HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS RESPONDENT
by Honourable Acting Justice M. Mahase On 22nd May, 2006
an application in which the petitioner, Tsokolo Rakojane applies that
he be released on bail. He is presently awaiting trial
Mokhotlong Correctional Institution. The application is being opposed
by the crown.
the facts are that on the day in question; namely the 23rd August
2005 a certain man, by the names of Tsehla Nthakong was
robbed at gun
point of his 24 sheep. Ever since that time there had been rumours
circulating in that area where both the petitioner
reside that it was the petitioner who had robbed Nthakong of his
at a much later time, Nthakong and certain men who were unknown to
the petitioner went to fight the petitioner at his home.
used to fight the petitioner. The petitioner ran away to the chiefs
place for assistance. The chief had the matter reported
to the police
but the police never attended the scene of crime until later after
January 2006 the petitioner was once more attacked by a group of men
of Makhootsing Anti Stock Theft Association. Petitioner
was shot on
the right hand. He sustained a gun injury which later necessitated
his being hospitalized at Mokhotlong hospital.
while he was in hospital that he was arrested by the Mapholaneng
police who dragged him from the hospital bed, had him thrown
prison while his gunshot wound was still being treated. The said
wound is now septic and the petitioner's hand is likely to
amputated if he is not afforded urgent medical treatment.
the story of the petitioner who has also told the court that he is
the sole bread winner of his family. The petitioner has
stand trial. He says he has no passport but that he has all of his
possessions and assets in Lesotho and cannot therefore
says that he is innocent of the charge. He is a subsistence farmer
who has no regular
He has offered/suggested to pay bail cash deposit in the sum of
M300.00. In short the petitioner has suggested that should
application be granted, the conditions shown on his petition be
imposed upon him. One such condition is that he should stand
and attend remands.
It is a
matter of common cause that the only ground upon which the crown
opposes this application is that the petitioner is a flight
to observe herein that a copy of the charge sheet in the Magistrate's
Court in relation to this charge which has been preferred
accused is badly drafted and is in fact defective. The accused is
alleged to have unlawfully, intentionally using force,
violence to induce submission of 24 sheep the property of or in the
lawful possession of Masoenyane Nthakong did thereby
no need to elaborate further on this defective charge. One may only
point out that the defect may result into an irregularity
the accused may ultimately have to be acquitted.
as it may the fact was brought to the attention of the crown counsel
by this court. Hopefully she will have the
sheet corrected before the beginning of the trial against the
investigating officer, No.4541 Tpr. Yengane has filed an opposing
affidavit. He No.4541, has admitted paragraphs 1, 2 and
3 of the
does not dispute the facts as stated by petitioner, No. 4541 only
points out that the alleged crime of murder took place
in August 2005
and not in July 2005. The rest of his averments are hearsay as he has
not been supported by any of the people/villagers
he refers to in
sub-paragraph, 8.1, 8.2, 8.3 and 8.4 of his opposing affidavit.
No.4541 also says the petitioner was charged with
the crime of murder
but not of armed robbery.
He is not
supported by copy of the Mokhotlong Magistrates' Court in CR 29/06.
In this charge sheet, the charge that has been preferred
petitioner herein is that of armed robbery.
wonders why Tpr. Yengane does so. Tpr Yengane also denies that the
petitioner was dragged out of the hospital bed while the
gun shot wound was still being treated. He contents himself with only
saying that petitioner was discharged from hospital
afterwards he (petitioner)
detained by the Mokhotlong police who later released petitioner
pending investigations with regard to a charge of murder.
has not been supported by any of the hospital personnel nor by the
Mokhotlong Police with regard to this allegation which
against the petitioner. He does not even say who it was who took
petitioner to Mokhotlong Police where the petitioner
charged with the offence of murder. He has not been supported by
anybody in this regard, nor has he attached any
documentary proof to
support his averments in this regard. His averments are
unsubstantiated allegations against the petitioner.
Tpr Yengane has not made any attempt to get the affidavit of at least
the complainant and or one villager to support him.
circumstances his story as related becomes hearsay and inadmissible
evidence. Even though Tpr. Yengane says that the petitioner
flight risk, he has not at all placed concrete facts as to his said
allegation. He does not say when he went to the petitioner's
then the petitioner run away when he saw him and or some other
contrary, the petitioner has stated at paragraph 5 of his petition
that Tsehla Nthakong; whose sheep have allegedly
stolen, arrived at the petitioner's home in the company of some men
unknown to the petitioner. This Tsehla and those men are
the ones who
then attacked the petitioner and shot him. The petitioner; it should
be noted says that he was then at his home. Subsequent
to that the
matter was reported to the police who never went to attend the said
scene of crime until some weeks later.
that is being made by the petitioner here is that he was at his home
when he was so attacked. Tpr Yengane has not challenged
story of the petitioner. He says in his opposing affidavit that
contents herein are noted. Whatever that means, the point
is that the
crown has neither denied nor challenged this piece of evidence of the
petitioner. How then is this court to belief
that indeed the
petitioner is a flight risk?
It is a
disturbing feature that Tpr. Yengane has not refuted the serious
allegation that the petitioner who had been hospitalized
the perpetration of a serious unlawful attack upon him by a group of
bandits disguised as an anti-stock theft association
dragged from his hospital bed and thrown into prison before the
medical doctors had formally discharged him. Why does
deny the petitioner the right to medical treatment even if he (Tpr.
Yengane) feels that the petitioner has committed
a crime? It has
already been indicated that the crown has not been
by anybody on the issue that the petitioner was discharged from the
hospital where his right hand had been treated following
wound inflicted upon him by that group of the so called anti-stock
theft association members.
Yengane has the audacity to say that the petitioner is no longer in
need of the doctor's treatment as his wound has healed
therefore the question of an urgent medical treatment can not arise.
He has not based himself on any factual medical
finding. This he does
despite the fact that he has not challenged the allegation that the
petitioner was dragged out of the hospital
bed into prison while he
was undergoing treatment for the gun shot wound he had sustained in
the hands of the so called anti-stock
theft association members. He
(Tpr. Yengane) seems to condone this act of these members of this
greatest respect to Tpr. Yengane and the said anti-stock theft
association members, their actions are unlawful and constitute
serious violation of the petitioner's rights as an individual. Indeed
it is trite that the accused is presumed innocent until proven
by a court of law. What Tpr Yengane and the said members of the
anti-stock theft association did to the petitioner is unlawful.
have or they can be seen to have imposed a punishment on the
which punishment could never be imposed by any court of law upon
nothing on the papers before court suggesting that the release on
bail of the petitioner herein will prejudice the interests
in that he may not stand trial. The contrary is correct because the
petitioner has to urgently seek medical treatment
once released on
bail due to the septic hand gun shot injury he has complained about.
In the circumstances it is not likely that
he will abscond;
conversely he will have to go back to hospital to continue with the
medical treatment which was cut short by the
actions of the police.
Tpr. Yengane has not denied that he last saw the petitioner when he
(Tpr. Yengane) took petitioner for a remand and the
taken or remanded into prison. His averment that the petitioner's
wound has completely healed has no basis.
petitioner has in his reply told the court that subsequent to the
rumours he has referred to that he had a gun which he used
Tsehla of his sheep, he handed his own gun to the chief. This he did
in September 2005. This has not been challenged nor
deponent Tpr. Yengane. The petitioner could not hand over his said
gun to his chief in
This strengthness the petitioner's case that he has never run away
from his home.
contradictions in the affidavit and evidence of Tpr. Yengane in
relation to the charge (s) which have been preferred by
against the accused. In one breadth deponent says that the petitioner
is charged with having committed the crime of murder;
in the other
breadth, he says the charge preferred against the petitioner is that
of armed robbery. One wonders which one is which.
If indeed the
deponent, Tpr Yengane is telling the truth about the allegations in
this regard, why has the crown not been supplied
with a copy of the
charge sheet of murder too?
court notes also and of particular interest that although it is
alleged that the petitioner has robbed one Masoenyane Nthakong
24 sheep, nowhere has the said Masoenyane supported Tpr. Yengane's
averments. In fact Masoenyane has not filed an affidavit
of any kind.
So that makes this court to wonder at the truthfulness of the
allegation that the complainant is one Masoenyane. There
confusion here as to who actually is the complainant.
has raised as another ground of its opposition to bail application
the fact that the co-accused of the petitioner have
run away and are
still at large.
petitioner has denied that there are co-accused and he also denies
any involvement in the commission of this offence. There
in his opposing affidavit where Tpr. Yengane says that he knows and
or has an idea about the whereabouts of the said
co-accused and that
as such the police will have them arrested at any time.
question here is, for how long will the petitioner be kept in jail
awaiting the arrest of those unnamed co-accused?
argued, and correctly so, on behalf of the accused that an
application for release on bail is a point which should be judged
the individual concerned. That it is unfair for the crown to attempt
to punish and or to object to the application of the petitioner
herein merely because his co-accused have run away. The argument is
further that, this is tantamount to punishing the petitioner
wrong he has himself not committed.
the position would probably be different if it was alleged and
proofed that the petitioner has himself played a major positive
to facilitate the running away of the
co-accused. There is, with respect no basis for the deponent, Tpr.
Yengane to allege that since the petitioner's co-accused
away, then automatically it should be said/assumed that the
petitioner will also abscond and fail to stand his trial.
has in support of its argument that the petitioner is likely to
abscond due to the seriousness of the case he is facing,
this court to the case of MHLAULI 1963(3) S.A. 795. However the above
case was distinguishable from the one now under
consideration. In the
Mhlauli's case, the charge against the accused concerned political
activities which were allegedly of a subversive
nature and were
calculated to endanger public safety and were related to treason and
not the situation in this present application. It should be recalled
that it is a matter of common cause that the petitioner
no longer has
a gun in his possession and that he is injured on the right hand and
also that he needs urgent medical attention.
How then can he be said
to be likely to abscond? With respect the facts as stated in the
Mhlauli's case are not applicable in this
has argued that the petitioner has failed to raise exceptional
circumstances justifying the granting of his application.
has argued that the fact that the petitioner is a sole bread winner
of his family is not an exceptional circumstance,
nor is it peculiar
or unique to the petitioner.
argued in this regard that since the petitioner is no longer under
the doctor's treatment as his wound has healed completely,
longer needs an urgent medical treatment, this too is no longer an
court has already dealt with this issue. As already shown the
allegation that the petitioner's wound has completely healed
water and there is no reason shown why the crown should be believed
on this issue.
has no reason not to belief the petitioner that his wound has became
septic for reasons already explained. This fact is
itself, in the
view of this court an exceptional circumstance justifying his release
foregoing reasons the petitioner's application herein is granted as
prayed in terms of paragraph 6 (d) 1, 2, 3 and 4 but
the bail cash
deposit is fixed as M500.00.
Petitioner : Mr. L. E. Molapo
: Mr. Seitlheko
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law