HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS RESPONDENT
by the Honourable Ms Acting Judge N. Majara on the 9th September 2004
herein is charged with the crime of robbery and is presently
incarcerated at Teyateyaneng prison in the district of Berea.
approached this court with an application for bail as per his prayers
as outlined in his notice of motion in the following terms:
he pays bail deposit of M200.00.
he reports at Teyateyaneng Police Station every last Friday of the
month between 8.00 a.m. and 4.30 p.m.
he does not interfere with crown witnesses.
he attends remands and stands his trial.
application was opposed by the crown and after both counsel for
applicant and respondent had duly filed their respective papers,
matter was argued before me on the 31st August 2004.
founding affidavit, applicant stated that the court should grant him
the application because he has prospects of success
and that his
defence is that of alibi. He went on to explain that on the date in
question, he was not in the place where the alleged
place but instead was in Maseru where he had been looking for a job
in the firms. That is about as far as he went
and this formed the
gist of his reasons even in his replying affidavit.
opposing papers respondents showed that applicant is charged with a
serious crime of robbery and that his defence of alibi
is not water
tight in that he has failed to take the court in his confidence with
regard to his whereabouts on the day in question.
opposing affidavit of the investigating officer states that he has in
his possession evidence which clearly implicates
and links applicant
to the commission of the offence over and above the fact that the
complainant knows the applicant very well,
having known him for a
number of years when he was previously employed in the same village
where the alleged robbery took place.
addition, the crown pointed out that the crime with which applicant
is charged falls within the ambit of Section 109 A of the
Procedure and Evidence (Amendment) Act No. 20 of 2002. This section
provides and in as far as it is
to the charge in casu as follows:
any provision of this Act, where an accused person is charged with
robbery, and the robbery involved –
(i) the use of a firearm by the accused, any co-perpetrator or
participant in the robbery
(ii) the infliction of grievous bodily harm by the accused (my
underlining) or any of the co-perpetrators of participants; or.......
shall order that the accused person be detained in the custody until
he or she is dealt with in accordance with the law,
accused, having been given a reasonable opportunity to do so, adduces
evidence which satisfies the court that exceptional
exist which in the interest of justice permit his or her release.".
provision clearly makes it imperative that as a first step, applicant
has to demonstrate to the court the existence of
circumstances, in the event of which the court could rule in his
favour. My opinion is based on the fact that, this
provision is the
latest amendment to the statutory provision of bail as is found in
the Criminal Procedure and Evidence Act. The
provision has been added
over and above the existing common law principles and considerations
that apply to the question of bail.
My understanding therefore is
that, the requisites of this provision should be satisfied even
before the court can consider the
common law principles of bail.
circumstances have not been clearly defined but several authorities
have discussed the expression at length. In S v
Jonas 1998 (2) SACR
677 Horn AJ, had this to say,
"There can be as many circumstances which are exceptional as the
term in essence implies.....When a man is charged... when
else points to the fact that he could not have committed the offence
because, e.g he has a cast-iron alibi, this would
an exceptional circumstance."
in casu tenders alibi as his defence. The question at hand is has he
demonstrated that indeed he has a cast-iron defence?
have stated that where the accused raises the defence of alibi, it is
fallacious to suggest that the burden of
proof is on him to prove
such alibi. However., it has further been stated that this would be
the case in a situation where identification
of the accused is in
issue. See The South African Law of Evidence Hoffman and Zeffert p
619. See also, S v Hlongwane 1959 (3) SA
also been stated that the correct approach would be to consider the
totality of the evidence in deciding whether or not to
defence. In applying this test in casu, I have looked at both
applicant and respondent's contentions in their affidavits.
on the one hand states that he could not have committed the offence
because at the material time he was in Maseru looking
for a job.
Respondent on the other hand states through the investigating
officer's opposing affidavit that there is in his possession
that clearly links applicant with the offence and that his identity
is not in question because complainant knows him very
well. This last
fact is not denied by applicant.
looking at all the circumstances in totality, the court feels that
applicant has fallen short of demonstrating that his defence
is water tight. His defence of alibi is too vaguely stated to quite
convince the court. This therefore means that he has
satisfy the court that exceptional circumstances do exist on the
basis of which I could grant him bail.
being the only factor he raised in moving his application, the court
feels that he has failed to satisfy the requirements of
Section 109 A
and therefore his application is refused.
if the crown fails to timely prosecute the offence, and the
accussed's circumstances change, he is free to approach the
renew his application.
Applicant : Ms Mafisa
Respondent : Mr Mahao
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