HIGH COURT OF LESOTHO
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
BY THE HONOURABLE MRS ACTING JUDGE MAHASE
30th JUNE, 2005
an application for applicant's release on bail. The crown is strongly
opposing the application.
petitioner herein is awaiting trial in the Mohale's hoek Prison. He
has been incarcerated therein since the 8th January, 2005.
charged with two (2) counts of murder, one (1) arson and one (1) of
assault with intent to cause grievous bodily harm.
in the 3rd count of arson belongs to the deceased in the murder
charge in count 1.
the facts are as follows:-
the unfortunate event which resulted in the incarceration of the
petitioner herein, the accused's elder brother was murdered
deceased in count II. As a result, relations between the two families
have deteriorated very badly.
deceased in count II went about threatening the petitioner that he
also would be killed just like his brother. The petitioner
who was on
leave from the mines where he worked received information that the
deceased in count 2 was looking for him (petitioner).
then went out at night to fight the deceased in count II in what is
called "pre-emptive self defence."
in count II, stayed/resided in a shack. The petitioner went to that
shack, armed with a knife.
arrival thereat, the petitioner set alight the said shack. The
deceased in count II and the complainant in count IV came out
burning shack. The petitioner then started to stab the deceased in
count II with a knife and he (deceased in count II)
met his death
there and then. Complainant in count IV only sustained injuries.
deceased in count I came out from a nearby house "already
fighting the applicant". The deceased in count I was
that fight and he met his death while in hospital.
this incident, the petitioner then went back to the mines where he
worked. He came back home during Christmas holidays
and was arrested
formally remanded on these charges on the 8th January 2005. He has
been in custody ever since that time.
importance herein is the fact that the trial against those who have
murdered the petitioner's brother has never been prosecuted
The said incident had occurred sometime in 2003, and the killer of
the petitioner's brother was released on bail.
is strongly opposing the application for the release of the
petitioner on bail
crown's reasons are that:
petitioner has not put forth any existing exceptional circumstances
to justify his release on bail. The crown relies on the
of the Criminal Procedure and Evidence Act Amendment Act 2002,
Section 109 (e) (ii), to support its argument. According
crown argument, the petitioner herein has not adduced any existing
exceptional circumstances and so has failed to discharge
his onus in
petitioner is faced with very serious charges which if he be
convicted carry capital punishment.
the co-accused is still at large, and
the petitioner fled to South Africa immediately after committing
these offences. The crown therefore says if released on
petitioner will not come to stand his trial but will abscond.
further alleges that investigations herein are complete and that the
petitioner has already been indicted to the High
court for trial. His
case is only pending enrolment for hearing.
has annexed a copy of the said indictment herein dated the 2nd June
also the crown's allegation that the petitioner was not working in
the mines in the Republic of South Africa. It alleges that
petitioner actually absconded and went to stay in the Republic of
South Africa immediately after committing these offences.
that the petitioner has not adduced any concrete evidence to show
that indeed he was working in the mines in the Republic
words, it is the word of the crown against that of the petitioner.
petitioner denies that he ran away into the Republic of South Africa
immediately after he had committed these offences. It is
that he left for work in the mines and came home for Christmas
holidays. That he was found and arrested by the police
at his own
It is the
petitioner's story that the crown in opposing his application for
release on bail, is relying only on the story of the
officer, which story is said to be hearsay and so boarders around
of authorities have been cited herein in support of this application
one of them being CRI/APN/186/90 and
- Khomo Ntene and Mpapali Lerotholi V Director of Public Prosecutions
(unreported). Here the accused had not been
summarily indicated to
the High Court for trial. A. P. E was to be held and the court had no
record of statements of the witnesses.
instant case, the petitioner has been indicted to the High Court for
summary trial. Investigations are complete and the case
is to be
enrolled for hearing.
This is a
matter of common cause and the investigating officer D/Trp. Makhetha
has stated under oath that investigations are complete.
I have no
reason to doubt him in this regard. No other person can know better
the position with regard to investigations other
investigating officer himself. His evidence in this regard is not
hearsay and so it is admissible.
that the petitioner went to Republic of South Africa immediately
after the occurrence of this incident is common
The petitioner does not deny it. All that he tries to do is to
circumstances of this case, the crown is correctly apprehensive that
if released on bail, and considering the seriousness
possibility of a capital punishment if convicted then the petitioner
is likely to abscond.
the petitioner wanted to be trusted, he should have reported, he
should have reported/surrenderd himself to the police
on arrival at
home for Christmas holidays.
already run away he instead waited until when the police came to
arrest him, well knowing that he had committed very serious
has also been referred to the case of Matsoso Bolofo & Others V
Director of Public Prosecutions. C of A (CRI) No.
8 of 1996
(Unreported) where the Honourable Judge President Steyn (as he then
was) had this to say:
"As indicated above, an application for bail indicates sui
generic process. Such process is investigatory and inquisitional.
court seeks information which will enable it to exercise a judicial
discretion whether it is in the interest of justice to
cited the above-authority the petitioner submitted that the court had
to be supplied with sufficient information, and not
evidence as in the present case. (My underlining).
already alluded to the fact that the evidence on affidavit of D/Tpr.
Makhetha does not constitute hearsay in anyway; especially
regard to the fact that the petitioner left this country immediately
after he had committed these serious offences.
the information contained in the papers now before court is such that
this court can exercise a judicial
whether it is in the interest of justice to grant bail.
court now knows that following the alleged murder of the petitioner's
elder brother sometime in 2003 there has never been any
the two families involved.
ultimately let to the killing of two more people. One was just an
ordinary citizen who came over to intervene when the
assaulting the deceased in count II.
fight did not stop there. Yet another innocent person not related
with the petitioner nor the deceased in count II was injured.
already been more than too much blood-shed and loss of life due to
the killing of one person.
words the chain of aminosity and the number of families involved has
increased. The relatives of the deceased in count
I will surely be
tempted to also take the law into its own hands, to avenge the death
of their son, so also could the relatives
of the complainant in count
IV. This can go on and on unabated. This kind of behaviour should not
be allowed to prevail.
already indicated that the petitioner herein went away to the
Republic of South Africa immediately after committing these
offences. He has sort to unsuccessfully refute the allegation that he
ran away into the Republic of South Africa.
evidence points only to the inference that he absconded and nothing
also noted that the petitioner has not denied that when found and
arrested, he had slept at the home of one
relatives, not in his own house. This he did with the intention of
also never found at his home by the police who went looking for him
on the next day after the incident had occurred.
accordingly come to the conclusion that in the light of all the
surrounding circumstances herein, the petitioner's application
release on bail be refused. It is accordingly refused.
Registrar should please have this case enrolled and given a date of
hearing next session.
JUDGE OF THE HIGH COURT
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