CIV/APN/298/06

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THATO
LEFU APPLICANT

and

DIRECTOR
OF PUBLIC PROSECUTIOS RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 21st September 2006

This is
an opposed application for bail wherein the petitioner is facing a
charge of murder. Applicant submits that it is in the
best interests
of justice that he be admitted on bail for the reasons that as he
avers, he is the sole bread winner of his family
whose wife is
expecting their second baby.

The crown
opposes the application on the ground that if released on bail,
applicant might kill other people whom he has allegedly
threatened as
is contained in the opposing affidavit filed by No. 9282 D/TPR
'MEKELELI.

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In his
submissions, Mr Shale for applicant argued that considerations that
the Courts have taken into account in deciding bail applications

include the following:

(i) Likelihood to abscond.

(ii) How prejudicial it might be for the Applicant in all
circumstances to be kept in custody by being denied bail.

(iii) Whether there is any reasonable likelihood that the accused
will tamper with witnesses or interfere with the relevant evidence
or
cause such evidence to be suppressed or distorted.

I do
accept all the above as true but for purposes of the present
application, the only ground of opposition raised by the crown
is
that if released on bail, applicant might carry out his threat and
kill other people.

At
paragraphs 4 and 5 of his Opposing Affidavit, the deponent averred as
follows:

"Facts herein are denied as on that same day, the Applicant was
not at his home but he was at Quthing Mount Moorosi where
he shot the
deceased. In our investigations, we were told that by the Applicant's
family members that he once said he would do
something bad. After
Nthati was killed, the Applicant called another sister of his wife,
he told her that he killed Nthati, and
is on his way to kill her, as
well as his own wife.

The same
sister of his wife showed us the cell phone number that the Applicant
called her with,

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and that
number was found to be that of Applicant This we confirmed when we
phoned him and told him to come to the police station
and he did
obliged, (sic) he came on the 24th July 2006 and we seized the cell
phone. The cell phone number is (+266)58416093."

In his
reply applicant averred as follows:

"Save to admit that I went to the Police Station and the police
seized my phone, contents herein are denied and Deponent put
to the
proof thereof I aver that the Police showed me a number which they
alleged I used to threaten my wife's sister. I aver that
I have not
threatened my wife's sister as alleged at all. In fact I was told by
her that the deceased had been shot and I was shocked
to the morrow
(sic)."

It is
trite that the overriding factor in bail applications is whether if
an applicant is released on bail the interests of justice
will not be
prejudiced. All the considerations that counsel has raised as well as
several others are but guidelines to assist the
Court in the
determination of this main and overall consideration.

I
therefore do not agree with the submission made on behalf of
applicant that simply because it has not been shown that the
applicant
has resisted arrest or has absconded or attempted to flee
that is all the Court should take into account all other
considerations
notwithstanding. I have already stated that the

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interests
of justice can be prejudiced due to a number of factors and the ones
mentioned by Counsel are not the be all and end all
of considerations
in bail applications.

Be that
as it may, as Mr Shale correctly submitted, the opposing affidavit of
the police officer is not accompanied by any supporting
affidavit so
that most of his averments are merely hearsay. In my view this is
negligence on the part of the crown. In addition,
the crown failed to
provide the Court with the telephone printouts as they promised.

Yet, I
also wish to add that the same is the case with the reply of the
applicant who averred that he first heard about the deceased's
death
from the very person whom the crown has cited as being one of those
people he allegedly threatened to kill as well. He too
failed to file
the wife's sister's supporting affidavit to verify his averments and
to negate the crown's allegations.

That
being the case, the Court has to determine this application with
unsubstantiated averments from both sides. As I have stated
in
earlier cases, Courts have been warned not to treat an application
for bail as if it is the trial itself. In my opinion, this
means that
a bail application is more of an enquiry than it is a trial so that
the rules of evidence and procedure cannot be strictly
applied. See
my comments in

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Morakabi
Phakoe and 3 Others v Director of Public Prosecutions CRI/APN/109/06
(unreported).

Against
this background I proceed to consider whether in casu, applicant can
be released on bail without the interests of justice
being
prejudiced. Whilst I agree with Mr Shale that the averments contained
in the opposing affidavit have not been substantiated,
I also take
into account that these were made by a peace officer under oath. The
deponent further stated that one of his informants
is the sister of
applicant's wife and that they i.e. the police, called applicant on
the same number they were given by her and
told him to come to the
police station and the latter obliged.

The
investigating officer having made such serious allegations, the
burden shifted on the applicant to show on a balance of probabilities

that his release on bail would not defeat the ends of justice. In his
replying affidavit applicant denied having made the threats
and also
showed that it is actually the very same person (his wife's sister)
who informed him about the death of the deceased which
at the
material time he knew nothing about.

He
however admitted that he went to the police station on the stated day
but did not tell the Court how he came to know he was supposed
to
report or who called him to do so which he

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ought to
have done since the investigating officer averred that he reported
himself at the police station as a result of their having
called him
on the very number they were given by the sister he allegedly
threatened. He merely admitted that he did go to the Police
station.

It is
therefore my view that since this averment (of the investigating
officer) was made to support the one that applicant had made
the
alleged threats on the said cell phone, he ought to have successfully
shown that this was not the case. His failure to do only
served to
strengthen the averments made by Detective Trooper 'Mekeleli in his
opposing affidavit notwithstanding the fact as I
have already shown,
that the latter's averments were not supported by any other evidence
on affidavit.

I cannot
therefore turn a blind eye to such a serious allegation of threats to
other people lives the shortcomings of the crown's
evidence
notwithstanding more especially because the police officer deposed to
the fact that some of the information came from
the applicant's own
family. It is my belief that the interests of justice would be
prejudiced.

It was
also applicant's case that his wife is expecting the couple's second
child which fact per his contention constitutes an exceptional

circumstance entitling him to be released on

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bail.
This was not denied by respondents. Indeed, as Mr Shale correctly
submitted, it has been stated in numerous authorities that
the term
exceptional circumstances has no magical or hidden meaning. However,
it is my view that the term requires applicant to
show that there
exists something out of the ordinary that would compel the Court to
release him on bail. See my comments in Tefetso
Lenea v DPP
CRI/APN/517/04 (unreported).

It is my
considered opinion that expectancy of a baby by a wife is not
strictly speaking an exceptional circumstance unless it can
be shown
that there exists some other factor that would require extra
care-giving by the husband. I am aware that most women normally
go
through their pregnancy and I might add labour, without any
complications and usually in the absence of their husbands without

any problems so that there is nothing exceptional about this factor
per se.

If
applicant had at least shown that it is imperative that he be with
his wife whilst she is in hospital or that she is sickly or
having
certain complications necessitating his presence and assistance, that
might have constituted an exceptional circumstance.
In the absence of
such evidence, I do not accept that applicant has successfully
discharged this responsibility.

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It is my
opinion that on a balance of probabilities, the Crown has
successfully made out their case that if released on bail, applicant

might indeed carry out his death threats thus prejudicing the
interests of justice.

For these
reasons, the application for bail is refused but with the rider that
the Crown should expedite prosecution of this case
within at least
three months from the date of judgment failing which applicant is
free to approach the Court to renew his application.

N. MAJARA

JUDGE

For
applicant : Mr Shale

For
respondent: Ms Motinyane

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