CRI/APN/186/90
CRI/APN/187/S0

IN THE HIGH COURT OF LESOTHO
In the
matter between:-

KHANO NTENE Applicant

MPALI-PALI LEROTHOLI Applicant

and

R E X

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola
on the 12th day of July, 1990

This is an application for bail made by the applicants.
They have filed affidavits in which they depose that they are
prepared to
stand trial. They allege that they know nothing about the
robbery with which they are charged. The application is opposed by
the
learned Director of Public Prosecutions on the grounds that there
is a likelihood that the applicants will interfere with Crown
witnesses
who are accomplices. Secondly, that investigations are not
yet complete. Thirdly, that there is a likelihood that the applicants
will abscond regard being had to the gravity of the offence with
which they are charged.

At the hearing of this application, Mr. Mokhobo, Crown
Counsel, virtually abandoned the first two grounds because there was
altogether
no evidence why the Crown alleged that it was

/2....

-2-

likely that the applicants would interfere with Crown
witnesses. The offence with which the applicants are charged was
committed on
the 19th September, 1989 and the applicants were
arrested in May, 1990. There was no evidence that during that long
period before
they were arrested they ever attempted to threaten or
to influence witnesses in any way.

Regarding the allegation that the investigations. were
not yet complete, Mr. Nathane, Counsel for the applicants. pointed
out that
it is trite law that the liberty of a subject cannot be
impaired simply because the police are not through with their
investigations.
He referred to the case of S. v. Bennett, 1976 (3)
S.A. 652 at p. 655 where Vos, J. said:

"In my view the State cannot merely arrest in order
to complete the investigations. There must be a reasonable
possibility that
the accused will interfere with the investigations."

Mr. Mokhobo submitted that because of the gravity of the
offence and the severe punishment the applicants are likely to
abscond. I
agree that in this country robbery has become a very
serious offence because a minimum sentence of ten years' imprisonment
is now
prescribed by law. It has become almost as serious as murder
with extenuating circumstances because in the latter people are often
sentenced to imprisonment for a period of less than ten years.

In Kok v. Rex, 1927 N.P.D. 267 at p. 269 Tatham, J.
said:-

/3

-3-

"As was said in In re Robinson, 23 L.J. Q.B., 286,
the test to govern the discretion of the Court is the probability of
the
prisoner's appearing to take his trial, and in applying that test
the Court will not look to the character or behaviour of the prisoner
at any particular time, but will be guided by the nature of the crime
charged, the severity of the punishment which may be imposed,
and the
probability of a conviction."

Again in Ali Ahmed v. Atterney-General, 1921 T.P.D. 461
the headnote reads as follows:

"Section 109 of Act 31 of 1917 (similar to our
section 109 of the Criminal Procedure and Evidence Act 1981) gives
the Supreme
Court jurisdiction to admit any accused to ball at any
time. An accused charged with rape applied for bail before the
preparatory
examination had been commenced. The police authorities
and the Attorney-General were opposed to the granting of bail on the
grounds,
inter alia, that it was not certain that the accused would
stand his trial, that the accused was a man of means, which made his
chances
of escape the easier, and that as the penalty might possibly
be death, no extra­dition could be obtained if the accused
reached
Portu­guese territory. Held, that under the
circumstances, bail should be refused."

In the instant case I have already agreed with the Crown
that robbery is a very serious offence. The next question which I
have to
consider is the probability of a conviction. Because no
preparatory examination has been held and I have no record of

/4

-4-

the statements of witnesses. This makes my task very
diffi­cult because I shall have to rely on what the
representative of the
D.P.P. says about the kind of evidence they
have. In. his opposing affidavit Mr. Sakoane Peter Sakoane deposes
that he is a Crown
Counsel and as such a representative of the Crown
in criminal matters. He confirms that the Crown has accomplice
witnesses and that
they are confident with that evidence the
applicants will be convicted. I shall assume for the purposes of this
application that
Mr. Sakoane has made this statement with a full
sense of responsibility and an objective assessment of the evidence
the Crown has
against the applicants.

As far as I am aware Lesotho has no extradition treaty
with the Republic of South Africa. I have often pointed out that to
cross the
river which is the border between our two countries does
not require a passport because this river can be crossed at any point
without
a boat as it has very little water during a greater part of
the year. To walk from the Central Charge Office to the border can
hardly
take one more than thirty minutes, which means that even if
the conditions on which applicants were released on ball were that
they
should surrender their passports to the police and report
themselves twice a day at the Central Charge Office, that would not
in
any way stop them from absconding if they so wished.

/5

-5-

In the circumstances I reluctantly refuse the
appli­cation. I feel that the Crown has had a very long time to
do their investigations
and for that reason if within forty (40) days
from the date of this judgment the Prosecution fails to commence the
trial the applicants
may renew this application.

J.L. KHEOLA
JUDGE

12th July. 1990.

For Applicants - Mr. Nathane
For Crown - Mr.
Mokhobo