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CRI/APN/177/05

CR 209/2004

(BUTHA-BUTHE)

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU

In the matter between

PITSO HEKE APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered the by the Honourable Mr Justice T Monapathi On 18th day of April, 2005.

The above criminal case number of Butha-Buthe Magistrate court also refers. This bail application is brought against the following background.

There has been more than one application by the Applicant's co-accused which have already been rejected. One that is brought to mind is one by Phenyeke Tuoane against the Director of Public Prosecutions in CRI/APN/499/004. See my judgment of the 8th November, 2004 in Phenyeke Tuoane vs Director of Public Prosecutions CRI/APN/400/004.

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In Phenyeke Tuoane's case not only was the application dismissed, the answering affidavit of the Policeman No. 7894 Sgt Takalimane was used as well as the supporting affidavit of Mr M Tlali Crown counsel. The facts were the same and what was revealed was a strong prima facie case as a result of which the court declined to release on bail.

Mr Snyman for Applicant does not minimize the fact that since his client, the present Applicant, is co-accused with the five others, I cannot ignore the fact that bail has been refused as against some of those co-accused as aforesaid. He merely points out that it's a long time since Accused have been arrested without a release or a formal charge being preferred. He added that Applicant would even be liable for release under Speedy Trial Act 2002.

While Miss Nqcobo agreed that that a long period of in incarceration would be a concern, but she responded by saying that an indictment has already been prepared and it was ready for signature. It would have been interesting and helpful to have a signed indictment. I however thought other different aspects in impinged on my decision. One was that it was an

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undeniable fact that there was a strong prima facie case in this case as against the Applicant. This was so even against the other co-accused as I have already decided in one of the bail applications.

While Mr Snyman conceded that this court would not act as if this was an application for release based on the said Speedy Trial Act he retorted that in the interest of justice however, the unduly long period for which Applicant and his co-accused awaited trial was a factor to be considered. I agreed that this was a matter for concern but I was persuaded that this was defeated by the fact an indictment was soon to be signed and that there was such a strong prima facie case against the Applicant These would not entitle the Applicant to be released in the circumstances.

I also noted these other aspects mentioned by Mr Snyman namely a long awaiting trial and the age of the Applicant who was 54 years of age. These were to be taken, as submitted by Mr Snyman, as an exceptional circumstances as required in terms of section 109 A of the Criminal Procedure & Evidence Act 1981 (CP&E). I would agree partly on the basis of the period of incarceration but this only goes to the extent of answering that which is required in terms of the section 109 A of the CP&E It would

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however not outweigh the serious considerations which this court took into account particularly that there was a strong prima facie case against the Accused. And that there had been a refusal to release others on bail as I have already said where circumstances were the same.

I agreed with Mr Snyman that it also has to be demonstrated by the Crown that the Applicant is likely to abscond because he is a flight risk. I noted accordingly that such an attempt had not been made in so many words by the Crown except to say that the seriousness of the offence was an incentive for the Applicant to abscond for fear of a severe sentence if convicted. As Miss Nqcobo submitted the aspects of the seriousness of the crime charged, existence of strong prima facie case and the likelihood of a long period of imprisonment that may be imposed do provide a strong incentive for the Applicant to abscond and not stand trial. I respectfully agreed.

I conceded and recognized the principle that a court was however entitled in its discretion to release an applicant on bail despite existence of a strong prima facie case. There is ample authority for that.

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It is clear in the circumstances that this application ought to fail. The application is refused.

T. Monapathi

Judge