IN THE HIGH COURT OF LESOTHO
In die matter between:
KARELI KHOTSENG Applicant
For the Applicant : Mr Maieane
For the Respondent : Ms Nku
Delivered by the Honourable Mr. Justice T. Monapathi on the. 5th Hay of September 2003
I am seized of this bail application which was filed on the 29th August 2003. The Applicant was Co-Accused with a certain Mosebi Khotseng who has since about 1995 disappeared after having been granted bail. The same story of disappearing was joined by this Applicant who also disappeared and whose warrant of arrest had since about later issued.
Along the way it was reported that occasionally the two accused would be spotted at their village but would disappear once police were detailed to arrest them were about to
arrest them. This story was reported on a number of occasions by deceased's father who must have run out of patience because it is about five years now since he stopped attending this Court He was an old man and the possibility is that he must be dead by now.
This risk of death of witnesses and their disappearance is part and parcel of these proceedings which never commence. The risk is also attendant on the memories of witnesses which fade when proceedings take a long time to take off such as the present This I say judging from the fact that since 1995 the matter had since been enrolled and the progress was unsuccessful as it is evident This is one of such unfortunate proceedings.
I may comment that the charge sheet or the indictment suggest that the murder is alleged to have occurred on the 12th March 1991. The Pre-trial Examination thereof having been completed during about March 1991. This is a sad story of proceedings which are seemingly dying a slow death, if no step is taken to arrest the progression. Indeed if there is any frustration to the administration of justice the present proceedings seem to be a good example. It is primarily due to the fault of this Accused and his alleged partner in crime.
The history of the matter as at present show that accused Mosebi Khotseng has never been traced or brought before Court As only luck would have it the present accused was arrested on the 26th December 2001. His bail was thereafter estreated for failure to attend remands and obviously for breaking other conditions of his bail. He has since been incarcerated in Maseru Central Prison awaiting trial.
This Applicant who is the First Accused is now applying for bail. As I have said he has initially been given bail whose conditions he breached. That is why he has remained in Maseru Central Prison since December 2001.
He now applies for bail. After hesitation his application ended up being a written application now before me. It does not say much except recording that he was rearrested. He says he is desirous of being granted bail. He undertakes not to repeat to undermine any bail conditions. About the circumstances of his present arrest he repeats that he was arrested on the 26th December 2001. About his present circumstances he records as follows: In paragraph 6 he says that he is a citizen of Lesotho; he is a mine-worker and a sole breadwinner in his family. He suggests that the Court must have punished him enough since his arrest in December 2001. I disagreed that the arrest had anything to do with punishment. It had to do with the fear that "the ends of justice would otherwise be defeated." See PILLAY V REGIONAL MAGISTRATE, PRETORIA AND ANOTHER 1971(1) SA 533 (TPD). The case dealt with review of a magistrate's order for committing an accused to jail on alleged breach of bail conditions.
Unfortunately an arrest of this nature is to ensure presence of accused before Court because what he is charged with is that he breached his bail conditions. What is enforced is his obeying bail conditions. It is not to punish him but to make him available for his trial. It would be :
"highly irregular to withhold bail in order to punish the accused: ( R V ROSE 18 COX, CC 717-719 Fourthly, no sentence can be imposed where
an accused fails to appear after having been released on bail (S V SIBYA 1979(3) SA 192(T). Fifthly, no criminal sanction exists with regard to the breach of any specific bail condition (S V NKOSI 1987(1) SA 581 (T) 584 -"J" - as quoted in COMMENTARY OF THE CRIMINAL PROCEDURE ACT, Du Toit And Others - (Service 10, 1992) 9-5.
With this understanding I would have problems with this application because it says very little. This Applicant goes on to undertake that he will stand trial; he will not interfere with Crown witnesses; he will not hamper police investigations he will not prejudice administration of justice in any manner and further offers those conditions which he says the Court must accept.
Granting of bail is a discretionary matter. It is conditioned by the need that Applicant must stand trial. The Court has to perforce look around for those factors which it suspects can defeat this purpose that is factors which conduce accused not to stand trial. It is under these circumstances that nothing exceptional has been shown to me. See MATSELA MONGALI AND OTHERS V DIRECTOR OF PUBLIC PROSECUTIONS LLB-LB 107 where it was held that it is an exceptional circumstance, warranting release on bail, if an accused person is critically ill and not when his life is still in a balance. See also S V JONAS SACLR 1998(2) 677 in relation to need for urgent medical attention or terminal illness being suffered by an applicant for bail as one of the example of exceptional circumstance. On the contrary, in fact, in the instant matter the Applicant points out at those things which will incline the Court not to grant him bail.
One aspect which I must point out is this which I consider strange in my
experience. It is where this application has been filed as a written application where it was even set down for the day before yesterday but was postponed and where the Crown has not filed any documents to show opposition. Ms Nku (Crown Counsel) was even present yesterday before me with Mr Maieane. Ms Nku was not able to justify why if she is opposing, she has not filed any documents. Where furthermore when she was asked why she was not doing tilings in correct procedural way she said this was a situation where the Court can judge the circumstances for itself. And that if the Court is doing so it will incline towards refusing bail and she was therefore placing herself in the hands of the Court as she said. Where finally she said the Court must judge if there is no prejudice. And if there is none the Court may even release the Accused on bail. This Court was consequently unhappy at the attitude of the Crown Counsel who is senior and ought to set a better example.
I recall that a date of hearing has been appointed for the trial of the Accused. This factor together with the history of this matter inclines me towards refusing to grant bail. If such a date has been set, releasing the Accused against this background is not a safe bet, so to speak.
We cannot overemphasise that the charge facing this Applicant is of a serious offence and if the Court fails to approach this matter in that attitude the reputation of Court will go under. Society will not look seriously upon the Court in administration of justice. I would disregard the opinion of Ms Nku except that I will direct them to the Director of Public Prosecutions. But for purposes of bail, as a Superior Court I remain with a
discretion which I should only exercise judicially. In the circumstances I decide that this bail application is refused.
I have obviously taken into account as a relevant fact, in fact that the Applicant has previously breached his bail conditions. See S V NKOSI, EN ANDERE 1987(1) 581 (TPD) please contrast S V BARNARD EN ANDERE (2) 1985(4) SA 439(W) about whether in South Africa a withdrawal of bail and forfeiture of bail money precludes a new application for bail in terms of section 60 of the CRIMINAL PROCEDURE ACT 1977. In the present case under the scheme of CRIMINAL PROCEDURE AND EVIDENCE ACT I did not think such an application would be precluded.
I have also equated the Applicant's previous breach of bail conditions with existence of a previous conviction. This I took into account in deciding whether there was "a reasonable possibility" of the Applicant "absconding once more". See S V HLONGWA 1979(4) SA (D) which dealt with an applicant for bail who had previously tempered with Crown witnesses. And it was also said in S V ESSACK 1965(2) 161 D at 162 that
"......... before it can be said that there is any likelihood of justice being frustrated through an accused person resorting to the known devices to evade standing his trial, there should be some evidence or indication which touches the applicant personally in regard to that likelihood."
But I remain warning myself that much as I am looking at the interest of the administration of justice on the one hand, I must also look at the interests of the Applicant on the other hand. It is because whatever the history of the matter is, Applicant remains
innocent because he has not been found guilty. What are exceptional circumstances in his favour? None
I am keenly looking forward to the date of trial. I would like to observe in anticipation whether it will proceed judging from the tardiness of the Crown. This I have borne in mind more particularly the attitude of Crown Counsel whose attitude was therefor all to see and this is exemplified by her attitude towards this application. Should certain things happen I will look towards Counsel for Accused bearing in mind that this matter has taken a long time much as the Accused has contributed to the delay.
I emphasise that this Accused remains innocent until proven guilty. It should not be that he being punished for anything else that he will remain in custody because his bail application has been presently refused by this Court.
The trial hereof remains postponed to the 4th November 2003.
5th September 2003