CRI/APN/354/07
IN THE HIGH COURT OF LESOTHO
In the Matter Between :-
'MALANE KHOSI APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara On the 26th September 2007
Applicant herein is charged with the crime of murder and has approached this Court to release him on bail. The application is opposed on the basis of the following grounds;
That applicant is charged with very serious crimes of murder and robbery and that he killed the deceased only because the latter refused to buy his vehicle when applicant proposed this to him.
That there exists a prima facie case against applicant which if convicted of, he is likely to spend a long time in prison.
That the above two grounds may provide a strong incentive for the applicant to abscond and not stand his trial.
In her submissions, Ms Ngcobo, stated that the rule that Courts should lean in favour of the applicant in bail applications is subject to certain
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qualifications based on the principle that bail will not be granted if the interests of justice will be prejudiced such as where for instance;
(i) It is likely that the accused will abscond based on a reasonable apprehension in that regard. That the guidelines are usually the nature of the crime, the probability of a conviction and the severity of punishment in the event the accused is convicted.
(ii) It is likely that the accused will hamper the investigations of the police in which event it is not necessary that the Crown proves the actual act of the accused.
(iii) There is a reasonable possibility that the accused will tamper with Crown witnesses and that it is not essential to prove actual interference.
(iv) Though the presumption of innocence operates in favour of the accused person even where there is a prima facie case against him, if there are indications that the interests of justice will be prejudiced if the accused is released on bail, the Court would be justified in refusing the application.
Ms Ngcobo contended that the onus of proof rests with the applicant to prove on a balance of probabilities that the Court should exercise its discretion in his favour and that in discharging the burden he must show that the interests of justice will not be prejudiced. Further that this can be done by the applicant demonstrating that it is likely that he will stand his trial and that he will not tamper with the Crown witnesses or otherwise interfere with the administration of justice.
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Counsel for the crown added that the quantum of evidence required varies according to the circumstances of each case such that where the Crown does not oppose the application little evidence is necessary. Whereas, where the application is opposed, applicant may have to show that special facts or exceptional circumstances exist necessitating that he be released on bail.
Furthermore, it was Ms Ngcobo's submission that applicant has not satisfied the requirements of the Criminal Procedure and Evidence (Amendment) Act 2002 in that he has failed to demonstrate to this Court that the interests of justice permit his release on bail for the reason that he has not shown the existence of exceptional circumstances in accordance with the requirements of the Act
She further added that such circumstances are established when an accused is able to adduce acceptable evidence that the Crown's case against him is non-existent or subject to serious doubt. Further that in casu, applicant only made a bare denial that he is not connected in any manner to the death of the deceased.
Lastly, Counsel added that authorities abound that the Court must be very careful not to lightly override the opinion of the DPP who is a responsible officer charged with onerous duties.
On the other hand, it is the case of applicant through his Counsel Mr. Molapo that the determination of this application is guided by whether the interests of justice will be prejudiced for the reason that once released applicant will abscond and not stand his trial. Secondly, whether there is a
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strong prima facie case against the applicant with a greater probability of conviction resulting in the fear that he is likely to flee once released.
Mr. Molapo made the submission that for the test to be applied properly there has to be adequate factual basis in order for the Court to arrive at a fair and just decision. Counsel further pointed out that although respondents allege in their opposing papers that subsequent to the alleged murder applicant fled and could not be found at his place, the following factors are worth noting;
There is no mention as to who and when the deponent went to look for applicant at his home and what explanation he found which led him to reach the conclusion that applicant had run away from the case,
There is no allegation that the applicant knew or ought to have known that the deceased had died so that an inference could be drawn that he fled because he knew about this.
There is no allegation that applicant tried to resist his arrest whichmight have instilled fear that he might abscond if released on bail.
In response to the ground that there is a strong prima facie case against the applicant, his Counsel made the submission that an
accused person is presumed innocent until proven guilty which presumption operates in his favour even where there is a strong prima
facie case against him. Further, that this consideration has to be considered along with the question of the intensity of the punishment
in the event of a conviction. Mr. Molapo also added that the submission by respondents is a bare one and is unsupported by facts.
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In addition, that in dealing with an application for bail, it is necessary for the Court to strike a balance between protecting the liberty of an individual and safeguarding and ensuring the proper administration of justice. Mr. Molapo submitted that it is a fundamental principle of justice that accused persons in similar circumstances should be treated the same. Further, that in this
regard his co-accused has since been admitted on bail and that applicant should be treated similarly so as not to discriminate
against him.
In his founding affidavit, it is applicant's case that the deceased owed him some money but had failed to pay up despite several attempts on his part to get him to do so. He added that on the date of the alleged murder he met the deceased who 'crept away' without paying him whereupon he and his friend chased him. Upon catching up with him a fight broke out and because the deceased was hitting him with a stick, applicant stabbed him with a knife in self-defence. He later learnt that the deceased had died as he is working in the mines in South Africa.
These facts are disputed by No.1169 D/Trooper Tsehla in his opposing affidavit whose assertions are to the effect that applicant and his co-accused found the deceased at a bar whereby they went up to him and proposed that he buy applicant's car. That the deceased did not agree to this proposal after which applicant and his co-accused followed him and his companion outside where they each assaulted them and applicant stabbed the deceased with a knife. It was his further averment that applicant was not acting in self-defence as he stated in his founding affidavit.
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Against the backdrop of the above conflicting sets of facts, the main issue for determination by this Court is whether if applicant is released on bail, the interests of justice will be prejudiced. This in turn will be dependent on whether there is a likelihood that applicant will abscond and not stand his trial. Secondly, whether, he will interfere with police investigations and/or tamper with the crown witnesses.
Likelihood to Abscond
It has been alleged by the deponent to the opposing affidavit especially at paragraph 9 that Kere, applicant's co-accused 'was arrested and granted bail on the 29th August 2005 while the applicant was nowhere to be found in his place as he had run away.' He continues as follows:-
"If he insists that he was on (sic) the mines he has to prove that by the documents. I would like to draw the courts (sic)
attention that the period which the commission occurred (sic) is 23 August 2005 and the applicant had (sic) arrested on the 23rd June 2007 as he was at large. Even Chief 'Mathakane Molapo alleges that if the applicant released (sic) on bail, her subordinates or subject (sic) will be in great danger as the applicant is a hard core. "
There being no replying affidavit filed by applicant, the above quoted assertions were not gainsaid. But be that as it may, the question is whether respondents have successfully shown that if released on bail applicant is likely to abscond and not stand his trail. In my opinion and as it was rightly pointed out by Mr. Molapo Counsel for applicant, although this was the main ground of opposition by respondents i.e. that there is that likelihood, respondents have not supplied this Court with facts supporting same.
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In other words I accept the submission that was made by Mr. Molapo that respondents cannot stop at alleging that applicant was at large without telling the Court what measures they took and on what dates they tried to arrest him. Further that they have failed to tell this Court how and where they arrested him and whether he tried to resist and/or escape as the case may be. He added that theirs is therefore a bare and unsubstantiated allegation.
Whilst it is true as was suggested by respondents that applicant could have produced documents before this Court to prove that he was in the mines all this time before he was arrested, I am of the opinion that under these circumstances, he would be expected to do so if they had provided actual facts as to what steps they had taken towards effecting his arrest after which the onus would shift back onto him to prove that he was indeed in the mines at the material time.
As things stand, and since it is a well know fact of which I take judicial notice, that most Basotho men work in the mines of South Africa to earn a living, I have no reason to disbelieve applicant's version that he is working in the mines and that for the period in question he was at work there. Consequently, I find that after he had made this averment, the onus shifted onto the respondents to show that this was not the true position by providing details to show the steps they took towards trying to arrest applicant and the explanation they found for his absence.
For the fact that they failed to provide same, I am of the view that they did not satisfactorily discharge their onus of shaking his story in this regard notwithstanding the fact that he did not produce any documents as proof
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accordingly find that this particular ground of opposition has not been successfully made.
Existence of a Strong Prima Facie Case
With regard to respondents' submission that there is a strong prima facie case against applicant, Mr. Molapo's response was that likewise no facts have been placed before this Court to support this contention. In this regard, several authorities are in congruence that the relative strength of the case against applicant will be considered on the merits of the charge. See for instance, S v Lulane and Others 1976 (2) SA 204 and other authorities referred to therein. Further, quoting with approval the remarks of Miller J in S v Essack 1965 (2) SA 161 at 162 at p 212 Didcott J stated that:-
"In dealing with an application of this nature, it is necessary to strike a balance, as far as can be done, between protecting the liberty of the individual and safeguarding and ensuring the proper administration of justice.... The presumption of innocence operates in favour of the applicant, even where it is said that there is a strong prima facie case against him .... It seems to me, generally speaking, that before it can be said that there is any likelihood of justice being frustrated through an accused person resorting to the known devices to evade standing trial, there should be some evidence or some indication which touches the applicant personally in regard to such likelihood." (my underlining)
In casu, I have already shown that although respondents have averred that there is a strong prima facie case against the applicant, there is no iota of evidence in this regard. It is also trite that the underlying policy consideration of bail is that the presumption of innocence operates in favour of the accused person. This principle is closely tied with the right to liberty of every individual. In elaborating further on this nexus between the two, J.
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van der Berg's in his work Bail -a practitioner's guide p 6 where he was quoting Lewis et al in An Introduction to the Courts and Judicial Process stated that:-
"This presumption implies that no person shall be punished until such time as the presumption has been rebutted by proof beyond
reasonable doubt of his guilt.... It follows that the law continues to presume the accused's innocence until his guilt has been
established by due process of the law. It is implicit in the afore-going that the accused has a right to liberty. "
By making reference to punishment in this regard, the learned author was specifically referring to incarceration of an accused person pending his trial. Taking cognizance of the above considerations, I am of the opinion that the submission by respondents that a strong prima facie case exists against applicant has indeed not been supported by facts.
Failure to Show Existence of Exceptional Circumstances
With regard to the contention that applicant failed to fulfill the requirements that are laid down by the provisions of S109 of the Criminal Procedure and Amendment Act of 2002 in that he has not demonstrated the existence of personal circumstances which in the interests of justice permit his release, the question is whether the charge that the applicant is facing falls within the ambit of this provision.
The first offence that is listed under the section is that of murder. However, the section specifies the circumstances under which an accused should be detained in custody unless he shows the existence of the personal circumstances. In brief summary, these are that the killing was planned or premeditated and the victim was a law enforcement officer under the
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circumstances as provided therein or of a person who has given evidence or was likely to give material evidencewith reference to offences that appear in Part IIof Schedule 1
In addition the death of the victim should have been caused in the commission of or attempt to commit rape, robbery, stock theft, theft of a motor vehicle or indecent assault on a person under the age of 15 years. In my opinion, the charge in the present application does not fall under this section because the circumstances as are described therein do not obtain. This in turn means that the
requirement to establish the existence of special circumstances does not apply to the present applicant.
With regard to reference to the alleged crime of robbery, it is my opinion that Mr. Molapo was right in his submission that it cannot be joined to these proceedings at this stage because at the time the application was launched, the applicant was only faced with the charge of murder.
Indeed, perusal of all the pleadings including the opposing affidavit reveals that neither party made any reference to the offence of robbery. They confined their averments to the charge of murder. The said robbery was only referred to for the first time on the date of argument by the Crown counsel in her submissions and it is my opinion that it would be incorrect for me to take them into account in my consideration of this application.
For all these reasons, it is my finding that the Crown has not successfully shown that the interests of justice will be prejudiced if applicant is released on bail.
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I accordingly grant the application on the same terms as those given to his co-accused, namely:-
That he pays M500.00 cash deposit.
That he does not hamper police investigations.
He attends remands regularly and stands his trial.
He does not interfere with the Crown witnesses.
He provides surety in the sum of M500.00.
N. MAJARA
JUDGE
For Applicant : Mr. L. Molapo
For respondent : Ms Ngcobo
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