CRI/APN/422/2005
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the Matter Between:-
SEKOETJE KHALECHANE & 2 ORS APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 4th November 2005
This is an application for bail pending trial. The crown opposes this application. Applicants are charged with armed robbery and it is alleged in the charge sheet that on or about the 19th July 2005 they unlawfully shot one Pule Takata on the leg and stole stock from him to wit, two hundred and ten (210) sheep and two (2) goats.
In his opposing affidavit, No. 8791 Trooper Tsolo averred that his investigations led him to the first petitioner who took him to the home of the second petitioner herein. The latter then informed him that he had taken the stock in question, the subject matter of the charge to the first petitioner's cattle post. Upon arrival at the said post, they found the third petitioner, who
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is the first petitioner's shepherd looking after the stock. He in turn explained that the stock belonged to the first and second petitioners.
In support of the opposition, Ms Hlalefng Motinyane, a Senior Crown Counsel in the office of the Director of Public Prosecutions filed an affidavit whereby in its paragraph 8 she stated that the crime with which the applicant is charged falls within the ambit of the Criminal Procedure and Evidence (Amendment) Act No. 10 of 2003 which requires the existence of exceptional circumstances before an accused person can be released on bail.
In his Supplementary Heads of Argument, Mr Maieane, Counsel for the petitioners submitted that Section 9 A (1) and (e) as amended does not apply to petitioners herein. The said section reads as follows in part and in so far as it applies in casu;
"Notwithstanding any provision of this Act, where an accused person
is charged with –
....
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robbery, and the robbery involved
(i) the use of a firearm by the accused, any co-perpetrator or
participant in the robbery;
(ii) the infliction of grievous bodily harm by the accused or any of
the co-perpetrators or participants; or ...
The court shall order that the accused person be detained in the custody until he or she is 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. " (my underlining)
Needless to mention, although Ms Motinyane did not specify which particular subsection and/or paragraph of Section 109 she was making reference to, the above quoted subsection applies to the petitioners in casu because the offence with which they stand charged, falls squarely within the ambit of this provision.
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I therefore do not understand why Counsel for the petitioner made selective reference to certain portions of the section when it is so lengthy and contains so many sub-paragraphs one of which clearly applies to the petitioners as 1 have already mentioned. That being the case, the petitioners bore the onus to show this Court that exceptional circumstances do exist which would justify their release on bail in the interest of justice but they failed to satisfy the requirements of the section.
It was also submitted on behalf of the petitioners by Ms Ranthithi that assuming without conceding that the section did apply to the petitioners, it is unconstitutional anyway. Counsel based her submission on the provisions of Sections 12 (1) (a) and 6 (!) of the Constitution of Lesotho respectively. Although she did not demonstrate how, reference is made to both sections.
Section 6 (1) reads in part as follows;
"Every person shall be entitled to personal liberty, that is to say, he shall not be arrested or detained save as may be authorized by law in any of the following cases, that is to say –
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...." (my underlining). The section goes on to list the exceptional cases under which a person shall be arrested or detained.
They include inter alia,
upon reasonable suspiscion of his having committed, or being about to commit, a criminal offence under the law of Lesotho;
Sections 12 (1) and (2) (a) in turn provides as follows respectively;
'If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
Every person who is charged with a criminal offence –
shall be presumed to be innocent until he is proved or has pleaded guilty. "
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In casu, petitioners have been arrested and detained because they are suspected to have committed an offence as stated in the charge sheet attached in the court's file. Secondly, the reason why they are moving this application for bail is precisely because they are still presumed innocent. They are not detained as convicts but as suspects. I therefore do not find the existence of any contravention of the quoted provisions.
Coming back to the provisions of Section 109, as I mentioned in the case of Tanki David Molibeli v Rex CRI/APN/432/2005 wherein I respectfully quoted with approval the comments made by the Honourable Moiloa A. J. in the case of Rapulane Makumane & 5 Others v DPP CRI/APN/ 371/2004, the legislature made this amendment in response to what has become a national crisis in the form of escalating armed robberies whereby in some cases loss of lives results.
However, even under these amended provisions, accused persons are not denied the opportunity to be released on bail. They are simply called upon to show that in the interests of justice, circumstances do
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exist which would entitle them to be released on bail (as yet unconvicted persons).
As such, if the Court would agree with the petitioners' line of argument herein, then it would mean that on the basis of the presumption of innocence and one's right to liberty, automatically no-one would ever be denied bail as a matter or course. But because reality and the interests of justice dictate otherwise, measures are still taken to ensure that suspects are not automatically released on bail if that would prove contrary to the interests of justice.
This being the position, I do not see how the above quoted constitutional provisions have been contravened, not to mention that Counsel for the applicants submitted so without demonstrating how this could be so.
As Courts of law, not only do we have the duty to interpret the law, but we also have the responsibility to protect the interests of justice. This is why despite the rights to liberty and the standard presumption
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of innocence, Court still refuse some applicants bail in those cases where they deem it fit.
On the basis of the above reasons, I am of the opinion that in casu, the petitioners should have satisfied the requirements of Section 109, more especially when account is taken of the other prevalent factors such as the existence of a strong prima facie case and the seriousness of the charge against them as per the opposing affidavit of Trooper Tsolo.
I am wary of the fact that when considering an application for bail the Courts are enjoined by the law to lean in favour of the liberty of the individual. I however cannot ignore the particular circumstances of this present case, especially the patently strong evidence of the investigating officer given under oath, coupled with the seriousness of the charge.
Taking all these factors into consideration, I am of the opinion that it would not be in the interests of justice that the present petitioners are
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released on bail unless and until they can demonstrate the existence of exceptional circumstances that would justify their release.
However, because of the need to strike a proper balance between the interests of justice and the rights of the petitioners to a speedy and fair trial, I also direct that the crown should set this matter down for hearing as soon as practicable because indeed the petitioners herein have not yet been found guilty and should not be made to stay in prison for an unreasonably long period.
As such, I respectfully wish to align myself with the comments made by the learned Honourable Mofolo J in Lekhetho Sefali v Director of Public Prosecutions, CRI/APN/406/05 p 4 wherein he had this to say;
"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."
For the above reasons, the application for bail is dismissed.
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N. Majara
Judge
For the Crown : Mr Peete
For Respondent : Ms Ranthithi
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