CRI/APN/438/2007

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:-

MONYANE
MOLIBELI

VS

THE
DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo On the 15th October, 2007

The
accused is charged in the Maseru Magistrate's Court of the offence of
rape it being alleged he had sexual intercourse with one
Palesa
Mariti aged 22 years. The second count accused is charged from
escaping from lawful custody. An application for bail appears
to have
been lodged and the Public Prosecutor Mr. Hlophe objected to bail
being granted

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and
pursuant thereof the complainant Palesa Mariti was called as a
witness who, sworn, had stated she is 22 years old and objects
to
accused being granted bail. Complainant's objection is based on the
fact that the accused pointed a gun at her asking her to
elect
whether to die through a gun or being thrown into Maqalika dam. She
says because of Monyane (accused) she does not move freely.
She says
she lived at Motimposo but because accused was pursuing her she now
lives at Thetsane's. She also says because of accused
she has changed
her work location. Asked by the court the complainant has testified
she offered accused love instead of being killed
being how she
escaped being killed by accused.

It was
Pw2's evidence that he objected to accused being granted bail for he
was arrested and while in custody he was taken to Mabote's
in a
police vehicle. The witness has testified the accused was tied to the
vehicle and handcuffed to stop him killing himself by
jumping off the
vehicle. On the way accused apparently untied himself and jumped off
a vehicle traveling at 80 kph. A chase yielded
nothing. While at
large it

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appears
accused committed another offence but through a telephone he seized
from complainant accused was traced and arrested. It
is claimed on
attempting to arrest him accused fought a policeman and the witness
claimed fighting a policeman is proof that accused,
if released on
bail he will interfere with witnesses. The witness has testified if
accused is released on bail there is fear that
escaping he may not be
found.

After the
evidence by crown witnesses the applicant does not seem to have
testified to challenge crown evidence. At the end of the
case the
court exercising its direction had found in the interests of justice
it was not proper that accused be granted bail particularly
because
"earlier on accused absconded and committed the same act or
offence somewhere else". This court takes into account
the fact
that allegations against accused were not denied by him saying only
that he does not dispute that he escaped from lawful
custody having
done so lawfully for, according to him, there was no lawful

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arrest
and the question arises how applicant can claim this having failed to
go into the box to negate evidence of crown witnesses
against him. I
confirm the learned magistrate's finding above that while in custody
accused escaped committing the same offence.
There is therefore proof
that should accused be released on bail he may not start trial.

The
problem though is whether this case has come to this court on appeal
or by way of review for there is no such indication in
applicant's
papers save a so-called petition which is in any event not sworn to.

This
court has no choice but to dismiss the application and it is so
dismissed.

G.N.MOFOLO

JUDGE

For the
Applicant : Mr. Habasisa

For the
Crown : Ms Maqutu

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