THE HIGH COURT OF LESOTHO
the matter between:
OF PUBLIC PROSECUTIONS …............RESPONDENT
the Honourable Madam Justice L. Chaka-Makhooane on the 11thday of August, 2010.
 This is
a matter for bail application wherein the three (3) applicants are
facing charges of murder.
 The 1st
applicant, Katiso Mohau, and his co accused (2nd
applicant) and the 3rd Applicant, Mosiuoa Kibane, applied
for bail separately in CRI/APN/676/09 and CRI/APN/683 respectively.
The two (2) applications
have thus been consolidated. The bail
application is vehemently opposed by the Crown.
opposition, Ms. Mokitimi for the respondent informed
the court that the accused persons fled upon receiving information
that the police were looking for
them as suspects in a crime of
murder. The three (3) accused ran away form the village while the
police chased after them for days.
Only one of the accused was
eventually arrested in his own village, the other two (2) were
arrested in other villages. See paragraph
8 of Detective Trooper
Moeketsi’s opposing affidavit.
further argued that the crime with which the accused are charged is a
very serious one, in that they are alleged to have sexually
the deceased and then cut her throat. She submitted that it is likely
that they may not stand trial if released on bail
because of the
seriousness of the crime, in as much as they had already attempted to
abscond. See S v Hudson 1980 (4) SA 145(D) at 146 and S
v Lulane 1976 (2) SA 204 (N) at 213.
also submitted that the release of the applicants would be
prejudicial to the maintenance of law and order as well as the
security of the state. The court was informed that the villagers of
Ha-Lints’a, where the crime was allegedly committed,
at the alleged conduct the applicants and have asked the court to
keep them in custody. Their own rationale was to avoid
the taking of
the law into their hands.
 Mr.Lits’oane for the Applicants argued that the courts
should always lean in favour of and not against the liberty of the
accused person under
common law. Mr. Lits’oane
further contended that in the present case, there was no adequate
factual basis advanced to substantiate the fact that the accused
tried to flee and are likely not to stand trial. Counsel submitted
that in the circumstances, there has been no basis laid to establish
that the Applicants once granted bail would abscond. See ‘Malane
Khosi v DPP CRI/APN/354/07 (unreported) and Monare v DPP
response to the annexure purportedly made by the villagers, to
express their anger about the applicants, Mr. Lits’oane
challenged the veracity and authenticity of the annexure. He pointed
out that it would be very unwise to rely on that evidence,
was unreliable. For example, he pointed out that some signatures
appeared more than once. He suggested that document
could easily have
been fraudulently obtained as a means of preventing the Applicants
from being granted bail.
behalf of the Applicants Mr. Lits’oane correctly
summarily submitted that the presumption of innocence operates in
favour of the accused person. According to him, the
to show the existence of sufficient evidence against the Applicants
that would influence the court to refuse
to release them on bail.
 I now
turn to deal with the issue of whether the Applicants are likely to
Respondent averred that the accused fled upon receipt of the
information that they were being sought by the police. It was
deposed that they could not be traced for days at their villages
until they were arrested at different villages.
Applicants disagree with the Respondent’s version in their
replying affidavit. They indicate that they never ran away.
Applicant says he was arrested first, in his village by the Peka
police while 2nd and 3rd Applicants were latter
arrested by the same police after they had handed themselves over to
them. They insist that if they had
wanted to run away they would have
done so, since they did have ample opportunity to do so.
the Applicants and the Respondent tell conflicting stories relating
to the circumstances under which the Applicants were arrested.
significance is the fact that the Applicants were not arrested
immediately after the death of the deceased. All three (3) were
arrested at different times and at different places. This is common
cause. What is of interest therefore, is what was happening
the Respondent alleges that the three (3) Applicants ran away as soon
as they heard of their imminent arrest, the Applicants
ever running away. This is a bare denial. The onus rests on the
Applicants to show on a balance of probabilities that
on bail will not prejudice the ends of justice. See S v Hlongwa
1979 (4) SA 112 at 113.
 It is
my opinion that even though the Crown was not able to convince the
court that the Applicants are infact a flight risk, the
have themselves not particularly advanced their case convincingly.
Basing myself on the principle that the court must
lean in favour of
and not against the liberty of the accused, I find that releasing the
Applicants on bail will not prejudice the
interests of justice.
is also the matter of a letter that is alleged to have been written
and signed by the villagers of Ha Lintša, in terms
they have asked the court to keep the Applicants in custody, to avoid
their taking the law into their own hands. This
was brought to court
as an annexure to the opposing affidavit. I must mention that I found
it quiet strange that the police saw
it fit to use that annexure to
persuade the court not to grant bail, rather than to take action at
such a blatant threat. If such
a letter does exist then I urge the
police to act on it. As far as this case is concerned, I agree with
the Applicant’s Counsel
that some of the names appearing on
that document appear more than once and at times the signatures seem
to have been made by the
same person. In other words prima facie,
it leaves a lot to be desired. I am therefore, inclined to reject
that annexure as evidence of the wrath of the villagers, should
applicants be released on bail.
conclude therefore, that the Applicants be admitted to bail on the
(a) Each Applicant
to deposit M1,500.00 with the Registrar.
(b) Each Applicant
to find himself a surety in the amount of M10,000.00
(c) Applicants to
surrender their passports to the Registrar
(d) Applicants to
attend remands and to stand their trial.
(e) Applicants not
to interfere with the Crown witnesses.
(f) Applicants to
report themselves to the nearest police station/post in Leribe on the
last Friday of the month between 6 a.m and
: Mr. Litšoane
: Ms Mokitimi
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