file
relating to the A.N.C. and P.A.C. to a certain police officer by the
name
of Jankie of the' South African Police

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Force. On 18th March, 1992 the applicant appeared before
a magistrate and confessed to have committed the offence, against
which she
stands charged, for consideration that the South African
Police authorities would finance her sickly child's medical treatment
in
one of the hospitals in the Republic of South Africa.

According' to her, the applicant made the purported
concession under coercion. Its admissibility is, therefore, disputed.
She is desirous
of being released on bail and undertakes to abide by
all the conditions that may be imposed by the court. She is a citizen
of Lesotho,
has a valid Lesotho passport and a family in Lesotho. The
possibility of her absconding out of the jurisdiction of the court
and
failing to stand her trial is, therefore, out of question.

The Respondent denies that when she went to the
magistrate and confessed to have committed the offence against which
she stands charged
any coercion was exerted upon the applicant, who
did so freely and voluntarily. The charge which the applicant is
facing carries
a maximum penalty of 14 years and it is, therefore, a
very serious one. If she were to be released from detention, the
temptation
would be too great tor the applicant to jump bail and
abscond out of the jurisdiction of the court rather than stand trial
and face
the possibility of a Long term of imprisonment. Her
relationship

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with the South African Police on the other side of the
boarder will make it very easy for the applicant to abscond out of
the jurisdiction
of the court and thus frustrate proper
administration of just in this country. Consequently the Respondent
strongly opposed the order
for the applicant's release on bail.

As it was said by Mofokeng, J. in Soola v. Director
of Public Prosecutions, l98l(2) LLR 277 at pages
280 et seq:

"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."

Although the applicant has assured the court that if
released on bail she will not abscond and fail to stand her trail,
the Respondent
is of the opinion that both the seriousness of the
sentence, likely to be imposed upon conviction, and her relationship
with the
South African police pose a risk of the applicant absconding
out of the jurisdiction of the court and failing to stand trial if
released
on bail.

I have weighed carefully all these averments and am

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convinced that if she were to be released on bail the
risk of the applicant absconding and failing to stand her trial does
exist with
the inevitable prejudice to proper administration of
justice in this country.

In the circumstances I have no alternative but to come
to the conclusion that this application ought not to succeed and it
is accordingly
dismissed.

JUDGE

29th June, 1992.

For Applicant : Mr. Phoofolo For Respondent: Miss
Morojele.