IN THE HIGH COURT OF LESOTHO In the matter
MATSOSO MOTEBANG Applicant
THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 18th day of October. 1993
This is an application for bail which is opposed by the
In his founding affidavit the applicant deposes that on
the 27th August, 1993 he was in the village of Ha Mphuthing. He was
to the home of one Sechaba Mphuthing, who is his relative.
Before he reached his destination he went into a closet at one
homestead to relieve nature. While he was in the closet
he heard a gun report. He immediately notice blood running down his
and realised that he had been shot.
When he got out of the closet he found a group of
policemen who told him that he was under arrest. He was taken to
Butha Buthe charge
office and interrogated in connection with a
committed at Anwary's. He denied the charge.
The applicant avers that Mr. Mohafa, Head of C.I.D.,
Butha Buthe then took hie cap and went away into town with it. When
he came back
he told the others that the lady at Anwary's had
confirmed that a person who wore an identical cap was amongst the
In his opposing affidavit and in answer to this
allegation concerning Mr. Mohafa's conduct, D\Sgt. Sebele simply
avers that he has
no knowledge of the allegations and challenges the
applicant to produce proof in support. I do not know what Sgt. Sebele
this because the applicant tells the Court what transpired.
He does not deny the applicant's allegation and Mr. Mohafa has not
any affidavit to deny or confirm this allegation, I shall
assume that the respondent admits the allegation.
It seems to me that the effect of Mr. Mohafa's conduct
is to render the subsequent identification parade at which the lady
positively identified the applicant, useless or of very
little evidential value. If the complainant had given the full
of the attire of the applicant at the time of the robbery
why did Mr. Mohafa find it necessary to take the applicant's cap and
it to complainant in the absence of the
applicant. The procedure adopted by Mr. Mohafa was
In his replying affidavit the applicant alleges that Mr.
Mohafa must have told the complainant who to choose at the subsequent
parade. I am of the view that the likelihood that Mr.
Mohafa told the complainant who to choose cannot be completely ruled
the light of the fact that he has not filed any affidavit to
explain why he found it necessary to take the cap of a suspect and
it to the complainant in the absence of the applicant.
According to the papers before me it seemds that the
Crown's case against the applicant is entired based on the
at which the complainant identified the
applicant as one of the robbers. AS I have shown above the parade is
already tainted with
an irregularity committed by Mr. Mohafa. The
Crown cannot now claim that it has a prima facie case against the
Regarding the identification parade the applicant
alleges that those who participated wore caps of different colours
and had no common features. He tried to change his
cap with another person but Mr, Mohafa refused. Applicant avers that
a lady constable
even remarked that he should be allowed to do so,
Mr. Mohafa refused. In reply to this specific
allegation Sgt. Sebele simply says that he denies that
the identification parade was unfair to the applicant in any manner,
that all the procedure laid down in law was followed.
In my view the answer to the applicant's specific
allegations as to what Mr. Mohafa said at the parade, have not been
Another allegation by the applicant which is not denied
the respondent is that he asked that the second round of
the identification parade should be held because he wanted to change
position and clothes as well as the cap. Fairness in the conduct
of an identification parade is always of paramount importance. The
request by the applicant that he should be allowed to change his
position in the second round was a legitimate one. Mr. Mohafa ought
to have allowed the applicant to change his position.
I have dealt with the question of the identification
parade at length to show that the Crown has no prima facie case
against the applicant.
In considering the application for bail the
Court is entitled to consider the probability of a conviction. See
Kork v. R. 1927 N.P.D.
flaw in the respondent's case is that the whole case is
based on inadmissible hearsay. D\Sgt. Sebele's evidence
is to the effect that he was one of the police officers who attempted
chase to the get-away vehicle used by the robbers. Because of
the very high speed at which the robber's vehicle was travelling, the
police officers lost it. In the meantime they contacted Leribe police
by radio and asked them to stop that vehicle. The Leribe police
apparently rendered their assistance and managed to arrest the
applicant and shot dead one of the robbers. Two of the robbers
and crossed the river into the Republic of South Africa.
D\Sgt. Sebele was not there when all these things
happened. He was apparently given a report by the Leribe police as to
His evidence is hearsay. He cannot swear that the
applicant got out of the robber's car and ran away. He
cannot swear that the applicant was wearing an overall when he ran
entered into a closet; and that when he came out of the
closet he was no longer wearing the overall.
What is clear from the papers before Court is that only
the Leribe police can depose to the facts relating to the arrest of
and all the surrounding circumstances leading to the
stopping of the robber's vehicle and the exchange of fire that
led to the killing of one of the robbers.
The affidavit of D\Sgt. Khobotlo does not carry the
Crown case any further because he avers that he associates himself
with each and
every averment in paragraphs 6 to 18 of D\Sgt. Sebele's
affidavit as if specifically deposed to by him.
Trp. Khobotlo does not say that he was one of the Leribe
police officers who arrested the applicant. He does not say that he
a report to D\Sgt. Sebele. There is no way hearsay evidence can
be confirmed by a person who does not say how he knows the alleged
I have come to the conclusion that there is no
evidence linking the applicant with the crime charged
except the identification parade which is also tainted with
In the result the application for bail is granted on the
The Applicant shall pay a cash deposit of M500.
He shall find two sureties in the sum of M500 each,
He shall surrender his passport to Leribe police.
He shall report himself to the police at Leribe
policestation every Friday between the hours of 6a.m.
He shall not tamper with Crown witnesses or hamper
police investigations in any way.
JUDGE 18th October, 1993.
For Applicant - Mr. Teele For Respondent - Mr.
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