IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CRI/APN/698/2010
In the matter between:
MAREKA NTHEJANE Applicant
DIRECTOR OF PUBLIC PROSECUSIONS Respondent
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 10th day of January 2011
1. The background is that this Applicant who I will also call the Accused Mr Mareka Nthejane has made an application for bail. Originally there had been three counts or charges he faced. As matters were, as it is common cause, the Director of Public Prosecutions added further counts. Unfortunately or incidentally after the original charges it is when this original application was filed and then we had to deal with an application that was consolidated accordingly. So that we had criminal application number 815 of 2010 and later criminal application 698 of 2010.
2. There was no doubt and this was even clear that this Applicant was facing serious charges and there is strong prima facie case. For example three (3) murders and one (1) kidnapping charges are involved. In two (2) of the murders as alleged the killings were done so as to remove likely witnesses from the face of earth. It is said that they must have known of the circumstances of the killing of one Thabo Phohleli. I may even add that as against him, the present Applicant in these circumstances, there are other accused or applicants who are similarly charged with him which makes the matter even doubly complex.
3. In bail applications the principles are well known. Paramount is the liberty of the subject. This is the uppermost but on the other side we have to consider the interests of the justice. One of the test used is whether the Crown has got a strong prima facie case so that when condition of bail are imposed they are made so as to discourage an applicant from absconding because one of the test as against an accused or applicant is whether he or she can stand the trial. Instantly against this factor is the other factor whether the crime with which one is charged is a very serious crime. This because according to our law it is presumed that the more serious charge is the more it is conducive for an applicant to abscond.
4. It is the background of all these factors that the courts exercise discretion, things all go according to the individual circumstances of each case. There are other things to consider. For instance almost always where papers are not clear it is because Crown would suggest that it has with it evidence that is circumstantial. The Crown may not disclose all at the same time in the bail application or in the papers. It is because the DPP says “I have evidence in my docket, it is not evidence that I may not disclose now because of (its) sensitivity” or virtually where the DPP says. “I still have to make further investigations”. But the DPP has an opinion and he makes an observation. Before that or nevertheless he wants to persuade the court not to release the Applicant on bail because of those considerations and where clearly he says he has got evidence in the docket. The present Applicant is precisely such a case
5. There is an additional and tricky element in this case. It is where one of the witnesses would be accomplice has allegedly testified for the Applicant. It is in that issue where I declined to make a ruling because of the danger of that situation where I would discuss the evidence before the trial. I have already mentioned the issue of a strong prima facie case against an applicant that is, whether such a case exists or not. In this one without doubt there is a strong prima facie case.
6. In addition there is also that requirement in terms of the Criminal Procedure and Evidence Act section 109A that requires that an Applicant in serious charges like these must show exceptional circumstances. I may well clearly say as I do that my finding is that this Accused has not shown any exceptional circumstances.
7. In the circumstances such as those that the Applicant mentioned he had a family to support and he has got dependants, he has lost employment and such. These do not convince me that are exceptional circumstances. This is the first consideration. The second point is that there is a strong prima facie case against this Applicant. There is a serious risk of absconding. Indeed the Crown had not demonstrated and did not show that the Applicant would abscond but the nature of the case says to me, that it is a very serious case. Indeed Mahomed J has advised in S v Acheson 199 (2) SA 805 (NM) at page 821,G-H, that:-
“Each application for bail must be considered in the light of the circumstances which appear at the time when the application is made. A Judge hearing a new application is entitled, and indeed obliged, to have regard to all the circumstances which impact on the issue when the new application is heard.”
8. Counsel argued at length about things that show Applicant could not have had any motive. Primarily this belongs to the trial court when seized with the matter. I could not therefore apply my mind to that issue.
9. So, in my discretion, looking at this factors that I have discussed, I find that it is unsafe to release this Applicant on bail. He will not be released on bail. That is my decision.
T. E. Monapathi
For Applicant : Mr. Hoeane and Mr Nthontho
For Respondent : Miss Mofilikoane
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