A Petitioner facing a charge of contravening S. 22 (1) R/W 109 of Penal Code Act (attempted murder); approached the Court for bail mainly on the grounds that he is a citizen with vested property and family interests exclusively in the country where he is a soldier of a rank of a Major still earning a salary; did not flee the jurisdiction when he learned that he is due for arrest in relation to the charge but cooperated with Army and Police throughout; suffers from chronic lung infection and breathing problem which are aggravated by prison conditions. Though, the charge and evidence placed him at the scene at the material time and associated him with the alleged shooting, he only responded that he is ignorant about the incidence and is innocent.
- His answer to the charge and its supportive testimony is bad in law for amounting to a bare denial since it lacks necessary particulars indicative of any defence egalibi, self defence etc so that he could discharge the burden of going forward for the Crown to respond accordingly to maintain its prima facie case;
- It would not be in the interest of justice to allow him bail because of the heinous degree of the offence, bringing of the petition too soon while the community is still highly traumatized by the news about the arrest of the suspects;
- His release on bail could in the circumstances render the administration of justice to fall into disrepute and the Court should in that regard exercise its judicial discretion;
- He failed to feature an expert witness to confront evidence of a Prison Chief Officer who is a Nurse attached to a Prison clinic that they are so far competently treating his medical condition and that should there be complications, they would refer him to a hospital with advanced care and medical interventions; and,
- An affidavit filed by the DPP against the petition does not deserve any high value than those filed by the Petitioner and that there is scepticism about the constitutionality of such a notion.
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:-
MAHANYANE PHUSUMANE PETITIONER
THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
CORAM : Honourable Justice E.F.M. Makara
HEARD : 26 February, 2018
DELIVERED: 8 March 2018