IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:
KHUTLANG MOCHESANE PETITIONER
THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
“If any person arrested or detained upon suspicion of his having committed, or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.”
This constitutional provision entitles an accused person who is not tried within a reasonable time to be released on bail unconditionally or with reasonable conditions in order to ensure that he/she appears for trial.Therefore, while the constitution accords an accused the right to be released on bail based on the fact that he is entitled to his personal liberty, vide section 6(1) of the Constitution of Kingdom of Lesotho and is presumed innocent, the constitution also recognises that he should stand trial. This is the limitation on the right to be granted bail. It is predicated on the notion that eventhough an accused is entitled to liberty but the demand of justice requires that he should stand trial. This has been given judicial endorsement by the Kingdom courts such as Retela Mosothoane & Another v Rex 1985-90 LLR 496 and Raselebedi Maboee v DPP 1997-98 467.In the latter case, the court, per J Peete, observed as follows at P469 paras E-F:
“Presumption of innocence is a cornerstone to fair trial and such presumed innocence also operates in bail applications…It is for the court to look at the facts or evidence as a whole and consider whether it will be in the interest of justice to grant bail to an applicant or not.In deciding that question a court will obviously look at the question whether the accused will stand trial, or whether he will interfere with witnesses and it is not a question of an onus of proof being upon the applicant”.
See further Shadrack Ndumo v The Crown 1982-84 LLR 169 at p.171.
“Still, furthermore, on the question of the circumstances of the deceased’s death one would have expected to hear more from the arising affidavit through the investigating official who was No. 7456 D/Tpr Kotsana of the Lesotho Mounted Police Service. This would necessary advert to whether or not there was a prima facie case against the appellant.”
“The guiding principles governing the grant of bail are that the courts must hold the interest of justice. The court will always grant bail where possible and lean in favour and not against the liberty of the subject provided the interest of justice are not thereby prejudiced. The court’s duty is to balance these interests.”
Perhaps one of the recently cited authority in bail applications in the Southern African Region, which was also relied upon by the petitioner himself, is the Namibian High Court decision of S v Acheson 1991 (2) SA 805 (NmB) where the court held that one of the considerations for granting bail to an accused person is how inherently serious is the charge in respect of which the accused has been charged.
“…In order to determine this the court must ascertain, as far as it can from the circumstances, what the penalty is likely to be which will be imposed on the applicant.If the penalty is likely to be a severe term of imprisonment, then the courts ought not to grant bail.”
Therefore, the decision whether to grant bail or not is balancing exercise between the liberty of the person charged with an offence and the interest of justice.The accused, and the petitioner in the instant case, is entitled to his liberty.At this stage of the proceedings where his trial has not even commenced he is only a suspect and is presumed innocent as the defence counsel has vigorously argued.On the other hand he has been charged with a serious offence with a possibility if convicted of being given a severe penalty.The likelihood of absconding and evading trial cannot be discounted. It should be mentioned here that although the circumstances surrounding the commission of the alleged offence have not be provided to the court not least in the opposing affidavit of Sgt Lance Thamae, the offence appears to have been committed around 2016 when the country was experiencing political problems a fact that cannot be ignored in dealing with the petition.
“Your petition’s preparation for his defence is seriously impaired by his continued incarceration. The fact that the charge levelled against him is of such a nature that draws a very thin line between obeying superior orders and executing such orders within the confined of the law warrants frequent and extensive consultations with his lawyer...” (Emphasis supplied)
The petitioner confirmed the veracity of the aforecited paragraph at paragraph 3 of his verifying affidavit when he said:
“I have read and understood the above Petition and I wish to confirm the contents thereof as true and correct.”
The specific orders that were given to the petitioner by his superiors do not come out not clearly from the petition. But whatever the case may be, from the above cited paragraphs the petitioner was not only obeying the orders of his superiors but he also executed such orders. This is the only reasonable interpretation I can ascribe to the contents of the above paragraphs. Further, in the circumstances the only way he could have executed the orders from his superiors whatever they were would be to fire at the victim, in this case, Lloyd Mutungamiri. Thus by making all these allegations in his petition and confirming same in an affidavit, and later turning volte-face and merely denying firing shots at the victim casts doubt on his honesty. This court cannot take him in confidence when he said two conflicting things particularly in a petition the contents of which are confirmed in a sworn statement.
Delivered in open Court at ……………..on ………………October 2019.
Dr O B Tshosa
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