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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