CRI/A/47/93

IN THE
HIGH COURT OP LESOTHO

In the
matter between:

SIDNEY
NGWENYAMA APPELLANT

V

REX
RESPONDENT

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 17th
day of November, 1993.

For the
Appellant : Mr. T. Khauoe

For the
Respondent : Mr. N. Qhomane, Principal Crown Counsel

JUDGMENT

Cases
referred to:

(1) Sehlabaka & Ors. v D.P.P. CRI/APN/321 5 330/91, Unreported.

The
appellant was charged with two co-accused on two counts of theft of a
motor vehicle, alternatively, to each count, with an offence
under
section 344 of the Criminal Procedure & Evidence Act, 1981.

The
accuseds appeared before the Subordinate Court of the Senior Resident
Magistrate for Maseru, where all three applied for bail
before trial.
Bail was granted to one co-accused i.e. the second accused, but the
appellant's application and that of

2

the other
co-accused, the first accused, was refused. The appellant (who is the
third accused) appeals against that refusal.

The
appellant and his co-accused were represented by Counsel in the court
below. Counsel made application from the Bar for bail.
He conceded
that the appellant, and the first accused were non-citizens (they
reside in the Republic of South Africa) but nonetheless
suggested
bail on restrictive conditions.

The
public prosecutor indicated she had no objection to bail for the
second accused (he was granted bail in the amount of M600 cash)
but
that

"We have very strong objection in respect (of the 1st accused
and 3rd accused) and can lead evidence. The 3rd accused is facing

charge at Leribe CR531/93. Both are, i.e. (accused no.) 1 and 3
non-citizen of Lesotho. If released we shall not have them back
as we
have no extradition between Lesotho and the Republic of South
Africa."

The case
was then adjourned "so that Crown may lead their objection".
A number of remands took place thereafter, without
any hearing in the
matter of bail. Ultimately on 5th November, 1993 the record reads:

3

"Remanded to 16/11/93. Bail not granted to accused 1 and 3 as
they are non-citizens."

The Crown
had indicated its opposition to bail, to the extent that it was
prepared to lead evidence. Indeed,the record indicates
that
adjournment was granted so as to give the Crown an opportunity to
call such evidence. None was called, so the question arose
as to
whether or not the Crown had established the basis of its opposition.

While the
onus is upon the accused in a bail application (in the least there is
an evidential burden upon him, see Sehlabaka &
Ors. v DPP (1)),
nonetheless the presumption of innocence operates in his favour and
it seems to me that to rebut that presumption,
even if on a prima
facie basis, the Crown must adduce some evidence. That was not done
in the present case and the learned Senior
Resident Magistrate was
left with nothing more than the Crown's opposition in the matter, and
also the aspect of the appellants'
citizenship.

As to the
Crown's opposition, it must weigh heavily with the Court. But as I
pointed out in Sehlabaka at p.49, it is trite that
the ipse dixit of
the Director of Public Prosecutions cannot replace the Court's
discretion. For that matter, as indicated in Sehlabaka
at pp.50/51,
the Court may decline to grant bail even where there is no opposition
from the Crown: the Court has a duty as well
as a discretion.

4

In the
present case, Mr. Khauoe submits that in the absence of any evidence
before the Court, the aspect of non-citizenship was
not per se a
sufficient ground for refusal of bail. I am inclined to agree. If
citizenship was the sole criterion, a non-citizen
could never be
granted bail. While clearly the aspect of non-citizenship increases
the risk of absconding, ultimately the test
is whether, in all the
circumstances, it is likely that if granted bail the applicant will
abscond. I find it difficult to appreciate
how the learned Senior
Resident Magistrate could, in the complete absence of any evidence,
determine that aspect.

I
consider however that the learned Senior Resident Magistrate was
faced with some procedural difficulties in the matter: the appellant

never volunteered to give or to lead evidence and the Crown did not
adhere to its virtual undertaking to do so. Applications for
bail in
the High Court, in cases of e.g. murder and armed robbery, are
invariably made on notice of motion supported by affidavit.
Where the
Crown opposes, answering affidavits and frequently replying
affidavits are filed. The Court has then some evidence to
guide it in
the matter. Applications for bail can nonetheless be made from the
Bar, during the course of a trial in the High Court.
In such cases,
where the Crown has no objection, bail is frequently granted. If the
Crown does oppose the application, then the
Court usually has the
depositions in the preparatory examination to guide it.

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Similarly,
if formal application for bail is made in a Subordinate Court, the
Court may rely upon the affidavits before it. Where
application is
made from the Bar however, there is no evidence before the Court to
guide it. If the Crown offers no opposition
to bail, the Court is
invariably, but not necessarily, guided by such aspect and grants the
application. Where, as in the present
case, the Crown does oppose
bail, it seems to me that that is sufficient to place a burden upon
the applicant, as well as the Crown,
a burden to give evidence in the
matter. This can be done by way of formal motion, or to save time by
viva voce evidence. When
the stage is reached therefore, in an
informal application from the Bar (or from the dock), where the Crown
indicates its opposition,
I consider that the accused or his legal
representative should be asked whether he wishes to bring a formal
application or to adduce
viva voce evidence in the matter. The
defence may decline to take either course - which may well tip the
scales against it - but
in any event, I consider that if the Crown
opposes the grant of bail, the Crown should then either file
affidavits or lead viva
voce evidence in the matter.

In the
present case, neither the applicant nor the Crown adduced evidence,
and in the circumstances I consider that it would be
unsafe to uphold
the decision of the learned Senior Resident Magistrate. The learned
Principal Crown Counsel Mr. Qhomane agrees
that the case should be
remitted to the Court below. In doing so, I am not to be taken as
discounting the fact

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that the
applicant is not a citizen of Lesotho. As I have said, that is not a
factor which per se leads to the refusal of bail,
but it is a factor
which of necessity must weigh heavily in the scale of things in
estimating the risk of absconding.

The
appeal is allowed. The order refusing bail is set aside. Further, the
case is remitted to the Court below, with the direction
that the
learned Senior Resident Magistrate call for evidence in the matter,
on the lines indicated above, and thereafter to decide
the
application on the basis of any such evidence, or indeed the absence
thereof. In the exercise of my revisional jurisdiction,
I make a
similar order in respect of the first accused in the Court below.

Delivered
at Maseru this 17th Day of November, 1993.

B.P.
CULLINAN

CHIEF
JUSTICE