HIGH COURT OF LESOTHO
SERABELE 1st APPLICANT
MAHLO 2nd APPLICANT
MOETI 3rd APLICANT
MALAKA 4th APPLICANT
DIRECTOR OF PUBLIC
by Honourable Ms Acting Justice N. Majara on the 14th July, 2004
approached this court for the granting of bail as they have prayed
for in paragraph 7 of their petition on the following
they pay cash bail deposit in the sum of M500.00
That they do not interfere with crown witnesses.
That they attend remands regularly.
That they report themselves at Lithoteng Police Station on every last
Saturday of each and every month.
The application was opposed and both counsel for applicants and
respondent filed their respective papers and heads of argument.
the 6th of July, 2004 the matter was argued before me.
four petitioners are presently incarcerated at Mafeteng prison where
they are awaiting trial on seven (7) charges, namely:-
robbery, robbery, and five counts of being in contravention of
Section 3(1)(2) of Act No. 17 of 1966 as amended by Act
No. 4 of
1999 Internal Security (Arms and Ammunition) respectively.
application started out with an outline of circumstances that led to
their arrest and these are basically that, although
on the day in
question they were armed with weapons when they were stopped and
arrested by the police on their way home from
Masemouse in the
district of Mohale's-Hoek, they were carrying the said weapons to
protect themselves. Secondly, that the alleged
robbery at a Chinese
shop had taken place whilst they were at the shop to buy food and
the purported robbers were unbeknownst
application for bail is basically premised on the ground that they
are unlikely to abscond because of the following
They are all Basotho citizen (sic).
4.2 They are all breadwinners in their respective families.
5. Respondent's opposing papers comprised of the investigating
officer, D/TPR Mokhachane's opposing affidavit and supporting
of Thapelo Mokuku, a Crown Counsel in the Attorney
General's Chambers, Li Wanrong, one of the complainants in the main
Qiws, another complainant in the case and the answering
affidavit of another investigating officer in the case, D/SGT Lehata.
main grounds of respondent's opposition to bail are premised on
the following factors as are listed in paragraph ten (10) of D/TPR
Mokhachane's opposing affidavit :-
5.1 The evidence which is collected in the police docket discloses
the existence of a prima facie case for applicants to answer.
5.2 Applicants are charged with a very serious crime.
5.3 The above two grounds and the possibility of a long term of
imprisonment that applicants might serve if convicted, may provide
strong incentive for applicants to abscond and not stand their trial.
5.4 The crime with which applicants are charged falls within the
ambit of the Amendment to the Criminal Procedure and Evidence
1981 in respect of bail.
5.5 Investigations in the case are complete and the Public Prosecutor
will soon be urged to summarily charge the applicants.
6. I was also referred to a plethora of authorities on the general
principles and considerations that a court should take into
when dealing with the issue of bail. Section 109. A (1) which is the
amendment section to which this court has been referred,
part and in so far as is relevant to the case at hand:-
109 .A (1) "Notwithstanding any provision of this Act, where an
accused person is charged with-robbery, and the robbery involved-the
use of a firearm by the accused, any co-perpetrator or participant
The court shall order that the accused person be detained in the
custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to do
so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interest of justice permit his or
her release. (My underlining).
7. I must at this early stage point out that in my humble opinion,
over and above the usual principles governing bail, it is
provisions of this section that an applicant who is charged
with any of the crimes listed therein such as applicants in this
case, should first and foremost satisfy. This means that from
onset, they should clearly and concisely demonstrate that exceptional
circumstances do exist which in the interest of justice,
the court to release them.
8. Have applicants in this instance successfully discharged this
onus? Applicants have stated two reasons upon which they asking
court to grant their release and these are that they
are Basotho citizens and are all breadwinners in their respective
families. I must say I was a little baffled at the brevity,
flimsiness and/or lack of substance of the applicants' grounds or
purported exceptional circumstances. However, I wish to point
that I am not in anyway suggesting that applicants ought to have
listed countless reasons for them to have sufficiently met
requirements. In other words, it is quality and/or substance as
opposed to quantity that I am referring to which means that
reason can suffice if it is found to adequately meet the requirements
of exceptional circumstances.
9. In my opinion, due to the nature of the charge and the statutory
requirement that exceptional circumstances must be shown by
applicant in such a case, it is only proper to address this question
first and foremost. If the court is satisfied that this
has been satisfied, it may then look at the other general principles
that apply to bail applications in general.
10. The first question therefore that this court should address is,
what are or what constitutes exceptional circumstances? In
Schietekat 1998 (2) SACR 707 at 714, Slomowitz AJ had this to say:-
"As to 'exceptional circumstances', they have no special magic.
Of necessity they must be exceptional because of the stress
continued detention by reason of the serious nature of the crime
I agree with this view. Applicants are not expected to come up with
something magical or out of this world. My understanding of
exceptional is, unusual or out of the ordinary. In other words, the
exceptional circumstances should at least go beyond
what is standard
in the eyes of a reasonable person. There cannot therefore be one
adequate definition or exhaustive criteria.
In S v. Jonas 1998 (2)
SACR 677, Horn AJ suggested a few examples of such circumstances viz,
"There can be as many circumstances which are exceptional as the
term in essence implies. An urgent serious medical operation
necessitating the accused's absence is one that springs to mind. A
terminal illness may be another. It would be futile to attempt
provide a list of possibilities which will constitute such
exceptional circumstances. To my mind, to incarcerate an innocent
person for an offence which he did not commit could also be viewed as
an exceptional circumstance. Where a man is charged....when
everything else points to the fact that he could not have committed
the offence because, e.g he has a cast-iron alibi, this would
likewise constitute an exceptional circumstance. "
11 In the application before me do the two reasons that applicants
have provided namely, that they are Basotho citizens and breadwinners
of their families qualify to be treated as exceptional circumstances?
In my opinion, that is not the case. This is more so when taking into
account the genuine dispute and in my opinion, overwhelming
grounds that have been given by respondent. This fact alone increased
applicants' burden of showing the existence of circumstances
exceptional that a dismissal of their application for their release
would defeat the ends of justice.
12. Even if this court were to take into account the applicants'
version of how they came to be arrested by the police and found
possession of unlicensed firearms, not to mention the reasons they
advanced why they were found in possession of the same, mainly
it was to protect themselves, the explanation itself is so lamentably
vague and weak that instead of convincing this court
to find in their
favour, the contrary should actually prevail.
13. For the above reasons, I am not even going to consider the other
general bail considerations. I find that applicants have failed
discharge their onus as is required by the statutory provision as has
been cited above. The application is therefore dismissed
to the respondent.
Applicant : Ms Liphoto
Respondent: Ms Makoko
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