HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS RESPONDENT
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 5th day
of August, 1992.
Applicant : Mr. S.S. Mafisa
Respondent : Mr. S. Mdhluli, Director of Public
Mr. S.P. Sakoane, Senior Crown Council
& Ors. v DPP CRI/APN/321/91 Unreported;
v DPP CRI/APN/209 & 210/92 Unreported.
Batra v Delhi Administration (1980) 2 S.C.R. 557
an application for bail pending trial.
applicant is jointly charged, with three other accused, with the
offence of murder. This is his third application for
was refused bail in two previous applications, namely CRI/APN/321/91
first of those applications I delivered a judgment, Sehlabaka &
Ors. v DPP (1), on 25th October, 1991, in which the authorities
discussed and full reasons for refusing bail were given. For
convenience I adopt what I there said.
application must be considered on its merits however, and the
relevant facts may alter. In the first application I refused
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
"I take the view that the administration of justice is also
prejudiced by the incarceration of an accused during the period
any unreasonable delay in bringing him to trial."
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
that is, on the ground of delay in trial.
applicant however relies also on the ground that he has become ill in
prison. I ordered that he be given access to a medical
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.
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."
no averment in the applicant's affidavit to ground the above
allegations. It is not stated who was guilty of the alleged
Assuming, without finding, that it was the police who were involved,
the Court can only deplore any such alleged criminal
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
to inhuman or degrading punishment or other treatment.
otherwise authorised by law shall not be held to be inconsistent
with or in contravention of this section.
person shall have the right to enjoy the best attainable state of
physical and mental health."
prisoner may not be detained in inhumane conditions. If a prisoner
becomes ill, and he is not given sufficient or any medical
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
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.
respect the learned Director of Public Prosecutions assured the Court
that he would personally arrange to have the applicant
examined at Makoanyane Military Hospital, and
the services of a urologist are required, there apparently being no
urologist in the Kingdom, he would recommend that Government
the services of a visiting urologist. In the meantime I recommended
that the applicant be removed forthwith to Makoanyane
Hospital for further medical examination and, if necessary,
hospitalisation under custody.
on 26th June, 1992. Thereafter the applicant was examined at the
hospital at Makoanyane Barracks and subsequently again
Elizabeth II Hospital in Maseru. There is now before the Court a
medical certificate from a Surgeon at that Hospital to
that the applicant suffers from a stricture of the urethra, which
stricture can be removed under anaesthetic. The applicant
consented to such treatment and I am satisfied that he is receiving
full and compassionate medical treatment. Under the circumstances
cannot see that the applicant's continued detention is inhumane.
of the fact that the applicant's trial will be held soon, I do not
see that his continued detention is unreasonable nor
administration of justice will be prejudiced thereby. In all the
circumstances, for the reasons stated in the previous
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.
at Maseru This 5th Day of August, 1992.
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