IN THE HIGH COURT OF LESOTHO In the matter
KOTE RASEKONE FIRST APPLICANT
MAKHELELISI KHATALA SECOND APPLICANT
V DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 25th day of September, 1992.
For the Applicants : Mr. M.F. Fantsi
the Respondent : Mr. L.L. Thetsane, Senior Crown Counsel
JUDGMENT Cases referred to:
(1) Sehlabaka & Ors. v P.P.P. CRI/APN/321 &
Maserow v Attorney-General & Anor. (1941) WLD 43;
McCarthy v R (1906) T.S. 659;
Moletsane v R (1974) - 1975) L.L.R. 272.
The applicants are jointly charged with the murder of
one Majakathata Moi on the 30th June, 1991 at Ha Mothebesoane in the
of Berea. They made separate applications for bail, but it
is convenient to deliver a composite judgment.
It is common cause that the death of the deceased arose
out of the arrest of the son of the second applicant, by a group
an "Anti Stock Theft Unit", on 29th June,
1991. On 30th June a group of mounted and armed men, including both
gave pursuit. The first applicant's founding affidavit in
part reads thus:
"5. At Ha Rakoto we saw the men. They started
shooting at us and deceased was near me. He was hit and died
the fight stopped. We attended to the deceased.
I must mention that when we left home I had taken my 303 rifle
however when the shooting
started I tried to use it but it was not in
After the fight we went to Sefikeng Police Station. I
was arrested and questioned about my gun. I explained everything.
I was released and told to report at the Police Station
every week. I have done that from June, 1991 until I was arrested on
6th August, 1992 and charged with murder of deceased.
7. I have not killed anybody - my gun was out of Order
on the unfortunate date. I undertake to stand trial. In any event I
reporting myself for over a year at Sefikeng Police Station
The second applicant's founding affidavit in part reads
"6. On the 30th June, 1991 the chief detailed a
group of my village men to find where my son was and the deceased was
us. I must mention that we were armed and I had my 303 rifle.
7. At Ha Rakoto we saw the men and even before
anythingwas said they started shooting at us. The deceasedwas
hit by their bullet and died instantly. The fightstopped.
8. After the fight we went to Sefikeng Police
Stationpost and made a report. I was released and told toreport
every week. I have reported myself every weekfrom June, 1991
until I was arrested on the 6thAugust, 1992, and charged with
murder of thedeceased."
A reading of the two affidavits, which in the extracts
above bear similarity, creates the distinct impression that the
a member of the pursuing armed group. The Crown opposes
the application however, and have filed opposing affidavits from four
witnesses, three of whom depose that the deceased was a
member of the Anti Stock Theft Unit. That aspect is not denied by
applicant in their replying
affidavits. The effect of their founding affidavits
therefore is to deceive the Court into thinking that the deceased was
other than any member of the pursuing group.
The Crown opposes the grant of bail on the sole basis of
a well grounded fear that the applicants, if released, will interfere
witnesses. One Crown witness, a member of the Anti Stock Theft
Unit of Berea, deposes that the first applicant threatened her and
her husband, in May and July of this year. Some days after the first
threat, someone set fire to their house. As her husband works
mines she feared living alone, and went to live with her husband's
Another Crown witness, aged 86 years, also a member of
the Anti Stock Theft Unit, deposes that on the occasion when the
his death, the first applicant said that he and the
second applicant were going to "fix" the deponent and his
On 1st July, 1991 the applicant carrying a rifle, came to
the witness and said
"... that he had since been gunning for my blood
and that he was going to fix all the so-called anti-stock theft unit
.... He further threatened to burn my houses .... Ever since
applicant made these threats my houses got burnt on three occasions
by unknown persons."
There is then another affidavit from a 63 year old
member of the Anti Stock Theft Unit, who deposes that on 30th June,
after the deceased had met his death, he and some
colleagues were surrounded by the group of armed men, including both
and were driven to the police station, en route to which
they were severely assaulted by their attackers. He maintains that
was he and his companions and not the applicants, who were
detained for four days by the police.
The investigating officer has also sworn an affidavit
deposing that "there have been numerous mysterious cases of
people who are potential witnesses for the
prosecution" and that the delay in arresting and charging the
applicants was caused
by the fact that witnesses were in fear and
were reluctant to come forward.
The applicants in their replying affidavits deny that
they made any threats or were in any way involved in the burning of
As I observed in the case of Sehlabaka & Ors. vP.P.P. (1) at p.56, there was in that case, as there is in
this case, at least an evidential burden upon the applicants in the
matters put me cm enquiry. Firstly, the applicants have
plainly attempted to deceive the Court in their founding affidavits;
they are, on their own affidavits, men of violence, who were
prepared to resort to firearms and to take the law into their own
that is, if it could be said that the
second applicant's son had been unlawfully arrested in
the first case.
Under the circumstances I am satisfied that if the first
applicant is released there is a reasonable possibility of
witnesses. As to the second applicant, even his
founding affidavit, in the way it is framed, reveals a close alliance
with the first
applicant, and while there is no evidence of his
threatening any potential witnesses, I consider in all the
circumstances that there
is a reasonable possibility of such
The Crown has made no allegation that the applicants are
likely to abscond. But that is not conclusive. The Court nonetheless
a duty in the matter: see the case of Maserow v
Attorney General & Anor. (2) per Murray J. at pp.45/46, to
which I referred in Sehlabaka (1) at pp.49/50.
I do not wish to enquire into the evidence in this case.
Nonetheless, I must be in a position to assess its strength to some
It is rare that the Director of Public Prosecutions opposes
bail, and as the Court considered at length in Sehlabaka (1)
the Director's opposition must weigh heavily with the Court. In the
present case, a Crown Counsel has filed an affidavit on behalf
Director, in which he opines that "there is more than
overwhelming evidence that the applicants committed the crime with
which they stand charged". On the papers before me
there is no evidence as to who killed the deceased. What
emerges however is that he was killed by one or more members of an
mob, who set out on horseback, armed with rifles, with the
plain intention of doing violence. There is a strong prima facie case
of common purpose. There is then a strong prima facie against both
applicants in respect of a crime committed in the gravest of
As Innes C.J. observed in the case of McCarthy v R
"A man is always more likely not to stand his trial
where the indictment against him involves the risk of his life."
As I observed in Sehlabaka at pp.51/52,
"This consideration always operates, no matter what
assets or family ties or obligations the accused may have. It is for
reason that "in cases of murder great caution is always
exercised in deciding upon an application for bail". It is a
fact that it is a matter of relative ease to cross the
borders of Lesotho in mountainous regions, without detention. As
(as he then was) observed in Moletsane v R
(4), surrender of a passport, or repeated reporting to the police,
does not necessarily prevent escape."
In all the circumstances I am also satisfied that if the
applicants are released, it is likely that they will abscond. I am
satisfied that it is likely that the administration of
justice will be prejudiced by the release of the applicants. In all
circumstances therefore the
applications are refused.
Delivered at Maseru This 25th Day of September, 1992.
B.P. CULLINAN CHIEF JUSTICE
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