HIGH COURT OF LESOTHO
Application of :
by the Hon. Mr. Justice M.L.Lehohla on the 31st day of January, 1991
applicant has once more moved his application for hail before this
Court; his two prior applications having been refused. The
maintains that the applicant's insistence to he granted hail is abuse
of Court process.
that the basis of the applicant's further attempt to persuade this
Court to grant him hail is that since his arrest in
April 1990; no
preparatory examination has been held in respect of the crime of
murder he is alleged to have committed; nor has
a date been fixed for
the summary trial made mention of in paragraph 5 of Mr. Thetsane's
affidavit dated 24th January 1990 (which
I think should read: 24
January 1991 as reflected in the date stamp).
applicant is a South African pass-port holder and a citizen of that
country resident at Sebokeng.
a murder charge committed in the course of robbery. He has been in
custody since his arrest in April.
applicant has two wives one of whom is a Mosotho resident in Lesotho.
Seven minor children were horn in the marriage to the
Mosotho wife. The applicant avers that he has a home in Lesotho and
some businesses at Bela-Bela in the Berea district.
opposes the granting of hail to the applicant on the grounds that he
would abscond and that indeed he previously absconded
in respect of a
House-breaking offence committed in Mohale's Hoek in Lesotho.
applicant counters by stating that in respect of CRI/APN/134/90 he
had averred in paragraphs 4 and 5 that he had been in Mohale's
on 10th April 1990 for his formal monthly remands in respect of the
Househreaking charge when he got arrested by the Mohale's
for Murder, and further; that he has been on hail on the
househreaking charge since 7th March 1990 and has never breached
of the conditions imposed.
Sergeant Jonase's response to these averments is that he admits them
in his paragraph 4.
therefore a point of some curious amazement that the same sergeant
should in CRI/APN/428/90 paragraph 4 state for the first
the applicant had absconded to Sebokeng prior to 10th April 1990 in
respect of the housebreaking offence and only came
hack to he
arrested after he had been enticed by the police who told him that
the applicant's vehicle allegedly involved in the
carrying out of the
housebreaking offence and kept by the Court could only he released to
him if he came to Lesotho to identify
and claim it.
Moruthane asked that the deponent Jonase he allowed to give oral
evidence . The Court wished to know if the deponent was readily
available hut it turned out that he was attending some court business
in the subordinate court in Mohale's Hoek. The Court asked
sergeant went there even though the Crown counsel had advised that
he required in this Court. The Crown counsel said indeed the sergeant
did so. The Court wished to know the applicant's
to the application that the hearing he postponed. The applicant's
counsel stated that the application for postponement
was opposed. The
Court upheld the applicant's counsel's objection.
with the applicant's counsel's submission that it would entitle the
Court to refuse hail if there was proof of prior attempt
applicant's part to abscond, and that in the circumstances of this
case the Crown's effort to furnish proof to that effect
frustrated by sergeant Jonase's self-contradiction. I agree with Mr.
Nathane that the fact that a man faces many charges is
no ground for
refusing him hail, the proper ground for refusing him hail being
perhaps that he has been convicted of such offences.
as was stated in CRI/APN/323/90 Tebello Tlebere vs Rex (unreported)
where the words of Elyan J were cited with approval
in Jack Mosiane
and Others vs Regina HCTLR 1961-65 page 25 at 27 :
"The main consideration in deciding an application for hail
....... is whether the grant of the application is likely to
prejudice the ends of justice, and whether from the circumstances of
the case, such as the nature of the charge and the severity
possible sentence, an accused, if released, is likely to appear and
stand his trial".
entirely with the above view.
for the applicant submitted that the charge sheet shows that the
applicant is facing a Murder charge and nothing else.
But I have
observed that Mr. Thetsane's affidavit filed in opposition of the
release of the applicant on hail states that the murder
in the course of a robbery.
alone is a serious crime. An added element of robbery in the
commission of murder would tend to
whatever sentence is likely to he imposed should conviction stand in
the circumstances so far considered to he relevant
official statements on which substantial reliance can he placed are
before the Court to the effect that reasonable possibility
that the applicant would not stand trial, then the Court cannot very
well brush aside such statements, thus proof of any
actual attempt to
abscond will not he demanded.
in Tlebere above at 4 the view expressed above is in conflict with
that expressed by Vos J. in s. vs Bennet 1976(3) SA2652
at 655 and
656 read with R. vs Kok 1922 NPD 267 at 269 and referred to in
CRI/APN/151/86 Moholisa & An. vs R (unreported) for
proposition that :
"reasonable possibility to abscond consists in evidence of prior
attempt by the accused to abscond".
has taken a serious view of the fact that the applicant is not a
citizen of Lesotho and that his home country has not
entered into any
extradition treaty of any form and therefore that should the
applicant abscond and take refuge in his country
there will he no way
of securing his presence in Lesotho to stand trial.
Nathane suggested that stringent conditions could he imposed in order
to ensure that the applicant would stand trial. In my
view short of
imposing conditions which amount to denial of hail the fact that
there is ease of mobility for the applicant to foil
his trial by just
fording the Caledon or scaling the fence constituting the border
between his country and this territory does
not speak favourably for
Schalvyk vs Rex CRI/A/53/81 the magistrate refused hail to the
applicant a citizen of a foreign country charged with theft
sums of money from
The applicant went on appeal and Rooney J imposed what he cosidered
to he stringent conditions including the seizure of
passport. A few days afterwards and before he could stand trial the
appellant had absconded to the Republic of
Nathane referred me to an unreported case CRI/APN/34/91 Khaliphile
Wiseman Gogo vs R. where a Transkeian was granted bail yesterday
respect of the murder of a Lesotho citizen. Among the stringent
conditions I am told the applicant was to fulfil is that he
pay M1,000.00 hail deposit.
case CRI/APN/177/87 Isak Johannes Enslin v.R. decided by this Court
on 23rd July 1987 a citizen of South Africa was granted
bail in the
sum of M5,000-00 and a further stringent condition was that he should
report himself daily at the Central Charge Office
in Maseru between
specified hours. The Registrar's file shows that the recorded
proceedings that day were entered by Mr. Nathane
who was then an
Assistant Registrar of this Court. Suffice it to say the wisdom of
granting hail on stringent conditions to a citizen
of a foreign
country that does not have any agreement or extradition treaty with
Lesotho was tested further on that occasion regard
being had to the
fact that the offence committed was much less serious than murder,
and further that it was committed before the
coming into effect of
the minimum penalities Order of 1986. Far be it from me though that
once a man is shown to the a foreigner,
and that his country has no
extradition heavy with ours,she disintities him from being released
on hail. The point I wish to only
emphasise is in such circumstances
the Court is entitled to show less enthusiasm to incline to an
applicant's plea in such circumstances
because clearly the
administration of justice will he frustrated should the applicant
decide not to stand trial. No legitimate
approach can be embarked on
to put his government under the necessity to hand him over to the
jurisdiction of the Court where he
allegedly committed the offence. I
tragic eventuality and real possibility with relish.
reason why the instant application was refused in each of the
occasions it was moved has not changed; namely, that should he
abscond this Court will not have means of enforcing applicant's
appearance to stand trial.
there seems to he incontrovertible merit in the statement of Miller
J. in S. vs Fourie 1973(1) SA 100 - 101 that :
"It is a fundamental requirement of the proper administration of
justice that an accused person stand trial and if there is
cognizable indication that he will not stand trial if released from
custody, the court will serve the needs of justice by refusing
grant hail, even at the expense of the liberty of the accused and
despite the presumption of innocence".
in Tlebere above –
"if proper considerations have been established that proper
administration of justice will abort if hail is granted then it
only logical that it he refused".
time and again expressed my inability to understand what Miller J.
meant by cognizable indication on the basis of whose existence
the applicant will abscond,bail should he refused,
boldly say, hopefully with a minimum of error, that absence of
extradition treaty between this country and the country of
applicant seeking to be freed on hail in this territory would seem to
fill the bill.
application is accordingly refused.
Applicant : Mr. Nathane
Respondent : Miss Moruthane
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