HIGH COURT OF LESOTHO
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
already released the Applicant on bail today the 1st November, 2004
and promised that my written judgment would follow. This
now is the
Applicant sought to be released on bail pending a murder trial of one
Utloang Moholisa. The Application was opposed.
motivation of his Application, Counsel for the Applicant showed that
the Respondent was not saying that there was a fear that
was not going to stand trial or was going to abscond, but feared that
he was going to interfere with crown witnesses.
Applicant contended that the Respondent has not shown on the papers
that he has made known to the Applicant who the crown witnesses
This was said on the basis that the Respondent caused one Nqhae, who
claimed to be deceased's friend, to depose to an affidavit.
affidavit showed that he was threatened by the Applicant and his
co-accused, as he (Nqhae) attended Court for Applicant's
had not been stated whether or not that Nqhae was a crown witness,
thus rendering Nqhae's affidavit to be irrelevant.
Applicant further contended that it had not been stated how he was
going to hamper police investigations when he was not even
who the witnesses for the crown were. Also that the alleged prima
facie case against the Applicant had not been disclosed.
That was the
reason why the Applicant had to speculate that he had been arrested
for the murder of the deceased merely because
of some earlier
encounters with the deceased. Deceased was suspected by the Applicant
to have stolen his vehicle and taking it
out of the jurisdiction of
our Courts to South Africa.
came out in the Respondent's heads of argument as to why they claimed
to have a prima facie case against the Applicant.
The heads which
were only filed in Court. It was at that stage shown that Applicant
was arrested after investigations led the Police
person who had contracted the two other accused persons to kill the
deceased. A proper foundation on the papers filed ought
to have been
put before the Court.
general principle in bail applications has been rightly stated by the
crown, that, in instances of such nature the Court will
in the favour of the liberty of the subject and will always grant
bail where possible, Swift's Law of Criminal Procedure,
at 149. That in dealing with applications of this nature, the Courts
are always bound to:
a balance between protecting the liberty of an individual,
safeguarding and ensuring the proper administration of justice.
into account the presumption of innocence. Lean towards the granting
of bail rather than refusing it. Criminal Procedure
through cases by
M.P. Mofokeng at 245.
in Koning v A.G. 1915 TPD 224 had this to say, that "The Court
is desirous that an accused should be allowed bail
if it is clear
that the interests of justice will not be prejudiced thereby, more
particularly if it thinks upon the facts before
it that he will
appear to stand his trial in due course."
Applicant in his founding papers undertook to stand trial as a
running four taxis, with a wife and two school going children. He
also suggested surrendering his passport and reporting
daily at the
Mabote Police who according to him are a stone throw away from his
home. The Court under the circumstances therefore
felt that, if there
was no fear that the Applicant will stand trial, he could be released
on bail and stringent conditions given
to take care of him
interfering with crown witnesses.
Criminal Procedure and Evidence (Amendment) Act 2002.
provides for the power to detain accused persons who appear before
Court charged with murder, rape etc. On a murder charge,
have been pre-meditation. The accused shall be so detained unless he
adduces evidence that exceptional circumstances
exist for him to be
released. There have been varying views regarding what exceptional
circumstances should be interpreted to mean.
Lethoana v DPP
CRI/APN/3/2003, Makhaba & Another v DPP CRI/APN/730/2003, Matsepe
& Others v DPP, CRI/APN/861/2002 (All
decisions show that exceptional circumstances mean factors not
commonly found in every bail application or that they connote
something out of the ordinary, which to me mean the same thing.
Others say exceptional circumstances still mean circumstances which
are of an
nature to bail application, but when viewed in the context of a
particular case, become exceptional or unusual S v Vanqa
application, counsel for the Respondent failed to reveal in her
papers the involvement of the Applicant in the commission
crime in the opposing affidavit, it only came from her heads of
arguments which were only filed in Court. They were not
there was any fear that the Applicant would not attend trial.
Respondents' papers did not also show that the person
who deposed to
the supporting affidavit to the opposing affidavit was going to be a
witness in the main trial.
brother Mr Acting Justice Teele citing the case of S v Mauk 1999 (2)
SACR 479 in CRI/APN/170/04 Monare v DPP, pointed out that
is required in terms of the amendment would be clear and satisfactory
proof on a balance of probabilities that the interests
will not be prejudiced." He considered in that judgment that the
Amendment was not intended to fetter the Court's
rather codifies what the Court has always held, as bail could still
be allowed even where the crown opposes, if
the Court is satisfied
that the interests of justice would not be prejudiced.
entirely agree with the reasoning in that judgment, hence my
releasing Applicant on bail on conditions that will follow
circumstances of this application, the presumption of innocence
operated in favour of the Applicant, which is no longer
just a common
law right but has been entrenched in the Lesotho Constitution Section
12 (2) (a) under the heading Right to fair
therefore released the Applicant on bail on the following conditions:
bail in the amount of M3000.00 cash deposit.
report to Mabote Police every Monday before 12.00
- Not to
interfere with crown witnesses.
stand his trial.
- Get two
independent sureties in the amount of M5000.00 each.
Applicant - Mr Teele For Respondent - Ms Shale
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