Makoko v Director of Public Prosecutions (CRI/APN/97/2003 )

Case No: 
CRI/APN/97/2003
Media Neutral Citation: 
[2003] LSHC 53
Judgment Date: 
2 May, 2003

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CRI/APN/97/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:

KABELO MAKOKO Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS Respondent


For the Applicant : Mr. Mabulu

For the Respondent : Miss H Motinyane


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 2nd day of May 2003


The Applicant herein seeks to be admitted to bail. He was remanded in custody on charges of Armed Robbery and Malicious Damage To Property. I noted instantly that these were serious offences. The application is opposed by the Crown.


I thought it is important at the outset to stress that the crimes with which the Applicant is charged are bailable on proof of exceptional circumstances by an applicant. Refer to Section 109A Criminal Procedure and Evidence Act 1981 (CP&E amended) One requirement for the Crown is to prove that there is a


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prima facie case established by the Crown as a ground for not releasing an applicant on bail. Where a crime charged is a serious one the likelihood of an accused absconding if granted bail need not be presumed. See S v Acheson 1991(2) 805 (NM) Indeed that a crime charged is a serious one remains a weighty consideration.


The Applicant, in his founding affidavit, denied having committed the above crimes. The Crown pointed to paragraphs 7 and 9 of the answering affidavit of Lesotho Mounted Police Service Officer No. 8349 D/Tpr Moleko as containing facts which show a strong prima facie case against the Applicant. I respectfully agreed.


It had to be pointed out that at the outset on the first day of argument that there was confusion brought about an erroneous suggestion or impression that the Applicant could have been arrested on the 27th May 2002. This was the day when the offences were allegedly committed. In order to correct the error Mr. Mabulu applied for filing a supplementary affidavit. This was allowed. Counsel wrongly called the affidavit produce "a verifying affidavit". It became common cause, as a result, that the Applicant was arrested in September 2002 about four months after the commission of the crimes. The gap between the time of the offence and arrest was given certain significance by the Crown which


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unfortunately I did not accept. This will shortly be revealed.


The Applicant said that on the 27th May 2002 he was never at or near the scene of the crime. Otherwise he met his co-accused who told him that Michael Ralejoe, the complainant, had been robbed by unknown people. Applicant stated that had on the day been attending a funeral at Machoaboleng when the offence was alleged to have been committed. I did not have to decide this latter aspect.


The prima facie case which Miss Motinyane said had been built against the Applicant comes out in the form of an allegedly heart-rending campaign of criminal behaviour. She said that the Crown had evidence that the Applicant and his co-accused arrived at night at a certain village. They asked for Michael Ralejoe (the complainant). They were answered by a lady who stays at complaint's place. Short of saying the lady actually identified the Applicant and the co-accused, she told intruders that the Complaint was not present. The intruders then started shooting at the door in order to break the lock to enable their entry. They however failed. That was not the end.


Those intruders then went to the complaint's kraal where they shot sixteen (16) head of cattle and two (2) horses belonging to the complainant. Most


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animals died hence this charge of Malicious Damage To Property. The story continues.


From there the intruders went to another house of the complainant. They broke the door and entered. They then stole a number of items or property appearing in the charge sheet under Count 1 all belonging to the complainant. The list is shocking by any standards.


Other than the above campaign Miss Motinyane referred to, towards the prima facie case against the Applicant, a .303 rifle serial number S 9119. It was stated that on his arrest the Applicant was found in possession of the gun. The rifle was sent for ballistic tests. The results (as shown in the report annexed to Trooper Moleko's affidavit) were that that some of the dead bullets (shells) which were found at the scene of the crime had been fired by the said rifle. This will obviously be used to persuade the trial Court that the gun was used as a weapon and that it was involved in the criminal episode.


I assured Mr. Mabulu for the Applicant my task was not to conclude that it has been proved or it had to be proved that the Applicant had actually used the gun or that he was perpetrator of the alleged offence. Mine was to find out if there was a prima facie case meaning that, it must appear that on the basis of


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the statements about the gun and other circumstances, that at trial the Applicant will have a case to answer.


For completeness on the aspect of the above used gun I had to state that the Applicant denied that the gun was discovered upon his arrest by Trooper Moleko. On the contrary he said there had been a raid by soldiers who took possession of the gun after May 2002. Trooper Moleko conceded that this was so but that the raid was constituted by both soldiers and police and as a result, the gun having been taken from the Applicant it was handed over to police and then tested with the results shown in the report referred to in the previous paragraph of this judgment. Be that as it may, in my view, it is not insignificant that the Applicant admitted that the weapon was taken from his possession.


I said I would come to the significance given by the Crown to the fact that only four months after the commission of the offences was the Applicant arrested. The Crown contended that the Applicant had been hiding for those four months. The Crown asked the Court to come to that conclusion, by inference merely because it took time to arrest Applicant. That without any facts therefor, he had been hiding. I agreed with Mr. Mabulu that I was improper to draw such a conclusion more so when it was sought to be related to the alleged likelihood of the Applicant absconding.


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It was with regret that no attempt was made by Applicant to show the exceptional circumstances as required by the C.P.&E. (As amended) Mr. Mabulu conceded that the factors such as Applicant being a breadwinner, leaving behind children, wife and dependents as a result of incarceration were not exceptional in the true meaning of the requirement of the law. This is one ground upon which I would not allow the application. See my judgments in Matsepe and Others v DPP CRI/APN/61/2002 _ 30th October 2002 and Molupe Lethoana v DPP CRI/APN/3/2003 15th January 2003 where this Court had to decide accordingly on the basis of the said section 109A of the C.P.&E.


This Court was in addition persuaded that on the basis of the strong prima facie case it would not now allow the Applicant out on bail.


The application ought to fail.


T.Monapathi

Judge