CRI/APN/101/90

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

COL.
SEKHOBE LETSIE Applicant

and

DIRECTOR
OF PUBLIC PROSECUTIONS Respondent

JUDGEMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 4th day of April, 1990.

This is
an application for bail, pending trial. The Respondent opposes the
application and the parties have duly filed affidavits.

It is
common cause from the affidavits that, at all material times, the
applicant was a member of the Royal Lesotho Defence Force
and the
Ruling Military Council in Lesotho. On 19th February, 1990 he was
arrested and/or detained by members of the Royal Lesotho
Defence
Force. On 7th March, 1990 he appeared before the Subordinate Court of
Maseru and was remanded into custody on four (4)
counts of murder and
two (2) counts of attempted murder alleged to have been committed on
16th November, 1986. He has since been
kept at the Maseru Central
Prison awaiting his trial which is due to commence between the 4th
and the 25th April, 1990.

The gist
of the applicant's affidavits is that he has not committed the
offences against which he is charged. He intends to

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stand
trial so that he can prove his innocence. If released on bail he will
not interfere with witnesses or do anything to frustrate
proper
administration of justice. There is, therefore, no justi­fication
for the opposition of his application for bail.

The
answering affidavits have been deposed to by the Director of Public
Prosecutions who is the Respondent, S/Lt. Sephelane, the

investigating officer and Ts'olo Lelala, a victim/ complainant in one
of the offences against which the applicant stands charged.
In a
nut-shell, the answering affidavits are to the effect that the
investigations which were not easy to conduct whilst the applicant

was a member of the Ruling Military Council in Lesotho have, since
his arrest and/or detention, started in earnest but not completed.
If
he were to be set free on bail, the probabilities are high that the
applicant will interfere with witnesses some of whom are
accomplices.
Whilst he was holding his high office in the Government the applicant
was able to make friends in many countries to
which he can easily
abscond. This, coupled with the fact that the offences against which
he stands charged call for heavy punishment
in the event of
conviction, poses great inducement for the applicant to abscond and
thus thwart or defeat the course of justice.

I have
been referred, inter alia, to the decision in Meyer v. Director of
Public Prosecutions 1977 L.L. R. 161 where Cotran, C.J.
stated at p.
163 that the courts leaned towards the liberty of the subject in bail
applications pending trial but it was necessary
to strike a balance,
as far as that could be done, between on one hand the liberty of the
individual and safeguarding and ensuring
the proper administration of
justice on the other. To that effect the courts had to take into
account whether or not

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if he
were released on bail the applicant would interfere with witnesses in
an effort to thwart or defeat the course of justice,
whether or not
the nature of the crime and its punishment were serious enough to
warrant incarceration before trial and whether
the applicant would
stand trial or his freedom would give him the incentive to flee.

It is
significant to bear in mind that in the present case both the
Director of Public Prosecutions and the investigating police
officer
have, for reasons already explained, objected to the applicant being
released on bail, pending his trial. In Soola v. Director
of Public
Prosecutions 1981 (2) L.L.R. 277 at p. 280 Mofokeng, J. had this to
say on the issue:

"The objection by the Director of Public Prosecutions must be
carefully considered by the court and not lightly discarded:
after
all he is a responsible officer charged with onerous duties."

I
entirely agree. Indeed, experience has taught me that of late it is
very rare that the office of the Director of Public Prosecutions

objects to bail being granted to people charged with as serious
offences as murder. It is, therefore, important that when on those

rare occasions the Director of Public Prosecutions does object to
bail being granted to an applicant the matter should be subjected
to
serious scrutiny of the court to ensure that con­siderations for
the liberty of the subject will not result in the frustration
of
proper administration of justice in this country.

As
regards the Respondent's apprehension that the probabilities are high
that if released on bail the applicant will interfere with
witnesses,
some of whom are accomplies, it is worth

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mentioning
that the alleged accomplice witnesses are said to be members of the
Royal Lesotho Defence Force. There is, however, a
suggestion that the
applicant has, since his arrest and/or detention by members of the
Royal Lesotho Defence Force, been removed
or dis­missed from the
Force.

Assuming
the correctness of this suggestion it seems to me unlikely that the
applicant who is no longer a member of the Force can
easily interfere
with the accomplice witnesses who are presumably still members of the
Royal Lesotho Defence Force. However, in
his affidavit Tsolo Lelala
who is not a member of the Royal Lesotho Defence Force avers that he
has fears that as prospective star
witnesses in the pending trial
against the applicant, he and his wife will be placed in real danger
if he were to be released on
bail. The affidavit does not, however,
disclose what the applicant has done to the prospective star
witnesses to warrant the fears
entertained by Tsolo Lelala. Be that
as it may, if the applicant dared to interfere with witnesses whilst
remaining in the country
he will no doubt be committing an offence
for which he can in my view, be re-arrested and/or re-detained. I
find it difficulty,
therefore, to turn down the application on this
ground alone.

However,
in the case of Moletsane v. Rex 1974/5 L.L.R. 272 at p. 275 Cotran,
J. (as he then was) quoted with approval the following
words by
Diemount, J. in S. v. Mhlawli and Others 1963(3) S.A. 795 at 796:

"It has been said by the courts on several occasions that where
the inducement to flee is great - as in this case - and where
no
extradition from the neighbouring Protectorates would be possible -
again as in this case - the court will not readily grant
bail if the
Attorney-General opposes the application."

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In the
present case the considerations that have weighed heavily in my mind
are that the applicant is charged with not just one
but

four (4)
counts of murder and two (2) counts of attempted murder, all of which
are serious offences calling for commensurately serious
punishments
upon conviction. This will, in my opinion, no doubt pose great
inducement for the applicant to jump bail and flee,
for example, to
the neighbouring Republic of South Africa, a country with which
Lesotho has no extradition agreement and thus frustrate
proper
administration of justice.

In the
circumstances, the view that I take is that it would be a totally
unwarranted risk for this court to grant the application
which is
accordingly refused.

B.K.
MOLAI

JUDGE.

3rd 4th
April, 1990.

For
Applicant : Mr. Pheko

For
Respondent : Mr. Mdhluli.