CRI/APN/66/92
IN THE HIGH COURT OF LESOTHO
In the Application of:
TS'EPO POLAKI Applicant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent
JUDGMENT
Delevered by the Hon. Mr. Justice B.K.Molai on the 29th day of June, 1992.
The applicant herein, who is charged with the crime of attempted murder, has moved the court for an order releasing him on bail pending his trial. The Respondent has filed notice of intention' to oppose this application.
Affidavits have been filed. It is common, cause from affidavits that the applicant and another person, Molebo Thethane, arm employed as taxi driver and conductor, respectively.
According to the applicant, his co-worker was, on 28th
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January, 1992, arrested by the Maputsoe police. The applicant then drove in his taxi to Maputsoe police station where he found his co-worker being assaulted by police officers. He pleaded with the police officers to stop assaulting his co-worker. The police officers, however, expelled, and threatened to shoot, him. Consequently the applicant ran away leaving his taxi behind.
It is not clear from the founding affidavit when his co-worker was released but the applicant went on to aver that at about 9.00 p.m., presumably on the same day, 28th January, 1992, he and his co-worker returned to the police station with a view to retrieve the taxi. On arrival at the police station, the applicant and his co-worker were, however, greeted with a volley of bullet shots by the police. They can away and reported the incident to the owner of the taxi.
It would appear that the applicant subsequently returned to the police station and observed that the taxi had all its four wheels deflated and the window on the passengers door broken. He again returned to the taxi owner and reported his observations.
In the mean time the applicant learned that his home had been raided and his co-worker re-arrested by the Maputsoe police officers who had been threatening to shoot and kill him
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(applicant) on sight. He believed that the police were capable of carrying out their threats. Consequently the applicant went to, and surrendered himself at the Leribe Subordinate Court. He was jointly charged with his co-worker and remanded into custody. His co-worker has, however, since been released on bail,
It is significant to observe that, although in the notice of intention to oppose, it was stated, inter alia, that T.J. Semoko, a representative of the Respondent, would depose to an affidavit in opposition of this application, no such affidavit has been filed. Only the police investigator, D/Sgt Rankhelepe, has deposed to an opposing affidavit. His account of what happened on 28th January, 1992 is different from that of the applicant.
According to him D/Sgt Rankhelepe was at about 5.00 p.m. on 28th January, 1992, on duty at Maputsoe police station when he noticed applicant's younger brother, Tumo Polaki, assaulting a girl at a distance of about 80 paces away from the police station. He proceeded to the scene, arrested and charge Tumo Polaki for his assault on the girl.
Shortly after Tumo Polaki had been put in a cell, the applicant and his co-worker arrived at the police station charged office in the company of a third man. To the greatest
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dismay of the deponent and his colleagues, the applicant suddenly jumped over the charge office counter and opened the door of the cell in which Tumo Polaki had been detained. Tumo Polaki then managed to escape from the cell and run away. As he cried to jump over the police station fence, Tumo was, however, re-arrested and brought back to the police station. The deponent denied, therefore, the applicant's suggestion that when he came to the police station the latter was alone and found his co-worker, Molebo Thathane, already under arrest and being assaulted, by Maputsoe police officers.
D/Sgt Rankhelepe further averred that in the course of the attempt by the applicant and his two companions, to free Tumo Polaki from the lawful custody of the police there ensured a commotion during which certain property, e.g. office telephone and chairs, was damaged at the police station. The applicant and his two companions managed to escape and run away leaving behind the taxi in which they had been travelling.
D/Sgt Rankhelepe conceded that the wheels of the taxi were subsequently deflated. ' He denied, however, the applicant's suggestion that the police officers had broken the window of the taxi after it had been left at the police station. According to the police officer, the taxi already had its window broken when it came to the police station.
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At about 8.30 p.m. on the day in question, 28th January, 1992, D/Sgt Rankhelepe and other police officers were outside Maputsoe police station when he noticed the applicant and his two companions approaching the police station. On arrival at the police station the applicant and his party suddenly opened fire at the police officers who ran for cover inside the police station building. They were rescued by another police officer who repelled the attack by firing shots from his nearby residence. A search for the applicant and his party was then mounted.
It is not really disputed that in the course of: the search the deponent and other police officers arrested the applicant's co-worker who was subsequently remanded into custody. Nor is it disputed that a search was also carried out at the home of the applicant. The deponent denies, however, that he and his colleagues threatened to shoot and kill the applicant on sight.
Whilst the search tor the applicant and one of his companions was going on, the applicant's attorney of record came to Maputsoe police station and demanded release of the taxi from the deponent and his colleagues. He was informed that the firearms used by the applicant and his friends during their attack on the police station had not yet been recovered. The applicant and his other companion must, therefore, be
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brought to the police station for interrogations before the vehicle could be released.
Thereafter deponent learned that the applicant had surrendered himself at the subordinate court of Leribe where he was admittedly remanded into custody without first being interrogated and given a charge by the police. In the contention of the deponent, the applicant is facing a serious charge and there is a strong prima facie evidence against him. If he were to be released on bail, the applicant is likely to abscond and fail to stand his trial. Consequently the deponent prays that the applicant's bail application be refused.
It is clear from the affidavits that the grounds upon which the bail application is opposed can be summed up into two viz. that D/Sgt Rankhelepe or the police officers have not yet interrogated the applicant and that if he were to be released on bail the applicant is likely to abscond. There can be no doubt, however, that the police officers regard the applicant as a suspect in the commission of the criminal offence against which he stands charged before the subordinate court of Leribe. That being so, they have, in my opinion, no legal right to interrogate the suspect unless, of course, the suspect freely and voluntarily accedes to interrogation after he had been duly cautioned in terms of the judges' rules.
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There is no indication in the affidavits that the applicant, who is a suspect, accedes to interrogation by D/Sgt Rankhelepe or the police officers.
As regards the second ground, the averment in the affidavits indicate that when he learned that the police were looking for and threatening to assault him in connection with the offence against which he stands charged, the applicant did not abscond out of the jurisdiction of the subordinate court for the district of Leribe, Instead he surrendered himself to the subordinate court where he was formally joined in the charge against his co-worker and remanded into custody. That, in my view, is no justification for the averment that if he were released on bail the applicant would abscond out of the court's jurisdiction. It is, on the contrary, justification that the applicant is likely to remain within the jurisdiction of the court and stand his trial.
I was told in argument chat as the Respondent in this case had intimated intention to oppose the application, bail should be refused. For this argument reliance was made on the decision in Meer v. Attorney-General for the Cape Province.
1949(1) P.H. H.26 where at page 54 Newton-Thompson, J. is quoted as having said:
"The court places great reliance on Attorney-General or his senior officers
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on matters of this kind."
In my view the present case is distinguishable inasmuch as the Attorney-General, in Meer v. Attorney-General for the Cape Province
1949(1) P.H. H26, had apparently filed an opposing affidavit whereas neither the Director of Public Prosecutions nor any of his senior officers has, in the present case, filed any such affidavit. Only the investigating police officer has deposed to the opposing affidavit. The decision in Meer v. Attorney-General for the Cape Province, supra, cannot, therefore, apply in the present case.
In Soola v.Director of Public Prosecutions 1981 (2) L.L.R. 277 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. However that does not mean that the Director of Public Prosecutions can just file a notice of intention to oppose and rest. He must, in my view, file an affidavit in which he advances the grounds upon which he basis his objection to the granting of bail. It is these grounds of objection, by the Director of Public Prosecutions, that the
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court has to give serious consideration and not discard lightly. In the absence of the affidavit containing his grounds of objection the Director of Public Prosecution has in my view, not advanced any objections worth the consideration of the court.
In the circumstances, it would be totally unfair to refuse this bail application. I would allow the application and accordingly release the applicant on bail subject to the
following conditions:
He must pay M200 cash deposit;
Surrender his passport to the police,
Report to the nearest police station (Hlotse) on every Saturday of the week at or before 12 noon.
He must not interfere with the crown witnesses.
He must attend remands and stand his trial.
He must find an independent person to stand him surety in the amount of M400.
The arrangements to pay the M200 deposit and find surety in the amount of M400 must be made at the subordinate court for the Leribe district and not at the office of the Registrar of the High Court.
B.K. MOLAI
JUDGE
29th June, 1991.
For Applicant : Mr. Mohau
For Respondent : Mr. Thetsane.
