HIGH COURT OF LESOTHO
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
by the Hon. Mr. Justice B.K.Molai on the 29th day of June, 1992.
applicant herein, who is charged with the crime of attempted murder,
has moved the court for an order releasing him on bail
trial. The Respondent has filed notice of intention' to oppose this
have been filed. It is common, cause from affidavits that the
applicant and another person, Molebo Thethane, arm employed
driver and conductor, respectively.
to the applicant, his co-worker was, on 28th
1992, arrested by the Maputsoe police. The applicant then drove in
his taxi to Maputsoe police station where he found his
being assaulted by police officers. He pleaded with the police
officers to stop assaulting his co-worker. The police
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.
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.
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
on sight. He believed that the police were capable of carrying out
their threats. Consequently the applicant went to,
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,
significant to observe that, although in the notice of intention to
oppose, it was stated, inter alia, that T.J. Semoko, a
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.
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
younger brother, Tumo Polaki, assaulting a girl at a distance of
about 80 paces away from the police station. He proceeded
scene, arrested and charge Tumo Polaki for his assault on the girl.
after Tumo Polaki had been put in a cell, the applicant and his
co-worker arrived at the police station charged office in
of a third man. To the greatest
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,
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.
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.
Rankhelepe conceded that the wheels of the taxi were subsequently
deflated. ' He denied, however, the applicant's suggestion
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.
8.30 p.m. on the day in question, 28th January, 1992, D/Sgt
Rankhelepe and other police officers were outside Maputsoe
station when he noticed the applicant and his two companions
approaching the police station. On arrival at the police station
applicant and his party suddenly opened fire at the police officers
who ran for cover inside the police station building. They
rescued by another police officer who repelled the attack by firing
shots from his nearby residence. A search for the applicant
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
subsequently remanded into custody. Nor is it disputed that a search
was also carried out at the home of the applicant.
denies, however, that he and his colleagues threatened to shoot and
kill the applicant on sight.
the search tor the applicant and one of his companions was going on,
the applicant's attorney of record came to Maputsoe
and demanded release of the taxi from the deponent and his
colleagues. He was informed that the firearms used by
and his friends during their attack on the police station had not yet
been recovered. The applicant and his other
to the police station for interrogations before the vehicle could be
deponent learned that the applicant had surrendered himself at the
subordinate court of Leribe where he was admittedly
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
clear from the affidavits that the grounds upon which the bail
application is opposed can be summed up into two viz. that
Rankhelepe or the police officers have not yet interrogated the
applicant and that if he were to be released on bail the
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.
no indication in the affidavits that the applicant, who is a suspect,
accedes to interrogation by D/Sgt Rankhelepe or the
regards the second ground, the averment in the affidavits indicate
that when he learned that the police were looking for and
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.
told in argument chat as the Respondent in this case had intimated
intention to oppose the application, bail should be refused.
argument reliance was made on the decision in Meer v.
Attorney-General for the Cape Province.
P.H. H.26 where at page 54 Newton-Thompson, J. is quoted as having
"The court places great reliance on Attorney-General or his
on matters of this kind."
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
officers has, in the present case, filed any such affidavit. Only the
investigating police officer has deposed to the opposing
The decision in Meer v. Attorney-General for the Cape Province,
supra, cannot, therefore, apply in the present case.
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
he is a responsible officer charged with onerous duties,"
entirely agree. However that does not mean that the Director of
Public Prosecutions can just file a notice of intention to oppose
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
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.
circumstances, it would be totally unfair to refuse this bail
application. I would allow the application and accordingly
the applicant on bail subject to the
must pay M200 cash deposit;
his passport to the police,
to the nearest police station (Hlotse) on every Saturday of the week
at or before 12 noon.
must not interfere with the crown witnesses.
must attend remands and stand his trial.
must find an independent person to stand him surety in the amount of
arrangements to pay the M200 deposit and find surety in the amount of
M400 must be made at the subordinate court for the Leribe
and not at the office of the Registrar of the High Court.
Applicant : Mr. Mohau
Respondent : Mr. Thetsane.
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