CRI/APN/323/90

IN THE HIGH COURT OF LESOTHO

In the Application of :

TEBELLO THABO TLEBERE Applicant

V
R E X Respondent

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
31st day of October, 1990.

The applicant seeks to be admitted to bail by this Court
on conditions that it may deem suitable.

The charge sheet Annexure "A" sets out that
the

applicant is facing a charge of armed robbery committed
around 22nd May, 1990 at Barclays Dank Mafeteng where by means of a
fire-arm
the applicant is alleged to have induced submission in
several of the Bank employees with the result that the Dank lost a
sum of
M400,000.00 stolen from those employees through use of
threats applied to subject them to violence.

It was argued on behalf of the applicant that it was
not enough to urge the Court to refuse bail on the ground that the
applicant
might interfere with crown witnesses. It was urged that
short of producing positive acts to demonstrate that the applicant
would
interfere with Crown witnesses the crown's submission that the
applicant will in

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fact do so should be rejected.

It was further argued that the crown's apprehension
based on grounds similar to the above that the applicant would
abscond should
not be entertained.

The applicant's counsel submitted further that gravity
of the offence alleged to have been committed by the applicant is not
a complete
ground for refusal to admit him to bail.

Relying on CRI/APN/151/86 Moholisa & Another vs
Rex (unreported) wherein S. vs Bennet 1976(3) 65 2 at
655-6 and R. vs Kok 1922 N P D 267 at 269 were cited with
approval for the proposition that

"reasonable possibility to abscond consists in
evidence of prior attempt by the accused to

abscond".

and further that

"fear of interference with crown witnesses would be
well founded if there is proof of prior attempt to interfere"

Mr. Malebanye for the applicant further urged
that even if it can be shown that release of the applicant on bail
entails a manifest risk such risk
can be met by imposition of such
conditions as the court is at large to deem suitable and lay down.

In the words of Elyan J. in Jack Mosiane and Others
vs Regina H.C.T.L.R. 1961-62 page 25 at 27:-

"The main consideration in deciding an application

for bail .... is whether the grant of the application is
likely to prejudice the ends of justice, and whether from the
circumstances
of the case, such as the nature of the charge and the
severity of the possible sentence, an accused, if released, is likely
to appear
and stand his trial."

To my mind this is the main issue upon which the
decision to either refuse or grant the application should be based.

On the undisputed facts before me the applicant faces a

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charge of armed robbery. By all manner of means a very
serious crime regard being had to the fact that a fire­arm was
used
to effect the robbery. Apart from this it is a question of law
thus allowing for no exercise of judicial discretion that should
the
applicant be convicted at his trial for the alleged offence no less
than ten years' imprisonment shall be imposed without any
option of a
fine. This again calls for very serious consideration whether faced
with these odds in the event of a conviction the
applicant can
reasonably be expected to stand trial

I may express my reluctance and constraint to consider
the merits of or say anything which might savour of pre­judging
the case,
despite the inevitable temptation by both counsel to draw
me to that end during their respective submissions. I wish therefore
to
confine myself to deci­ding whether in the light of the
circumstances set out above the grant of release is likely to
prejudice
the ends of justice.

In the words of Elyan J. above:

"The proper approach in cases of this kind is

that though the Court must safeguard the liberty of
the
individual, it must also safeguard the adminis­
tration of
justice Though I might add

that generally the tendency is towards granting of
release."

Even though it is trite that the Attorney-General's or
the Director of Public Prosecutions' ipse dixit cannot be
substituted for the Court's discretion the words of Elyan J. above at
27 however indicate that

"If official or police statements on which
substantial reliance can be placed are before the Court to the effect
that a reasonable
possibility exists of such conduct on the part of
an accused as would influence witnesses or potential witnesses -
persons whom
the police may want to interrogate - or tamper with
them, or deny sources of information, the Court cannot very well
brush aside
such statements, and proof of any actual attempt will not
be demanded."

It should be clear then that contrary to the emphatic

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view expressed (by Vos J, in Bernette above and
based on Kok referred to earlier that proof of prior attempt
either to abscond or interfere with Crown with cases is a necessary
requirement to
furnish before court before the application is
refused the authority of Mosiane above relieves the crown of
this burden.

It is common knowledge that on account of the

regularity with which applications for bail are not
opposed by the crown one can hardly be proved wrong for asserting
that they are
obtained in a manner that is reminiscent of the fabled
Tom Tiddler's ground..

The crown has relied on the affidavits of Mr. Makhobo
a fairly experienced crown counsel and police officers who

averred that they feared that if granted bail the
applicant will either abcond or inderts with crown witnesses and3
thus defeat the
ends of justice "This" in the words of

Elynn J. with whom I fully asociate myself,

"I need scarcely emphasise, is not that the Court
i can surrender its function to the represantatives or the Crown.
But that
whon such statements as I have indi cated are before a Court
in applications of this kind they cannot be brushed aside."

This view has a backing in the statement expressed in
Makalo Moletsane vs Rex 1994-25 L.L.R. at 274 that

"the court relies upon the police and counsel for
the crown not to make statement without a full sense of

responsibility"

White on the one hand drinks C.J.is McCarthy vs Rex
1906 T S 657 at 659 said;

(The Court) is alleged that an accused that an accused
person should be allowed bail if it is clear that the interests of
justice
will not be prejudiced thereby, more particularly if it
thinks upon the facts before it that he will appear to attend his
trial
in due course ..."

Miller J. on the other hand in S. vs Fourie 1973(1) at
101 pointed nut that:

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"It is a fundamental requirement of the proper
administration of justice that an accused person stand trial and if
there is any
cognizable indi­cation that he will not stand trial
if released from custody, the court will serve the needs of justice
by refusing
to grant hail, even at the expense of of the liberty of
the accused and despite the pre­sumption of innocence."

I have in Moholisa (unreported) above at page 6
expressed my perplexity in fathoming the meaning of cognizable
indication. However the point I sought
to highlight in citing Fourie
above is that even at the expense of the liberty of the subject and
despite the presumption of innocence if proper considerations
have
been established that proper administration of justice will abort if
hail is granted then it is only logical that it he refused.

The final conclusion I have corns to is that having
considered the material placed before me and the arguments advanced
in support
of the respective contentions the ends of justice would he
frustrated if the applicant were to be released on bail.
Consequently
the application is refused.

J U D G E.
31st October, 1990.

For Applicant : Mr. Nathane.
For Crown :
No appearance.