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CRI/APN/153/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

SEJA-BANNA
HLASOA 1ST APPLICANT

SELUMANE
FOPHISI 2ND APPLICANT

and

THE
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

Reasons
for Judgment

For
Applicants : Mr. M. Mathafeng

For Crown
: Mr. T. Kotele

Delivered
by the Honourable Mr. Justice T. Monapathi on the 20th day of April
2000.

On the
11th April 2000 I proceeded to hear this application for bail and
heard address by Applicants' Counsel Mr. Mathafeng. After that I made
my ruling.

Mr.
Mathafeng had filed a two page document of skeleton submissions, of

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two
paragraphs, which he called "heads of argument filed on behalf
of Applicants".

It was
obviously a going through the motions exercise which was
disappointing. In the heads causes such as MATIME v REX 1971-73 LLR
49, S v CASKER 1971(4) 504, CASSIM v REGIONAL MAGISTRATE PRETORIA
1962 (2) SA 440 were cited most perfunctorily inasmuch as their legal
significance was not elaborated. Perhaps something more should have
been said about MALEFETSANE SOOLA v DPP CRIP/APN/39/8 if the case
reported as SOOLA v DIRECTOR OF PUBLIC PROSECUTIONS 1981(2) LLR 227
was meant. It surely should have been more than what was said which
was that:

"The fear of prosecution that the applicants face a serious
charge is unfounded. The prosecution has no justification for
substituting itself as the arbiter."

It is
because the case is a good authority for the proposition that the
Director of Public Prosecutions must like others support his
statement in which he opposes bail.

That this
Court requires Counsel to file heads of argument is a sound policy
that should be constantly followed by Counsel without making
pretences. Preparation of heads teaches and practices Counsel in the
art and technique of writing. That brings about control and
discipline to the proceedings. The other result is saving of time of
presentation of submissions in Court. Therefore written submissions
ought to take more of the Court's time than oral submission. This

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appears
to be a global trend. It has to be emphasised that at a high level a
good lawyer will be a good writer and not necessarily a good speaker.

There was
no appearance by the Crown. Mr. Kotele just appeared later after I
had made my ruling. He said he had been before Mr. Justice Peete's
Court. He properly conceded that had not had the presence of mind to
have suggested that in the meantime the instant matter be stood down
because he had preferred to start with the matter in the other Court.
Mr. Mathafeng had looked around and waited for at least forty five
(45) minutes after which he strongly felt that he should be heard
even in the absence of the other side. Having received no explanation
I agreed.

The
charge that caused the remand in custody of the Applicant was about
the murder of one Letseme Mothoale. The murder was said to have
occurred on the 3rd May 1999 at or near Tsime in the district of
Butha Buthe. The circumstances surrounding the deceased's death were
not stated by either side. Incidentally neither Applicant stated
whether he had known the deceased. The First Applicant only said that
on the 26th January 2000, he was with Mahlo Tsotetsi, Lethoba
Sekhamane, Motlalepula Tsotetsi when they set out to look for the
livestock of one Tsotsi Tsotetsi which had been stolen by armed
thieves at his cattle post (vide paragraph 4 of founding affidavit).
He said furthermore that they were arrested

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while
still searching for the said livestock. To their dismay it was
alleged that they had killed the deceased, as in the charge sheet, in
May 1999. He said he verily averred that he knew nothing about the
death of the deceased (vide paragraph 5 of founding affidavit).

Still on
the question of the circumstances of the deceased's death the Second
Applicant had these to say. He wished to confirm what the First
Applicant had said in so far as it related to him. This he said
despite the fact that nothing had been said by the First Applicant
about this Second Applicant. In a similar manner this Applicant did
not say whether he knew the deceased or not. Similarly, again, he
said nothing about the circumstances of the killing of the deceased.

Still,
furthermore, on the question of the circumstance of the deceased's
death one would have expected to hear more from the answering
affidavit through the investigating officer who was No.7456 D/Tpr
Kotsana of the Lesotho Mounted Police Service. This would necessarily
advert to whether or not there was a prima facie case against the
Applicants. It is important because it has been held that even if the
State's case is weak where a prima facie case exists an accused can
still be denied bail if it is deemed to be in the interest of
justice. See S v DLHAMINI 1997(1) SACR 54 (W). It came out as
disappointment of a serious kind therefore when nothing came close to
revealing the existence of prima facie case.

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The
police officer's affidavit was used to support the opposition to
release of these Applicants. Having admitted that the Applicants were
arrested on the 26th January 2000 he wished to reveal the
circumstances leading to the arrest of the Applicants. It came out to
be nothing towards indicating the circumstances of the death of the
deceased and neither was there a suggestion, as one would have
expected as to how this linked with or connected the Applicants. It
once again begged the question of the existence of prima facie case.

D/Tpr
Kotsana said that the investigations revealed that immediately after
the commission of the offence the Applicants could not be found at
their places of residence whereas the police had usually and on the
said occasion visited these homes with intention of arresting them. I
thought this would have been a useful statement if it was enlarged to
show what steps were taken, may be through the chief, and whether
members of the Applicants households were contacted in the process of
looking for the Applicants. If sufficient, this could have gone
towards showing that the Applicants were likely to abscond or were
unreliable. But it would certainly not indicate the circumstances of
the death of the deceased.

In
paragraph 5 of First Applicant D/Tpr Kotsana it was noted and
accepted that the Applicants were at their cattle posts but

"To our dismay when the police got to there the Applicants were
to no

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avail, until they were arrested on the date in question."

As to how
this would assist in the inquiry it was not to be clarified. Perhaps
one would have expected to be shown its significance from the ipse
dixit of Crown Counsel Adv. Napo Rantsane as contained in his
supporting affidavit. It was not Co be. I came to this aspect later
on in the judgment.

One of
the grounds for refusal of the application was to be gleaned from
paragraph 8(b) of D/Tpr Kotsana's affidavit in which he said:

"Furthermore to add that the first applicant still stands
another murder case CR number which is 4/98 (See Annexure "A"
attached thereto). He was already not attending remands on the
aforementioned case and I have a fear that the same consequences
might result."

This, in
my view, was an unfair imputation of a propensity on the part of the
First Applicant which ought not to be allowed. Besides that the
Second Respondent had not been co-accused in the charge nor had he
therefore committed the alleged transgression. I found it difficult
to accept the reason as being sound or the ground as being good. It
appears that in South Africa factor such as above, for example or
other evidence, from which inference can be drawn that an accused had
abused

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prior
grant of bail by indulging in criminal conduct unconnected with the
charge in question, can be taken into account. See S v PETERSEN AND
ANOTHER 1992(2) SACR 52(C)

I looked
at the attitude of the Crown through the supporting affidavit of
Advocate N. Rantsane. Instead of showing the way in which the
administration of justice would be hampered Advocate Rantsane merely
said:

"I have read the docket in which the applicants charged with
murder. I have also had the opportunity to interview the
investigating officer in the matter. It is my humble submission that
if released on bail, the applicants will hamper the course of
justice."

How and
in what manner and on which grounds? More should have been said even
by way of a brief summary and in an attempt to show that the scale
(in the balance) ought to be tilted towards sacrificing the liberty
of the Applicants by their non-release as against the proper
administration of justice. See S v BENNET 1976(3) SA 652. As to the
weight to be attached to the Attorney General's (Director of Public
Prosecutions in Lesotho) ipse dixit See S v BENNET (supra) at 654H
-655A-B. The statement by the Director of Public Prosecutions
perforce has to be a little articulate in order to carry a certain
weight. See Mofokeng J's remarks in

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SOOLA v
DIRECTOR OF PUBLIC PROSECUTIONS (supra) at page 279 (second
paragraph).

I
concluded that there were no good grounds for the opposition of the
release of the Applicants and their admission to bail. The Court
consequently made the following Order:

"Applicants were admitted to bail on those conditions as
suggested except that they should report at Butha-Buthe Police
Station every fortnight "on Fridays between 8.30 am and 4.30 pm.
To attend on remands and on days appointed for trial."

T
Monapathi

Judge

Judgment
noted by Adv. K.K. Mohau for Counsel