THE HIGH COURT OF LESOTHO
AT MASERU CRI/APN/74/10
the matter between:-
OF PUBLIC PROSECUTION 1ST
by the Honourable Madam Justice M. Mahase
Criminal procedure –
Bail application – charges – attempted murder –
contravention of the provisions of
the Internal Security Act (arms
and Ammunition) and others.
This is an
application filed on behalf of the applicant who is presently
incarcerated in the Qacha’s Nek Prison. He is applying
release on bail. He is charged with having committed the following
I - Attempted murder
- assault with intent to cause grievous bodily harm
III - contravention of the provisions of Section 3 (1) and (2) (a)
read with section 43 of Act No. 17 of 1966 as amended by
Act No. 4 of
IV - Contravention of the provisions of Section 44 (1) of the
Criminal Procedure and Evidence Act No. 9 of 1981.
The brief facts of
this case are that sometime on the 3rd
December 2009 five police officers went to the applicant’s home
where on arrival they informed him that they (police) had
arrest him. Having done so, they proceed to the chief’s home
leaving behind some police officers at the applicant’s
When later the
applicant was taken back to his home, he found the police officers
who had remained behind his home assaulting his
son. It was at that
time that the applicant allegedly intervened to stop such an assault
by the police upon his son.
thereafter that intervention and for reasons not very clear, the said
police left the applicant’s home without
having arrested him as
they had earlier informed him. Once, again, on the 3rd
January 2010, a group of men from the Mosenekeng village proceeded to
the applicant’s home village. They found the applicant
home of one Senzela Keresijane.
That group of men
also assaulted the applicant with sticks for undisclosed reasons.
Having assaulted him, they then called the
police form Qacha’s
Nek. The police went there and arrested the already injured
applicant and had him kept in police custody
– vide paragraph 5
of the notice of motion.
It is stated, at
paragraph 3 of the applicant’s heads of argument that applicant
was not taken for any medical examination
and treatment by the police
even though he had been assaulted. He was instead kept in custody
where he remains to date.
It is his further
submission that his further or continued detention on custody is a
clear violation of his constitutional rights.
The crown is opposing
the bail application whose suggested conditions are spelt out in the
notice of motion, paragraph 1 thereof.
In support of its
opposition of this application, the crown has filed the opposing
affidavits of No. 9205 D/Const. Kobile and adv.
T. Mokitimi. In
brief, the opposition of this application by the crown is based upon
the reasons advanced or stated by D/Const.
affidavit, which have been summarized at paragraph 15 of same.
immediately clear from this opposing affidavit that actually on the
December 2009, the applicant was able to escape from the police still
handcuffed and ran away. That is why the police had to go
without him even though their purpose for having gone to the
applicant was to arrest him.
later re-arrested by his fellow villagers on the 3rd
January 2010, who then had him handed to the police. It is the
crown’s averments that the applicant is a flight risk and
he has a number of pending criminal cases which date back to 2003
which have been investigated by the police against him –
paragraph 14 of the opposing affidavit, as well as paragraph 15 of
It is the crown’s
further contention that in view of the applicant’s past and
present criminal conduct, particularly
relating to the offences which
the applicant allegedly committed while he had been admitted on bail;
such conduct militates against
the granting of this bail application
to the applicant. Vide paragraph 4 up 7 of the supporting affidavit
of Adv. T. Mokitimi.
It has been argued
on behalf of the accused that among others, the crown has dismally
failed to show how applicant will fail to
attend trial if released on
bail. Applicant says that the assertion by D/Const Kobile that
applicant is a flight risk is a bare
This is asserted
even though no effort whatsoever has been done by the applicant to
challenge the truthfulness and or the correctness
of paragraph 14 of
this opposing affidavit. Neither has the applicant challenged any of
the reasons stated in paragraph 15 of
the opposing affidavit as to
why applicant should not be released on bail.
He has not
attempted in anyway to refute these serious allegations that he has
previously absconded while he had been admitted on
bail. The fact
that the four offences alleged are bailable in the Magistrate’s
Court as stated by the applicant, does not
advance his case. In
fact, applicant does not deny that, when he was ultimately arrested
by his fellow villagers, he had absconded
and escaped from lawful
police custody since the 3rd
circumstances of this case, and in the light of the argument advanced
by the crown, this court is convinced that indeed the
applicant is a
high flight risk. Mindful of the fact that when on the 3rd
December 2009, he ran away while he was handcuffed and also that he
shot at the police officers, it will be a traversity of justice
this court to grant this application.
The applicant has
not denied the allegations that when on the 3rd
January 2010 (one month since December 2009), he was re-arrested by
his fellow villagers, he no longer had the hand-cuffs with
had been hand-cuffed.
In the light of
the evidence herein tendered by the crown in its affidavit, and which
evidence has not been gainsaid, this court
is left in no doubt that
the granting of this application and or the release of the accused on
bail will seriously impact negatively
on the proper administration of
justice. There are no exceptional circumstances advanced by the
applicant which this court has
been asked to consider and to rule in
favour of the applicant. On the contrary, there is more than ample
evidence that the applicant
did not only escape after being arrested
by the police, but that he actually shot at the police.
These are too
serious criminal offences to be explained as just having been an
intervention. The applicant does not seem to appreciate
seriousness of his conduct. He is also down playing the seriousness
of the charges which have been preferred against him by
This could probably be because of the fact that from around 2003-2009
the applicant has not had the numerous cases
alluded to by the
investigating officer at paragraph 14 of his opposing affidavit
I note with dismay
that the applicant has not gainsaid the contents of paragraph 14
(supra) that he had been released on bail when
committed the criminal offences whose record of criminal
investigations are listed thereat.
For the applicant
to easily allege that the case in casu in one of the appropriate
cases without seriousness of the likelihood that
he will abscond,
clearly demonstrates how unperturbed he is by his having escaped from
lawful custody of the police after he had
shot at them. His
submissions in this regard are mind boggling to say the least.
It is trite law
that the courts will always grant bail when possible and lean in
favour of, and not against the liberty of the applicant.
each case should be treated on its own merits.
Where the crown
does not oppose the application little evidence is necessary. At the
extreme the accused may have to show special
circumstances if the crown opposes the application. Vide:- Swift:Law
of Criminal Procedure page 149 and 151.
See also Mofokeng
– Criminal Law and Procedure through cases page 188.
In the instant
case, the applicant has failed to discharge the burden of proofing on
a balance of probabilities that the granting
of this application will
not prejudice the interests of justice. The other question or an
issue for determination by this court
is whether in the circumstances
of this case, the applicant can be admitted to bail without seriously
prejudicing the administration
of justice. It is the view of this
court that this question should be answered in the affirmative.
There is a
plethora of authorities to the effect that in cases of this nature
and where the crown is objecting to the application
for the release
or bail, a fine balance safeguarding the liberty of the applicant
without prejudicing the proper administration
of justice, must always
be undertaken vide – Motebang
‘Mabathoana and one v. D.P.P. CRI/APN/373/2004.
See also Soola
v. D.P.P 1981 (2) LLR 277 at page 280;
where among others the court remarked that:
court must be very careful not lightly to override the opinion of the
…. It was
further observed that …. Opposition of the Attorney General is
a weighty consideration”. Soola(supra).
Of paramount importance in applications of this nature is the fact
that, and this is trite law, the presumption of innocence
favour of the accused person.
trite law is that, where the Director of Public Prosecutions objects
to an application for bail, his objection must
considered and not lightly discarded, after all, he is a responsible
officer charged with onerous duties – videKutoane
Kori and two others v. D.P.P. CRI/APNS /245 & 235/2004.
In the premises,
and due regard being had to the circumstances and the nature of the
offences preferred against the applicant which
include escaping from
lawful custody, coupled with the past history of the crimes that the
applicant has allegedly committed while
having been admitted on bail,
and which charges have since not been prosecuted, this court is not
inclined to grant this application.
The application is
The crown is,
however, urged to have these cases prosecuted within a reasonable
- Mr. Masasa
Respondents - Mr. Mahao
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