CRI/APN/139/2005

CRI/APN/140/2005

CRI/APN/141/2005

CRI/APN/142/2005

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU

In the matters between:

MOROKE CHONESA First Applicant

HERBERT KHOTLE Second applicant

And

THE CROWN Respondent

JUDGMENT

Delivered by W.C.M. Maqutu on the 11lh April 2005

These four bail applications (that is) CRI/APN/139/2005, CRI/140/2005, CRI/APN/141/2005 and CRI/APN/142/2005 have been consolidated. They involved two co-accused who committed two armed robbery offences one of which includes a count of attempted murder at two different places on different dates.

The first alleged offence of armed robbery which included a court of attempted murder for shooting one Seena took place of the 4th day of August 2004 while the second alleged offence of armed robbery took place on the 14th day of August 2004.

The two applicants are represented by two counsels. Moroke Chonesa is represented by Mr Chobokoane while the second applicant is represented by Miss Ramafole. The crown is represented by Mr Habasisa.

Both accused claim they were not there when the said offences were committed. They are falsely implicated in crimes they did not commit. Both accused were arrested in February 2005 about six months after the alleged offences were committed. They have been in custody for about two months.

Our Lesotho Constitution slightly differs from that of the Republic of South Africa on the issue of conditional release from custody pending trial. Section (6) (\) (a) of the constitution permits the arrest or detention of a person on suspicion that a crime is about to be committed or has been committed. The emphasis is on the maintenance of law and order - the liberty of the subject notwithstanding. This also has within it the protection of the public from crime. Section 6(5) of the constitution obliges the state

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to try that person within reasonable time. This is the basis on which applications for release on bail are made. Reasonableness of detention depends on the seriousness of crime committed. A lengthy detention makes the detention automatically an exception. Consequently a delay of two weeks may not be exceptional. But a delay of one month before trial becomes a matter of concern - and could even be regarded as an invasion of the rights of the accused and in the absence of an explanation might be regarded as exceptional.

Unfortunately delays in bringing the accused to court have become so common that people have lost the perception that it is a violation of the constitutional liberty of a subject. In the case of S v Dlamini etc 1999 (4) SA 623 at page 681 EF Kriegler J expressed a limited view of the problem in the following words:

"Bail serves not only the liberty interest of the accused, but the public interest by reducing the high number of a waiting trial prisoners clogging our already overcrowded correctional system and by reducing the number of families deprived of a breadwinner."

This was a statement directed against overcrowded prisons that got filled with people who are suspects that are presumed innocent to the detriment of

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their families and violation of their rights under the constitution. Section 6 (5) of the constitution had to strike the balance between protection the public from crime, liberty of the subject and the protection of witnesses plus other interests of justice as well. That being the case it would be wrong to conclude that delays in bringing the accused to trial are not regarded as an exceptional circumstance by the constitution.

The opposing affidavit of the investigating officer is largely hearsay about what witnesses would show. A prima facie case is not always made through hearsay. Nevertheless in bail applications the courts in urgent applications of this kind have found the outline of the Crown case made by the investigating officer useful. They have in the past got some guidance from it. Needless to say at the trial sometimes evidence is not adduced to support this outline.

In M. Mosoang & 18 Others v Rex 1985 - 90 LLR 45 Kheola AJ (as he then was) at page 48 said:

"It is my duty to take seriously consideration of the fact that the Director of Public Prosecutions is opposing this application. His opposition must be carefully considered and not be lightly discarded (see Ndumo 's Case, supra, at

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p4; Soola v Director of Public Prosecutions, 1981 (2) L.L.R. 277 at p 280). It does not mean that in any case where the Director of Public Prosecutions opposes the granting of bail, the court must invariably agree with him; his opposition is a factor which must be taken into account."

The defence counsel, the prosecution and the court when dealing with a bail application are involved in a risky situation. Consequently in T. Mofihli v DPP 1991 -96 LLR 621 at page 623 the judge said;

"The difficulty is that when bail is applied for, nothing is certain. Everything that is said for or against the accused is a possibility."

When dealing with bail applications the court is dealing with possibilities and probabilities that the accused might not attend trial if conditionally released. In S v Maharajah & Another 1976 (3) 205 it was said as a general principle the onus is on the accused to allay the following fears which the court should legitimately have, namely.

1. Whether the accused is likely not to stand trial

2. Whether accused is likely to interfere with state witnesses or otherwise hamper or hinder the course of justice.

Milne J at page 208 of S V Maharajah & another said

It seems to be implicit in the decision of Maserow V Attorney General & Another 1941 WLD 43, and in

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particular in the remarks of Murray J at page 47 that in a proper case some reliance may be placed on hearsay evidence for this purpose.

Nevertheless a bare statement from Crown Counsel based on hearsay from the police is insufficient. If this is taken with other evidence, facts and circumstances it might lead to an inference that there is a reasonable possibility that accused will not stand trial or might interfere with witnesses.

In bail applications courts operate under very tight schedules because the liberty of the subject who is a suspect is involved. Consequently Cameron JA in Magistrate Stutterheim v Mashiya 2003 (2) SACR 106 at page 113(1) said.

"It is evident that finalizing an application for bail is always a matter of urgency. Though the accused may not be entitled to be released - since the constitution permits bail only if the interests of justice permit, he or she is certainly entitled to a prompt decision one way or the other."

In Lesotho Section 6 (5) of constitution emphasizes that release of the accused should be on "such conditions as are reasonably necessary to ensure that he appears later at the trial or for proceedings preliminary to trial."

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There is a tendency to approach section 109A of the Criminal Procedure and Evidence Act No. 10 of 2002 as making bail no more the right of a subject contrary to the provisions of Section 6 (5) of the Constitution. This is not the correct approach. The correct approach is found in section 75 of the Interpretation Act of 1977, which provides that:-

"Every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."

In short the courts have to proceed from the position that the legislature had no intention to violate the constitution. From this vantage point courts should proceed to determine what the intention of the legislature is and the purpose of the amendment is. The long title of the Criminal Procedure and Evidence Act No 10 of 2002 is

" To make provision for the power of courts to detain, in custody, an accused person who is charged with murder, rape, robbery, stock theft and other serious offences and for related matters."

The purpose of the arrest of a suspect is for the purpose of bringing him before a court section 6 (!) (d) and (e) of the constitution. Strictly speaking such a suspect has to be tried immediately after arrest so that he does not have to be released conditionally in terms of section 6 (5) of the

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Constitution. This does not happen and it is not practicable for it to happen within reasonable time. Consequently applications for conditional release have to be made in almost all cases involving serious offences.

Section 109 A of the Criminal Procedure and Evidence Act of 1981 merely repeats what the constitution has stated. Section 109 A (1) (e) states that the accused has to adduce "Evidence which satisfies the court that exceptional circumstances exist which in the interest of justice permit his or her release." This simply means that accused has to be tried within reasonable time - but if that does not happen, then the accused is not getting the speedy trial he is entitled to by law. This in itself (in terms of the constitution) might constitute an exceptional circumstances.

Kriegler J at the South African Constitutional Court in S v Dlamini etc 1999 (4) SA 623 at 681 BC noted that courts "should proceed with great caution and establish that the requisite exceptional circumstances are indeed present. Likewise .., the court should be astute to ensure that the right to bail under S 35(1) (f) of the constitution is no rendered illusory." In short as Kriegler J had earlier said at page 668 I of S v Dlamini etc

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"I accept that that is so. Section 60 (11) (a) does not contain an out right ban on bail in relation to certain offences, but leaves the particular circumstances of each case to be considered by the presiding officer. The ability to consider the circumstances of each case affords flexibility that diminishes the overall impact of the provision. What is of importance is that the grant or refusal of bail is under judicial control and judicial officers have the ultimate decision as to whether or not, in the circumstances of a particular case, bail should be granted."

In short for an accused who is charged with a serious crime a good case has to be made because the serious offence and the heavy sentence he or she might get if convicted are an inducement to be a fugitive from justice. The conditions of release pending trial that the court makes must reflect the seriousness of the offence and contain adequate deterrence against the accused failing to attend trial, if bail is nominal - as for example Ml00.00 or M500.00, unless there are other deterrent conditions, such a bail deposit is nominal. Bails that are too low could well lead to a belief that the crime is not regarded as serious by the court. Such a perception in the minds of average people does not enhance respect for the judicial system. Making bail affordable should not go to the extreme of making it open to ridicule.

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Consequently Cameron JA in Magistrate, Stutterheim v Mashiya (2) SACR 106 at 113 E added:

"Nevertheless, it is equally obvious that conscientious determination of bail applications - applying the 'good judgment' they require - might demand reflection: overnight, or conceivably even longer. It is not desirable to try to lay down any general rule. Nor does the case require us to do so."

In short when the court grants bail the constitution and the legislature require the court to reflect seriously and exercise good judgment before deciding to release people on bail or on any conditions lest the interests of justice be compromised. It goes without saying that with serious offences that fall under Part II Schedule I of the Criminal Procedure and Evidence Act of 1981 (as amended) cannot claim the benefit of a lighter test.

Even though at a pre-trial stage the conditions are less stringent than after the accused has been convicted I consider the remarks of Shongwe AJA closer to the test to be applied for conditional release where serious offences are a subject of pre-trial bail. In S v Bruintjies 2003 (2) SA 575 at page 577 h-j Shongwe AJA said

"The court will also take into account the increased risk of abscondment which may attach to a convicted person who faces the known prospect of a long sentence. Such matters, together with all other negative factors, will be

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cast into the scale with factors favourable to the accused, such as stable home and work circumstances, strict adherence to bail conditions over a long period, a previously clear record and so on. If, upon an overall assessment, the court is satisfied that circumstances sufficiently out of the ordinary to be deemed exceptional have been established by the appellant and which, consistent with the interests of justice, warrant his release, the appellant must be granted bail."

As I have already stated, in the ordinary course of events the accused trial should proceed immediately. Section 6 (5) of the Constitution states therefore that if the accused "is not tried within reasonable time," he shall be released upon reasonable conditions because the norm has not taken place. To that extent failure to try the accused within reasonable time may constitute an exceptional circumstance. Each case must be examined on its merits

What the legislature calls for is a demonstration by the court that it has taken seriously the danger of releasing people who have committed serious offences before their trials and the dangers this entails to the administration of justice.

There is a tendency among some crown counsel not to draft papers and affidavits that are sufficiently detailed when they oppose bail. In

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Carimichele v Minister of Safety and Security & Another 2001 (4) SA 938 Ackermam and Goldstone JJ. at page 967E said:

"Although the consideration of bail is pre-eminently a matter for the presiding judicial officer, the information available to the judicial officer can but come from the prosecutor. He or she has a duty to place before the court any information relevant to the exercise of the discretion with regard to the grant or refusal of bail and, if granted any appropriate conditions attaching thereto"

In Soola v DPP 1981 (2) LLR 280 Mofokeng J said the same thing in the following words:

"The objection of the Director of Public Prosecutions must be carefully considered by the court and not lightly discarded: after all he is a responsible officer charged with onerous duties."

The Crown was therefore rightly criticized for not filing an opposing affidavit in respect of the second charge of robbery. This was used as a battering ram against all obstacles to the granting of the accused bail. Section J09A of the Criminal Procedure and Evidence Act 1981 (as amended) as I have already said is not and cannot be intended to be in violation of Section 6 of the Constitution. It merely reinforces section 6 (1) (e) and (3) (b) of the constitution which provide that it is permissible to arrest and detain any person suspected of having committed a crime. Section 6 (5) of the constitution empowers the court to release such a

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suspect on certain conditions before his trial. Such conditions would (of course) among others include payment of bail. Section 109 A (1) does not take away the courts power to grant an accused a conditional release when it says this should not ordinarily be done - except in exceptional circumstances. It rather states that interests of justice in the release of justice should not be jeopardized in giving a suspect a conditional release except in exceptional circumstance in cases where an individual is suspected of committing serious crimes.

There is a sworn statement from police-woman Phantsi the chief investigation officer opposing this application. She says they have evidence from a person staying with applicant whose statement shows first and second applicant and Posholi Sebusi were seen together having a lot of money and a Nokia cell-phone. The accused denies all these allegations but admits that some one sold him a cell phone.

What I consider crucial is the fact that there is a witness who stays with first applicant who links the two applicants with a lot of money and a cell-phone. This affidavit of Police woman Phantsi states it as a fact that there is such as witness. It is not merely hearsay. Such a witness in my view needs

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protection and I consider it unwise to dismiss the importance of this fact. I am obliged to ask myself whether releasing the accused conditionally might not contribute towards defeating the ends of justice. I have to be satisfied that the interest of justice will be properly served by the accused's release.

The correct course is to deal with bail application with as much real evidence as possible. Hearsay is always not helpful. Courts will not often be satisfied that in bail applications the Crown could make a. prima facie case based merely on hearsay. However the summary of what the Crown's file contains can help the court to make up its mind, provided the accused is given an opportunity to rebut it. I am not persuaded that Police woman's evidence about the existence of this witness who stays with one of the accused can be regarded as false at this stage. The court has to be alive to the pitfalls and risks a conditional release of the accused entails. Releasing an accused charged with a serious offence is a leap in the dark. This matter is urgent, the accused must know where they stands. Indeed the accused have been in jail for too long without a hearing of their case and knowing the fate of their bail application.

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It has to be born in mind that even evidence from the police witnesses during bail applications has been later found to be either false or not available at the trial. In S v Benner 2000 (1) SACR 406 the court said complainants have been known to make false allegations against an accused. Consequently Willis J at page 409 criticizing the magistrate said:

"He seems to find it impossible to believe that the accused's former wife is incapable of such evil as making false allegations against him. His experience of life is different from my own."

What the court accepts in a bail application is accepted tentatively. I am not satisfied the accused realize that they are charged with serious crimes -otherwise they would not suggest that they be released on a paltry amount of bail M250.00. Such bail is suitable for a person charged with assault common or theft of a chicken.

The fact that an accused is wounded and has had to undergo medical attention is a consideration a court has to taken into account along with other factors. In doing so it has to be aware that such facilities are there in the awaiting trial section of all prisons in Lesotho.

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What I find most important is that the accused should not only be present at their trial but evidence that was going to be led against them should be protected pending the hearing of their case. I am not persuaded that it would be protected if both accused are released on bail at this stage.

I therefore order that the accused's trial should commence within thirty days because investigations are completed. Should the trial not commence the accused might make another application for bail.

The applications for conditional release pending trial are refused.

W.C.M; MAGUTU

JUDGE

For First Applicant : Mr Chobokoane

For Second Applicant : Miss Ramafole

For Respondent : Mr Habasisa

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