CRI/APN/353/2005
IN THE HIGH COURT OF LESOTHO
In the matter between:
LEHLOHONOLO NEPO 1st APPLICANT
LETSABISA MAKAMANE 2nd APPLICANT
VS
MAHLAKENG & CO RESPONDENT
RULING
Delivered by Honourable Mrs Acting Justice M. Mahase On the 27th day of July 2005
This is an application for the release of the applicants on bail.
The applicants appeared before the Magistrate's Court in Maseru where they were remanded in custody on five counts.
In counts (1) and (2) the charge is that of attempted murder
1
In count (3) the charge is that of assault with intent to murder.
In count (4) the charge is that of assault with intent to do grievous bodily harm.
In count (5) the charge is that of assault. The complainant in the five counts is one Bokang Letele.
The particulars to the charges are spelt out clearly on the charge sheet.
The following are matters of common cause:-
Applicants and complainant are members of the Lesotho Mounted Police.
That applicants were once members of the Counter Crime Unit - (CCU)
That the applicants aire sted and detained the complainant in the police cells at the police Head quarters sometime in November 2001.
That while under the custody of the said police/applicants, the complainant was taken to Katse/Mphorosane area for purposes of
pointing out some exhibits
2
That complainant was also taken from Maseru and handed over to the Butha-buthe police by the 2nd applicant herein.
Lastly, that no criminal charge has ever been preferred against the applicant herein following that arrest of him by the applicants.
The complainant has alleged that he was inhumanly treated, humiliated and severely assaulted by the applicants all the time on a daily basis while he was in their custody. Such assault was carried out under the cover of darkness at night. He alleges that he was subjected to such non-stop torture from around 5.40pm until 5 a.m, when he would then be taken back to the police cells.
Such intolerable torture upon him was continued even when he was taken to Mphorosane Ha Makia at the Katse dam area. He alleges that this is the place where the applicants attempted to murder him.
3
Complainant alleges that from Mphorosane the applicants assaulted him all throughout in their office until on the morning of the 3rd December 2001, at 5.00 am.
He was then taken to Butha-Buthe Charge Office and they left him there in such a terrible state due to the assault upon him by the applicants herein.
He was, on the 4th December, 2001 released from custody by the Butha-Buthe police and no charges have been preferred against him to date.
He subsequently reported the matter to the Maseru Central Charge Office. He was issued with a medical form for him to see a medical doctor. His report/ case was allocated a number RCI 23/12/01.
Sadly that police docket has disappeared without trace from the Maseru Central Charge Office to date.
4
Ever since that time threats and humiliation upon him by the applicants continue unabated despite his pleas by letters to the Commissioner of Police to intervene and reprimand the applicants and others who are not parties to be present application, to stop such actions against him.
The said letters from complainant's counsel have been annexed in these papers and are marked "CC" and "DD". Complainant alleges that the applicants have continued to frustrate all efforts into the investigation of this incident.
He has extensively spelt out the circumstances/ incidences showing when, and how the applicants are frustrating any progress into the investigation of this case and also how they threaten him and his witnesses.
The medical report has revealed that among others, the complainant herein substained very serious injuries due to such assault upon him. There are as follows:
Badly damaged kidneys
He was urinating blood
He suffered a broken jaw
A broken left arm.
5
In its letter marked "EE" dated 1st March 2002, the Assistant Commissioner of Police responded to letters "CC and "DD" from complainants counsel. He says that the officer concerned "has been instructed to cease to threaten the complainant if ever he is doing it."
He promised to look further into the matter and update the office of complainants counsel about progress.
This was never to be because the office of the assistant commissioner of police crime has never carried out its promise to give a progress report to the complainants counsel.
Subsequently, complainant through his counsel filed CIV/APN/548/2004 in which the DPP was ordered to issue a nolle prosequi certificate and thereby enable the complainant or his attorneys to prosecute the alleged offences against him and the person alleged to have committed them.
6
In other words, the case is now being handled/prosecuted at the instance of a Private Prosecutor Mr T.T. Mahlakeng . This was because of the non availability of a police docket in the matter and / or statements of witnesses or affidavits and or other documentary information on which a charge is ordinarily based.
The D.P.P was obviously not in a position to decide whether or not to prosecute the case in the absence of such police docket.
The respondent, Mr Mahlakeng is opposing this application.
The Respondent was informed in the morning of the 27/07/2005 that he was to come and argue this application before this court. The matter had initially been postponed for argument to the contested roll on the 1st August, 2005.
This application previously had been postponed about four times before it was actually and finally argued before this court.
7
Mr Phoofolo argued on behalf of the applicants that in the first place, the applicants had not been brought to court under arrest. They went to court following issuance of summons being served upon them to appear in the Maseru Magistrate's Court. As such they ought not to have been incarcerated in jail.
The applicants have undertaken not to abscond, not to interfere with witnesses and investigations herein. It was argued, on behalf of and in support of their application for release on bail that the respondent has not raised a question that he had fears that if released on bail, the applicants will abscond.
He argued further that even the allegation that if released on bail the applicants will interfere with witnesses, and frustrate investigation is made by the complainant himself and not by the investigating officer as is normally the case in matters of this nature. He says that even that statement of the
8
complainant is bare as it has not been supported in anyway. It was argued further in this regard that should the applicant interfere with witnesses and investigations, then after proper procedures are followed, the applicants would then be rearrested after which inquiry is conducted to find out whether indeed the applicants, while released on bail did interfere in anyway with witnesses and investigations. Mr Phoofolo argued further that he wonders what investigations are going on in a matter which occurred some 4 (four) years ago, since 2001. He argues that the complainant is available and his medical report is in existence and as such the investigations are complete.
He stated the following as some factors which favour the applicant's release on bail
The fact that the applicants went to court on then-own after being served with summons herein. They did not go there under arrest.
There is no allegation that applicants have any previous convictions.
There has been no allegation that applicants are likely to abscond and not stand their trial.
9
Applicants are police officers who remain under the command of the commissioner of Police. Any conditions that may be imposed by this honourable court for their release on bail can be adequately policed by the police.
No date of the trial of the accused has been set.
The fact that the DPP has declined to prosecute puts much doubt to the strength of the case against applicants, and the remoteness of convictions on the charges far outweigh any reasons for keeping applicants incarcerated.
The nature and gravity of the offences that applicants are to be tried with are not so serious as to warrant applicant's continued
detention...etc.
It is the applicants' case that essentially bail is opposed on the grounds that applicants will interfere with the complainant's witnesses, investigations and will suppress the source of information. In other words, the object of the accused is to prevent them from frustrating respondent's case, and not to ensure their standing trial.
This court is not in entire agreement with Mr Phoofolo in this regard. Some of such factors, in particular factors (b) (d) (f) and (g) do not have any role to play in an application of this
nature.
10
In any case, it is not correct to say, as applicant's counsel says in (f) above that the fact that the DPP has declined to prosecute this case at the instance of the public puts much doubt to the strength of the case against the applicants. ...etc.
The DPP has clearly given his reasons for not having prosecuted this case at the public instance. That reason is that the police have frustrated his powers to do so by refusing to avail or furnish to him the police docket so that he could exercise his powers whether or not to decide to prosecute on the basis of such statements in the police docket.
He also acted pursuant to an order of the High Court in CIV/APN/548/2004 to issue a nolle prosequi certificate.
The issuance of that certificate gave complainant power to have the case against the applicants to be prosecuted privately at private
instance,
11
I note however that to date, the same reasons which pertained herein still prevail exist despite an undertaking by the assistant commissioner of police to intervene and attend to the matter. The fact that the investigations are still not carried out is a sad situation indeed. I do not see how even the private prosecutor will prosecute the case until such time that police investigation are completed.
The incarceration of the applicants has not and will not change the situation. What is clear to this court is that the commissioner of police and those immediately subordinate under him, i.e the assistant commissioner of police are not interested in the prosecution of this case for reasons best known to them.
If indeed the court were to believe the story of the complainant that the police or the applicants are the ones who have been frustrating the investigations herein, that would be a regrettable position prevailing in a democratic country. It is the duty of the police to protect all citizens alike, be they police
12
officers or ordinary members of the public. It is for the police to uphold the rule of law, but in the instant case, the very people whose duty it is to do so have defied the DPP to an extent of having frustrated the powers and right lawfully bestowed on him to prosecute criminal cases. This is a very serious breach of duty on the part of the police. Even the words of the Hon Chief Justice M. L. Lehohla in CIV//433/96 ha fallen on deaf ears. This is a very sad situation.
I also share the sentiments of the Hon Chief Justice in that case. One wonders why the investigations are and reopened and a completely new term of investigators ordered to carry out the said investigations. This is too serious a case involving police officers to have been left unattended for so many years.
Surely the commissioner of police and his assistants have more than massive muscle and power to order reinvestigation of this case and to properly remove all obstacles in their way to
13
enable the law to take its course; so that justice should prevail.
The supporting affidavit of Assistant Commissioner of Police Mr J.P. Selete raises a lot of questions and lives much to be denied in the mind of this court. I will however, not comment on it any further as it is subject-matter to be dealt with by my learned colleague the Hon Ladyship Justice Majara.
Be that as it may I sue no justifiable reasons why the applicants should not be granted bail in the light of the fact that there is no indication nor confirmation. T hat investigations are being carried out as promised some years ago.
This court is anxiously waiting to see what action the Commissioner of Police will take in this regard. Actions such as this and the inaction of his office with regard to such unlawfulness which seems to prevail in this case being to disrepute the whole of the Police Force in this country, thereby
14
eroding any confidence which the public has in the Police Force.
I accordingly grant the bail application as prayed in the following conditions:
That each applicant should pay M2000.00 bail cash deposit.
That each should act in any way whatsoever interfere until neither the complainant nor any of his relatives, would-be-witnesses and the police investigations herein.
Each should find surety in the sum of M1000.00
They should each attend remands and stand Trial.
M. MAHASE
ACTING JUDGE
For Applicants : Mr. Phoofolo
For Crown : Mr. Mahlakeng
15
