Molibeli v Director of Public Prosecutions (CRI/APN/730/03 )

Case No: 
CRI/APN/730/03
Media Neutral Citation: 
[2004] LSHC 52
Judgment Date: 
29 March, 2004

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CRI/APN/730/03

IN THE HIGH COURT OF LESOTHO


IN THE MATTER BETWEEN:


TANKI MOLIBELI APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT


JUDGMENT


DELIVERED BY THE HONOURABLE MRS. JUSTICE KJ. GUNI ON 29th MARCH, 2004


In the matter of an application for admission to bail Bail............definition............POWERS OF COURT to admit to bail.....


SECTION 109 CRIMINAL PROCEDURE AND EVIDENCE ACT 1981.

SECTION 109 CRIMINAL PROCEDURE AND EVIDENCE (AMENDMENT) ACT 2002.


[1] FACTS

This is an application by the accused to be admitted to bail. The applicant herein is one TANKI MOLIBELI. He is one of the three accused - charged with the crime of ARMED ROBBERY. The person is charged with ARMED ROBBERY if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. The crime which the three accused - including this applicant, are charged with, is set out, on "ANNEXURE A" attached to the FOUNDING AFFIDAVIT, THUS;-


"That the said accused are charged with the crime of ARMED ROBBERY. In that upon or about the 9th day of September, 2003 at or near KATLEHONG in MASERU DISTRICT the said accused one or the other or all of them did unlawfully and with intent of inducing submission by Matthew Achilony to the taking by the said accused of the property listed in annexure B, threaten the said Matthew Achilony that unless he consented to the taking by the said accused of the said properly, or refrained from offering any resistence to them in taking the said property they would then and there shoot him and did then and thereupon take and steal from the person of the said Matthew Achilony the property which was in his lawful possession and did rob him of the same."


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[2]

This application for admission of this accused to bail is oppose. The pleadings were complete and the matter - being ripe for hearing was heard on the 23rd October, 2003. Immediately thereafter the file went missing. It has now been located and placed before me to provide the written reasons for the Court's refusal to admit the applicant to bail.

[3] THE POWER OF THE HIGH COURT TO ADMIT TO BAIL

In terms of Section 109 of CRIMINAL PROCEDURE AND EVIDENCE NO.9 of 1981, the High Court seems to enjoy unlimited powers to admit to bail any accused person in respect of all the crimes. Recently, the prevalence of the commission of heinous crimes and coupled with apparent reluctance on the part of (he courts to act together with other law enforcement agencies to curtail individual suspects' right to liberty, forced the legislature to take a specific action of enacting (he statute which shifted the burden of proving justification of release on bail to the accused himself. The powers of the High Court to release an accused person on bail, remain unfettered as long as the accused satisfies the court, in certain cases, that there are special circumstances in his case which, in the interests of justice, permit his release on bail.


The relevant portions of Section 109 CRIMINAL PROCEDURE AND EVIDENCE ACT NO.9 OF 1981 (C.P. AND E) reads as follows:-


" 109. The High Court may, at any stage of any proceedings taken in any court in respect of an offence, admit the accused to bail"


In the year of our Lord 2002, the legislature in its wisdom saw it fit to place the need upon the accused who wishes to be released on bail to show the court to its satisfaction that there are exceptional circumstances which in the interests of justice permit his release. This is not a general rule. It only applies to certain cases e.g


"109 A (1) Notwithstanding any provision of this Act, where an accused person is charged with______

  1. Robbery and the robbery involved

  1. the use of a firearm by the accused, any co-perpetrator or participant in the robbery or

  2. -------------

  3. Theft or attempted theft of a motor vehicle


The court shall order that the accused be detained in the custody until he or she is dealt with in accordance with the law, unless the accused, having been given an opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release"


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[4]

All the parties in the matter must comply fully with the requirements set out in this (AMENDMENT) ACT. Because the new requirements do not cover every crime but cover only a few selected crimes, it must apply specifically to only those crimes mentioned by the legislature. In cases of robbery the accused will be required to show that the exceptional circumstances exist to justify his release, if the use of a firearm was involved in the commission of the alleged robbery {SECTION 109 A (1) C (1) (C.P.& E ACT)} SUPRA. There is no specific allegation that the use of the firearm was involved. It is only alleged that the said accused threatened to shoot. To shoot, does not per se show exclusively that a firearm use was involved. Therefore having left the matter open at this point, the use of anything to shoot cannot be excluded. It is not safe to presume that it involved the use of only one thing and that was a gun or the firearm. The firearm is also not defined in the statute that applies. That leaves us with no choice but to look for the meaning of the firearm elsewhere. In the Concise Oxford English Dictionary, Tenth Edition, Revised, "firearm" means a rifle, pistol or other portable gun. In the charge there in no mention of the use of the gun or the type of weapon listed under the meaning of the firearm. The crime with which the accused is charged, is robbery but not robbery involving the use of a firearm by the accused or the co-perpetrators. The section makes specific provisions which are intended to place a special burden on


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the particular accused - not on every accused. Where there is no specific allegation or proof that a firearm was used, the accused should not be burdened with the requirement to show that exceptional circumstances exist for him to be released in the interest of justice.


[5]

Amongst the items of property stolen at the time of the alleged robbery is a motor vehicle. SECTION 109A(l)(C)(iii) (C.P AND E) ACT. SUPRA makes it mandatory for the court to order the detention in custody of the accused who faces the charge of the theft or attempted theft of a motor vehicle.


[6]

The exceptional circumstances set out at paragraph 10 FOUNDING AFFIDAVIT

are the following:-


  1. The accused has a wife and a minor child who depend on him for their maintenance and support.

  2. The wife is sickly and due to her illness she cannot work or walk in the streets.

  3. The accused's parents are elderly and unemployed therefore they cannot help the accused's immediate family.

  4. The social and economic needs of his family remain unsatisfied while he is in prison.


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[7]

These factors are common to every awaiting trial prisoner. They are natural and expected inconveniences that are suffered by all those prisoners. If the prisoner is to be released on the grounds that his family is suffering or inconvenience, there will be no one in prison. I do not find exceptional these factors set out by the accused when given an opportunity to adduce evidence which satisfies the court that there are exceptional circumstances which in the interest of justice permit his release on bail. Therefore in terms of Section 109 A(1) (iii) C.P AND E Act 2002, he is detained.


KJ. GUNI

JUDGE


For Applicant : Mr. Mathaba

For Respondent : Mr. Mojaje


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