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.

Held:

1. 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;
2. 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;
3. 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;
4. 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,
5. 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.

Application to withdraw charges, section 278(3) of the Criminal Procedure & Evidence Act, murder charge, accused arraigned for two years and two months before the charges are withdrawn, constitutional rights of the accused -section 12 of the Constitution, accused ask to plead and be acquitted than withdrawal of charges

SUMMARY: Practice—criminal appeal---appeal against the decision of the magistrate court to discharge the respondents at the close of the Crown case----principles applicable when evaluating evidence at this stage restated----the respondents having been discharged on the basis that the Lesotho Revenue Authority (LRA) had usurped  the prosecutorial powers of the Director of Public Prosecutions(DPP) when it preferred charges against the respondents for contraventions of the fiscal and revenue-related  provisions of the Money Laundering Act 2008, Penal Code Act no.6 of 2010, Prevention of Corruption and Economic Offences Act no.5 of 1999.

HELD, that the court a quo erred and misdirected itself when it adjudged the LRA to have usurped the prosecutorial powers of the DPP when it preferred charges and prosecuted the respondents in respect of contraventions relating to the provisions of the above-mentioned Acts.

 

                        CRI/REV/0020/18

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU

In the Matter Between:-

SEHLOHO MPETSANE                                                                              1ST APPLICANT

MOABI SEKEITI                                                                                           2ND APPLICANT

EREMANE MOCHOANE                                                                           3RD APPLICANT

 

AND

 

THE MAGISTRATE- MR. KHOELI                                                            1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION                                                  2ND RESPONDENT

CLERK OF COURT- BOTHA- BOTHA                                                      3rd RESPONDENT

MINISTER OF POLICE                                                                                4TH RESPONDENT

LESOTHO CORRECTIONAL SERVICE                                                     5TH RESPONDENT

COMMANDER – LDF                                                                                 6TH RESPONDENT

ATTORNEY GENERAL                                                                               7TH RESPONDENT

 

___________________________________________________________________

JUDGMENT

________________________________________________________________

CORAM                                            :           HON. ACTING JUSTICE M. MOKHESI

DATE OF HEARING                        :           10 DECEMBER 2018

DATE OF JUDGMENT                    :           14 FEBRUARY 2019         

 

SUMMARY:

Practice:  Application for review of proceedings of the Magistrate Court in terms of which the applicants were convicted and sentenced for stock theft – Application launched two years after conviction and sentence – Role of the Magistrates when section 240 of the Criminal Procedure and Evidence Act 1981 is invoked.

Held:  Application for condonation should fail for being launched after a long delay.

Held further that the application should be dismissed.