HIGH COURT OF LESOTHO
NEPO 1st APPLICANT
MAKAMANE 2nd APPLICANT
& CO RESPONDENT
by Honourable Mrs Acting Justice M. Mahase On the 27th day of July
an application for the release of the applicants on bail.
applicants appeared before the Magistrate's Court in Maseru where
they were remanded in custody on five counts.
(1) and (2) the charge is that of attempted murder
(3) the charge is that of assault with intent to murder.
(4) the charge is that of assault with intent to do grievous bodily
(5) the charge is that of assault. The complainant in the five counts
is one Bokang Letele.
particulars to the charges are spelt out clearly on the charge sheet.
following are matters of common cause:-
and complainant are members of the Lesotho Mounted Police.
applicants were once members of the Counter Crime Unit - (CCU)
the applicants aire sted and detained the complainant in the police
cells at the police Head quarters sometime in November
while under the custody of the said police/applicants, the
complainant was taken to Katse/Mphorosane area for purposes of
pointing out some exhibits
complainant was also taken from Maseru and handed over to the
Butha-buthe police by the 2nd applicant herein.
that no criminal charge has ever been preferred against the
applicant herein following that arrest of him by the applicants.
complainant has alleged that he was inhumanly treated, humiliated and
severely assaulted by the applicants all the time on a
while he was in their custody. Such assault was carried out under the
cover of darkness at night. He alleges that he
was subjected to such
non-stop torture from around 5.40pm until 5 a.m, when he would then
be taken back to the police cells.
intolerable torture upon him was continued even when he was taken to
Mphorosane Ha Makia at the Katse dam area. He alleges
that this is
the place where the applicants attempted to murder him.
alleges that from Mphorosane the applicants assaulted him all
throughout in their office until on the morning of the
2001, at 5.00 am.
then taken to Butha-Buthe Charge Office and they left him there in
such a terrible state due to the assault upon him by the
on the 4th December, 2001 released from custody by the Butha-Buthe
police and no charges have been preferred against him
subsequently reported the matter to the Maseru Central Charge Office.
He was issued with a medical form for him to see a medical
His report/ case was allocated a number RCI 23/12/01.
that police docket has disappeared without trace from the Maseru
Central Charge Office to date.
since that time threats and humiliation upon him by the applicants
continue unabated despite his pleas by letters to the Commissioner
Police to intervene and reprimand the applicants and others who are
not parties to be present application, to stop such actions
letters from complainant's counsel have been annexed in these papers
and are marked "CC" and "DD".
that the applicants have continued to frustrate all efforts into the
investigation of this incident.
extensively spelt out the circumstances/ incidences showing when, and
how the applicants are frustrating any progress into
investigation of this case and also how they threaten him and his
medical report has revealed that among others, the complainant herein
substained very serious injuries due to such assault upon
are as follows:
was urinating blood
suffered a broken jaw
broken left arm.
letter marked "EE" dated 1st March 2002, the Assistant
Commissioner of Police responded to letters "CC and
from complainants counsel. He says that the officer concerned "has
been instructed to cease to threaten the
complainant if ever he is
promised to look further into the matter and update the office of
complainants counsel about progress.
never to be because the office of the assistant commissioner of
police crime has never carried out its promise to give
report to the complainants counsel.
complainant through his counsel filed CIV/APN/548/2004 in which the
DPP was ordered to issue a nolle prosequi certificate
enable the complainant or his attorneys to prosecute the alleged
offences against him and the person alleged to have
words, the case is now being handled/prosecuted at the instance of a
Private Prosecutor Mr T.T. Mahlakeng . This was because
of the non
availability of a police docket in the matter and / or statements of
witnesses or affidavits and or other documentary
information on which
a charge is ordinarily based.
was obviously not in a position to decide whether or not to prosecute
the case in the absence of such police docket.
respondent, Mr Mahlakeng is opposing this application.
Respondent was informed in the morning of the 27/07/2005 that he was
to come and argue this application before this court. The
initially been postponed for argument to the contested roll on the
1st August, 2005.
application previously had been postponed about four times before it
was actually and finally argued before this court.
Phoofolo argued on behalf of the applicants that in the first place,
the applicants had not been brought to court under arrest.
to court following issuance of summons being served upon them to
appear in the Maseru Magistrate's Court. As such they
ought not to
have been incarcerated in jail.
applicants have undertaken not to abscond, not to interfere with
witnesses and investigations herein. It was argued, on behalf
in support of their application for release on bail that the
respondent has not raised a question that he had fears that
released on bail, the applicants will abscond.
further that even the allegation that if released on bail the
applicants will interfere with witnesses, and frustrate
is made by the complainant himself and not by the investigating
officer as is normally the case in matters of this
nature. He says
that even that statement of the
is bare as it has not been supported in anyway. It was argued further
in this regard that should the applicant interfere
with witnesses and
investigations, then after proper procedures are followed, the
applicants would then be rearrested after
which inquiry is
conducted to find out whether indeed the applicants, while released
on bail did interfere in anyway with witnesses
and investigations. Mr
Phoofolo argued further that he wonders what investigations are going
on in a matter which occurred some
4 (four) years ago, since 2001. He
argues that the complainant is available and his medical report is in
existence and as such
the investigations are complete.
the following as some factors which favour the applicant's release on
fact that the applicants went to court on then-own after being
served with summons herein. They did not go there under arrest.
is no allegation that applicants have any previous convictions.
has been no allegation that applicants are likely to abscond and not
stand their trial.
are police officers who remain under the command of the commissioner
of Police. Any conditions that may be imposed
by this honourable
court for their release on bail can be adequately policed by the
date of the trial of the accused has been set.
fact that the DPP has declined to prosecute puts much doubt to the
strength of the case against applicants, and the remoteness
convictions on the charges far outweigh any reasons for keeping
nature and gravity of the offences that applicants are to be tried
with are not so serious as to warrant applicant's continued
It is the
applicants' case that essentially bail is opposed on the grounds that
applicants will interfere with the complainant's
investigations and will suppress the source of information. In other
words, the object of the accused is to prevent
them from frustrating
respondent's case, and not to ensure their standing trial.
court is not in entire agreement with Mr Phoofolo in this regard.
Some of such factors, in particular factors (b) (d) (f) and
not have any role to play in an application of this
case, it is not correct to say, as applicant's counsel says in (f)
above that the fact that the DPP has declined to prosecute
at the instance of the public puts much doubt to the strength of the
case against the applicants. ...etc.
has clearly given his reasons for not having prosecuted this case at
the public instance. That reason is that the police
his powers to do so by refusing to avail or furnish to him the police
docket so that he could exercise his powers
whether or not to decide
to prosecute on the basis of such statements in the police docket.
acted pursuant to an order of the High Court in CIV/APN/548/2004 to
issue a nolle prosequi certificate.
issuance of that certificate gave complainant power to have the case
against the applicants to be prosecuted privately at private
however that to date, the same reasons which pertained herein still
prevail exist despite an undertaking by the assistant
police to intervene and attend to the matter. The fact that the
investigations are still not carried out is a sad
situation indeed. I
do not see how even the private prosecutor will prosecute the case
until such time that police investigation
incarceration of the applicants has not and will not change the
situation. What is clear to this court is that the commissioner
police and those immediately subordinate under him, i.e the assistant
commissioner of police are not interested in the prosecution
case for reasons best known to them.
the court were to believe the story of the complainant that the
police or the applicants are the ones who have been frustrating
investigations herein, that would be a regrettable position
prevailing in a democratic country. It is the duty of the police
protect all citizens alike, be they police
or ordinary members of the public. It is for the police to uphold the
rule of law, but in the instant case, the very people
whose duty it
is to do so have defied the DPP to an extent of having frustrated the
powers and right lawfully bestowed on him to
cases. This is a very serious breach of duty on the part of the
police. Even the words of the Hon Chief Justice
M. L. Lehohla in
CIV//433/96 ha fallen on deaf ears. This is a very sad situation.
share the sentiments of the Hon Chief Justice in that case. One
wonders why the investigations are and reopened and a completely
term of investigators ordered to carry out the said investigations.
This is too serious a case involving police officers to
left unattended for so many years.
the commissioner of police and his assistants have more than massive
muscle and power to order reinvestigation of this case
properly remove all obstacles in their way to
the law to take its course; so that justice should prevail.
supporting affidavit of Assistant Commissioner of Police Mr J.P.
Selete raises a lot of questions and lives much to be denied
mind of this court. I will however, not comment on it any further as
it is subject-matter to be dealt with by my learned
colleague the Hon
Ladyship Justice Majara.
as it may I sue no justifiable reasons why the applicants should not
be granted bail in the light of the fact that there
is no indication
nor confirmation. T hat investigations are being carried out as
promised some years ago.
court is anxiously waiting to see what action the Commissioner of
Police will take in this regard. Actions such as this and
inaction of his office with regard to such unlawfulness which seems
to prevail in this case being to disrepute the whole of
Force in this country, thereby
any confidence which the public has in the Police Force.
accordingly grant the bail application as prayed in the following
each applicant should pay M2000.00 bail cash deposit.
each should act in any way whatsoever interfere until neither the
complainant nor any of his relatives, would-be-witnesses
police investigations herein.
should find surety in the sum of M1000.00
should each attend remands and stand Trial.
Applicants : Mr. Phoofolo
: Mr. Mahlakeng
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