IN THE HIGH COURT OF LESOTHO
In the matter between:
PAKISO JOSEPH NKOE 1st Petitioner
THELINGOANE MOKHACHANE 2nd Petitioner
THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Coram: Hon. Hlajoane J
Date of Hearing: 15th March, 2013.
Date of Judgment: 29th April, 2013.
Application for bail – Respondent opposing on the ground that Petitioner threatened to kill star witness and another person – circumstances warranting the granting of bail – Existence of s.109A of the Criminal Procedure and Evidence Act of 1981 – Bail refused.
1. R v Kellett 1975 (3) ALL ER 468
2. Motebang Mabathoana & One v DPP CRI/APN/373/2004
3. S v Fourie 1973 (1) S.A 100
4. S v Patel 1970 (3) 565
5. Ellish v Prokurene 1994 (2) S.A
1. Swift’s Law of Criminal Procedure 2nd Edition at 149
2. Criminal Procedure and Evidence Act Section 109A
 Both petitioners appeared before the magistrate’s court charged with murder. They have both applied for bail before this Court. The magistrate’s court remanded them into custody.
 The bail application was opposed, but in respect of the first petitioner only. Bail was thus not opposed in respect of the second petitioner. The second petitioner was therefore granted bail on same conditions as had been suggested under para 6 of the petition. The bail deposit was however raised from M250.00 that was suggested to M500.00 cash deposit. The other condition also being that he must attend remands.
 In opposing bail in respect of the first petitioner, some two grounds were advanced. The first one being that the petitioner threatened to kill one Strini Naidoo once released on bail. These according to the opposing affidavit filed by the investigating officer were words uttered by the first petitioner to the said police officer as petitioner alleged Naidoo owed him some money.
 The other ground being that the petitioner threatened to kill a star witness who has shown in his statement to the police and filed of record that petitioner threatened to kill him if ever he were to be arrested.
 In motivating his application for bail the petitioner has denied ever threatening anybody as he does not even know any of those people he is alleged to have threatened. He said he did not even know where those people lived.
 In stating the position of the law, counsel for the petitioner pointed out that in considering whether the interests of justice would not be prejudiced if he is released on bail, the modern trend has always been that bail application is by its nature an enquiry without referring to the question of onus.
 The petitioner said the threats to kill ought to be considered together with other important factors as well as some stringent conditions that may be imposed to ensure that he does not frustrate the administration of justice.
 The respondent also in opposing the application has stated the position of the law in dealing with bail applications. Referring to Swift’s Law of Criminal Procedure, stated that accused will always be granted bail where possible, and will lean in favour of and not against the liberty of the suspect.
 The respondent quoted from Swift supra where it is stated thus:
“The Court is always desirous that an accused should be allowed bail if it is clear that the interests of justice will not be prejudiced thereby.”
But respondent contented that in casu the interests of justice will be prejudiced as the petitioner is likely to interfere with crown witnesses.
 It has been the crown’s submission therefore that, there was prejudice to be suffered should the petitioner be released on bail as the petitioner had clearly communicated his intentions to commit further crime of killing Strini Naidoo and also interfering with crown witnesses by threatening to kill a star witness, one Thabo Sekhesa if he ever got arrested.
 The respondent relied on the case of R v Kellet when extensively dealing with the ground of interference. In that case the manner of interference was dealt with and the different stages of interference. Different kind of acts which might amount to interference were also looked into.
 The Court was also referred to various factors to be considered in determining whether to admit the petitioner to bail, such as the nature of the crime charged, prima facie evidence in support of the charges and the exceptional circumstances of each petitioner Motebang Mabathoana & One v DPP .
 Though the petitioner has denied the allegations of interference, the deponent in the opposing affidavit who also happened to be the investigator in that case has attached an affidavit of a witness which contains the alleged threats.
 The threat to kill is an unlawful act, but even where the threat was to exercise a legal right as in R v Kellett supra, that would not excuse interfering with the administration of justice. As in Kellett the witness was intending to give evidence against the defendant in divorce proceedings and defendant writing to the witness stating that he would sue him for slander. Defendant was suggesting to the witness to withdraw the evidence. What the defendant did was considered by the Court enough interference with the administration of justice.
 It is true that the main consideration in determining whether to admit one to bail would be whether accused would stand trial. That also is not to be looked into in isolation. There must be other factors which would assist in deciding on whether if released on bail the administration of justice would not be prejudiced. Things like interfering with state witnesses and propensity to commit crime whilst on bail also have to be considered.
 Though it was decided in S v Fouriethat the test for refusing bail is not whether an accused is likely to commit or repeat a crime while at liberty pending trial, but whether it is probable that he will attempt to escape trial, in S v Patelthe Court held that the past record of accused’s conduct while out on bail on another charge were relevant factors, particularly where they indicate a propensity to commit a particular type of crime.
 Since its case has to be treated according to its peculiar circumstances, in addressing the question of whether the petitioner is likely to stand trial, our concern should not be only on whether he is likely to abscond. An affidavit has been filed of record of a witness to be used in support of prosecution case of the threats to kill. That has been an allegation but an allegation that could not be taken to test as once such a witness gets killed there would no longer be any evidence to establish the case of murder but would be the end of that case. That would be as good as having not been able to stand trial. The petitioner would have frustrated the administration of justice.
 The amendment to the Criminal Procedure and Evidence Act requires proof of existence of exceptional circumstances. Nothing has been said by the petitioner of any such circumstances. And as pointed out by the respondent such circumstances are established when an accused is able to adduce acceptable evidence that the prosecution’s case against him is non-existent or subject to serious doubt.
 The petitioner has not denied knowing Thabo Sekhesa and visiting him. He has however not stated the reason for going to Thabo. Though the presumption of innocence operates in favour of an accused person seeking bail even where there is strong prima facie case against him, but in this case it is highly likely that if released on bail he will interfere with the cause of justice, by tempering with crown witnesses.
 On the question of onus the respondent had stated that the petitioner bears the onus to prove on a balance of probabilities that the Court should exercise its discretion in favour of granting bail and that in discharging this burden, he must show that the interests of justice will not be prejudiced.
 But in referring to the case of Ellish v Prokurene where it was stated that there can be no question of an onus of proof in bail applications, but that a presiding officer is expected to ensure that a balance is maintained between the interest of an individual in respect of his freedom and the interest of the community.
 The circumstances of this case therefore points at denying the petitioner bail as there is likelihood of interfering with crown witnesses thus interfering with the administration of justice. The application for bail is thus refused.
A. M. HLAJOANE
For Petitioner: Mr Ramaema
For Respondent: Mr Mathe
2nd Edition at 149
1975 (3) ALL ER 468
1973 (1) S.A 100
1970 (3) S.A 565
1994 (2) S.A
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