HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS Respondent
Applicant : Mr. Mabulu
Respondent : Miss H Motinyane
by the Honourable Mr. Justice T. Monapathi on the 2nd day of May 2003
Applicant herein seeks to be admitted to bail. He was remanded in
custody on charges of Armed Robbery and Malicious Damage To
I noted instantly that these were serious offences. The application
is opposed by the Crown.
it is important at the outset to stress that the crimes with which
the Applicant is charged are bailable on proof of exceptional
circumstances by an applicant. Refer to Section 109A Criminal
Procedure and Evidence Act 1981 (CP&E amended) One requirement
for the Crown is to prove that there is a
facie case established by the Crown as a ground for not releasing an
applicant on bail. Where a crime charged is a serious
likelihood of an accused absconding if granted bail need not be
presumed. See S v Acheson 1991(2) 805 (NM) Indeed that
charged is a serious one remains a weighty consideration.
Applicant, in his founding affidavit, denied having committed the
above crimes. The Crown pointed to paragraphs 7 and 9 of the
answering affidavit of Lesotho Mounted Police Service Officer No.
8349 D/Tpr Moleko as containing facts which show a strong prima
case against the Applicant. I respectfully agreed.
It had to
be pointed out that at the outset on the first day of argument that
there was confusion brought about an erroneous suggestion
impression that the Applicant could have been arrested on the 27th
May 2002. This was the day when the offences were allegedly
committed. In order to correct the error Mr. Mabulu applied for
filing a supplementary affidavit. This was allowed. Counsel wrongly
called the affidavit produce "a verifying affidavit". It
became common cause, as a result, that the Applicant was arrested
September 2002 about four months after the commission of the crimes.
The gap between the time of the offence and arrest was
significance by the Crown which
I did not accept. This will shortly be revealed.
Applicant said that on the 27th May 2002 he was never at or near the
scene of the crime. Otherwise he met his co-accused who
told him that
Michael Ralejoe, the complainant, had been robbed by unknown people.
Applicant stated that had on the day been attending
a funeral at
Machoaboleng when the offence was alleged to have been committed. I
did not have to decide this latter aspect.
facie case which Miss Motinyane said had been built against the
Applicant comes out in the form of an allegedly heart-rending
campaign of criminal behaviour. She said that the Crown had evidence
that the Applicant and his co-accused arrived at night at
village. They asked for Michael Ralejoe (the complainant). They were
answered by a lady who stays at complaint's place.
Short of saying
the lady actually identified the Applicant and the co-accused, she
told intruders that the Complaint was not present.
The intruders then
started shooting at the door in order to break the lock to enable
their entry. They however failed. That was
not the end.
intruders then went to the complaint's kraal where they shot sixteen
(16) head of cattle and two (2) horses belonging to the
died hence this charge of Malicious Damage To Property. The story
there the intruders went to another house of the complainant. They
broke the door and entered. They then stole a number of
property appearing in the charge sheet under Count 1 all belonging to
the complainant. The list is shocking by any standards.
than the above campaign Miss Motinyane referred to, towards the prima
facie case against the Applicant, a .303 rifle serial
number S 9119.
It was stated that on his arrest the Applicant was found in
possession of the gun. The rifle was sent for ballistic
results (as shown in the report annexed to Trooper Moleko's
affidavit) were that that some of the dead bullets (shells)
were found at the scene of the crime had been fired by the said
rifle. This will obviously be used to persuade the trial
the gun was used as a weapon and that it was involved in the criminal
Mr. Mabulu for the Applicant my task was not to conclude that it has
been proved or it had to be proved that the Applicant
used the gun or that he was perpetrator of the alleged offence. Mine
was to find out if there was a prima facie case
meaning that, it must
appear that on the basis of
statements about the gun and other circumstances, that at trial the
Applicant will have a case to answer.
completeness on the aspect of the above used gun I had to state that
the Applicant denied that the gun was discovered upon his
Trooper Moleko. On the contrary he said there had been a raid by
soldiers who took possession of the gun after May 2002.
Moleko conceded that this was so but that the raid was constituted by
both soldiers and police and as a result, the gun
having been taken
from the Applicant it was handed over to police and then tested with
the results shown in the report referred
to in the previous paragraph
of this judgment. Be that as it may, in my view, it is not
insignificant that the Applicant admitted
that the weapon was taken
from his possession.
I said I
would come to the significance given by the Crown to the fact that
only four months after the commission of the offences
Applicant arrested. The Crown contended that the Applicant had been
hiding for those four months. The Crown asked the Court
to come to
that conclusion, by inference merely because it took time to arrest
Applicant. That without any facts therefor, he had
been hiding. I
agreed with Mr. Mabulu that I was improper to draw such a conclusion
more so when it was sought to be related to
the alleged likelihood of
the Applicant absconding.
with regret that no attempt was made by Applicant to show the
exceptional circumstances as required by the C.P.&E. (As
Mr. Mabulu conceded that the factors such as Applicant being a
breadwinner, leaving behind children, wife and dependents
as a result
of incarceration were not exceptional in the true meaning of the
requirement of the law. This is one ground upon which
I would not
allow the application. See my judgments in Matsepe and Others v DPP
CRI/APN/61/2002 _ 30th October 2002 and Molupe
Lethoana v DPP
CRI/APN/3/2003 15th January 2003 where this Court had to decide
accordingly on the basis of the said section 109A
of the C.P.&E.
Court was in addition persuaded that on the basis of the strong prima
facie case it would not now allow the Applicant out on
application ought to fail.
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