IN THE HIGH COURT OF LESOTHO In the
PALO RAPITSI APPLICANT
V DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 12th day of October, 1992.
For the Applicant : Mr. S. Phafane
the Respondent : Mr. N. Qhomane, Senior Crown Counsel
Cases referred to:
(1) Sehlabaka & Ors. v DPP
M'Carthy v R (1906) T.S.659;
Moletsane v R (1974 - 1975) L.L.R.272.
The applicant stands charged with murder and with
robbery. Re applies for bail.
The Director of Public Prosecutions opposes the grant of
bail. It is in the rarest of cases that he does so and due weight
given to such opposition. There is an affidavit from the
investigating officer wherein the latter deposes that the applicant
to abscond if granted bail. He also deposes that the
applicant faces other charges of robbery.
housebreaking with intent, stock theft and theft.
Further there is an affidavit from a Crown witness, an eyewitness to
and robbery charged, who subsequently identified the
applicant at an identity parade. The latter witness deposes to a fear
"unsafe" if the applicant is released.
The applicant has filed a replying affidavit in which he
deposes that the identifying witness who attended the identification
is, according to his observation, a child. The applicant also
deposes that the surrounding circumstances of identification, as
in the witness' own affidavit, are such as to greatly
weaken the probative value of such identification and that the
identified another on the parade, and only identified
the applicant after a conversation with the police.
It would be very difficult for the Court at this stage
to assess the probative value of the identification. That can only be
at the trial. The point is that here is a witness who says she
can positively identify the applicant as one of two assailants who
robbed her employers of money, and as the particular assailant who
shot her co-employee in cold blood in the course of that robbery.
That is a prima facie case.
Mr. Phafane points to the fact that the applicant
voluntarily surrendered to the police and to the fact that there was
with the witness beforehand. Mr. Qhomane
counters that the witness only emerged as a Crown
witness at the identification, parade when the applicant was already
Mr. Phafane has referred me to a number of authorities,
but each case must be decided on the particular facts of that case.
respect I proceed only on the facts of the present charge
sheet faced by the applicant. I do not see that the existence of
charges necessarily add to the Crown's case. As to the
principles involved, they are trite, and for convenience I adopt what
in Sehlabaka & Ors. v DPP (1).
The facts of the present case reveal the gravest
combination of offences, a murder committed in the course of an armed
respect of which the applicant, if convicted, faces the
gravest of penalties.
Quite clearly in such circumstances, there must be a
reasonable apprehension of interference with the sole identifying
is not necessary for any previous interference to have
taken place for such reasonable apprehension to exist.
As to the risk of absconding, as Innes C.J. observed in
the case of McCarthy v R (2),
"a man is always more likely not to stand his trial
where the indictment against him involves the risk of his life."
4 Again, 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 detection. As
observed in Moletsane (3), surrender of a passport,
or repeated reporting to the police, does not necessarily prevent
In all the circumstances I am satisfied that if released
it is likely that the applicant will interfere with the identifying
or alternatively that he will abscond. I am accordingly
satisfied that it is likely that the administration of justice will
by the release of the applicant. The application is
at Maseru this 12th Day of October, 1992.
B.P. CULLINAN CHIEF JUSTICE
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