HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTION RESPONDENT
by the Honourable Mr Justice T. Nomngcongo on the 18th day of August.
an opposed application for bail. The accused together with three
others is charged on three counts: one of murder, the other
"armed" robbery and also of illegal possession of a firearm
in contravention of the internal security [Arms and Ammunition]
No. 17 of 1966 as amended by the internal security [Arms and
Ammunition] Act. No. 4 of 1999. The firearm was presumably the
used in the commission of the murder and the robbery alleged. The
victim is a policeman.
applicant avers that around December 2003 he was in the company of
one Tsepo and another Never. The two names seem to be those
accused 2 and accused 3 in the charge sheet. It was around 1 p.m. but
rather strangely he says he went home to sleep. He goes
on to say he
was later arrested and charged with murder. This was presumably the
same day. His brother was due to be buried on
the 31st December. He
is "also supposed to be attending school, as the school
re-opened on the 21st day of January 2004".
funeral and the fact that he has to go to school are cited as
exceptional circumstances for purposes of being admitted
application is opposed by the crown. The opposing affidavit of Det.
Tpt. Kubutu is to the effect that the crown has evidence
deceased that were found on the applicant and others that were
pointed out by the applicant and his co-accused. Thus it
the crown has a prima facie case. Where the crown opposes bail as it
does in the present case, it must place before
court a prima facie
for if it does not "then the suggestion that the state's case is
non-existent or doubtful becomes a foregone
conclusion" per Horn
J.A. in S.V. Jonas 1998 (2) SACR 677 at 679 (h).
stage of the proceedings (bail application) the crown is not expected
to be in a position such as that at the close of the
crown case. All
it has to do is to place material before the court that the arrest of
a suspect and his subsequent arraignment
is in good faith and raises
a genuine dispute. It would of course be a futile exercise to list
instances of such material; they
are as many as the individual cases
that come before us. I am satisfied in the present case that, that
some items allegedly taken
from the victim were found from the
applicant, if proved in a trial would go a long way in
the guilt of an accused in a trial. I would agree therefore that a
prima facie case has been established by the crown.
crimes charged being inter alia murder and robbery and especially the
victim here being a policemen an evidentiary onus lies
the applicant to
evidence which satisfies the court that exceptional circumstances
exist where in the interest of justice permit his
or her release"
Sec. 109A of the Criminal Procedure and Evidence Amendment Act 2002.
applicant discharges this onus on a balance of probabilities the
court is enjoined to detain him in custody until he is
dealt with in
accordance with the law. What the term "exceptional
circumstances''' means is not defined in the act. But in
my view, it
must be given its ordinary dictionary meaning "unusual; not
typical" (Concise Oxford English Dictionary).
agrees in NTHAKO MATSEPE & TWO OTHERS V D.P.P. CRI/APN/86/02
(unreported) and so does Guni
TANKI MOLIBELI VS D.P.P. CRI/APN/730/03 (unreported).
practice however it may not be so easy to determine whether a
particular case presents an exceptional circumstance. That a person
is sickly may not of itself be exceptional for it is not unusual for
the large majority of us to be sick at one point or another.
But if a
person were to say that he is so sick that he requires special
treatment in the absence of which he is likely to die and
get it while in custody, that would lend a different colour to the
circumstances of an applicant so that it might be
in the interests of
justice that he be released.
said that I do not think that it is sufficient to merely posit facts
about an applicant without further showing how they
exceptional in the circumstances that the interests of justice
require that the applicant be released on bail. In my view
elaboration is required to enable the court to be satisfied in this
instant case the applicant merely says that he did not commit the
murder of the deceased and stops there. Well, he would
wouldn't he? This constitutes a bare denial against an accusation
that is specific as to time and place. Clearly such
a denial is not
sufficient. What makes the position of the applicant worse is that he
was afforded another opportunity to elaborate
on this denial when the
crown's answer was that not only does it allege commission of the
offence but offers some evidence for
what it is worth, for such
allegation. No reply was forth-coming from the applicant.
further says his brother has passed away and is to be buried on a
certain date. Death and burial though admittedly always painful
events can hardly be described without further ado as exceptional
circumstances if only because they will happen to us all some
other. In the present case the circumstance, could not avail the
applicant anyway because the relative had already been
applicant says he is "supposed" to or "has to go to"
school. This is an ambiguous statement. It is unhelpful.
It does not
tell us whether he does in fact go to school or whether he only
intending to do so. How does a court assess whether
it is in the
interests of justice to release an applicant if he does not show
himself for what he is.
applicant has failed to show that there are any exceptional
circumstances at all that would favour his release on bail. Bail
Applicant : Mr Mokoko
Respondent : Ms Khasipe
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law