Maqhama v Director of Public Prosecutions (CRI/APN/534/2003 )

Case No: 
CRI/APN/534/2003
Media Neutral Citation: 
[2003] LSHC 147
Judgment Date: 
8 December, 2003

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CRI/APN/534/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:


DANIEL MARAISA MAQHAMA Applicant

v

DIRECTOR OF PUBLIC PROSECUTIONS Respondent


For the Applicant: Miss Mayekiso

For the Crown: Mr Molokoane


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 8th day of December 2003


This is an application for bail of Rev. Daniel Maraisa Maqhama (Accused). A few days ago there was argument which followed a set of affidavits. This bail application ended up being supported by via voce evidence from two sides as I later resolved.


The law on bail applications as I understand says that bail may be refused


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on the following grounds: When the accused or applicant faces a very serious charge or charges or as we would say where there is a strong prima facie case against that accused. Secondly, where there is a fear that accused will interfere with the investigations or intimidate or interfere with potential witnesses. Thirdly, if the accused or applicant is likely to abscond. Fourthly, where there is a great or a serious probability of conviction. I was referred to this work Cases on Criminal Law and Procedure by the late Mr. Justice Mofokeng at page 248.


There are other cases from this Court which spell out that certain factors must be considered. For example that first and foremost must be considered the liberty of the subject because an accused person is innocent until he is proved guilty. When a Court investigates the question whether an accused should be released on bail one of the first or foremost concerns is the liberty of the subject.


There are bail application cases or decided cases such as Ramakatane v Rex LLR 1979(2) 531 and Soola v Director of Public Prosecutions 1981(2) LLR 277 which impress on this aspect of the liberty of the subject. On the other hand one of the primary considerations is the administration of justice. That is that the administration of justice should not be hampered by an accused being the


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released on bail. Indeed this factor is related to one or two of the other four that I have already spoken about. There is this other factor contained in or pronounced in Rex v Omar 1930 CPD 79 at page 80 where it is said:

"The prime thing to which the Court has to look is whether this bail granted to the accused is likely to stand his trial."


Indeed this was the aspect that led to the Court having to inquire into this matter by way of viva voce evidence as I did. Likewise this aspect it is related to those four factors which I have spoken about more especially the likelihood or not of the Accused absconding.


The Crown submitted that it was unlikely that the Accused would stand his trial and to that end he would stay and sojourn in South Africa away from this Court's jurisdiction. In support of this as will later be shown it was revealed to this Court that the Accused had stayed in the Republic of South Africa in order to avoid being arrested and that he intended not to subject himself to arrest or the law. He even avoided arrest when he was in Lesotho. And if I recall Crown Counsel spoke of a period close to a month when the Accused was actually doing this avoiding to be arrested by moving from place to place while in Lesotho and having been to places such as Mokhotlong and others that were mentioned. It was said this was with intention to avoid arrest.


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Another aspect is this matter of whether the Accused was possessed of a good and valid passport even if he may have had one in the past. Out of his own mouth I became convinced that he could not be possessed of a good passport. It could have expired, it could have been lost but he did not say to this Court that he had a passport that he could put forward or a passport that was usable in the ordinary way. On this aspect then the Crown sought support as an indication that Accused would be unlikely to remain in this Court's jurisdiction, suggesting, or indicating or speaking as if it could have even been that Accused travelled even without the use of a passport if ever he had one.


As I have said when I spoke about aspects which the Court considers in bail applications I referred quite emphatically to the liberty of the suspect. I repeat to say that the Court will look towards the liberty of the suspect in all bail applications pending trials. I said I underlined pending trial to indicate that considerations are not the same where the accused has already been convicted. The onus changes once an accused has been convicted.


I agreed and it is trite law to say however it is important that the Court should strike a balance between the interests of the liberty of the subject and the administration of justice on the other hand. It has to be a balance. And for this support was found from the case of Meyer v DPP 1977 LLR161 at 163.


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It has to be restated that in striking this balance a Court has to bear these factors in mind and I repeat. Firstly, it is that the factor to consider whether the accused is likely to stand his trial. Secondly whether he will interfere with State witnesses. Thirdly, whether he will commit further offences while on bail. Fourthly, whether his release will jeopardise law and order and security of the State. In other words and briefly stated a Court considers the risk of abscondment by an accused. In the case of Kok v Rex 1927 at PD 268 at 269 the Court had the following to say:


"The test to govern the decision of the Court is the probability of the prisoner appearing to stand his trial and in applying that test the Court will be directed by a nature of the crime charged, severity of the punishment which may be imposed and the probability of conviction."


And then about probability of conviction and about the severity of punishment must be considered that factor which I have already spoken which is the existence of a strong prima facie case as a condition precedent.


It was submitted by the Crown that an Applicant would flee and not stand his trial if released, regard being had to the nature of the crime he is charged with and likelihood of conviction. And the Crown had to repeat that aspect of a strong prima facie case existing at the stage where the Court was investigating or inquiring into whether the Accused should be released on bail. The Crown


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Counsel spoke very well when he indicated that the test to be applied at this stage about the aspect of prima facie case is a simple one. It is not as strong as the need to prove a case beyond a reasonable doubt. It is because at that stage where the State is investigating or inquiring into a bail application the Court does not have all available evidence.


The Court has to do make do with evidence on affidavit or evidence of a witness or two who will always avoid looking deeper into the merits of the main cases itself. This is to avoid the impression that the Court may be seen to be pre­judging the case itself. The Court therefore treads a very careful path, trying as much as possible to avoid serious aspects of evidence. To get as much as possible at the same time and wanting to make a sense from as little as possible of the evidence available to it.


With regard to the nature of a prima facie case I was referred to the case of Nthako Matsepe v Director of Public Prosecutions CRI/APN/861/2002 and most predictably I was not told who decided the case nor was I told the date when the case was decided as Counsel will always negligently do that these days out of carelessness because it is their habit these days. And predictably enough the case was referred to me Counsel did not speak about the circumstances of the case. He did not even tell about the facts and as soon as one


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comes across that one must always know that that decision must have been made by the presiding Judge who Counsel wants to please or to blackmail, for absence of a better word. Flattery may sometimes be what is on Counsel's mind. That is the tendency.


The Applicant stands charged with the crimes of murder and attempted murder. It is being said that he killed a fellow pastor a Mr. Hlasa who was well known to the Accused. He applied for bail on the standard conditions. Evidence on affidavit was disposed to by No. 7193 Police Officer Seabata Ralekaota. There was another supporting affidavit.


Briefly it says that an Applicant was arrested in Virginia in South Africa. It was suggested that he was in that place of Virginia because he had been avoiding arrest. The period at which he was away from Lesotho is estimated at three months. It is common cause that the Accused was arrested by South African police who handed him over to Lesotho police. It is common cause that he was handed over to Lesotho police. His having been arrested in South Africa is tied to this submission of his likelihood of absconding.


I ordered that there be viva voce evidence to inquire into several aspects more particularly this one of the likelihood of the Accused absconding. This


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evidence came by way of evidence from the Accused himself and that of Detective Inspector Makoae for the Crown. Clearly there were many grounds upon which this bail was being opposed. Eminently it was this question of the likelihood of the Accused absconding thereby defeating the Courts of justice.


It had been revealed in the affidavit that the Accused was the kind of person who would apply for employment in the South Africa at a certain university called the North West and on that basis it was suggested by the Crown that he would put himself in a position in which he would be unable to present himself to the jurisdiction of this Court. For that reason he would not be available for his remands nor would he stand his trial nor would he report himself to Mabote police even if that condition was granted.


I have already spoken about the aspect of the passport. One aspect that was mentioned by the Crown was this aspect of the absence of the showing of exceptional circumstances as required by the law. The Crown through the evidence of Det. Inspector Makoae laid out a very compelling summary of what the Crown's evidence will be on trial. I concluded that this amounts to a formidable prima facie case against this Accused.


This aspect of the knowledge that Pastor Hlasoa (deceased) had a lot of connected with this robbery which resulted in the murder of the Pastor. I 9 money with him which was in his possession. This aspect that Accused was actually involved in some transaction with the Pastor I thought enough had been put in possession of the Court prima facie to indicate that the Accused was thought Inspector Makoae was a very convincing witness and to the extent to which he was able to investigate the movement of this Accused while was is in Lesotho which was as much compelling. It was clear that as an investigating officer he had sufficient information to conclude as he did that the Accused has always been on the run as soon as he knew that Pastor Hlasoa had died.


This period of about a month when Accused was running up and down constituted an evading action. I did not observe that there was any aspect on which Inspector Makoae could be disbelieved.


I now come to an aspect of the Accused's aspect which is very remarkable as indicating an extent to which the Accused was capable of telling untruths to the Court. It would however be unfair to rely on aspect of the untruth of the Accused as compelling and overriding other aspects. I am saying I consider many aspects not only this one. Even at the stage of the affidavits it is said that the Accused had gone to a university of North West to look for a job. He looked for a lectureship which was not advertised at that university or at all. He says


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he was told by one of his relatives that there was a vacancy. He says he is possessed of two doctorates in Theology.


Demonstrably the Accused is not someone who understands what a doctorate in theology is and he does not understands what a university is. N or has he met a real professor of Theology. I am even wondering if he understands what a high school is. He only revealed at the end that these doctorates were honorary after painful cross examination. If he had done so at the beginning I would not have gone about the investigation that I did by examining him at length when he was in the witness box. Or if he had told me that he is an illiterate man and an ordinary preacher. I would not have broken a sweat. If he had told me that at the beginning I would have not wasted my time. I did that because I understand what a university is and I have been at a university.


I asked Accused whether this university he had attended was an accredited university. He did not understand what an accredited university is. I asked him if he knew the different schools of theology. He did not understand what a school of theology is. He thought it was a kind of an institution. If he had been a lawyer I would have asked him about the different schools of jurisprudence. I questioned to the Accused whether he understands what liberation theology is and where it came from. He did not understand. All in


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all this Applicant is a first class liar. He is a first class liar. And he must choose places where he can tell first class lies. This is not the place to lie. He lied on this aspect. I need to say just that about the aspect.


With regard this question of his employment at a university whether it would be as a preacher at that university Accused was deceiving the Court. Wherever he went even if he indeed went to that university of North West he was running away from the jurisdiction of this Court or from arrest.


By that letter which was produced or shown to Court in which he speaks about that the fact that he knew that police were after him, he demonstrated, out of his own mouth, that he was on the run. And he was just making a red herring or a ruse to enable for him to explain why and what he would say when he was arrested. This is because an intelligent person like him must have known that the law would probably have its hands on him and it happened exactly like that. Somebody met him at a restaurant in Virginia and led him to a police station at Virginia he was arrested. He was arrested. The law ultimately caught up with him.


This Applicant out of his mouth and from the evidence of Det. Makoae has been demonstrated as a man who is likely to abscond and if he is allowed out on


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bail. There is a great risk that he will not make himself available to this jurisdiction. He does not point at any exceptional circumstances why he should be released on bail and this case against the Accused is a strong prima facie case. The case itself looks serious. A robbery was committed towards a murder. That in itself makes it a very serious offence according to our law. This, bail application is therefore refused. I refuse this application.


This Accused must not be released out on bail. There is a great risk that having released him on bail he will not make himself to the jurisdiction of this Court. I have already pointed out those facts that would normally indicate that an accused should not be released on bail. The Crown has satisfied all these. That is my order. Thank you.


T. MONAPATHI

JUDGE