CRI\APN\455\93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MATSOSO
MOTEBANG Applicant

and

THE
DIRECTOR OF PUBLIC PROSECUTIONS Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 18th day of October.
1993

This is
an application for bail which is opposed by the respondent.

In his
founding affidavit the applicant deposes that on the 27th August,
1993 he was in the village of Ha Mphuthing. He was going
to the home
of one Sechaba Mphuthing, who is his relative. Before he reached his
destination he went into a closet at one homestead
to relieve nature.
While he was in the closet he heard a gun report. He immediately
notice blood running down his chest and realised
that he had been
shot.

When he
got out of the closet he found a group of policemen who told him that
he was under arrest. He was taken to Butha Buthe charge
office and
interrogated in connection with a robbery

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committed
at Anwary's. He denied the charge.

The
applicant avers that Mr. Mohafa, Head of C.I.D., Butha Buthe then
took hie cap and went away into town with it. When he came
back he
told the others that the lady at Anwary's had confirmed that a person
who wore an identical cap was amongst the robbers.

In his
opposing affidavit and in answer to this allegation concerning Mr.
Mohafa's conduct, D\Sgt. Sebele simply avers that he has
no knowledge
of the allegations and challenges the applicant to produce proof in
support. I do not know what Sgt. Sebele means
by this because the
applicant tells the Court what transpired. He does not deny the
applicant's allegation and Mr. Mohafa has not
filed any affidavit to
deny or confirm this allegation, I shall assume that the respondent
admits the allegation.

It seems
to me that the effect of Mr. Mohafa's conduct is to render the
subsequent identification parade at which the lady in question

positively identified the applicant, useless or of very little
evidential value. If the complainant had given the full description

of the attire of the applicant at the time of the robbery why did Mr.
Mohafa find it necessary to take the applicant's cap and
show it to
complainant in the absence of the

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applicant.
The procedure adopted by Mr. Mohafa was unfair.

In his
replying affidavit the applicant alleges that Mr. Mohafa must have
told the complainant who to choose at the subsequent identification

parade. I am of the view that the likelihood that Mr. Mohafa told the
complainant who to choose cannot be completely ruled out
in the light
of the fact that he has not filed any affidavit to explain why he
found it necessary to take the cap of a suspect
and show it to the
complainant in the absence of the applicant.

According
to the papers before me it seemds that the Crown's case against the
applicant is entired based on the identification parade
at which the
complainant identified the applicant as one of the robbers. AS I have
shown above the parade is already tainted with
an irregularity
committed by Mr. Mohafa. The Crown cannot now claim that it has a
prima facie case against the applicant.

Regarding
the identification parade the applicant alleges that those who
participated wore caps of different colours different clothes
and had
no common features. He tried to change his cap with another person
but Mr, Mohafa refused. Applicant avers that a lady
constable even
remarked that he should be allowed to do so, Mr. Mohafa refused. In
reply to this specific

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allegation
Sgt. Sebele simply says that he denies that the identification parade
was unfair to the applicant in any manner, that
all the procedure
laid down in law was followed.

In my
view the answer to the applicant's specific allegations as to what
Mr. Mohafa said at the parade, have not been answered and
remain
unchallenged.

Another
allegation by the applicant which is not denied by the respondent is
that he asked that the second round of the identification
parade
should be held because he wanted to change his position and clothes
as well as the cap. Fairness in the conduct of an identification

parade is always of paramount importance. The request by the
applicant that he should be allowed to change his position in the

second round was a legitimate one. Mr. Mohafa ought to have allowed
the applicant to change his position.

I have
dealt with the question of the identification parade at length to
show that the Crown has no prima facie case against the
applicant. In
considering the application for bail the Court is entitled to
consider the probability of a conviction. See Kork
v. R. 1927 N.P.D.
267.

Another
flaw in the respondent's case is that the whole case is

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based on
inadmissible hearsay. D\Sgt. Sebele's evidence is to the effect that
he was one of the police officers who attempted to
give chase to the
get-away vehicle used by the robbers. Because of the very high speed
at which the robber's vehicle was travelling,
the police officers
lost it. In the meantime they contacted Leribe police by radio and
asked them to stop that vehicle. The Leribe
police apparently
rendered their assistance and managed to arrest the applicant and
shot dead one of the robbers. Two of the robbers
escaped and crossed
the river into the Republic of South Africa.

D\Sgt.
Sebele was not there when all these things happened. He was
apparently given a report by the Leribe police as to what happened.

His evidence is hearsay. He cannot swear that the applicant got out
of the robber's car and ran away. He cannot swear that the
applicant
was wearing an overall when he ran away and entered into a closet;
and that when he came out of the closet he was no
longer wearing the
overall.

What is
clear from the papers before Court is that only the Leribe police can
depose to the facts relating to the arrest of the
applicant and all
the surrounding circumstances leading to the stopping of the robber's
vehicle and the exchange of fire that followed
and led to the killing
of one of the robbers.

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The
affidavit of D\Sgt. Khobotlo does not carry the Crown case any
further because he avers that he associates himself with each
and
every averment in paragraphs 6 to 18 of D\Sgt. Sebele's affidavit as
if specifically deposed to by him.

Trp.
Khobotlo does not say that he was one of the Leribe police officers
who arrested the applicant. He does not say that he made
a report to
D\Sgt. Sebele. There is no way hearsay evidence can be confirmed by a
person who does not say how he knows the alleged
facts.

I have
come to the conclusion that there is no admissible evidence linking
the applicant with the crime charged except the identification
parade
which is also tainted with irregularities.

In the
result the application for bail is granted on the following
conditions.

1. The
   Applicant shall pay a cash deposit of M500.

   
   

2. He
   shall find two sureties in the sum of M500 each,

   
   

3. He
   shall surrender his passport to Leribe police.

   
   

4. He
   shall report himself to the police at Leribe police station every
   Friday between the hours of 6a.m. and 12noon.

   
   

5. He
   shall not tamper with Crown witnesses or hamper

   
   

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police
investigations in any way.

J.L
KHEOLA

JUDGE

18th
October, 1993.

For
Applicant - Mr. Teele

For
Respondent - Mr. Qhomane.