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CRI/APN/873/2003
IN THE HIGH COURT OF LESOTHO
In the matter between:
MAKHOBALO QEFATE Applicant
V
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
For the Applicant : Mr. Petlane
For the Respondent : Miss Makoko
JUDGMENT
Delivered by the Honourable Mr. Justice T. Monapathi On the 10th Day of February 20Q4
Mr. Petlane for the Petitioner/Applicant/Accused is here present before me and he was ready to present argument. The bail application is opposed It was enrolled but there was no appearance for the Crown. Neither was there an excuse for the absence of Crown Counsel, Miss Makoko. Filed of record was the founding statement, the opposing affidavit and the replying affidavit.
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This Applicant was arrested on the 3rd December 2003. He is charged with the murder of Mosiane Samson NtSekoa. This killing allegedly occurred on the 28* November 2003.
The bail conditions suggested by the Applicant are set out in paragraph 8 of the petition. The bail application is opposed and the grounds of that opposition are stated in the opposing affidavit of No. 8354 Trooper Mohapi.
The circumstances surrounding the killing and the arrest of this Applicant have been comprehensively stated. The upshot or summary of the circumstance has been that the Applicant was attacked and shot by the Deceased at his home and he would say that he acted in legitimate self-defence when he killed the Deceased. He further contends that there will be no prejudice to the administration of justice in any manner if he is released on bail.
In paragraph 6 of the petition Applicant sets out personal circumstances which he contents render it unlikely that he would abscond. I noted that there is no attempt by the Crown to suggest that the Applicant would abscond. Neither is it suggested that he is the kind of person who would not stand trial. It is trite that that if the Applicant is likely to abscond it is a serious ground upon which his bail can be refused. It is not the attitude of the Crown that this Applicant is the kind of a man who is unlikely to stand his trial.
One of the reasons why bail would be refused against an Applicant is that the crime with which he is charged is a serious crime. That the seriousness of that crime would conduce or act as an incentive for the
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applicant to seek to escape the jurisdiction of the Court. One of the reasons against granting bail to an applicant would be that he would be likely to receive a long sentence or a heavy sentence and that likelihood of receiving a long or heavy sentence is likely to conduce him not to want to stand trial. In any event it is for the Crown to state as a matter of fact that this conditions exist.
The learned Judge Mr Justice Nomngcongo in 'MOLE KHUMALO v THE DIRECOTOR OF PUBLIC PROSECUTIONS CRI/APN/721/2002 of the 10th December 2002 treats this aspect very comprehensively. Indeed briefly he says the Crown must demonstrate that the considerations which allegedly work against grant of bail as matter of fact exist. He warns against the Court coming to a conclusion that an Applicant is unlikely to stand trial merely because the crime with which he is charged is serious.
This Applicant set out what he calls the circumstances of the arrest in paragraph .5 of his application. In paragraph 6 he sets out what he calls special circumstances that renders it unlikely that Petitioner may abscond as follows: Firstly he says the Applicant is a citizen of Lesotho. Secondly he has no passport. Thirdly he had no other home than his home in Lesotho. Fourthly he is the sole breadwinner in his family. In paragraph 7 of the application he states what he called "special circumstances" that render it that Petitioner should be released on bail. These are the circumstances which he says must persuade the Court to release the Applicant on bail.
Firstly he says he undertakes not to abscond but to stand trial. He shall not interfere with the Crown witnesses. He shall not prejudice the
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administration of justice in any manner whatsoever. Mr. Petlane wants to persuade me that these are exceptional circumstances as envisaged in CRIMINAL PROCEDURE AND EVIDENCE (Amendment) ACT No. 10/2000.
While conceding that there are requirements for exceptional circumstances in this ACT. Counsel complains that the legislature or Parliament has, through lack of wisdom, not stated guidelines for this requirement. Unhappily I refuse to accept that this is what
Parliament is enjoined to do. Unfortunately therefore it cannot be correct that, Counsel, has, explicitly set out what this exceptional
circumstances are as he should have.
Counsel cited a South African decision of STATE v DLAMINI AND OTHERS 1999(4) (SA) 623 at pages 665-669 where the Court was persuaded that that these exceptional circumstances may be ordinary circumstances which the Court deals with from day to day. I respond that nevertheless it would be unacceptable if Counsel would make no attempt to point out those circumstances. This he must set out to do because this is a requirement of that ACT. This will in the result enable the Court to judge whether those circumstances are correct or not.
This so called exceptional circumstances are not esoteric or beyond this world. For example I recognise that even directly related to this case it can be exceptional circumstance that the Accused has got a good defence if not an arguable one. This I cannot ignore to the extent that it is not suggested by the Crown that it is farfetched. I would however not accept that circumstances such as that this Accused is a citizen of Lesotho that, he
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has got no passport, that he has a family, and that he is a breadwinner are exceptional circumstances, however important those circumstances can be.
Mr Petlane's task seems to have been made easier by the absence of the Crown's challenge and by not seeking to controvert any of the circumstances set out. I do therefore recognize that there are exceptional circumstances. The Crown merely pointed out a technicality as can be observed on page 13 of the record and in "ad paragraph 5(g)" which has got three sub-paragraphs. I start with
middle sub-paragraph wherein Trooper Mohapi says:
" There is a prima facie case against the Applicant and even he does not deny that he has killed the Deceased."
But this deponent forgets that he has not denied that the Applicant was acting in self defence. It is not a strong prima facie case merely because an accused does not deny that he has killed. Having said that I recognized that it is a significant factor on the part of the Accused, in that he has got a defence. I go on to say that in my discretion I would normally decide, as I do now, in his favour, to release him on bail.
If Applicant has got a good defence there is no reason why he should be kept in prison longer than it is necessary, this is so more
especially when he ought to be considered to be innocent until he has been proven guilty. See S v ACHESON 1991(2) SA 805 at 822. It would suffice he has a good defence. That is a reason why he should not be in prison for longer than it is necessary. Not that his defence is proved to be good but on the surface it is arguable. Even if the Accused is in the end proved to be guilty the Court will probably return a less serious verdict.
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I now speak about the next sub-paragraph which records that:
" Wherefore we humbly pray that due to the seriousness of the charges bail be denied and application be dismissed."
I have already commended about this sort of attitude by the Crown in reference to the case of 'MOLE KHUMALO (supra).
I now come to the third sub-paragraph. The Crown says that the bail application of this Applicant must be refused on the basis of the meaning of section 109(e) (ii) of the CRIMINAL PROCEDURE AND EVIDENCE ACT as amended. More particularly because this Accused has admittedly been previously charged with murder, that he must not be admitted to bail because he has now been stand charged with a similar offence. On the law this is what seems to be the position. The section 109(e) (ii) reads:
Where the offence was allegedly committed while he or she was released on bail in respect of an offence referred to in the schedule............ ......... the accused person be detained in custody ......... unless the accused satisfies the court that exceptional circumstances exist which in the interest of justice permits his or her release."
Mr. Petlane raises up the following points in response: He concedes that the Applicant has previously been charged with murder but the offence or the charge occurred before the amended law. Therefore as he submits this law cannot be applied because it will be unjust. I agree with him. Even if I am wrong, I am persuaded that he has shown exceptional circumstances, which covers the Applicant under this exception. This is so in that this Applicant, has an arguable or a probably good defence on the charge. It would not be a good exercise of a judicial discretion if he is denied his liberty.
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All in all Applicant has committed a serious offence. I however agree that he must be released on bail. I would agree with all the bail conditions in paragraph 8 of the Applicant's founding affidavit except that with regard to (a) of that paragraph instead of paying M300.00 cash bail deposit he must pay M 1,000.00. Those other conditions are still to apply. That is my order.
T.Monapathi
Judge
10th February 2004
