CRI/APN/117/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

SALLA
MOKHESENG APPLICANT

and

THE
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered
by the Honourable Mrs. Justice K.J. Guni on the 20th day of March
2000.

This
applicant wishes to be admitted to bail pending trial. He is
presently held in the Maseru Central Prison awaiting trial on a
charge of murder. Admission to bail for anyone accused of murder,
which undoubtedly, is one of the most serious offences in this
Kingdom, is a routine process. Dozens of a applications for bail
pass, unopposed, through these courts every week. The right to
personal liberty is guaranteed and protected as provided by the
supreme law of this land. [Chapter 11, Section 6: (1993) CONSTITUTION
OF LESOTHO] The courts,

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pursuant
to the constitutional provisions cited above, admit numerous
applicants to bail at all times. It is in very exceptional
circumstances where an accused person is refused bail. It did not
come as a surprise to me when during the perusal of these papers
filed of record in this application, it emerged that this applicant
allegedly committed this crime of murder while on bail on another
charge of the crime of murder - CR 95/95. Within the space of five
years or so he has allegedly committed two murders.

It
appears that this applicant was arrested and charged with the crime
of murder in CR 95/95. He applied for and was released on bail. He
has now been arrested again and has been charged with the crime of
murder CR 11/2000. I am unhappy with regard to insufficiency of the
facts put before this court. But nevertheless I have to come to a
conclusion.

Bail
applications are all the time hurriedly prepared. Most important and
relevant facts are inadvertently or deliberately left out. The
response to such application is also required to be provided
forthwith without giving the police who are involved in the
investigations of the crime, for which the applicant has been
arrested, enough time to research the issues raised and those related
to them, in order to give a complete picture of what sort of a case
is under consideration.

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As a
result of having before me half truths of scanty facts, invariably I
have to make a decision without being properly informed. Applicant
withheld material relevant facts relating to his previous conduct.
Respondent and those supporting the opposition to the granting of
bail to this applicant, filed affidavits which raise those issues
left out by this applicant. In an attempt to deal with the issues
raised by respondent's affidavit in his replying affidavit, this
applicant became a respondent - now answering charges levelled
against him in the opposing affidavit, with total disregard of his
Founding affidavit. The result is an untidy patch work which fails to
show clearly the precise case of this applicant.

At the
end of the passage through this maze , the haze picture which emerges
therefrom is as follows: This accused was arrested and charged with
murder in 1995. He applied for and was granted bail on specified
conditions. Of those conditions, the following are relevant for the
assessment of his future conduct:

1. He
   was ordered to attend remands as stipulated .

   
   

2. He
   was ordered to report himself at the Police Station at specified
   intervals.

   
   

This
applicant does not deny that he was on bail and these were some of
the conditions of his bail. He also does not deny breaching such
conditions. He gives

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flimsy
excuses which show that he does not regard the matter with the
seriousness

it
deserves.

The
respondent has opposed the release on bail of this accused on the
ground that he is likely to abscond. The fears that this accused will
abscond are raised in the mind of the respondent, by the accused's
previous conduct which is the factor which must be considered in
order to determine whether or not this accused should be trusted to
make himself available to stand trial S.V. Thomhill 1998 (2)S.A.
Criminal Law Report 177.

The
record of his previous conduct as indicated in his own averments in
the replying affidavit, is as follows: He discontinued attending
remands when he was "informed that the charge sheet against
which his remands were recorded is lost. He reported at the Police
Station until the record was full of reporting stamps when the police
advised him to go and look for work until he could be summoned to
court." These conditions of bail are made by the court as an
order of court. As such, they can only be varied or cancelled by the
court. The ease with which this accused cancelled them must be
considered seriously. S.V. THORNHILL 1998 (1) S.A. Criminal Law
report at page 177. The reading, of his excuses for the breach of the
bail condition, gives the impression that he feels that he is in
control

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and has
authority to vary, or cancel those conditions as he pleased.
According to him the record of reporting was full of stamps." He
sounds fed up. He had been reporting for too long. He feels justified
to take the law in his own hands and decide enough is enough. He is
unemployed. He appears to have no fix abode. He can be anywhere for
any length of period as shown in his founding affidavit that he was
in his village on Christmas eve. He was at Maseru at Ha Thamae for
new year. He was in Bloemfontein in the Republic of South Africa
until his arrest.

The
public prosecutor and police man, are members of the law enforcement
agency of the crown. They know and must respect court orders. It is
unlikely that they can instigate the breach of bail conditions or
give directives such as those allegedly given to this accused by
them. There is, undeniably, some corruption in the justice system.
Court records do go missing: They are sold to accused persons or
destroyed, for the sole purpose of defeating the ends of justices. As
far as the Public Prosecutor is concerned, this accused has
absconded. The Preparatory Examination which should have been held,
failed to proceed because of this accused's absence. It is argued on
behalf of this applicant that it is not this Prosecutor who released
him. The accused was released by the prosecutor who cannot be named
nor described. The policeman who advised this accused to go and look
for work and stop reporting himself as ordered by the court is also

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nameless,
unidentifiable and even indescribable. These excuses are so
ridiculous, the accused must have concocted them hurriedly when he
noticed that his passed was catching up with him. In order to strike
a proper balance between his right to liberty and the interests of
society for the proper administration of justice the applicant's
previous behaviour must be considered in the light of his present
averments that he will stand trial S.VESSACS 1965 (2) S.A. 161. In
our present application, applicant has not made any averments that he
will stand trial. He supposedly will stand trial if ordered by this
court to do so. I need not mention the indications made by his
previous conduct as far as respect of court order is concerned.

Because
he was arrested in the Republic of South Africa and handed over to
the Lesotho Police by members of South African Police Service, the
applicant in his founding affidavit dealt mainly with his departure
from Lesotho and the reasons for such departure. The accused claims
that for no apparent reason he was unlawfully attacked by some men of
his village. He sought refuge in his relatives house. The men waited
outside the house for him. He escaped, under the cover of darkness.
He ran away by night because he feared that he will be caught when
the day breaks. According to him he narrowly escaped death. Where
does he run to? One might be inclined to think the man who is running
for his dear life will

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go to a
refuge where his life would be secured and culprits brought to book.
There is a police station nearest his village. The investigating
officer in this case is from the Police Station. The applicant did
not go to that Police Station. He came to Ha Thamae - Maseru.

There
again, he did not consider running to the police station to report
the matter and seek protection. He went to his brother in
Bloemfontein. He had passed numerous Police Stations in Maseru when
he went to report, that attack upon him by his fellow villagers, to
his brother. He remained in Bloemfontein from 10th January, 2000
until he was arrested on 1st February, 2000. He was therefore nearly
a month there. This accused does not show this court that he has any
substantial ties with any permanent residence. He appears to live
anywhere and every where for any length of period. All the issues
discussed and considered in S.V. Acheson, for the purpose of striking
proper balance between the interests of the society for the proper
administration of justice and the interests of the individual right
to liberty, are found missing in this application. S.V. Acheson 1991
(2) S.A. 805 at page 808 F - G. He does not say he has a permanent
home anywhere. He says nothing about his family and the family ties.
He is unemployed. There is just nothing to hold him anywhere. His
previous record shows that he can very easily evade any bail
condition S.A. THORNHILL [supra]. He was arrested while on the

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run.

Another
reason which was not directly raised by respondent, is his likelihood
to continue committing similar offences, if released. The accused was
on bail awaiting trial on a charge of murder when he allegedly
committed this murder. There is a need if only for the protection of
the society to keep this accused in custody in order to stop him from
committing further murders.

It is an
aggravation against release on bail for any accused who is likely to
commit similar offences while on bail. This is a proper case to
invoke the provision of section 6(e) Constitution of Lesotho 1993.
Bail is refused.

K.GUNI

JUDGE

20th
March 2000

For
Applicant: Mr Mpopo

For
Respondent: Ms Dlangamandla