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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