HIGH COURT OF LESOTHO
PHAKOE 1st APPLICANT
TSOANE 2nd APPLICANT
MOCHOGO 3rd APPLICANT
LEMPHANE 4th APPLICANT
OF PUBLIC PROSECUTIONS RESPONDENT
by the Honourable Madam Justice N. Majara on the 25th April 2006
application all four (4) applicants who are facing charges of armed
robbery and murder respectively seek to be released
on bail. The
crown opposes the application on the grounds that:-
applicants are charged with a very serious offence.
crown has a prima-facie case against them.
is a very strong likelihood of a conviction, which might influence
applicants to abscond rather than stand trial.
It is the
crown's case that on the 28th February 2006, No. 11546 D/Tpr Nono was
on duty near Pep store at Maputsoe in the district
of Leribe when he
two persons, none of whom was applicant herein coming out of the
store toting firearms, running towards a white Mercedes
Benz that was
parked next to the store and a woman was running after them shouting
and crying out for help. When the said detective
gave chase in
response, the two men fired at him but missed him and instead fatally
shot a passerby, one Phooko Rampa. The said
detective then found that
Pep Stores had been robbed of cash in the amount of M6 000.00 and
nineteen (19) cellular phones of different
Nokia and Motorola brands.
also the crown's case that following certain information, some police
officers including D/Tpr Thamae who filed the opposing
went out to a place called Liphakoeng whereby they found 3rd
applicant herein at the chiefs place having been arrested
villagers as well as the Mercedes Benz allegedly seen at the scene by
Tpr Nono. The headman then handed to them money in
the amount of M5
000.00 and ten (10) cellular phones and explained that it had been
taken from 3 rd applicant.
deponent further avers that it was whilst they were at the headman's
that a woman named Phele, an alleged friend of applicants
phone call from the rest of the applicants whereby they said they
were going to hide themselves at her home at Ha-'Mathata.
officers then accompanied Phele to her house whereby the three
applicants shortly arrived and were arrested and kept
custody together with the exhibits.
on the other hand allege that on the date of the alleged incident
they had gone to Pep store to meet the said Phele per
with 4th applicant whom the former owed some money. Upon their
a crowd of people running helter-skelter in all directions with the
said Phele amongst them.
applicants' further case that in the confusion, they ran with Phele
to her house where the latter told them she was going
herself to the Police and that is where the policed found and
arrested them instead of Phele who told the police that
they were the
culprits. Applicants further allege that it is the said Phele who
robbed Pep Stores as Maputsoe.
proceed to deal with the grounds of opposition to bail.
prima facie case against applicants
Molapo, counsel for applicants correctly submitted in his heads of
argument, it is a trite principle of law that the presumption
innocence should operate in favour of an accused person, a
fundamental principle which is also contained in Article 12(2) (a)
the Constitution of Lesotho.
been stated in numerous authorities, in considering this ground
Courts are warned not to treat a bail application as if it
actual trial itself. Instead, what should be the utmost important
consideration is, whether the interests of justice will
if accused is released on bail for reasons that he is likely to
abscond and not stand his trial.
determining this factor in casu, it might be convenient for me to
re-visit the facts of this matter as contained in the affidavits
the parties. At paragraphs 6, 7 and 8 respectively of his founding
affidavit as supported by his co-applicants, 1st applicant
"I aver that just as we were about to reach Pep, we saw a crowd
of people dispersing towards us and Phele was in front and
broke out as the Police appeared and began shooting randomly and in
the process shot one man whom we learned later that he
died and it is
the very same person we are being charged of having murdered.
I aver that we ran to and with Phele to (sic) where she was going
because there was confusion everywhere. We ran to a place, a
(sic) and Phele told us she will surrender herself to the police. It
was only then that we learned that the Police were chasing
that Phele had robbed Pep at Maputsoe.
I aver that the Police caught up, as we were not running anymore.
However, much to our surprise Phele was laughing it off with
Police and told them that we were the robbers hence this
Opposing Affidavit, D/Trp Thamae answered the above averments as
already shown above in the outline of the crown's case.
the averments into account, the picture that emerges before the Court
applicant and the white Mercedes Benz which had allegedly been parked
at the scene of crime were found at the chiefs place together
some of the alleged exhibits by the police who were also informed
that the rest of the applicants, all of whom had been arrested
villagers had run away.
agree with Mr Molapo's submission that the investigating officers'
averments are indeed hearsay in that the said chief
has not filed a
supporting affidavit, it is my opinion that I should not disregard
this information for the reason that this application
is more of an
inquiry into whether releasing applicants on bail might prejudice the
ends of justice. It is not the actual trial
where the Court would
have to strictly adhere to the rules of evidence,
mention that in casu, the investigating officer has actually stated
who his informant is. I therefore am taking into account
information given on oath in considering the merits and demerits of
Judges do not live on Mars but on this planet and are well aware of
what goes around the world all the time. I have never
heard of a
woman who will single-handedly go and commit armed robbery without
any assistance from other persons including a get
away car so as to
disappear from the scene as quickly as possible.
armed robberies are carried out by a group of people even if the
actual taking of stuff might be committed by one person.
find applicants' version totally absurd that Phele single-handedly
committed the armed robbery and managed to take
the cash and the
mobile phones. This is especially so when they also want me to
believe that they had all gone to see Phele supposedly
to discuss the
issue of money owed to only one of them.
whilst I do believe in coincidences, I do not think that it is a
applicants happened to be at the scene at the time of the alleged
incident. Why did the purported meeting have to be at Pep
the time of the incident with everything eventually leading to all
of them being arrested?
applicant was eventually found by the police at the chiefs at
Liphakoeng village together with some of the alleged exhibits
the white Mercedes Benz following their investigations. Who drove it
there was it Phele or the police officers?
applicants ended up at Phele's place where they got arrested. Why
would they insist on going to Phele's place amid such circumstances
especially when she purportedly owed only one of them money instead
of each heading straight home?
police officers decided to arrest them out of the many people who
had allegedly been at the scene and had run in all directions
ensuing pandemonium. Why pick on them instead of the actual culprit?
I am inclined to believe the crown's story that it is because they
were the culprits and had all of them indeed been initially
by the villagers whereby the other three managed to escape only to
call Phele and were as a result way-laid by the police
at the said
it is applicants' case that when they were found at Phele's house
they were not running, I believe that they were arrested
reason that indeed they had gone there to hide because they were on
the run. A person who is on the run does not have to
be caught in the
act of running. It is enough that they are found hiding or trying to
hide somewhere as happened in casu.
light of the above reasons, I am satisfied that on the facts before
me there is a strong likelihood that if released on bail,
herein might abscond and not stand their trial as they are a high
flight risk. This is especially the case when also
account the other grounds of opposition to wit, that applicants are
charged with very serious crimes both which might
result in a heavy
sentence and as such might tempt them to abscond.
the fact that the legislature decided to introduce Section 109 of the
Criminal Procedure and Evidence (Amendment) Act No.
10 of 2002 was in
response to the worrying phenomenon of numerous incidents of armed
robbery where unfortunately, loss of human
life has become the order
of the day. The amendment section does not take away the discretion
of a Judge who is seized with an
application of this nature. It
simply enjoins Judges to be stricter in approach when dealing with
applications for bail with regard
to those offences that are listed
therein. See my comments in Tanki David Molibeli v Rex
they have shown that they were assaulted at the time of their arrest
necessitating that they be taken for medical attention,
I do not
believe that this factor is an exceptional circumstance warranting
applicants' release on bail as I believe that going
examination is something that can be effectively taken care of by
prison authorities. This is more so as weighed against
factors as already stated above.
It is my
opinion that releasing applicants on bail might prejudice the
interests of justice and for these reasons I accordingly
Applicants : Mr Molapo
Respondent : Ms Makholela
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