CRI/APN/388/2006

IN THE HIGH COURT OF LESOTHO

In the matter between:-
THUSANG PALIME APPLICANT

and

DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

JUDGMENT

Delivered by the Honourable Madam Justice N. Majara
on
the 9^th February 2007

Applicant is seeking to be released on bail. He is
charged with
the crime of armed robbery. The crown is opposing
this
application on the grounds that applicant has not raised
any
exceptional circumstances justifying that he be so
released,
that the ones he raised are not sufficient in terms of
the law
and that it would be against the interests of justice if
he is
granted bail.

It is the case of applicant as stated in his founding
affidavit
that he is being falsely implicated because he used to
work for

the complainant. That on
the 30^th June 2006, he came home
to Ha Tsolo only to be
informed that the police had been
looking for him and he
immediately went to inquire about
same at the Pitso Ground Police
Station whereat he was told
that he had stolen a vehicle from his
owner.

Applicant also informs the Court that he was detained
from
that day without being charged, to the 4^th July
2006 when he
was eventually taken before the Thaba-Tseka
Magistrate Court
where he was given a charge and remanded into
custody.

Applicant stated that exceptional circumstances
exist
warranting that he be released on bail which are that he
was
excessively interrogated; brutally assaulted and tortured
by
the police, that he was detained for a long period; that he is
an
incola of and has family ties in Lesotho; that the
presumption
of innocence operates in his favour, and that there
exists an
extradition treaty in Lesotho albeit without stating
between
Lesotho and which country.

Before getting into the merits of this application, I
find it
convenient to start by stating that when this application
was
moved before me on the 11^th December 2006,
Ms
Khubetsoana for the crown informed the Court that the main
case
is already proceeding before the Magistrate’s Court, that
about
five (5) witnesses have already testified and that it has

been postponed to the
7^th January 2007 for hearing.

On this issue, Mr. Tsenoli pointed out that even if the
matter
is already proceeding, this application was instituted
before
the date of hearing was set down and that that factor
alone
does not prohibit the Court from granting bail. He added
that
this is buttressed by the fact that even after a person has
been
convicted, bail can be granted pending appeal.

I agree with Mr. Tsenoli’s submission however, I
should also
point out that once a matter is proceeding before
another
Court, I do not think that it would be prudent for this
Court to
lightly interfere with the proceedings by granting bail
at this
stage. This is because, I am not in a position to tell
what has
transpired so far, what kind of evidence has been led and
in
what direction the matter is leading and I would not want
to
release an accused person on bail in the middle of their trial.

In other words, I am not adequately informed to
determine
whether or not the evidence which has already been
adduced
is such that accused might be tempted to abscond at
this
stage. This is especially because I was also told that the
case
has progressed considerably and will be continuing on the
7^th
January, 2007.

In addition, whilst it is true that bail can be granted
even after

a person has already been
convicted pending appeal, I wish to
add that even that is not a
given since certain factors have to
be taken into consideration
before such an application can be
granted. For instance, as it has
been expressed in J. van der
Berg’s work; Bail – a
practitioner’s guide- p117;-
“…the Court will take into
account the increased risk
of abscondment in view of the fact that
the accused
has been convicted and sentenced and is not
merely
awaiting the outcome of his trial.”

Likewise, it is my view that where a case has progressed
to a
stage that an accused is likely to be able to weigh
the
possibilities of its outcome, a similar risk exits and it is
also
my opinion that it would be folly of me not to consider this
fact
in a serious light and act with the greatest of caution in
trying
to strike a balance between the liberty of the applicant
and the
administration of justice.

Furthermore, applicant herein stands charged with one of
the
offences that are governed by Section 109 of the
Criminal
Procedure and Evidence (Amendment) Act 2002 which
places
more stringent terms before an accused can be
released on bail.
Although I am not deciding whether the
circumstances that have
been stated by the applicant are
exceptional or not at this stage,
suffice it to say that this
requirement alone begs me to exercise
utmost caution in
determining whether I should release him on
bail.

It is for these reasons
that I dismiss this application.

N. MAJARA
JUDGE

For applicant : Mr. P. Tsenoli

For respondent : Ms L. Khubetsoana