CRI/APN/117/2000

IN THE HIGH COURT OF LESOTHO

In the matter between:-

SALLA MOKHESENG APPLICANT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered by the Honourable Mrs. Justice K.J. Guni on
the 20th day of March 2000

This applicant wishes to be admitted to bail pending
trial. He is presently held in the Maseru Central Prison awaiting
trial on a
charge of murder. Admission to bail for anyone accused of
murder, which undoubtedly, is one of the most serious offences in
this
Kingdom, is a routine process. Dozens of a applications for bail
pass, unopposed, through these courts every week. The right to
personal
liberty is guaranteed and protected as provided by the
supreme law of this land. [Chapter 11, Section 6: (1993) CONSTITUTION
OF LESOTHO]
The courts,

2 pursuant to the constitutional provisions cited above,
admit numerous applicants to bail at all times. It is in very
exceptional
circumstances where an accused person is refused bail. It
did not come as a surprise to me when during the perusal of these
papers
filed of record in this application, it emerged that this
applicant allegedly committed this crime of murder while on bail on
another
charge of the crime of murder - CR 95/95. Within the space of
five years or so he has allegedly committed two murders.

It appears that this applicant was arrested and charged
with the crime of murder in CR 95/95. He applied for and was released
on bail.
He has now been arrested again and has been charged with the
crime of murder CR 11/2000. I am unhappy with regard to insufficiency
of the facts put before this court. But nevertheless I have to come
to a conclusion.

Bail applications are all the time hurriedly prepared.
Most important and relevant facts are inadvertently or deliberately
left out.
The response to such application is also required to be
provided forthwith without giving the police who are involved in the
investigations
of the crime, for which the applicant has been
arrested, enough time to research the issues raised and those related
to them, in
order to give a complete picture of what sort of a case
is under consideration.

3 As a result of having before me half truths of scanty
facts, invariably I have to make a decision without being properly
informed.
Applicant withheld material relevant facts relating to his
previous conduct. Respondent and those supporting the opposition to
the
granting of bail to this applicant, filed affidavits which raise
those issues left out by this applicant. In an attempt to deal with
the issues raised by respondent's affidavit in his replying
affidavit, this applicant became a respondent - now answering charges
levelled against him in the opposing affidavit, with total disregard
of his Founding affidavit. The result is an untidy patch work
which
fails to show clearly the precise case of this applicant.

At the end of the passage through this maze , the haze
picture which emerges therefrom is as follows: This accused was
arrested and
charged with murder in 1995. He applied for and was
granted bail on specified conditions. Of those conditions, the
following are
relevant for the assessment of his future conduct:

1. 
   He was ordered to attend remands as stipulated .

   
   

2. 
   He was ordered to report himself at the Police Station
   at specified
   intervals.

   
   

This applicant does not deny that he was on bail and
these were some of the conditions of his bail. He also does not deny
breaching
such conditions. He gives

4flimsy excuses which show that he does not regard the
matter with the seriousness it deserves.

The respondent has opposed the release on bail of this
accused on the ground that he is likely to abscond. The fears that
this accused
will abscond are raised in the mind of the respondent,
by the accused's previous conduct which is the factor which must be
considered
in order to determine whether or not this accused should
be trusted to make himself available to stand trial S.V. Thomhill
1998 (2)S.A.
Criminal Law Report 177.

The record of his previous conduct as indicated in his
own averments in the replying affidavit, is as follows: He
discontinued attending
remands when he was "informed that the
charge sheet against which his remands were recorded is lost. He
reported at the Police
Station until the record was full of reporting
stamps when the police advised him to go and look for work until he
could be summoned
to court." These conditions of bail are made
by the court as an order of court. As such, they can only be varied
or cancelled
by the court. The ease with which this accused cancelled
them must be considered seriously. S.V. THORNHILL 1998 (1) S.A.
Criminal
Law report at page 177. The reading, of his excuses for the
breach of the bail condition, gives the impression that he feels that
he is in control

5 and has authority to vary, or cancel those conditions
as he pleased. According to him the record of reporting was full of
stamps."
He sounds fed up. He had been reporting for too long.
He feels justified to take the law in his own hands and decide enough
is enough.
He is unemployed. He appears to have no fix abode. He can
be anywhere for any length of period as shown in his founding
affidavit
that he was in his village on Christmas eve. He was at
Maseru at Ha Thamae for new year. He was in Bloemfontein in the
Republic of
South Africa until his arrest.

The public prosecutor and police man, are members of the
law enforcement agency of the crown. They know and must respect court
orders.
It is unlikely that they can instigate the breach of bail
conditions or give directives such as those allegedly given to this
accused
by them. There is, undeniably, some corruption in the justice
system. Court records do go missing: They are sold to accused persons
or destroyed, for the sole purpose of defeating the ends of justices.
As far as the Public Prosecutor is concerned, this accused
has
absconded. The Preparatory Examination which should have been held,
failed to proceed because of this accused's absence. It is
argued on
behalf of this applicant that it is not this Prosecutor who released
him. The accused was released by the prosecutor who
cannot be named
nor described. The policeman who advised this accused to go and look
for work and stop reporting himself as ordered
by the court is also

6 nameless, unidentifiable and even indescribable. These
excuses are so ridiculous, the accused must have concocted them
hurriedly
when he noticed that his passed was catching up with him.
In order to strike a proper balance between his right to liberty and
the
interests of society for the proper administration of justice the
applicant's previous behaviour must be considered in the light
of his
present averments that he will stand trial S.VESSACS 1965 (2) S.A.
161. In our present application, applicant has not made
any averments
that he will stand trial. He supposedly will stand trial if ordered
by this court to do so. I need not mention the
indications made by
his previous conduct as far as respect of court order is concerned.

Because he was arrested in the Republic of South Africa
and handed over to the Lesotho Police by members of South African
Police Service,
the applicant in his founding affidavit dealt mainly
with his departure from Lesotho and the reasons for such departure.
The accused
claims that for no apparent reason he was unlawfully
attacked by some men of his village. He sought refuge in his
relatives house.
The men waited outside the house for him. He
escaped, under the cover of darkness. He ran away by night because he
feared that he
will be caught when the day breaks. According to him
he narrowly escaped death. Where does he run to? One might be
inclined to think
the man who is running for his dear life will

7 go to a refuge where his life would be secured and
culprits brought to book. There is a police station nearest his
village. The
investigating officer in this case is from the Police
Station. The applicant did not go to that Police Station. He came to
Ha Thamae
- Maseru.

There again, he did not consider running to the police
station to report the matter and seek protection. He went to his
brother in
Bloemfontein. He had passed numerous Police Stations in
Maseru when he went to report, that attack upon him by his fellow
villagers,
to his brother. He remained in Bloemfontein from 10^th
January, 2000 until he was arrested on 1^st February,
2000. He was therefore nearly a month there. This accused does not
show this court that he has any substantial ties with
any permanent
residence. He appears to live anywhere and every where for any length
of period. All the issues discussed and considered
in S.V. Acheson,
for the purpose of striking proper balance between the interests of
the society for the proper administration of
justice and the
interests of the individual right to liberty, are found missing in
this application. S.V. Acheson 1991 (2) S.A. 805
at page 808 F - G.
He does not say he has a permanent home anywhere. He says nothing
about his family and the family ties. He is
unemployed. There is just
nothing to hold him anywhere. His previous record shows that he can
very easily evade any bail condition
S.A. THORNHILL [supra]. He was
arrested while on the

8

run.

Another reason which was not directly raised by
respondent, is his likelihood to continue committing similar
offences, if released.
The accused was on bail awaiting trial on a
charge of murder when he allegedly committed this murder. There is a
need if only for
the protection of the society to keep this accused
in custody in order to stop him from committing further murders.

It is an aggravation against release on bail for any
accused who is likely to commit similar offences while on bail. This
is a proper
case to invoke the provision of section 6(e) Constitution
of Lesotho 1993. Bail is refused.

K.GUNI JUDGE

20^th March 2000

For Applicant: Mr Mpopo

For
Respondent: Ms Dlangamandla