HIGH COURT OF LESOTHO
DIRECTOR OF PUBLIC PROSECUTIONS
by The Honourable Acting Judge Mrs. M. Mahase On the 16th November
an application for the petitioner's release on bail.
petitioner is presently incarcerated in Teyateyaneng prison on a
charge of armed robbery.
alleged incident against the petitioner is said to have occurred upon
or about the 24th February 2004 and at or near St. Agnes
in the Berea
petitioner was remanded and joined herein with the other co-accused
on the 25/10/2005. He has been in custody ever since that
application is being opposed by the crown.
petitioner's story is that he surrendered himself at Teyateyaneng
police charge office after he had been told by the Maseru
the police in Teyateyaneng were looking for him. This he did, so goes
his story on the 15th October 2005. He was detained
by the police in
Teyateyaneng on that day. He was taken to court for a formal remand
on the 25th October 2005.
would be some ten (10) days since he was therein arrested and
detained. It is his story that while in police custody, he was
about this alleged incident. That he denied any involvement in it and
maintained his innocence.
It is his
further story that he was assaulted by the said Teyateyaneng police
and was held thereat unlawfully until the 25th October
because of pressure from his present counsel he was taken to court
for a formal remand.
argued during the hearing of this application by counsel for the
petitioner that the sole reason for the unlawful detention
petitioner beyond the period of 48 hours, was because the petitioner
had been so severely assaulted by the police that they
waited for the bruises on the
body to subside before they took him to court for a remand.
petitioner further says that there is no prima facie case against
him. He says that in the same case, the case against his co-accused
could not be prosecuted and so it was struck off from the court's
roll in Teyateyaneng. To support this argument, he further said
when he was remanded, the prosecution refused to set down to set down
the case the case for hearing because the case was reported
still under investigations by the police. He therefore argues that
there are presently no prospects that the matter will
proceed in the
already been indicated the petitioner has undertaken to stand trial
moreso as he even co-operated with the police in Maseru
until when he
surrendered himself to the police in Teyateyaneng.
It is the
petitioner's story that he has no reason to abscond. He says he has a
wife and a minor child. He runs a taxi business
which operates in
Lesotho and as such he cannot just pack and go.
petitioner has also alleged that he is a sickly person suffering from
asthma. In fact he says at paragraph 10 of his
papers, his situation has worsened due to his incarceration in dirty,
smelly police cells. Further, he says that as a result
he has been
constantly suffering from dizzy spells and shortness of breath.
alleges that he needs specialist medical attention and has annexed
"RN 2" herein.
copies of the petitioner's health book showing exactly that he is
being treated for asthma.
clear from it that indeed the petitioner is usually in and out of the
medical doctor's surgery, where he is receiving treatment
says is one of the reasons why he would like to be released on bail.
is opposing this application and it has filed the affidavit of the
investigating officer No. 10789 D/Tpr. Kobeli in this
Kobeli denies that the petitioner did surrender himself to the police
in Teyateyaneng. His story is that petitioner was arrested
of his colleagues in Maseru on the 13th October 2005 and was, on the
14th October instant conveyed to Teyateyaneng police
court notes, however that D/Tpr. Kobeli has not been supported by the
said other police officers he refers to as the ones who
given petitioner a charge and later had him conveyed to Teyateyaneng
evidence in this regard is therefore hearsay.
denies that the petitioner was assaulted. He further says that the
only reason why he (petitioner) was taken to court for
remand on the 25th October 2005 was because there was no Magistrate
in Teyateyaneng Magistrate's court.
as it may, whether or not the Magistrate was available in
Teyateyaneng on the 24th October 2005, the fact of the matter
on that day, the 24th October the petitioner had been detained in
police custody for 11 days (eleven days) from the 13th
Maseru police arrested him and for 12 (twelve) days from the 25th
October 2005 in Teyateyaneng.
clearly unlawful. There is no way in which this unlawful detention of
a suspect in police cells far beyond the 48 hours
by the law can be justified by any body. There was also never any
court order authorizing that the petitioner
be further detained
beyond 48 hours. The
police have clearly violated the law to the prejudice of the
court takes judicial notice of the fact that the law has provided for
the Clerk of Court to remand suspects for a period of
at least three
days if for any reason there would be no magistrate in any district
to remand such a suspect.
question here, is why lie about why the petitioner was not remanded
within 48 hours of arrest and incarceration in police cells
answer is clear and simple and it is that it is because the
petitioner had indeed been assaulted and the police were waiting
his injuries to heal.
has not denied that it was due to the pressure from the petitioners
counsel that he was ultimately and on the 25th October
2005 taken to
court for a formal remand.
has also indicated that it opposes this bail application because
there is prima facie evidence connecting the petitioner
commission of armed robbery.
petitioner has denied any involvement in the commission of this
is insisting that there is a prima facie case against the petitioner
and it has at paragraph 8 of the opposing affidavit
briefly set out
such evidence which it alleges establishes a prima facie case against
be so and this court is in no position to deny that the crown has
such evidence in its possession against the petitioner
However the point here is that in an application of this nature the
crucial point is the liberty of the petitioner. He
innocent until proved otherwise. He will answer the said prima facie
case on the day of the prosecution of the case.
not have to be incarcerated indefinitely merely because the crown
alleges that it has a prima facie case against him. He
has to be
liberated from prison so that he can be able to prepare for his
course, the liberty of an individual in cases of this nature has to
be balanced against the safe-guarding of the proper administration
interest of justice will not be prejudiced by the release on bail of
an individual, then the court will lean in favour
of the petitioner.
has in the instant case, not set down any circumstances showing that
the petitioner has attempted and or has actually
absconded before. It
should have done that.
Kobeli further denies that the petitioner's health has worsened ever
since his incarceration. It is his story that if indeed
that was so
the petitioner would have requested for medical attention.
court finds this response of D/Tpr. Kobeli very strange. This police
officer is not a medical doctor nor does he feel the pain
petitioner feels. He is not in a position to deny what the petitioner
says in this regard.
case, what could he do, good for the petitioner when he has had the
audacity to unlawfully incarcerate the petitioner for
well over 12
days in police custody contrary to the law. It is no wonder that he
unashamedly denies that the petitioner's health
respect, D/Tpr. Kobeli seems to have no regard to the suspect's
health conditions. Indeed, I do not see why he boldly denies
petitioner's health has worsened ever since, when the petitioner is
now making this application while in the Teyateyaneng
prison. He has
no basis for denying what
petitioner says. Regard being had to Annexure RN2 it is very clear
that the petitioner is a known case of asthma whose other,
often prescribed medication is the ventolin pipe.
10 of the petitioner's petition has clearly described the well too
known symptoms and signs, dizzy spells and shortness
of breath often
afflicting asthma suffers.
Kobeli seems to deny this only for the sake of it without any basis.
He should have given reasons why he denies that fact
petitioner's worsening health condition.
Kobeli also denies that the petitioner has set out the exceptional
circumstances justifying his release on bail.
crown, in dealing with the above point has cited the case of Rapulane
Makumane and Five Others V D.P.P. CRI/APN/371/2002 where
was alluded to by Moiloa AJ (as he then was). Replying on what Moiloa
AJ has said thereat, the crown submits that the
petitioner has not
advanced sufficiently exceptional circumstances and proof thereof as
is required by the provisions of Section
109 A of the Criminal
Procedure and Evidence Act (Amendment Act 2002).
exceptional circumstances are not set out nor explained anywhere.
However this court considers that the illness described
petitioner as shown in annexure RN2 certainly qualifies to be
explained as being exceptional circumstances in the circumstances
bear in mind herein that the petitioner has not yet been found
guilty. The presumption of innocence still operates in
The fact that he is so acutely asthmatic cannot be overlooked. To
this court's mind, that health condition of him falls
category of exceptional circumstances in the light of how his
conditions has been explained in RN2 and indeed by himself
suspect indefinitely incarcerated in police cells or in prison, who
is so sick serves no purpose. In fact it may defeat
the ends of
justice because at the end of the day, he may die without the case
against him having been prosecuted. Of course, such
circumstances will vary from case to case.
court has accordingly come to the conclusion that the petitioner has
discharged the burden of proof resting upon him to show
on a balance
of probabilities that the court should exercise its discretion in
favour of granting his application for release on
application is therefore accordingly granted as in the petitioner's
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