Qoabe v Director of Public Prosecutions ( CRI/APN/816/2003)

Case No: 
CRI/APN/816/2003
Media Neutral Citation: 
[2004] LSHC 18
Judgment Date: 
4 February, 2004

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CRI/APN/816/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:

BOITUMELO QOABE Applicant

And

DIRECTOR OF PUBLIC PROSECUTIONS Respondent


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi On the 4th day of February 2004


The Applicant (Accused) herein seeks to be released on bail on terms and conditions set out in the Notice of Motion. Accused was charged with one count of Murder of Nketa Tjotjela (Deceased) a security guard and another count of Armed Robbery. He was arrested on the 5 November 2003. No preparatory Examination had been held at the time of the hearing of the bail application.


In the brief statement of the "factors that lead to (his) arrest" Applicant stated as follows in paragraph 6 of his founding affidavit. One Thabo Maeketsa (apparently a Co-Accused) came to where Accused had parked his taxi and asked Accused to go and pick up four people who had been stabbed with knives. Incidentally the said


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Thabo Maeketsa also filed a bail application which was dismissed by Guni J in CRI/APN/813/2002 on the 7th January 2004.


Applicant obliged and only to find out that that those people who he was supposed to carry had just robbed a supermarket and had run away. Accused as, he says, was arrested and an unlicensed 9 mm firearm was found in his possession. He said he had nothing to do with the alleged murder and robbery and neither did he know about a "pump action" gun allegedly taken from one of the two security guards. The latter firearm was said to have been found in possession of one Hlapisi who was still at large.


The bail application was opposed and the answering affidavit of No.7850 Sgt KA Voezana (Voezana) of the Lesotho Mounted Police in the Criminal Investigation Department was used. This answering affidavit was supported by a "verifying affidavit" of one Maino Morakeng. To the extent that existence of a prima facie case may be inquired into it is necessary to comment about the contents of the two affidavits.


Voezana said that on the day of the robbery there had been two security guards on duty one of whom was the Deceased. Accused then shot and killed the Deceased while the other security guard was not injured. It was the latter who positively identified the Accused whom he knew very well as a taxi operator.


Following information from a Co-Accused Accused was arrested on further information that he used the 9 mm gun in the alleged offence. Accused was then


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arrested on the 6th November 2003. He thereon took police to his house where the 9 mm pistol and an amount of money totalling about M200.00 was found. The Accused then made an explanation about the money which pointed to his involvement in the execution of the alleged offences.


I agreed that a strong prima facie case was established which could be an answer to the Applicant's assertion that the statements by the Crown were mere allegations. In the absence of a cogent reason I would dismiss the application on this ground. It remains to be seen whether there was such a reason.


Indeed there are a lot of indications that the present bail applications like others nowadays is made as kind of a formality without sufficient motivation where it matters. While a strong prima facie case may have been made, I thought that still there is a general requirement and the key consideration. It is always whether "the interest of justice will be prejudiced if accused is granted bail"? See Commentary on the Criminal Procedure Act, Du Toit and Others (1993) at page 9-8B - 910 C.


The learned authors above then deal with pointers or indices as to the test or risks to be looked for as to whether the said prejudice against the interest of justice occurs. They are the following risks. Whether the accused will stand his trial. This includes the investigation whether the accused is likely to abscond. Second, whether the accused will interfere with the State witnesses or the police investigations. Thirdly, whether the accused will commit further crimes. There are "further sub-issues to be considered in applying the principle which govern the decision to grant or refuse bail". See the detailed exposition of the sub-issues in S v Acheson 1991(2) SA


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805 (Hm HC) Mahomed J and at page 9-10 of Commentary on the Criminal Procedure Act (supra). This approach or debate was lost to both Applicant's and Crown Counsel in the instant case. The consequences could only be that Counsel were unable to assist the Court.


The other key issue, excluding the one of strong prima facie case was the one of lack of demonstration or showing Applicant of the presence of exceptional circumstances as required by section 109 of the Criminal Procedure and Evidence Act 1980 (as amended) (CP&E). The Crown submitted that the Applicant had failed in this regard.

While Mr. Monyako cited the case of S v Shangase 1972(2) SA 412(H) for comprehensive rendering of what "circumstances" would justify a lighter sentence than the prescribed sentence in the light of a provision of an Act which had resulted in a spate of reviews to that Court, about varying sentences in comparable cases. I did not see this case as being useful where Applicant's Counsel's attitude was that he saw no need to demonstrate "exceptional circumstances" in the present case despite the said requirement of the CP&E. Put in Counsel's own words:


"The concept of "Exceptional circumstances" has not been defined in the amendment save perhaps the Applicant not showing they exist. How can the Applicant venture to interpret the law; the court has the right and the power ......the concept is so ambiguous that Applicants are called upon to interpret it and/or give suppositions which the Court will choose which is more acceptable and reasonable and the laying a foundation (of) what the concept really envisages."


In my view Counsel's attitude was high-handed to say the least.


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With respect, while agreeing that there may be occasions when the record of proceedings itself shows exceptional circumstances, I did not understand that the said requirement of the CP&E can be ignored by convenient or imperious non­compliance.

Having identified no exceptional circumstances as I concluded and in the light of such a strong prima facie case I thought this justified a refusal on the part of the Court to release the Applicant on bail.


The application fails.


T Monapathi

Judge

4th February 2004