CRI/APN/5/84

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

BERNARD
CHEMANE MAHASE Applicant

v

DIRECTOR
OF PUBLIC PROSECUTIONS Respondent

JUDGMENT

Delivered
by the Hon. Acting Judge Mr. Justice J.L. Kheola on the 13th day of
March, 1984

This is
an application for ball pending the holding of a preparatory
examination in which the applicant shall be facing a charge
of double
murder committed in the course of a robbery. In an application of
this kind the onus of proof is on the applicant to
prove on a balance
of probabilities that his release on ball will not prejudice the
interests of justice.

The
applicant has filed an affidavit in which he says he shall not
interfere with Crown witnesses, that he shall attend Court either
in
the conduct of a preparatory examination or for trial and he has also
undertaken to comply with any conditions the Court may
impose.

This
application is strongly opposed by the Director of Public
Prosecutions who has filed an affidavit in which he says that he
has
information that the applicant, if released on ball will interfere
with witnesses. He furthermore believes that even if released
subject
to

2

conditions
not to interfere with Crown witnesses the gravity of the charge will
certainly motivate the applicant to contact these
witnesses either
directly or indirectly so as to influence them not to testify.

His
second fear is that in his view the likelihood of conviction is very
great and this factor could influence the applicant to
abscond in
violation of any ball conditions imposed by the Court.

The
investigation officer, Sgt, Khosi Justinus Mara has also filed an
opposing affidavit in which he says that his further investigations

had revealed that it would be unsafe and inappropriate to grant bail
to the applicant because he is likely to abscond to the Republic
of
South

Africa
like his other companions who are being sought by the police. Further
information revealed that the applicant la a wanted
person in
connection with various robberies committed in and around Maseru.

The third
ground advanced by Sgt. Mara is that the gun used in the commission
of the double murder has not been found.

The
applicant has filed a replying affidavit in which he denies that he
is likely to abscond to the Republic of South Africa and
says that he
does not know who his aforesaid companions are who are said to have
absconded to the Republic of South Africa. If
their names had been
disclosed he could be in a position to reply to respondent's
allegations.

He denies
that he was involved in the commission of the double murder. He
undertakes not to interfere with

3

Crown
witnesses. He says that he believes that the case for the Crown will
depend on the evidence of one witness who half-heartedly
identified
him in an identification parade. He submits that it is likely that he
may be acquitted.

I must
confess that I do not understand the approach adopted by the Crown in
opposing the grant of bail in this application. The
only thing that
the investigating

officer
has disclosed to the Court is that the applicant will abscond to the
Republic of South Africa "like his companions
who are being
sought by the police". He has decided not to disclose the names
of the so-called companions of the applicant
and deliberately made it
impossible for the applicant to refute his allegations. It was the
duty of Sgt. Mara to disclose the names
of the so-called companions
of the applicant because he knew very well that the applicant would
file a replying affidavit and he
must have known that the Court would
also

expect
him to place before it evidence that would enable it to come to a
fair decision. In his replying affidavit the applicant
says that he
has no knowledge of the so-called companions of his and that if their
names had been disclosed he would reply. Miss
Moruthoane (for the
Crown) argued this application before me after she had seen the
replying affidavit of the applicant but she
still decided not to
reveal who the companions of the applicant were.

I come to
the conclusion that the Crown has failed to prove the existence and
whereabouts of the companions.

4

The
second ground raised by Sgt. Mara is that the applicant is wanted by
the police in connection with a series of robberies committed
in and
around Maseru. In my view this is entirely irrelevant and I see no
reason why it was mentioned in the affidavit. If the
Crown has
sufficient evidence that the applicant was involved in those
robberies they shall act as soon as the applicant is formally
charged
and brought before a Court of law for remand.

The third
ground raised by the investigating officer is that the gun used in
the double murder has not been recovered. He has not
shown how the
detention of the applicant is going to help in the search of the
weapon used in the robbery. The applicant has been
in prison since
the 9th November, 1983 - a period of about 4 months -but the police
have made no headway to recover the gun. I
do not think that any
further detention of the applicant

is going
to help them. (See Jessy K. Ramakatane v Rex CRI/APN/40/79 dated the
27th September, 1979 unreported).

I now
come to the opposition by the Director of Public Prosecutions. It has
been pointed out in a number of cases that the Court
must be careful
not lightly to override the opinion of the Director of Public
Prosecutions (see a resume of these cases in Jessy
K. Ramakatane v
Rex, supra). The apprehension expressed by the learned Director of
Public Prosecutions is that because of the gravity
of

5

the
offence the applicant is likely to abscond and also to tamper with
Crown witnesses. I must point out that in numerous cases
before this
Court where people were facing murder charges applications for ball
were granted because the Court has the power to
impose certain
conditions which tend to make it difficult for the accused person to
abscond or tamper with witnesses e.g. imposition
of a substantial
amount deposit, the surrender of travel documents and daily reports
at the Charge Office.

The
Director of Public Prosecutions alleges that there is a great
likelihood of conviction in this case. It may be that the evidence
in
the police docket before the Director of Public Prosecutions shows
that the likelihood of conviction is substantial but the
Crown has
decided not to disclose any evidence on which they base their belief
that the likelihood of conviction is substantial.
The Court is in
complete darkness as to what kind of evidence the Crown has against
the applicant. On the other hand the applicant
has disclosed that as
far as he can see the Crown's case is going to be based on the
evidence of a single witness who half-heartedly
identified him in an
identification parade. This allegation by the applicant was not
refuted by the Crown. In considering the application
I have to look
at the circumstances of the case to see whether the applicant
expects, or ought to expect conviction. On the evidence
disclosed by
the applicant to the Court it is clear that he does not expect
conviction and for that reason it is unlikely that
he will abscond or
tamper with Crown witnesses.

6

I must
emphasise that an application for bail is not a trial in which the
Crown is expected to put before the Court all the evidence
it has
against the accused person. The Crown is expected to give a summary
of the evidence it has in the police docket as a basis
on which the
Court can base its decision. (See Leibman v Attorney-General 1950 (I)
S.A. 607). In the present case there is practically
no evidence on
which the Court is expected to decide whether there is a substantial
likelihood of conviction.

After
thoroughly considering the affidavits of the Director of Public
Prosecutions and the investigating officer I feel that not
enough
evidence has been disclosed to the Court in order to establish a
reasonable likelihood that the interests of justice are
going to be
prejudiced if the applicant is released on bail.

The
application is granted on the following conditions

1. The
   applicant shall deposit with the Registrar the sum of R200;

   
   

2. He
   shall report himself at the Maseru Central Charge Office every day
   between the hours of 8 a.m. and 1 p.m.; and

   
   

3. He
   shall not tamper with Crown witnesses.

   
   

ACTING
JUDGE

13th
March, 1984

For the
Applicant : Mr. Matsau

For the
Respondent: Miss Moruthoane