HIGH COURT OF LESOTHO
by the Honourable Mr. Justice J.L. Kheola on the 29th day of July.
an application for bail made on behalf of the two applicants who were
arrested on the 14th June, 1988 on a charge of murder
committed on the 23rd April, 1988.
applicants have filed affidavits in which they undertake to
stand trial, not to interfere with Crown witnesses nor to hamper
police investigations in any way.
is opposing the application and a certain Trooper Mosoeu and an
accomplice Chaka Mateka have filed opposing affidavits.
Mosoeu is the investigating officer of the case and avers that during
his investigations he found out that the second applicant
has a love
affair with one of the accomplice witnesses namely, Phate Kopano. He
avers that if released on bail it is likely that
the second applicant
will influence him (Phate) inasmuch as they come from the same
second ground is that because of the seriousness of the offence with
which the applicants are charged, it is unlikely that they
further alleged that because of the volatile situation in the village
following the death of the deceased it is in applicants'
interests that they remain in custody.
Mosoeu further avers that during his investigations he, on several
occasions, looked for the first applicant at her place
of abode but
could not find her because it was reported that she had gone to
Mapoteng to see a doctor. He therefore feels that
she was evading
Mateka avers that he is an accomplice in the murder case in which the
applicants are the accused. On the 23rd January, 1988
(the day on
which the deceased was killed) he was threatened by the applicants
that should he reveal what happened on the material
day, they would
plot to kill him in the same way as they did with the deceased.
Despite these threats he voluntarily made a confession
to the police.
He avers that wherever he goes he must be escorted at all times
because he is afraid that the applicants and others
involved in the
murder will kill him.
applicants have denied any involvement in the murder of the deceased.
The second applicant admits that at the time Trooper Mosoeu
looking for her she was in hospital and was not trying to evade the
arrest. Her husband had to plead with the doctors to release
the hospital because police were looking for her. She was released
and her husband took her to the charge office.
Trooper Mosoeu's allegation that the second applicant was trying to
evade arrest to be unreasonable and without any basis
at all. He
never went to the hospital to find out if the second applicant had in
fact been admitted as an in-patient of that hospital.
that she was evading arrest is wrong and must be rejected.
allegation that the situation in the village is volatile is denied by
the applicants. Mr. Phoofolo, applicants' counsel, submitted
respondent ought to have obtained an affidavit from the chief of the
village and not to rely on an allegation by Trooper
Mosoeu who does
not live in the village. I think there is some substance in this
submission though as an investigating officer.
Trooper Mosoeu may
have personal knowledge of the situation in the village.
Mateka's averment that the applicants threatened to kill him if he
revealed that they killed the deceased, cannot be taken
avers that he is now escorted by some person wherever he goes so that
there is no how the applicants can have a chance
to carry out their
threat. If the applicants were granted bail one of the conditions
would be that they shall not tamper with Crown
witnesses. It seems to
me that it is unlikely that they would be in a position to contact
the accomplice because he is virtually
guarded all the time.
allegation by Trooper Mosoeu that the first applicant is in love with
one of the accomplices had to be substantiated by
an affidavit from
the accomplice himself inasmuch as the first applicant denies the
that murder is a serious offence but the Courts usually lean towards
the liberty of the subject in bail applications pending
trial, but it
is necessary to strike a balance,as far as that can be done, between
on the one hand the liberty of the individual,
and safeguarding and
ensuring the proper administration of justice on the other (Meyer v.
D.P.P. 1977 L.L.R. 161 at p. 163).
murder cases in which bail is granted the Courts usually take a risk
unless the Crown has, in addition to the seriousness
of the crime,
shown the possibility of a conviction. In the present case the Crown
has not shown that they have a strong case.
They seem to rely on the
evidence of accomplice witnesses and no other evidence.
applicants are married women and both have minor children. The
likelihood of them not standing trial is very remote indeed.
case the Crown's opposition seems to be based mainly on the
apprehension that the applicants are likely to interfere with
witnesses. It seems to me that that can be taken care of by imposing
application is granted on the following conditions:-
applicant shall pay a bail deposit of M200-00
applicant shall provide a surety in the sum of M200-00;
shall surrender their passports (if they hove any) to the police at
Teyateyaneng police station;
shall not interfere with Crown witnesses including Chaka Mateka and
shall attend remands;
shall attend the trial of the case;
shall report at Sefikeng police station on every Monday between the
hours of 8 a.m and 12 noon.
Applicants - Mr. Phoofolo
Respondent - Mr. Thetsane.
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