IN THE HIGH COURT OF LESOTHO In the matter
NKALIMENG MOTHOBI APPLICANT
V DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 5th day of August, 1992.
For the Applicant : Mr. S.S. Mafisa
the Respondent : Mr. S. Mdhluli, Director of Public
Prosecutions Mr. S.P. Sakoane, Senior Crown Council
JUDGMENT Cases referred to:
Sehlabaka & Ors. v DPP CRI/APN/321/91 Unreported;
Mafereka v DPP CRI/APN/209 & 210/92 Unreported.
Sunil Batra v Delhi Administration (1980) 2 S.C.R. 557
This is an application for bail pending trial.
The applicant is jointly charged, with three other
accused, with the offence of murder. This is his third application
bail. He was refused bail in two previous applications,
namely CRI/APN/321/91 and CRI/APN/398/91.
In the first of those applications I delivered a
judgment, Sehlabaka & Ors. v DPP (1), on 25th October, 1991, in
which the authorities
were discussed and full reasons for refusing
bail were given. For convenience I adopt what I there said.
Every application must be considered on its merits
however, and the relevant facts may alter. In the first application I
on the ground that it was likely that the applicant
would abscond and that therefore it was likely that the
administration of justice
would thereby be prejudiced. In the case of
Mafereka v DPP (2) at p.6 I observed
"I take the view that the administration of justice
is also prejudiced by the incarceration of an accused during the
any unreasonable delay in bringing him to trial."
The present applicant has now been imprisoned for over
nine months awaiting trial. The fault for such delay does not lie
Director of Public Prosecutions, however. The accused and
his co-accused were indicted and appeared before the Court earlier
year when the matter was adjourned to October, As matters stand
efforts are being made to bring the trial forward in the present
Session. I do not think therefore that it would be in the interests
of justice to release the applicant at this
stage, that is, on the ground of delay in trial.
The applicant however relies also on the ground that he
has become ill in prison. I ordered that he be given access to a
of his choice. A private doctor has examined him
and has certified inter alia that the applicant is in need of
treatment by a urologist.
The doctor's report indicates that the applicant
complained to him that
"he was assaulted in September 1991 with fists and
boots, kicked hard in the pubic region. Testicles were twisted."
There is no averment in the applicant's affidavit to
ground the above allegations. It is not stated who was guilty of the
assault. Assuming, without finding, that it was the police
who were involved, the Court can only deplore any such alleged
I take the view that where an accused is lawfully
incarcerated, his physical welfare becomes the responsibility of the
11 and 14 of the Human Rights Act, 1983 reads:
"11. (1) No person shall be subjected to torture
to inhuman or degrading punishment or other treatment.
(2) Punishment otherwise authorised by law shall not be
held to be inconsistent with or in contravention of this section.
14. Every person shall have the right to enjoy the best
attainable state of physical and mental health."
A prisoner may not be detained in inhumane conditions.
If a prisoner becomes ill, and he is not given sufficient or any
then his detention becomes inhumane and relief
will be granted by the Courts: see e.g. the Indian Supreme Court case
of Sunil Batra
v Delhi Administration (3), a copy of which report was
very properly supplied to me by the learned Senior Crown Counsel, Mr.
Where the prisoner is on remand awaiting trial, I cannot see
how it could be said that it would be in the interests of justice to
continue to detain him under inhumane conditions. If a prisoner is so
ill that he requires hospitalisation, then I cannot see why,
other member of society, he cannot be hospital1ised, that is, under
custody. If the Kingdom's prisons do not contain the
facilities for prisoners in need of hospitalisation, then the
authorities must make arrangements for the hospitalisation
prisoner, in need of such, in a hospital outside the prison, that is,
under close guard.
In this respect the learned Director of Public
Prosecutions assured the Court that he would personally arrange to
have the applicant
medically examined at Makoanyane Military
that if the services of a urologist are required, there
apparently being no urologist in the Kingdom, he would recommend that
secure the services of a visiting urologist. In the
meantime I recommended that the applicant be removed forthwith to
Military Hospital for further medical
examination and, if necessary, hospitalisation under
That was on 26th June, 1992. Thereafter the applicant
was examined at the hospital at Makoanyane Barracks and subsequently
Queen Elizabeth II Hospital in Maseru. There is now before
the Court a medical certificate from a Surgeon at that Hospital to
effect that the applicant suffers from a stricture of the
urethra, which stricture can be removed under anaesthetic. The
has consented to such treatment and I am satisfied that he
is receiving full and compassionate medical treatment. Under the
I cannot see that the applicant's continued detention
In view of the fact that the applicant's trial will be
held soon, I do not see that his continued detention is unreasonable
the administration of justice will be prejudiced thereby. In
all the circumstances, for the reasons stated in the previous
and now this present application, I consider that it is
likely that the administration of justice will be prejudiced by the
release at this stage. The application is accordingly
6 Delivered at Maseru This 5th Day of August, 1992.
B.P. CULLINAN CHIEF JUSTICE
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