HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS Respondent
by the Honourable Mr. Justice T. Monapathi On the 4th day of February
Applicant (Accused) herein seeks to be released on bail on terms and
conditions set out in the Notice of Motion. Accused was
one count of Murder of Nketa Tjotjela (Deceased) a security guard and
another count of Armed Robbery. He was arrested
on the 5 November
2003. No preparatory Examination had been held at the time of the
hearing of the bail application.
brief statement of the "factors that lead to (his) arrest"
Applicant stated as follows in paragraph 6 of his founding
One Thabo Maeketsa (apparently a Co-Accused) came to where Accused
had parked his taxi and asked Accused to go and pick
up four people
who had been stabbed with knives. Incidentally the said
Maeketsa also filed a bail application which was dismissed by Guni J
in CRI/APN/813/2002 on the 7th January 2004.
obliged and only to find out that that those people who he was
supposed to carry had just robbed a supermarket and had
Accused as, he says, was arrested and an unlicensed 9 mm firearm was
found in his possession. He said he had nothing
to do with the
alleged murder and robbery and neither did he know about a "pump
action" gun allegedly taken from one
of the two security guards.
The latter firearm was said to have been found in possession of one
Hlapisi who was still at large.
application was opposed and the answering affidavit of No.7850 Sgt KA
Voezana (Voezana) of the Lesotho Mounted Police in
Investigation Department was used. This answering affidavit was
supported by a "verifying affidavit" of
one Maino Morakeng.
To the extent that existence of a prima facie case may be inquired
into it is necessary to comment about the
contents of the two
said that on the day of the robbery there had been two security
guards on duty one of whom was the Deceased. Accused then
killed the Deceased while the other security guard was not injured.
It was the latter who positively identified the Accused
whom he knew
very well as a taxi operator.
information from a Co-Accused Accused was arrested on further
information that he used the 9 mm gun in the alleged offence.
on the 6th November 2003. He thereon took police to his house where
the 9 mm pistol and an amount of money totalling about
found. The Accused then made an explanation about the money which
pointed to his involvement in the execution of the
that a strong prima facie case was established which could be an
answer to the Applicant's assertion that the statements
by the Crown
were mere allegations. In the absence of a cogent reason I would
dismiss the application on this ground. It remains
to be seen whether
there was such a reason.
there are a lot of indications that the present bail applications
like others nowadays is made as kind of a formality without
sufficient motivation where it matters. While a strong prima facie
case may have been made, I thought that still there is a general
requirement and the key consideration. It is always whether "the
interest of justice will be prejudiced if accused is granted
See Commentary on the Criminal Procedure Act, Du Toit and Others
(1993) at page 9-8B - 910 C.
learned authors above then deal with pointers or indices as to the
test or risks to be looked for as to whether the said prejudice
against the interest of justice occurs. They are the following risks.
Whether the accused will stand his trial. This includes the
investigation whether the accused is likely to abscond. Second,
whether the accused will interfere with the State witnesses or
police investigations. Thirdly, whether the accused will commit
further crimes. There are "further sub-issues to be considered
in applying the principle which govern the decision to grant or
refuse bail". See the detailed exposition of the sub-issues
v Acheson 1991(2) SA
HC) Mahomed J and at page 9-10 of Commentary on the Criminal
Procedure Act (supra). This approach or debate was lost to
Applicant's and Crown Counsel in the instant case. The consequences
could only be that Counsel were unable to assist the Court.
key issue, excluding the one of strong prima facie case was the one
of lack of demonstration or showing Applicant of the
exceptional circumstances as required by section 109 of the Criminal
Procedure and Evidence Act 1980 (as amended) (CP&E).
submitted that the Applicant had failed in this regard.
Monyako cited the case of S v Shangase 1972(2) SA 412(H) for
comprehensive rendering of what "circumstances"
justify a lighter sentence than the prescribed sentence in the light
of a provision of an Act which had resulted in a spate
of reviews to
that Court, about varying sentences in comparable cases. I did not
see this case as being useful where Applicant's
was that he saw no need to demonstrate "exceptional
circumstances" in the present case despite the
of the CP&E. Put in Counsel's own words:
"The concept of "Exceptional circumstances" has not
been defined in the amendment save perhaps the Applicant not
they exist. How can the Applicant venture to interpret the law; the
court has the right and the power ......the concept
is so ambiguous
that Applicants are called upon to interpret it and/or give
suppositions which the Court will choose which is more
reasonable and the laying a foundation (of) what the concept really
view Counsel's attitude was high-handed to say the least.
respect, while agreeing that there may be occasions when the record
of proceedings itself shows exceptional circumstances,
I did not
understand that the said requirement of the CP&E can be ignored
by convenient or imperious noncompliance.
identified no exceptional circumstances as I concluded and in the
light of such a strong prima facie case I thought this
refusal on the part of the Court to release the Applicant on bail.
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