IN THE HIGH COURT OF LESOTHO In the
TS'EPO POLAKI Applicant
THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Delevered by the Hon. Mr. Justice B.K.Molai
on the 29th day of June, 1992.
The applicant herein, who is charged with the crime of
attempted murder, has moved the court for an order releasing him on
his trial. The Respondent has filed notice of intention'
to oppose this application.
Affidavits have been filed. It is common, cause from
affidavits that the applicant and another person, Molebo Thethane,
as taxi driver and conductor, respectively.
According to the applicant, his co-worker was, on 28th
January, 1992, arrested by the Maputsoe police. The
applicant then drove in his taxi to Maputsoe police station where he
co-worker being assaulted by police officers. He pleaded
with the police officers to stop assaulting his co-worker. The police
however, expelled, and threatened to shoot, him.
Consequently the applicant ran away leaving his taxi behind.
It is not clear from the founding affidavit when his
co-worker was released but the applicant went on to aver that at
about 9.00 p.m.,
presumably on the same day, 28th January, 1992, he
and his co-worker returned to the police station with a view to
retrieve the taxi.
On arrival at the police station, the applicant
and his co-worker were, however, greeted with a volley of bullet
shots by the police.
They can away and reported the incident to the
owner of the taxi.
It would appear that the applicant subsequently returned
to the police station and observed that the taxi had all its four
deflated and the window on the passengers door broken. He
again returned to the taxi owner and reported his observations.
In the mean time the applicant learned that his home had
been raided and his co-worker re-arrested by the Maputsoe police
who had been threatening to shoot and kill him
(applicant) on sight. He believed that the police were
capable of carrying out their threats. Consequently the applicant
and surrendered himself at the Leribe Subordinate Court. He
was jointly charged with his co-worker and remanded into custody. His
co-worker has, however, since been released on bail,
It is significant to observe that, although in the
notice of intention to oppose, it was stated, inter alia, that T.J.
Semoko, a representative
of the Respondent, would depose to an
affidavit in opposition of this application, no such affidavit has
been filed. Only the police
investigator, D/Sgt Rankhelepe, has
deposed to an opposing affidavit. His account of what happened on
28th January, 1992 is different
from that of the applicant.
According to him D/Sgt Rankhelepe was at about 5.00 p.m.
on 28th January, 1992, on duty at Maputsoe police station when he
applicant's younger brother, Tumo Polaki, assaulting a girl
at a distance of about 80 paces away from the police station. He
to the scene, arrested and charge Tumo Polaki for his
assault on the girl.
Shortly after Tumo Polaki had been put in a cell, the
applicant and his co-worker arrived at the police station charged
the company of a third man. To the greatest
dismay of the deponent and his colleagues, the applicant
suddenly jumped over the charge office counter and opened the door of
cell in which Tumo Polaki had been detained. Tumo Polaki then
managed to escape from the cell and run away. As he cried to jump
the police station fence, Tumo was, however, re-arrested and
brought back to the police station. The deponent denied, therefore,
the applicant's suggestion that when he came to the police station
the latter was alone and found his co-worker, Molebo Thathane,
already under arrest and being assaulted, by Maputsoe police
D/Sgt Rankhelepe further averred that in the course of
the attempt by the applicant and his two companions, to free Tumo
the lawful custody of the police there ensured a
commotion during which certain property, e.g. office telephone and
chairs, was damaged
at the police station. The applicant and his two
companions managed to escape and run away leaving behind the taxi in
had been travelling.
D/Sgt Rankhelepe conceded that the wheels of the taxi
were subsequently deflated. He denied, however, the applicant's
that the police officers had broken the window of the taxi
after it had been left at the police station. According to the police
officer, the taxi already had its window broken when it came to the
At about 8.30 p.m. on the day in question, 28th January,
1992, D/Sgt Rankhelepe and other police officers were outside
station when he noticed the applicant and his two
companions approaching the police station. On arrival at the police
applicant and his party suddenly opened fire at the
police officers who ran for cover inside the police station building.
rescued by another police officer who repelled the attack
by firing shots from his nearby residence. A search for the applicant
his party was then mounted.
It is not really disputed that in the course of: the
search the deponent and other police officers arrested the
who was subsequently remanded into custody. Nor
is it disputed that a search was also carried out at the home of the
deponent denies, however, that he and his colleagues
threatened to shoot and kill the applicant on sight.
Whilst the search tor the applicant and one of his
companions was going on, the applicant's attorney of record came to
station and demanded release of the taxi from the
deponent and his colleagues. He was informed that the firearms used
by the applicant
and his friends during their attack on the police
station had not yet been recovered. The applicant and his other
6 brought to the police station for interrogations
before the vehicle could be released.
Thereafter deponent learned that the applicant had
surrendered himself at the subordinate court of Leribe where he was
remanded into custody without first being interrogated and
given a charge by the police. In the contention of the deponent, the
is facing a serious charge and there is a strong prima
facie evidence against him. If he were to be released on bail, the
is likely to abscond and fail to stand his trial.
Consequently the deponent prays that the applicant's bail application
It is clear from the affidavits that the grounds upon
which the bail application is opposed can be summed up into two viz.
Rankhelepe or the police officers have not yet
interrogated the applicant and that if he were to be released on bail
is likely to abscond. There can be no doubt, however,
that the police officers regard the applicant as a suspect in the
of the criminal
offence against which he stands charged before the
subordinate court of Leribe. That being so, they have, in my opinion,
right to interrogate the suspect unless, of course, the
suspect freely and voluntarily accedes to interrogation after he had
duly cautioned in terms of the judges' rules.
There is no indication in the affidavits that the
applicant, who is a suspect, accedes to interrogation by D/Sgt
Rankhelepe or the
As regards the second ground, the averment in the
affidavits indicate that when he learned that the police were looking
for and threatening
to assault him in connection with the offence
against which he stands charged, the applicant did not abscond out of
of the subordinate court for the district of Leribe,
Instead he surrendered himself to the subordinate court where he was
joined in the charge against his co-worker and remanded into
custody. That, in my view, is no justification for the averment that
if he were released on bail the applicant would abscond out of the
court's jurisdiction. It is, on the contrary, justification that
applicant is likely to remain within the jurisdiction of the court
and stand his trial.
I was told in argument chat as the Respondent in this
case had intimated intention to oppose the application, bail should
For this argument reliance was made on the decision in
Meer v. Attorney-General for the Cape Province.
1949(1) P.H. H.26 where at page 54 Newton-Thompson, J.
as having said:
"The court places great reliance on
Attorney-General or his senior officers
"The court places great reliance on
Attorney-General or his senior officers
on matters of this kind."
In my view the present case is distinguishable inasmuch
as the Attorney-General, in Meer v. Attorney-General for the
Cape Province 1949(1) P.H. H26, had apparently filed an
opposing affidavit whereas neither the Director of Public
any of his senior officers has, in the present case,
filed any such affidavit. Only the investigating police officer has
to the opposing affidavit. The decision in Meer v.
Attorney-General for the Cape Province, supra, cannot, therefore,
apply in the
In Soola v.Director of Public Prosecutions 1981 (2)
L.L.R. 277 Mofokeng J. had this to say on the issue:
"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
I entirely agree. However that does not mean that the
Director of Public Prosecutions can just file a notice of intention
and rest. He must, in my view, file an affidavit in which
he advances the grounds upon which he basis his objection to the
of bail. It is these grounds of objection, by the Director
of Public Prosecutions, that the
court has to give serious consideration and not discard
lightly. In the absence of the affidavit containing his grounds of
the Director of Public Prosecution has in my view, not
advanced any objections worth the consideration of the court.
In the circumstances, it would be totally unfair to
refuse this bail application. I would allow the application and
the applicant on bail subject to the
He must pay M200 cash deposit;
Surrender his passport to the police,
Report to the nearest police station(Hlotse) on
every Saturday of the week ator before 12 noon.
He must not interfere with the crownwitnesses.
He must attend remands and stand his
6. He must find an independent person tostand him
surety in the amount of M400.
The arrangements to pay the M200 deposit and find surety
in the amount of M400 must be made at the subordinate court for the
district and not at the office of the Registrar of the High
JUDGE 29th June, 1991.
For Applicant : Mr. Mohau For Respondent : Mr.
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