CRI/APN/219/04

IN THE
HIGH COURT OF LESOTHO

In the
Matter Between:-

KHATEBE
JULY APPLICANT

And

THE
DIRECTOR OF PUBLIC

PROSECUTIONS
RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N Majara on 12th September 2005

Applicant
herein approached the court whereby he seeks to be released on bail.
He is facing charges of murder, malicious damage
to property and
theft common. Ms Khubetsoana for the crown opposed the application
for the reason that the interests of justice
will be prejudiced if
applicant is released on bail on account of the following grounds as
gleaned form their opposing affidavits
and Heads of Argument
respectively:

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1.
Applicant is charged with a very serious offence of murder of a
police officer whilst in the execution of his duties and that
this
crime is likely to carry a heavy sentence and as such might lead him
to absconding and not standing his trial.

2. The
crown has a prima facie case against applicant.

3. There
is a very strong likelihood of conviction, which may influence him to
abscond rather than stand trial.

4.
Investigations in this case are complete.

5.
Applicant falls within the ambit of Section 109 of the Criminal
Procedure and Evidence (Amendment) Act No 10 of 2002 and as such
has
to show that exceptional circumstances exist in his case which
warrant that he be released on bail.

In
reaction to the grounds of opposition, Mr Phafane on behalf of
applicant submitted in his Heads of Argument that whilst conceding

that murder is a serious offence, it does not follow that a severe
sentence will follow as many factors are brought

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into play
in passing sentence. His contention was that the gravity of the
offence is just one of those factors. On the ground that
applicant is
likely to abscond, it was Mr Phafane's submission that there has to
be a reasonable likelihood and his submission
was that the court has
to give due weight to applicant's statement on oath that he will
abide by the conditions of his bail.

With
regard to the ground that applicant has failed to show that
exceptional circumstances exist, it was Mr Phafane's submission
that
the term exceptional circumstances has no hidden meaning and is to be
applied judicially.

On the
general considerations of bail, applicant's counsel submitted that
factors which have to be taken into account in deciding
the question
of bail are firstly, whether it is more likely that accused will
stand trial or whether he will abscond and forfeit
his bail. His
contention was that issues which

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come into
play include how deep applicant's emotional and family ties are
within the country, whether he has assets in the country
and what
means he has to flee from the country etc.

Secondly,
the prejudice applicant might suffer from his continued incarceration
when account is taken of the period he has already
spent
incarcerated, his need to continue working to meet his financial
obligations, his health etc.

Thirdly,
whether there is any reasonable apprehension that accused will tamper
with witnesses or interfere with the relevant evidence.
It was Mr
Phafane's submission that before it can be said that justice is
likely to be defeated were accused to be granted bail,
there has to
be some evidence or indication which touches him personally in that
regard.

I now
proceed to consider the issues.

On the
question of the gravity of the offence, it is my opinion that this
factor alone is not enough a consideration which the

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court has
to take into account in deciding whether or not to admit an accused
person on bail. This is because murder, as other capital
offences, is
a bailable offence in this country. The High Court entertains
numerous bail applications all the time, most of which
are murder
cases and more often than not, admits accused persons on bail as long
as the court is satisfied that in so releasing
an accused person, the
ends of justice will not be defeated. For this reason, this ground on
its own does not warrant a refusal
of bail.

On the
second ground of opposition namely, that the crown has a prima facie
case against applicant in casu, in as much as this factor
could play
a crucial role in certain cases, courts have been warned time and
again not to fall into the trap of treating a bail
application as the
actual trial itself.. Factors of utmost importance are usually
whether if an accused person is admitted on bail
the interests of
justice will be prejudiced for the reasons such as to mention but a
few;

1. Likelihood
   that the accused will abscond.

   
   

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2. He
   might tamper with the evidence and/or crown witnesses.

   
   

3. He
   might interfere with police investigations.

   
   

4. He
   will not stand his trial to its finality.

   
   

In my
opinion, if it can be shown that such an eventuality as shown above
is unlikely to happen, then whether or not the crown has
a prima
facie case against an accused person should not be a determinant
factor with regard to the granting of bail. This is especially
so
when account is taken of the fact that in bail applications the
standard presumption of innocence should be applied in favour
of an
accused person. Not only is it trite law, but it is also guaranteed
under our Constitution. This position was also stated
by my brother
Monapathi J in the case of Letima Letela v Director of Public
Prosecutions CRI/APN/19/95 p 4 wherein he also quoted
with approval
the position adopted in the case of Jersey Ramakatane v Rex 1979 (2)
LLR p535 For these reasons, this ground also
falls off.

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The next
ground was that if released on bail, there is a likelihood that
applicant herein will abscond. This ground is premised
on the crown's
contention that the strong likelihood of a conviction may (my
underlining) influence applicant to abscond. This
particular ground
contains some of the features of the above two which I have already
dealt with in that on the one hand, when
considering it, the court is
invited to look at factors such as,

• The relative strength of the prosecution's case

• The accused's potential mobility and access to travel beyond
the country's borders etc.

In
considering this ground, it has been stated that this likelihood has
to be based on a reasonable apprehension and that the court
has to
look at several factors since it is usually difficult for an accused
person to refute this particular ground which is usually
advanced by
the crown. See the case of Soola v Rex 1981 (2) LLR 277.

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In
reaction to this ground, it was Mr Phafane's submission that where
applicant confirms on oath that he will abide by the conditions
of
his bail and that he has no intention of absconding, due weight
should be given to his statement on oath. In the case of S v
Hudson
1980 (4) SA 145 when considering the issue of likelihood to abscond,
Thirion J had this to say;

"However, since an accused who does have such an intention is
hardly likely to admit it, implicit reliance cannot be placed
on the
mere say-so of the accused. The court should examine the
circumstances"

In casu}
in his Founding Affidavit at paragraph 7, applicant averred as
follows;

"On or about the 7th April 2005 I received a telephone call from
one police officer, Sergeant Motsamai indicating that I should
report
myself at the Mafeteng police station. Upon arrival thereat I was
arrested and charged with the offences appearing in the
charge sheet
hereto annexed."

Respondent
admitted this fact as per the opposing affidavit of NO 8760 D/TPR
LEROTHOLI. This being the case, and all factors considered,
the
crown's apprehension that applicant

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herein is
likely to abscond is not supported by the facts as contained in the
affidavits filed by both sides. From the averments,
applicant herein
exhibited his intention not to abscond by complying with the request
to report himself at the Police Station.
For these reasons, this
ground also falls off.

On the
issue of exceptional circumstances, Section 109A (1) of the Criminal
Procedure and Evidence Amendment Act 2002 provides and
in so far as
it is relevant to the issue at hand as follows;

Notwithstanding
any provision of this Act, where an accused person is charged with-

1. murder
   under the following circumstances-

   
   

(i) the killing was planned or premeditated and the victim was-

(A) a law enforcement officer performing his functions as such
whether on duty or not at the time of the killing, or is killed
by
virtue of his or her holding such position; The court shall order
that the accused person be detained in the custody until he
or she is

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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.

The above
provision is mandatory and only upon satisfying the court that
exceptional circumstances do exist warranting his release,
can an
accused person be released from custody. The question which this
court has to determine is therefore whether in casu, applicant
has
satisfied the above requirement.

In his
Heads of Argument, Mr Phafane submitted on behalf of applicant that
the term exceptional circumstances, holds no hidden meaning
and is to
be applied judicially. I fully agree with this view as I stated in
the case of Limpho Serabele and 3 Ors v DPP CRI/APN/333/2004
p6
wherein I also made reference to Slomowitz J's statement in the case
of S v Schietekat 1998 (2) SACR 707 at 714. However, as
I opined

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in that
case, my understanding of the term exceptional is, something which is
unusual or out of the ordinary. In the Concise Oxford
English
Dictionary p496 the term is defined as "unusual; not typical"
Whilst I agree that indeed there is nothing magical
about the word, I
still believe that the expectation is for an applicant to show the
existence of something which is extraordinary.

Examples
of what may constitute exceptional circumstances have been given in
some of the South African authorities where this concept
originated.
Although the list is not exhaustive, it does give one a general idea
of what the term implies. In the case of S V Jonas
1998 (2) SACR 677
some of the suggested examples are stated as follows;

"...An urgent serious medical operation necessitating accused's
absence is one that springs to mind. A terminal illness may
be
another....

In his
Founding Affidavit paragraph 9 thereof, applicant averred as follows;

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"I wish to inform this Honourable Court that I am a citizen of
Lesotho, who is employed in the mines in the Republic of South

Africa. I am a married man who has two minor children who depend
solely from my income for their livelihood. I verily aver that
it is
in the best interest of justice that I am admitted to bail soonest in
as much as I am the sole breadwinner for my family."

Upon
scrutiny of the above averment, I was not convinced that applicant
herein has established any exceptional circumstances. As
Ms
Khubetsoana submitted, being employed and being the sole bread winner
is not per se an exceptional circumstance. It is my firm
belief that
if this were the case, there wouldn't have been any need for the
amended section to have been included. I am basing
my argument on the
fact that ordinarily most people who are brought before the court on
any criminal charge, are employed and a
good portion of them also
happen to be sole bread winners.

This
being the case, in my humble opinion, the inclusion of this
requirement was meant to impose a higher onus on applicant who
is
charged under the circumstances as described by the amended section
than the rest of other

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applicants
for bail. As a result, I believe that applicant herein has fallen
short of satisfying this particular requirement which
has been added
over and above the general considerations of bail.

However,
having said that, I have also taken into account other factors which
were brought to the attention of this court by counsel
of applicant
that firstly, the very fact that applicant complied with the order to
report himself to the Mafeteng Police Station
some three months later
is worth taking serious note of in the determination of this
application.

Secondly,
as was rightly pointed out by Mr Phafane, the current situation of
over-crowding in prisons in this country which in turn
exacerbates
the. already high incidence of HIV/AIDS cannot be ignored by the
court of law in this era. True enough, this factor
never used to be
one of the main considerations of bail in the yesteryears but in the
light of the prevalent increase in the number
of criminal cases which
are

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reported
daily, the scourge of HIV/AIDS, the poor prison conditions, the
serious backlog of cases resulting in accused persons who
are
awaiting trial and are yet to be pronounced guilty being incarcerated
for very long periods, warrant serious consideration
by the Courts.

Thirdly,
as a Court of law and as such, a custodian of people's rights, I
believe that as stated in his replying affidavit, the
fact that after
his arrest, applicant was subjected to assaults by some members of
the police service which warranted his having
to undergo medical
treatment, a fact was not challenged by the crown, deserves to be
considered in this application.

For these
reasons, I am of the opinion that applicant should be treated as one
of the cases deserving to be released on bail on
the basis of the
above circumstances. I accordingly grant bail in the amount of M
1000.00 cash deposit and prayers (b) (c) and
(d) as stated in the
Notice of Motion are made an order of this Court.

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JUDGE

For
Applicant : Mr Phafane

For
Respondent: Ms Khubetsoane

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