CRJ/APN/421/05

IN THE
HIGH COURT OF LESOTHO:

In the
matter between:

HOLOMO
KANE PETITIONER

AND

DIRECTOR
OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G. N. Mofolo On the 18tb day of
October, 2005

This is
another of those long line of cases in which the petitioner seeks
bail pending his trial.

According
to the Director of Prosecutions as represented by Crown Counsel Mr.
Seitlheko. the applicant applied for bail in CRI/APN/323/2005
and
bail was refused. In refusing bail the learned Judge in the above
case intoned at p.14:

"In the circumstances of this case I have come to the conclusion
that the Crown has made out its case that if released on
bail the
petitioner is not likely to stand trial but will abscond. The events
of 10th June, 2005 have clearly indicated that the
petitioner did
abscond from the Court premises and nothing has been placed before
this Court by the petitioner to rebut this allegation."

I have
read the petitioner's application and nowhere does he attack the fact
that this Court refused bail on account of petitioner
having
absconded and the Court feared should he be released on bail there
were strong prospects that he would not stand his trial.

In
renewing his bail application, it was incumbent of petitioner to show
or rather prove on a balance of probability that he would
not abscond
and would stand his trial. In the circumstances, seems to me it was
incumbent on petitioner to confirm on oath that
he has no intention
of absconding for had he done so, this is a factor that might have
been given due weight - see S. v. Hudson,
1980 (4) SA 145 (D and
CLD).

And in S.
v. Essack, 1965 (2) SA 161 (D) at p. 162 G-H this is what Miller J.
observed:-

"Each case must be treated on its own merits, but I am inclined
to agree with Counsel for the state that, if the offence is
of the
type which experience shows usually leads to the accused affecting
his escape through familiar and well-known routes, and
it appears
moreover that his association with others who have effected their
escape when similarly charged is sufficiently intimate
to show a
probability that he would follow suit, that might be sufficient
ground for refusing bail."

I am of
the view the petitioner fits squarely into the above description.
This apart, it has been said the presumption of innocence
operates in
favour of the

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applicant
even where it is said that there is prima facie case against him, but
that if there are indications that the proper administration
of
justice and the safeguarding thereof may be defeated or frustrated if
he is allowed on bail, the Court would be fully justified
in refusing
to allow him on bail - S. v. Mhlawli and others, 1963 (3) SA 295 (C)
at p. 796.

The
petitioner was refused bail by this Court for the reason that as he
absconded there were fears that he would abscond and not
stand his
trial. The means which the applicant has employed in approaching this
Court to show he would not abscond again are not
sufficient to
persuade this Court that the petitioner would not abscond.

Consequently,
this bail is refused.

G.N
MOFOLO

JUDGE

For the
Applicant: Mr. Molapo

For the
Crown: Mr. Seitlheko

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