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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