IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CRI/APN/215/2011
In the matter between:
NTHURA CHAOLANA 1st Petitioner
PARAMENTE CHAOLANA 2nd Petitioner
MATJOBA CHAOLANA 3rd Petitioner
And
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
JUDGEMENT
Delivered by the Hon. Mr. Justice T. E. Monapathi
On the 13th Day of June 2011
1. I have already allowed this application on the 16th May
2011. My reasons now follow.
2. This is an application brought by the Petitioners (Applicants) for admission to bail on conditions stated in the notice of motion. These Petitioners are charged with the crime of attempted murder of their own mother.
3. It is alleged that the Petitioners attached their mother who, as a result, sustained several serious injuries on her body. This attack occurred in the presence of the Petitioners’ younger brother and his wife, who accordingly ran away in fear. Petitioners resented an ongoing love affair between their mother and one Ralijo, a fellow villager, who had openly carried on the affair and nonchalantly interfered with property and affairs of the family. The gentleman was very young and of “our own age” as Petitioners contended.
4. The prosecution has opposed this bail for the following reasons: That there was a fear that if released on bail, Petitioners will interfere with Crown witnesses. This is based on the fact that when the Petitioners were in court to attend their remands, they told the complainant that if are going to prison, when they come back they are going to kill her. It is also the Crown’s case that when the complainant was hiding at her eldest son’s place, she saw one of the Petitioners’ cars around or near that place as if they were looking for something. In a nutshell, the Crown’s fear is that if the Petitioners are released on bail, there is a high likelihood that they will interfere with their witnesses.
5. Secondly, that if the Applicants are released there is a great possibility that they will commit further crimes.
6. Applicants are denying all these allegations made against them. Their Counsel has agreed that the affair between the complainant has started way back as 2005 and if they had any intention to kill her, they could have done so a long time ago. It was argued further that even after the incident the Petitioners were admitted to bail and they have never attempted to do anything to the Crown witnesses who may have been considered as being interfered with. They argued that it was not true that on the day of the remand the Petitioners told their mother that they were going to kill her because if it was so, the Complainant ought to have told the police right away or complained instantly.
7. This court, in its discretion, has decided to release the Applicants on bail because I realized that although the assault itself was not denied it will not be in interest of justice to refuse the Applicants bail. By looking at all facts placed before this court, the court has found a case of interfering with witnesses was not that convincing and that if the Applicants are released on bail they will not jeopardize or undermine the administration of justice nor public confidence in our criminal justice system.
8. In my view, the Crown has failed to demonstrate as to how the Applicants will interfere with Crown witnesses. As correctly submitted by Counsel for Applicants, the Applicants were already released on bail and during this time nothing has happened and the Crown does not deny that. This was so even at the time when accused appeared before the Magistrate for remands. It is not well demonstrated or proved that the Petitioners have uttered those words. Indeed police ought to have been told of such words or bad remarks at that time.
9. In deciding whether to refuse the accused on bail or not the court must weigh the interests of justice against the rights of an accused as to his personal liberty and in particular the prejudice such an accused will suffer in bail if refused. According to Steytler, Constitutional Criminal Procedure 1998 at page 143 one has to apply a proportionality test; the likely harm must be weighed against the deprivation of liberty.
10. This court made this order for the release of the Applicants on bail, subject to conditions which in its opinion were fair and stringent enough. The conditions are as follows:
a) Petitioners (Applicants) attend trial;
b) They should not interfere with Crown witnesses;
c) They attend remands at Roma Police Station every last Friday of the month between 8.00 a.m. and 17.00hrs;
d) They refrain from visiting their home pending finalization of the main case;
e) That each pays a bail deposit of M500.00 except for the 2nd Petitioner who should pay M300.00.
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T. Monapathi
Judge
For Applicants : Mr. Metsing
For crown : Miss Mokitimi
Noted by Miss Ramphalile
