CRI/APN/258/85
IN THE HIGH COURT OF LESOTHO
In the Application of :
MAMPHO MOSOANG AND 18 OTHERS Applicants
REX Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice J.L. Kheola on the 18th day of December, 1985.
This is an application for bail which is strongly opposed by the Director of Public Prosecutions. The applicants are charged with the offence of contravening section 7 of the Internal Security (General) Act of 1984. It is alleged that during the period the 1st day of September, 1985 and the 7th day of October, 1985 and at or near Maseru Township in the district of Maseru, the said accused, acting in concert did one, or other or all of them and other conspirators and with subversive intention, commit one or other or all of the following hostile acts!
Knowingly supported, lent assistance to certain members of the Lesotho Liberation Army, an organization declared unlawful under Section 6 of the 1982 Internal Security (General) Act;
Possessed certain arms and ammunitions;
Possessed certain propaganda magazines titled LIKHOHLONG (LLA).
Wrote in certain diaries certain plans, transactions and itineraries of subversion;
Death - Listed certain Ministers of Government and certain public officials.
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In their affidavits the applicants aver that they were arrested in October this year and have since been detained and interrogated about their alleged involvement in subversive activities. They categorically deny that they ever assisted members of the Lesotho Liberation Army in any way. They aver that they have had nothing to do with the L.L.A. and are determined to stand trial. I do not propose to deal with each of the eighteen (18) affidavits filed by the applicants because the general averments are the same. However, there are some applicants who deserve special attention. Michael Mqedlana (Accused 12) deposed that because of indecent assault upon him by one Makhotsa he has developed chronic insomnia, hypertension and difficult problems of appetite. As a result of these problems he is under constant medical care. He also claims that in prison where he is awaiting trial he is in constant contact with one Pitso Makhotsa who is serving a term of imprisonment for the indecent assault referred to above. 'Mathabiso Mosala (Accused 2) deposed that she is hypertensive, arthritic and has epilepsy. She is constantly under medical care.
In his affidavit the Director of Public Prosecutions opposes the application on the ground that the criminal acts and activities for which the applicants are charged are of a serious and treasonable nature in relation to the security of the State. He further avers that the information in the possession of the police indicates that each applicant actively worked very closely with the L.L.A., a banned political organisation, and that he has credible information these subversive activities of L.L.A. are being directed and carried out from the Republic of South Africa, a country with which Lesotho has no extradition treaty. He further avers that he has good reason to believe that if the applicants are granted bail even conditionally, there is very strong likelihood that the applicants may easily cross over the border to the said Republic of South Africa and this will seriously jeopardise the ends of justice.
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The other opposing affidavit has been made by one Nathnael Pholo Ntoi. He deposes that he is the investigating officer of this case and that through his investigations he found that the applicants had planned, with subversive intention, to kill some ministers and some civil servants holding the key positions. There was also a plan to blow up the eletricity trnsformers as well as the petrol stations. He avers that it also came to his knowledge that the ringleaders in this case are members of L.L.A. He has information that the base of the ringleaders is in the Republic of South Africa. It is his fear that if the applicants are released on bail, they will flee to the Republic of South Africa where their friends are.
Second Lt. Ntoi further avers that seven of the people who are involved in this case have not been arrested and it is his fear that they must have fled to the Republic of South Africa. Another opposing affidavit has been signed by one Captain Setloboko who arrested some of the applicants. His affidavit is couched in the same words as that of Second Lt. Ntoi. His fear that the applicants are most likely not to stand trial is based on the same grounds as those of Ntoi.
It is trite law that in considering the allegation that the accused is likely to abscond, the Court is guided by the nature of the crime charged, the severity of the punishment which may be imposed and the probability of a conviction (Kok v. R, 1927 N.P.D. 267; Alli Ahmed v. Attorney-General, 1921 T.P.D. 461; Shadrack Ndumo v. The Crown, CRI/APN/ 87/82 dated the 24th January, 1983 (unreported). It was contended by the Defence attorneys that the offence with which the applicants are charged is not a serious offence because it is even triable in the magistrate's court- They submitted that it was not as serious as murder, treason or sedition. They also pointed out that a person charged under Section 7 of the Internal Security (General) Act of 1984 cannot be sentenced to death. A person convicted of contravening Section 7 is liable to:
a fine of not less than ten thousand Maloti but not exceeding one hundred thousand Maloti; or
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to imprisonment for a term of not less than five years but not exceeding twenty years.
There is a provision in the Act that where the court finds that there are extenuating circumstances it may impose a sentence less than the minimum stipulated in the Act. If one considers the minimum sentences prescribed by the law, there can be no doubt that the Legislature regards offences under section 7 to be very serious offences. I am not aware of any other law in this country where a minimum sentence is prescribed in a statute. A minimum fine of ten thousand Maloti is extremely heavy for an ordinary Mosotho in this country. The sentence of five years' imprisonment is also fairly grave. I therefore do not agree with the defence that the offence under which the applicants are charged is not a serious one-It seems to me that if wider implications of the offence under which the applicants are charged are taken into consideration, it becomes very clear that the offence is even more serious than murder which often involves one deceased and one accused and their families and to some extent the people of the village in which the murder has been committed. If the applicants had succeeded in their plan, the idea was to kill Government Ministers and Government officials and to destroy the economy of this country by blowing up eletricity installations and petrol stations. This would eventually lead to chaos in the entire country. I am convinced that the offence under which the applicants are charged is
very serious because it involves the security of the state and the sentences under the Act for this kind of offence are very severe.
It is my duty to take into serious consideration the fact that the Director of Public Prosecutions is opposing this application. His opposition must be carefully considered and not be lightly discarded (see Ndumo's case, supra, at p. 4; Soola v. Director of Public Prosecutions, 1981 (2) L.L.R. 277 at p. 280). It does not mean that in any case where the Director of Public Prosecutions opposes the granting of bail, the
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court must invariably agree with him; his opposition is a factor which must be taken into account. We trust the D.P.P. and expect him to express his views only in cases where he has credible information that the interests of justice are likely to be jeopardised. We also believe that his training as a lawyer makes him a person primarily interested in the liberty of the subject. In the instant case the O.P.P. avers that he has evidence that the applicants worked very closely with the L.L.A. and that these subversive activities of L.L.A. are being directed and carried out from the Republic of South Africa. There is also evidence by the investigating officers that some other people who are involved in this crime have vanished into thin air and the suspicion is that they are in the Republic of South Africa. Even if I were to impose very strict conditions such as that the applicants must report at the charge office every four hours, they would still have the chance to cross over to the Republic of South Africa as it does not take more than thirty-minute-walk from the Maseru Charge office to the border. Because it is alleged that the L.L.A. is operating from the Republic of South Africa, I share with the D.P.P. the fear that some of the accused may choose to leave this country and to join the so called their friends in that country other than face a fine of R10,000-00 or five years imprisonment
I have also taken into consideration the fact that this country has no extradition treaty with the Republic of South Africa. Even if such a treaty existed, it would still be useless in the present case because the offence with which the accused are charged is said to be a politically motivated one. Most extradition treaties have a provision that political offences shall not be included. This means that if the accused were to decide to flee to the Republic of South Africa, they would be out of the reach of the arm of the law even if it were known where they lived in the Republic of South Africa.
Regarding the two applicants who are suffering from some chronic illness the prison authorities must make arrangements for them
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to be medically examined and to get proper treatment. They must also try as far as it is reasonably possible not to bring accused 12 into direct contact with Pitso Makhotsa,
In balancing the reasonable requirements of the State with the requirements of our law as to the liberty of the subject, I have come to the conclusion that the applications by all the accused must be refused.
The applications are refused.
J.L. KHEOLA
JUDGE.
18th December, 1985.
For Applicants : Mr. Sooknanan and Mr. Monaphathi and Mr. Maqutu.
For Respondent : Mr. Karaalanathan.
