CRI/APN/406/05

IN THE HIGH COURT OF LESOTHO

In the matter between:

LEKHETHO SEFALI APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. Justice G. N. Mofolo On the 19th day of September, 2005

The applicant has approached this Court on bail application. According to the applicant, he was arrested on 21st July, 2005.

The applicant has also claimed that he was arrested as a result of implication by his co-accused consequent to which statements obtained from his co-accused were relied on by police to subject him to all sorts of brutal assault and torture in an endeavour to extract admissions from him and it was as a result of the torture that he eventually gave in and falsely implicated himself (paragraph 5-6 of the Founding Affidavit).

This application is opposed by Tpr. Tobi who in his Opposing Affidavit has deposed at paragraph 6 that contents of paras 5,6, and 7 are denied. At para 6.1 the Tpr. has deposed applicant gave an explanation that he was present at the scene of crime and was one of the driver of vehicles that were involved in the commission of the crime. At para. 7 the deponent has deposed "applicant still has other pending cases of armed robbery" without citing the particular cases for the Court's scrutiny.

Tpr. Tobi is supported by Senior Crown Counsel Halefang Motinyane who has deposed that the crime falls within the ambit of Criminal Procedure and Evidence (Amendment/Act No. 10 of 2002 requiring the existence of exceptional circumstances before a suspect may be released on bail. These circumstances were captured succinctly by Mr. Seema both before me and in his heads of argument.

It is true that under normal circumstances and at common law the court tends to lean towards the liberty of a suspect so long as the Court is satisfied the suspect will stand his trial. But here the Court is not only faced with whether the applicant will stand his trial but whether, having regard to implications of Criminal Procedure and Evidence (Amendment/Act 2002

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sec. 109 a(l) (c) the applicant has adduced "evidence which satisfies the Court that exceptional circumstances exist which in the interest of justice permit his or her release." The amendment is to the effect that the accused person "be detained in custody until he or she is dealt with in accordance with the law unless as I have shown he adduces evidence which satisfies the Court as to his release. In my view, for accused person to be hit by the need to show exceptional circumstances, it has to be where, according to sub­section (c) of section 24/09 A (1),

1. there has been use of a firearm;

2. grievous bodily harm has resulted;

3. there has been theft or attempted theft of a motor vehicle.

In my considered view, the amendment applies where there has been aggravated robbery. In most bail applications coming before me, I have asked again and again whether complainant(s) has been hurt or a firearm was used such as pointing one at the victim. It may be said that the victim was in any event threatened with the use of a firearm. If so, I am of the view that much as (c) (iii) is to the effect "there has been theft or attempted theft", in order for the provision to apply to (c) (i) and (ii) above, the same phraseology in (c) (iii) should have been used in respect of (c) (i) and (ii).

On the contrary, the indictment reads :-

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'that the said accused are — charged with the crime of Armed Robbery. In that upon or about the 29th day of March, 2005-----the said accused did unlawfully and with the intention to inducing submission by Selai Samson Kabi to the taking by the accused of the money-----threaten the said Selai------ that unless he consented to the taking by accused of the said money or refrained from offering resistance------they would then and there shoot him." (underlining for emphasis).

In the event, no firearm was used or grievous bodily harm inflicted as is required by subsection (c) (i) and (ii). I have also ruled in bail application that although the law requires proof of exceptional circumstances for a suspect to be released on bail, it does not mean that an accused can be kept in gaol indefinitely if he is able to adduce evidence of exceptional circumstances. Indeed although the amendment requires the accused to stay in detention until he is dealt with according to law, it does not mean that the Crown can sit on its laurels without prosecuting the detainee.

Although for now bail is refused, I am worried by the fact that in applicant's case section (c) (i) and (ii) does not seem to be applicable to the applicant and it would seem to me should the applicant be able to adduce exceptional circumstances in the light of my observations above, he can always re-apply to have provisions of section (c) (i) and (ii) ventilated and evaluated.

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G.N. MOFOLO

JUDGE

For the applicant: Mr. Shale

For the Crown: Mr. Seema

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