Kori and Others v Director of Public Prosecutions (CRI/APN/245/04CRI/APN/235/04)

Case No: 
CRI/APN/245/04
Media Neutral Citation: 
[2004] LSHC 68
Judgment Date: 
11 May, 2004

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CRI/APN/245/04

CRI/APN/235/04

IN THE HIGH COURT OF LESOTHO


In the application of:

KUTOANE KORI 1st Applicant

BOKANG MOLONGOANA 2nd Applicant

NOKOLI HLOLOANE 3rd Applicant

And

THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent


JUDGMENT


Delivered by the Honourable Mr. Justice B.K. Molai On 11th day of May, 2004


This is a consolidated application for bail, pending trial, made by 4 accused persons who, together with 3 others, are jointly charged with the murder of one Peter Mokheseng on the night of 21st March 2004 at or near Qoaling in the district of Maseru. All the applicants were arrested on 26th March 2004 and subsequently remanded in custody. They are now desirous of being released on bail.


The application was vehemently opposed by the respondent. Affidavits were duly filed by the parties. It is significant to observe that in their replying affidavits the applicants raised points in limine, firstly, that the answering affidavits were, in law, no affidavits at all inasmuch as they


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were supposedly signed on 8th April 2004 and only attested to before a commissioner of oath, on 13th April 2004 contrary to the provisions of regulation 4 (5) of the Oath and Declarations Regulation 1964; secondly, deponents to the said answering affidavits and the Commissioner of Oath were public servants and accordingly members of the Crown. The Commissioner of Oath had, therefore, an interest in the matter and that contravened regulation 7 of the Oath and Declarations Regulations 1964. The practice employed by the deponents and the commissioner of oath had been judicially declared illegal; and thirdly, Act No. 10 of 2002 was not applicable in the present bail applications. It was submitted that the applications for bail should, therefore, be granted on one, other or all of the points raised in limine.


A careful examination of the answering affidavits reveals that on 13th April, 2004 a legal officer in the Ministry of Foreign Affairs who is Commissioner of Oath signed and put his date stamp impression on them. However, below the signatures of the deponents, at the end of the answering affidavits, is type written the words:


"Thus signed and sworn to before me at Maseru this 8th day of April. 2004 by the deponent having acknowledged that he knows and understands the contents thereof."


In my view the above cited words were already typed on the answering affidavits when the deponents brought them to the Commissioner of Oath for attestation, presumably with the belief that the deponents will go and attest to the affidavits before the Commissioner of Oath on 8th April 2004. However, the deponents did not go to the Commissioner of Oath until


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the 13th April 2004. When the deponents attested to the answering affidavits before the Commissioner of Oath on 13th April 2004, the latter should have amended the date "8th April 2004" in the above cited words to read "13th day of April 2004". The Commissioner of Oath erroneously omitted to do so. That being so, the applicants cannot be heard to say the answering affidavits were no affidavits inasmuch as they were signed on 8th April 2004 but arrested to only on 13th April 2004. The answering affidavits were, in my rinding, attested to before the Commissioner of Oath and signed by the deponents on 13th April 2004 being the date on which the date stamp impression of the Commissioner of Oath was affixed thereon.


It is to be observed that the answering affidavits which were attested to before the Commissioner of Oath by the deponents relate to the opposition of bail applications filed before a court of law. I fail to see what interest the Commissioner of Oath, who is a legal officer in the Ministry of Foreign Affairs, has in the bail application in relation to which the answering affidavits were attested to before him by the deponents. There is, in my view, no substance in the second point in limine viz. that the Commissioner of Oath had an interest in the matter and, therefore, attestation of the answering affidavits before him contravened regulation 7 of the Oath and Declarations Regulations 1964.


As regard the third point in limine viz that Act No. 10 of 2002 is not applicable, it is to be observed that we do not know which part of the Act the applicants have in mind. It can only be assumed that the applicants had in mind section 109A (1) (a) which provides, in part:


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"109.A(l) Notwithstanding any provision of this Act, where an accused person in charged with-

(a) murder under the following circumstances -

(i).......................................................

(ii) .......................................................

(iii) The crime was committed by a person, group of persons or

syndicated (sic) acting in the purported execution or furtherance of common purpose or conspiracy;"


The difficulty about deciding whether or not the above cited part of Act 10 of 2002 applies is that the applicants are summarily charged with murder i.e no preparatory examination has been held. There is, therefore, no evidence on which T can make an independent decision that the applicants acted in furtherance of common purpose or conspiracy. The points taken in limine are, consequently, dismissed.


In their affidavits the applicants deposed that they were employees of a firm called Precious Garment at the Industrial area, here in Maseru, where the deceased was also employed as the overall manager. They had good working relations with the deceased who was a good person. They had no reasons to kill the deceased and were, indeed, shocked by the news of his death. According to the applicants, they were nowhere near the place where the deceased was allegedly killed on the night of 21st March 2004.


The applicants further averred that they were citizens of Lesotho. If released on bail they would abide by the conditions thereof and had no intention of absconding from Lesotho to a strange country for that would be a futile exercise as the crime against which they stood charged did not prescribe. They would eventually be brought back to Lesotho to stand trial.


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In his affidavit, the applicant in CRI/APN/235/04 further averred that he had a sickly mother to look after. He himself was suffering from ulcer. His wife had recently passed away leaving him with two minor children to look after. His relatives were still wearing mourning cloth for his deceased wife. In his absence, the mourning cloth could not be removed and his relatives would have to wear it indefinitely, with the resultant inconveniences.


As pointed out, earlier in the judgment, the applications for bail are vehemently opposed by the respondent. The opposing affidavits were deposed to by Mr. Lenono duly representing the respondent and D/Inspector Makoae, the chief investigating officer, in this case.


In his answering/opposing affidavit D/Inspector Makoae averred that his investigations had revealed that the applicants knew that on 22nd March 2004 the deceased was to prefer disciplinary charges against two of them viz. Molai Mosoaboli and Kutoane Kori. He denied, therefore, the applicants' averment that they all had cordial working relations with the deceased.


D/Inspector Makoae conceded that his investigations had revealed that the applicant in CRI/APN/235/04 recently lost his wife. The applicant and his relatives might well be wearing mourning cloth. There was, however, no Basotho custom obliging the applicant to be personally present when the mourning cloth was removed regardless of the circumstances that might impede him to be present on the occasion of the removal of the same. I agree. According to custom the date on which the mourning cloth will be


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removed is normally agreed upon by the relatives immediately after the deceased had been buried. On the agreed date those of the deceased's relatives who are able to do so assemble at the home of the deceased and the ritual of removing the mourning cloth is carried out. However, those of the relatives who, for one reason or other, are not able to assemble at the home of the deceased on the agreed date will have to remove the mourning cloth where they happen to be. There is no question of some of the relatives finding themselves wearing the mourning cloth indefinitely simply because they were not able to be personally present on the date the relatives had agreed that the mourning cloth would be removed. Thus, for instance, relatives who are at work in the Republic of South Africa or live far away from the home of the deceased are often not able to travel to deceased's home on the date agreed upon to remove the mourning cloth. What is important is that they should remove the mourning cloth where they happen to be on the date agreed upon.


In his answering affidavit D/Inspector Makoae further averred that his investigations did not reveal that the applicant in CRI/APN/235/04 had a sickly mother to look after or he himself was a very sickly person suffering from ulcer as he wished this Court to believe. As for his minor children the applicant, who was living at ha Tsosane had told him (D/Inspector Makoae) that they were living with a relative at Qoaling, here in Maseru.


It is important to observed that the applicant in CRI/APN/235/04 did depose to a replying affidavit in which he reiterated the averments in his founding affidavit namely that he had a sickly mother to look after and he himself was suffering from ulcer. He could have annexed health books as


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proof that he and his mother were sickly persons. He did not. It was only during the closing addresses that the court was informed that the applicant's sister had eventually brought his health book. It was inspected by both parties' counsel who assured the court that, according to the health book, the applicant was at Queen Elizabeth II hospital on 23rd October 2003 when it was found that he was suffering from chest pain and fits. On 6th January 2004 the applicant went to one of the satilite clinics of Queen Elizabeth II hospital at Qoaling where it was found that he was suffering from headache, che:;t and abdominal pains. On 18thth March 2004 he again went to another satilite clinic of Q.E.H hospital at ha Mabote where it was found that he was ill-looking person suffering from headache, chest and epigastric pains. There was no specific finding that the applicant was suffering from ulcer as he wished this court to believe.


For obvious reasons the health book was not annexed as part of the affidavits/evidence in these proceedings. It may also be mentioned that the ages of the applicant's two minor children were not disclosed in the affidavits. They may well be 17 years old. If so, it cannot be said they need to be looked after by applicant as if they were, for example, 3 years old.


In his answering affidavit Mr. Lenono deposed that he was the Crown Attorney in the Attorney-General's chambers attached to the office of the respondent who had duly delegated him to be his representative in this case, He had read and understood the applicants' affidavits as well as the answering affidavit of D/Inspector Makoae, the chief investigating officer in this ease. He averred that he was unconditionally associating and


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identifying himself with the averments of the chief investigating officer, particularly the reasons for opposing these bail applications.

In the averments of both Mr. Lenono and D/Inspector Makoae, the applicants were charged with a very serious offence, the execution of which appeared to have been planned and carried out in the most professional and brutal manner, in the history of this country; there existed a very strong prima facie case against the applicant inasmuch as there were accomplice witnesses whose evidence implicated them in the commission of the offence against which they stood charged; and if convicted the applicants were likely to serve a long term of imprisonment. All these provided a strong incentive for the applicants to abscond and fail to stand their trial with the resultant prejudice to the proper administration justice. I agree that the offence against which the applicants stand charged is a serious one and if convicted there is a likelihood of their being given a serious sentence. That may well be an incentive for the applicants to abscond if released on bail.


It is important to note that nowadays it is not often that the crown opposes applications for bail even where the applicants are facing serious charges such as murder and rightly so, in my opinion, because, in law, the presumption of innocence operates infavour of the accused person. However, it is trite law that, where the Director of Public Prosecutions objects to an application for bail, his objection must be carefully considered and not lightly discarded, after all he is a responsible officer charged with onerous duties. He must, however, give grounds for his objection.


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In the present case the Director of Public Prosecutions has not only objected to the granting of bail but has also given grounds for his objection. 1 find no reasons why the objection should not be taken seriously.


I have, in the circumstances, decided that this is a case in which I should exercise my discretion not to admit any of the applicants to bail, pending their trial, which the court was informed during the course of the addresses, that it is already scheduled to begin in September this year. The application for bail is accordingly refused.


B.K. MOLAI

JUDGE


11/05/2004


For Applicants : Messrs Mathaba & Nthloki

For Respondent : Mr. L.L. Thetsane