HIGH COURT OF LESOTHO
MAFUBE 1st APPLICANT
FTTO 2nd APPLICANT
RANKHETHOA 3rd APPLICANT
KHUTO 4™ APPLICANT
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
BY THE HONOURABLE MRS. JUSTICE K.J. GUNI ON THE 28th APRIL. 2006
accused are charged with the crime of robbery. They are detained in
custody at LERIBE CORRECTIONAL INSTITUTION awaiting trial.
detention is in terms of CRIMINAL PROCEDURE AND EVIDENCE (Amendment)
ACT NO.10 OF 2002. It is this law which governs the
release from custody of the accused persons charged with the crimes
of murder, rape, robbery and other serious
was enacted recently by parliament for the purpose of reducing the
rate at which the violent crimes were being committed.
prevalent of the violent crimes was robbery particular where
livestock was involved. It is a notorious fact which this
entitled to take a judicial notice of, that the stock thieves went
about heavily armed with weapons of war, when they
went about taking
by force livestock from their owners or from those in whose care and
custody the livestock was lawfully entrusted
by the owners. As a
result there was a great pressure put on a government to act.
Therefore the parliament took steps and passed
ACT NO 10 OF 2002.
This law was passed by parliament specifically to cure the evil of
stock theft. The prevalence of stock theft
as a crime reduced this
country to this status of being the poorest country in the whole
relevant portions of the Act, to our present matter reads as
A (I) Not withstanding any provision of this act, where an accused
person is charged with
and the robbery involved
use of a firearm by the accused, any co-perpetrator or participant
in the robbery;
The court shall ordor that the accused person be detained in the
custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to do
so, adduced evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or
release from custody of the accused persons charged with any of those
specified offences is no longer entirely in the discretion
court. The court has to exercise its discretionary powers within the
perimeters of the law as set out in ACT 10 of 2002.
It is no longer
of the paramount importance that the crown should show the court why
the accused should not be released on bail.
The onus is now placed
upon the accused to show the court that there are exceptional
circumstances in his case which permit the
court, in the interests of
justice to release him.
founding affidavit, the petitioner herein has made a list of
circumstances which he suggests that this court should find
special and exceptional therefore permit it to release him on bail.
firearm was found on the accused.
were assaulted by the police at the time of their arrest, therefore
they need urgent medical attention.
are breadwinners in their families.
earned income from subsistence farming.
are not guilty of committing the alleged offences.
have no passports.
immaterial whether or not a firearm is found on anyone of the
accused. What matters is that during the commission of the alleged
offence the firearm was used. According to the deponent of the
Answering Affidavit, the investigating officer in the robbery case,
the firearm was involved when the alleged robbery was committed.
These accused persons were found in possession of the stolen
livestock which was forcibly taken and removed at the time of the
shooting at the complaints cattle post.
applicants claim that although they have been assaulted they have no
visible injuries which could possible cause concern or
prison authorities to refuse to admit them before they receive proper
medical treatment. When the police officers who
arrested them deny
the alleged assault, in reply these applicants now claim that the
prison authorities refuse to admit them in
prison only those with
visible injuries. They allege their injuries were invisible.
nothing special about their subsistence farming. I cannot find it to
be an exceptional circumstances. The same thing applies
innocence. Every accused person is presumed innocent until proven
otherwise. The special circumstances need not be peculiar.
though the exceptional circumstances need not be peculiar, but then
again when someone suggest that lack of a passport is
without showing in which way, how can this court accept that? The
petitioners have made a long list of suggested exceptional
circumstances without indicating to the court how those ordinary
circumstances have become exceptional in their case. Individually
cumulatively I do not find those as exceptional circumstances which
in the interests of justice warrant the release of the accused.
THE BAIL IS REFUSED.
Applicants : Mr. Molapo
: Ms. Makholela
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