IN THE HIGH COURT OF LESOTHO
In the matter between:
BASIA SEATE 1ST APPLICANT
KEKELETSO LENGOEHA 2ND APPLICANT
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
Coram : Hon. Mahase J.
Date of Hearing : 17th May 2013
Date of Ruling : 29th May 2013
Criminal Law and Procedure – Bail application – Exceptional Circumstances – What constitutes same – Charges of armed robbery and kidnapping.
- Matsoso Bolofo v D.P.P. 1997 – 1998 LLR – LB 118 at 129
- Monare v D.P.P – CRI/APN/170/2004 (unreported)
- S v Essack 1965 (2) S – A. 161
- Motebang Mabathoana and one v D.P.P CRI/APN/373/2004
- Thabiso Mofihli v D.P.P 1991 – 96 LLR 621 at 623.
- Criminal Procedure and Evidence (Amendment) Act 2002 – section A (c) (i).
- Swift’s – Law of Criminal Procedure, 2nd Edition page 149
- Criminal Law and Procedure through cases per. Hon. M. P. Mofokeng at page 245
 Applicants in the instant application are currently incarcerated at Leribe Correctional Institute. They have charges of armed robbery and kidnapping preferred against them. The said criminal offences were allegedly committed by the applicants on or about the 26th March 2013 at or near Sechaba High School, Kolonyama in the Leribe district. Refer to annexure “B5” attached to the founding affidavit.
 It must be indicated at the outset that the first applicant was earlier, before the 26th March 2013, charged with having committed criminal offences of murder and armed robbery as indicated in annexure “Bs 1” and “Bs 2” in his replying affidavit. The relevant criminal trial numbers of the two cases are CR 228/12 and CR 16/ 2013 respectively. They are both awaiting prosecution in the Berea Magistrates’ Court.
 First applicant has since been released on bail in both cases and this is a matter of common course. He had been arrested and remanded in custody in respect of the said serious, violent criminal offences on the 6th September 2012 and 10th January 2013.
 In effect the first applicant had been released on bail for hardly three months when he committed yet again the crime in annexure “Bs 2”. Once again and hardly two months from the 10th January 2013 he has allegedly committed yet some two very serious violent crimes as indicated in annexure “Bs” in the instant application.
 Effectively, in a period of almost just under five months from the 6th September 2012, the first applicant has been implicated in and or has allegedly committed four very serious violent criminal offences and has also been released on bail on each of those charges on these three or four occasions. He is now before this court again to apply once again for release on bail.
 I note with concern and regret that this court has not been availed copies of the court orders or bail bonds in those other bail applications for this court to see what conditions had been imposed upon the first applicant.
 Be that as it may, it is a matter of common course and the defence has itself conceded to the fact that the first applicant is on bail with regard to the above shown criminal cases which are pending prosecution before the Leribe and Berea Magisterial Jurisdictions; alternatively, they are pending a directive from the office of the Director of Public Prosecution in particular the case in Berea CR 228/12 of murder.
 As for the second applicant, there is no other criminal charge pending against him whatsoever although he and the First applicant have been arrested and remanded in custody in respect of the armed robbery and kidnapping offences which were allegedly committed on the 26th March 2013 as alluded to above.
 The brief facts of this case are that on or about the 26th March instant and at or near Ha-Foso in the Berea district, both applicants were found by the soldiers of the Lesotho Defence Force who were patrolling that area.
 The applicants were passengers in a vehicle bearing registration numbers DNT 145 FS. It was driven by one Thabiso Khoanche. The driver was ordered to stop his vehicle and later ordered by the said LDF members to open the boot as they searched its occupants, its drivers as well as the vehicle.
 The said members of the L.D.F found a norinco star fire arm in that car whose serial number had been rubbed off. However, the said Thabiso Khoanche managed to run away from the scene of crime at the time that he was supposed to open the boot of his vehicle.
 The two applicants did try to run away too but they were overpowered by the said members of the L.D.F. Members of the L.D.F then had the boot of that vehicle forced open and in it they found two Indian men who had been gagged with a sellotape on their mouths with their hands tied.
 It later transpired that the two Indian men had been robbed at gun point of the vehicle in question and a load of stock listed in annexure “BS” – (annexure A to it). They were then forced into that vehicle where they were locked in its boot. That stock was later found and recovered from the home of one Lehlohonolo Marole at Ha-Majara. It has since been returned to the said Indian men. The said Thabiso Khoanche and Lehlohonolo Marole are still at large. Of course the Indian men were rescued by the members of the L.D.F.
 The application is opposed by the crown, for reasons spelt out in its written submissions filed of record. One must however indicate that the crown has since conceded that:-
- There are no criminal charges preferred and or pending against the second applicant except the ones subject – matter in this application.
- That, it has since discovered that contrary to what it had alleged earlier, that the first applicant had been attending his remands in respect of CR 228/2012 and CR 16/2013.
As a result, the reasons upon which the crown now opposes the bail application with regard to the first applicant are that the first applicant has a propensity to commit serious violent crimes while he has been released on bail. The crown counsel Adv. Ts’oeunyane has clearly summarized the circumstances and instances upon which he basis his argument in this regard. Indeed the first applicant has not challenged the argument tendered by the crown in this regard. Refer to his replying affidavit. Refer also to the answering affidavit as well as to the supporting affidavits filed of record by the investigating officers Numbers 8186 P/C Kotelo and 11504 sec 1 Lt. Khasu in this regard.
 Further on, the crown opposed this application on the grounds that the applicants have tried to flee when they were being apprehended by the L.D.F. members and that in fact, their companion and driver of the vehicle in which they were travelling as well as the person from whose home the stock robbed was found.
 Lastly, the crown argued that contrary to provisions of the Criminal Procedure and Evidence (Amendment) Act of 2002 – section 109A (c) (i) thereof, and though charged with having committed serious violence criminal offence, both applicants have failed convince and satisfy this court that exceptional circumstances exist which, in the interests of justice, justify the granting of bail application to them by this court. It argued that the fact that both applicants say that they are married men who have dependants to look after and that they are both HIV positive and are taking ARV treatment, are factors which do not constitute exceptional circumstances.
 This court and indeed the crown counsel are alive to the fact that by some strange coincidence, both applicants happen to also be HIV AIDS positive and are taking ARV treatment, whilst none of them has bothered to file any documentary proof of their status at least to proof or to convince this court about their said status and treatment, and to explain why such status constitutes exceptional circumstances. They do not say that they are the only people who are HIV positive nor is it their evidence that because of their “unique” serious HIV status, they will not be able to access their treatment while in custody; and that as such they should be granted bail on these exceptional circumstances.
 The crown counsel has ably and convincingly refuted this argument and correctly in the mind of this court, it has argued that their said circumstances or status are common and cannot justify this honourable court to grant them bail.
 It has been argued further on behalf of the applicants among others that the applicants have ably and convincingly adduced evidence that there are in existence, exceptional circumstances justifying this court to grant them their application for release on bail. This court has been referred to paragraph 7 of the notice of motion filed on behalf of the applicants in support of this argument on the existence of exceptional circumstances.
 With the greatest respect, the crown has ably argued against the above argument advanced on behalf of the applicants. I need not repeat same. The applicants counsel has further denied that the applicants are a flight risk. In doing so, he argued that this allegation is unfounded and unsupported by evidence tendered by the crown. This the applicants’ counsel says without denying that the driver of the vehicle in which the applicants were travelling has managed to escape and to flee while he too, was, like the applicants surrounded by a large number of armed soldiers.
 The argument advanced on behalf of the applicants that it is speculation, unfounded and unsupported allegation that the applicants attempted to Flee when they were requested by members of the L.D.F to open the boot of the vehicle in which they were travelling holds no water. Aside from the fact that the allegation of the investigating officer is supported by that of No 11504 S/Lt Khasu who was one of the members of the L.D.F. who had stopped that vehicle and who actually arrested the applicants; it is also conceded by the applicants themselves that the driver of this vehicle did indeed run away from where they were found and that he is to date, still at large.
 The point I am making here is that the presence of a large number of armed soldiers thereat did not prevent one of the applicants’ companion from fleeing and thereby avoiding arrest to date. The fact that the two applicants were successfully prevented from also fleeing does not necessarily mean that they did not attempt to flee as the applicants want this court to belief. There is therefore a proper, adequate factual basis for this court to arrive at a decision that the applicants did indeed attempt to flee but for the vigilance of the members of the L.D.F.
 It has further been argued on behalf of the first applicant in particular that there is no evidence that he has the propensity to commit crimes when released on bail. The advanced and underlying reasons for the above argument being that, since the offences and or the criminal offences which the first applicant has allegedly committed after being released on bail are not the same and or that since they are of a different nature from each other, then it cannot be argued that he has a propensity to commit crimes while released on bail.
 It was submitted on behalf of the first applicant that, in that regard this court should only concentrate on this bail application in isolation from the surrounding circumstances in other criminal offences which have been preferred against the first applicant and which cases have as yet not been prosecuted; more so because the First applicant is still attending remands in respect of same. If I understood counsel for the first applicant well, he argues that in dealing with this bail application, this court should ignore and or that it should disregard the existence of the other criminal offences allegedly committed by the first applicant after and whilst he had been released on bail; because of the existence of a presumption of innocence until one has been proven guilty.
 The crown has in opposing this application, and correctly so in the view of this court, argued that in deciding whether it will be in the interests of Justice in general to grant bail to applicant or not, the court will obviously look at the question whether the accused will stand trial, whether he will interfere with state witnesses and whether he has a propensity to commit crimes whilst on bail. (My underlining).
 Of course it argued further that the court will not be in favour of releasing on bail an accused who whilst on bail, commits further offences. In the instant application, and with regard to the first applicant, there is more than ample evidence and a matter of common course that the first applicant has committed further violent serious criminal offences whilst he had been released on bail.
 In fact, to be precise, the said criminal offences have been committed by the said first applicant hardly two months down the line from January 2013 when he was arrested and charged with having committed a criminal offence of armed robbery. This evidence, which this court is asked to ignore has in fact also been provided by the first applicant in this replying affidavit thereby corroborating the evidence of the crown. How then does this court ignore this kind of evidence?
 The fact that the first applicant has a propensity to commit criminal offences whilst released on bail has not been denied by or on behalf of the first applicant; neither has it been denied that such are very serious violent crimes. I find it highly preposterous and untenable that this court be asked to ignore such a fact. This I say with the greatest respect to counsel. This court will have been remiss in the execution of its duties if it were to ignore such factors.
 While it is trite that under common law, courts will always grant bail when possible and will lean in favour of and not against the liberty of the subject, the instant case is an exceptional one in which the bail application has to be refused for the reasons stated above. Were this court to come to a different conclusion, it would be making mockery of the criminal Justice system; thereby bringing into disrepute the administration of Justice.
 This court has accordingly, and in the exercise of its discretion Judiciously come to a decision, that in the circumstances of this case, and having regard to the behaviour of the First applicant referred to above whilst he is released on bail, and also having regard to the fact that they both attempted to flee when being arrested; it is not in the best interests of Justice; but to its prejudice if both applicants are released on bail.
 This court is aware that the second applicant is not involved in the other criminal crimes presently pending against the first applicant as alluded to above. However, both applicants have not only failed to challenge evidence that they attempted to flee when arrested but they have also not satisfied this court that there are in existence any exceptional circumstances which would, in the interests of Justice, justify this court to release them on bail.
 It is further noted that none of the applicants has challenged nor denied evidence that investigations in this case are complete and that dates for the prosecution of this matter will soon be obtained. In fact it is now up to their counsel to urge the crown to obtain nearest dates for the prosecution of this case and those others pending against the first applicant. This application is accordingly dismissed.
For Applicants:- Adv. K.Potomane
For Respondent:- Adv. Tšoeunyane
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