CRI/APN/83/92
IN THE HIGH COURT OF LESOTHO
In the matter between:
NKALIMENG MOTHOBI APPLICANT
V
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
Before the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 5th day of August, 1992.
For the Applicant : Mr. S.S. Mafisa
For the Respondent : Mr. S. Mdhluli, Director of Public
Prosecutions Mr. S.P. Sakoane, Senior Crown Council
JUDGMENT
Cases referred to:
Sehlabaka & Ors. v DPP CRI/APN/321/91 Unreported;
Mafereka v DPP CRI/APN/209 & 210/92 Unreported.
Sunil Batra v Delhi Administration (1980) 2 S.C.R. 557
(India).
This is an application for bail pending trial.
The applicant is jointly charged, with three other accused, with the offence of murder. This is his third application for
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bail. He was refused bail in two previous applications, namely CRI/APN/321/91 and CRI/APN/398/91.
In the first of those applications I delivered a judgment, Sehlabaka & Ors. v DPP (1), on 25th October, 1991, in which the authorities were discussed and full reasons for refusing bail were given. For convenience I adopt what I there said.
Every application must be considered on its merits however, and the relevant facts may alter. In the first application I refused bail on the ground that it was likely that the applicant would abscond and that therefore it was likely that the administration of justice would thereby be prejudiced. In the case of Mafereka v DPP (2) at p.6 I observed
"I take the view that the administration of justice is also prejudiced by the incarceration of an accused during the period of any unreasonable delay in bringing him to trial."
The present applicant has now been imprisoned for over nine months awaiting trial. The fault for such delay does not lie with the
Director of Public Prosecutions, however. The accused and his co-accused were indicted and appeared before the Court earlier this
year when the matter was adjourned to October, As matters stand efforts are being made to bring the trial forward in the present
Session. I do not think therefore that it would be in the interests of justice to release the applicant at this
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stage, that is, on the ground of delay in trial.
The applicant however relies also on the ground that he has become ill in prison. I ordered that he be given access to a medical practitioner of his choice. A private doctor has examined him and has certified inter alia that the applicant is in need of treatment by a urologist.
The doctor's report indicates that the applicant complained to him that
"he was assaulted in September 1991 with fists and boots, kicked hard in the pubic region. Testicles were twisted."
There is no averment in the applicant's affidavit to ground the above allegations. It is not stated who was guilty of the alleged assault. Assuming, without finding, that it was the police who were involved, the Court can only deplore any such alleged criminal conduct.
I take the view that where an accused is lawfully incarcerated, his physical welfare becomes the responsibility of the Crown. Sections 11 and 14 of the Human Rights Act, 1983 reads:
"11. (1) No person shall be subjected to torture or
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to inhuman or degrading punishment or other treatment.
Punishment otherwise authorised by law shall not be held to be inconsistent with or in contravention of this section.
Every person shall have the right to enjoy the best attainable state of physical and mental health."
A prisoner may not be detained in inhumane conditions. If a prisoner becomes ill, and he is not given sufficient or any medical treatment, then his detention becomes inhumane and relief will be granted by the Courts: see e.g. the Indian Supreme Court case of Sunil Batra v Delhi Administration (3), a copy of which report was very properly supplied to me by the learned Senior Crown Counsel, Mr. Sakoane. Where the prisoner is on remand awaiting trial, I cannot see how it could be said that it would be in the interests of justice to continue to detain him under inhumane conditions. If a prisoner is so ill that he requires hospitalisation, then I cannot see why, like any other member of society, he cannot be hospital1ised, that is, under custody. If the Kingdom's prisons do not contain the necessary facilities for prisoners in need of hospitalisation, then the authorities must make arrangements for the hospitalisation of a prisoner, in need of such, in a hospital outside the prison, that is, under close guard.
In this respect the learned Director of Public Prosecutions assured the Court that he would personally arrange to have the applicant medically examined at Makoanyane Military Hospital, and
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that if the services of a urologist are required, there apparently being no urologist in the Kingdom, he would recommend that Government secure the services of a visiting urologist. In the meantime I recommended that the applicant be removed forthwith to Makoanyane Military Hospital for further medical examination and, if necessary, hospitalisation under custody.
That was on 26th June, 1992. Thereafter the applicant was examined at the hospital at Makoanyane Barracks and subsequently again at Queen Elizabeth II Hospital in Maseru. There is now before the Court a medical certificate from a Surgeon at that Hospital to the effect that the applicant suffers from a stricture of the urethra, which stricture can be removed under anaesthetic. The applicant has consented to such treatment and I am satisfied that he is receiving full and compassionate medical treatment. Under the circumstances I cannot see that the applicant's continued detention is inhumane.
In view of the fact that the applicant's trial will be held soon, I do not see that his continued detention is unreasonable nor that the administration of justice will be prejudiced thereby. In all the circumstances, for the reasons stated in the previous applications and now this present application, I consider that it is likely that the administration of justice will be prejudiced by the applicant's release at this stage. The application is accordingly refused.
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Delivered at Maseru This 5th Day of August, 1992.
B.P. CULLINAN
CHIEF JUSTICE
