Lethoana v Director of pPublic Prosecution (CRI/APN/3/2003)

Case No: 
CRI/APN/3/2003
Media Neutral Citation: 
[2003] LSHC 12
Judgment Date: 
15 January, 2003

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CRI/APN/3/2003

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU


In the matter between :


MOLUPE LETHOANA Applicant

VS

THE DIRECTOR OF PUBLIC PROSECUTION Respondent


For Applicanct : Mr Monyako

For Respondent : Mr Seithleko


JUDGEMENT


Delivered by the Honourable Mr Justice T. Monapathi on the 15th day of January 2003


This is an opposed bail application.


The Applicant has been charged with Armed Robbery. It being alleged that upon or about the 24th day of December 2002 at Snip shop in the district of Mafeteng the Accused with another did wrongfully and unlawfully assault 'M'a-Elias Masilo and by intentionally using force and violence induce submission of


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the said 'M'a-Elias the Accused did take and steal from that person in her presence out of her protection a certain amount of cash amounting to M25,026.50 being the property or in lawful possesion of 'M'a-Elias and did rob her of the same.


As I observed a strong prima facie case was made by the Crown mainly through the very admissions made by the Applicant and the facts contained in the Opposing Affidavit of Detective Trooper Paneng. One has only to look at the paragraph 5 of the Founding Affidavit of the Applicant.


On his own admission Applicant says on the day of the alleged roberry one of his friends asked him to go and buy at the Snip shop Mafeteng. He said he accompanied friends the and on arrival at the shop they found 'M'a-Elias the owner of the business. And all of a sudden one of his colleaques unbeknown to the Applicant suddenly produced the firearm and placed it on the counter demanding cash from the ownerof the shop. Fearing for her life she took out the cash and the Applicant and others took the cash and left.


The Applicant says he was not aware what happened to the firearm. The Applicant further admits that some of the money was found with him but he did not know how much money was collected. The money that was found with the


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Applicant is said to be in sum of M9,000.00 as gleaned from the affidavit of Detective Trooper Paneng. That is the first aspect.


But the most important aspect is the question of whether there were exceptional circumstances as required in terms of section 109A of the Criminal Procedure&Evidence 1981(CP&E). Mr Monyako conceded that there were no such exceptional circumstances or more particularly that such exceptional circumstances had not be stated in his papers.


I was not attracted to Mr Monyako's argument that this requirement in the CP&E as amended for showing of exceptional circumstances is unconstitutional. I consider that the concession by the Applicant about the absence of exceptional circumstances was fatal to the application. In no way, as I concluded, can the onus casting of on the Applicant necessarily result in the legislation being unconstitutional. See also the case of Matsepe & Others vs DPP CRVAPN/861/2002 - 30th October 2002.


The requirement for showing of exceptional circumstance is not unusual. One example is:


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"Where an accused is sentenced to a custodial sentence and then appeals against either sentence or conviction, an application for bail, pending determination of the appeal, may be made. Case law speaks of bail being granted in such circumstances only in exceptional circumstances". See Bail-Law and Practice, Clifford Chatterton(1986)44.


The application is therefore dismissed.


T. MONAPATHI

JUDGE