CRI/APN/386/05

IN THE
HIGH COURT OF LESOTHO

In the
matter between

TSOLO
MOROLONG APPLICANT

AND

DIRECTOR
OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G. N. Mofolo on the 19th day of
September, 2005

The
applicant has approached this Court seeking to be liberated on bail.

Bail is
opposed. In opposing bail application Tpr. Tutuoane has at paragraphs
7 and 8 contended that in the armed robbery applicant
used a gun "to
shoot complainant's wife and the gun was found in applicant's
possession." At paragraph 15 Tpr. Tutuoane
has also shown that
the crime falls within the amended Criminal Procedure and Evidence
Act, 1981 vide Act No. 10/2002 section 109
A (1) (iii).

In
CRI/APN/406/05 I dealt extensively with the above amendment to the
Criminal Procedure and Evidence Act, 1981 saying that the
amendment
puts paid to an accused person release on bail unless he is able to
adduce evidence that exceptional circumstances exist
warranting his
release on bail pending his trial. The legislation has not said how
the applicant is to move the Court for his release
but there can be
no doubt if by any means an applicant is able to adduce such evidence
the Court would be able to come to his assistance.

In
CRI/APN/406/05 although this Court has refused the granting of bail,
the Court has done so because the applicant has failed to
adduce
evidence of exceptional circumstances. However, since it does not
seem that the applicant is covered by section (c) (i)
and (ii)of the
amendment, the Court has noted that applicant is at large to re-apply
if he can adduce such existence of exceptional
circumstances.

In the
instance application Tpr. Tutuoane has deposed that "the gun was
used to shoot complainant's wife" and in any event
the gun with
rubbed off serial number was found in applicant's possession.

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Regrettably,
Tpr. Tutuoane's affidavit smacks in many respects of hearsay evidence
and I see no reason why investigating officers
or crown counsel is
unable to obtain evidence from victims of the crime or where
necessary, ballistic examiners themselves instead
of alluding to
their evidence. However, having regard to the circumstances of this
case and its seriousness, this Court is averse
and disinclined to
grant bail particularly because the applicant has failed to prove
that exceptional circumstances exist entitling
him to bail pending
his trial.

G.N.
MOFOLO

JUDGE

For the
applicant: Mr. Ratau

For the
Crown: Ms. Ncgobo

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