Majalle v Director of Public Prosecutions (CRI/APN/402/2004)

Case No: 
Media Neutral Citation: 
[2004] LSHC 84
Judgment Date: 
5 July, 2004



In the matter between:-





Delivered by the Honourable Mrs Justice A.M. Hlajoane

on 5th July, 2004.

Applicant sought to be released on bail on conditions already suggested in his notice of motion. The Application was opposed. According to the charge sheet attached to the founding papers, the Applicant and another are facing two charges at the magistrate's court Maseru, of armed robbery and attempted murder. Both crimes were allegedly committed on the 9th March, 2004.

The Respondent opposed the Application for releasing the Applicant on bail mainly because according to the opposing affidavit filed by one of the investigating officers, it had not been easy to arrest the Applicant. They even had to use tear gas in order to force the Applicant to get out of his house. There was therefore a fear that if released on bail he was going to abscond.

When this matter came before me on the 28th June, 2004 as the Judge on duty, the trial in the main case at the magistrate's court had already been set for the 30th June, 2004 for hearing. The investigating officer was even concerned that if Applicant was released on bail the likelihood of him not standing trial was very high as he (Applicant) was showing so much interest in being released when in fact the hearing date was going to be in two days time.

The Application was on the 28th June, 2004 further postponed to 1st July, 2004 for filing of papers, and the matter was finally argued before me on that day. It was after listening to argument on both sides that I called for viva voce evidence to be led as it had not come out clearly on the papers and from arguments as to why tear gas had to be used and also what time it was when the arrest was effected.

The Respondent had only filed a notice of intention to oppose without filing any affidavit. The only affidavit filed in opposition came from the investigating officer. Whilst this court entirely agrees with the decision and reasoning advanced in Tsepo Polaki v DPP CRI/APN/66/92 (unreported) where the crown had not deposed to any affidavit but the investigating officer, the facts of that case can be distinguishable from our case. The Court was quoted, as was taken from Meer v Attorney General

for Cape Province 1949 (1) PH H26, as having said:

'The Court places great reliance on Attorney-General or his Senior Officers on matters of this kind."

The facts of this case were distinguishable in the sense that though the Respondent had not deposed to any affidavit except for filing of the notice of intention to oppose which had indicated that the crown and investigating officers were going to file affidavits, both sides were in agreement in most material aspects of the case.

Though the Applicant in the replying papers had said that the investigating officer and other police in his company on the date of his arrest never identified themselves prior to the throwing in of the tear gas, in evidence before Court on the 5th July, 2004 he said the police knocked at his door explaining that they were police officers. It was the Applicant who further explained in evidence that because he never responded nor opened the


door, the police warned him that they were going to collect tear gas. He even heard a vehicle moving away only to come back after some time. Even on their return, the police still warned the Applicant that if he was still resisting they were then going to use tear gas.

The investigating officer also in his evidence said exactly the same story that they never used tear gas once they arrived at Applicant's place. They had to go back and collect tear gas as the Applicant resisted the arrest. Applicant said he could not come out or respond because he had information that police wanted to kill him wherever they could find him.

The other important aspect of this case was that the alleged offences took place in March, but the Applicant was only arrested in June. The investigating officer had told the Court that he had made several attempts to arrest the Applicant but when he finally arrested him was because he had information that he was still in the house though he was not responding. He only came out after the effects of tear gas.

It would therefore not be unreasonable to conclude that even on previous occasions he had been in the house but police went back thinking that he was not in the house because he was not responding. That would also answer the question why the Applicant seemed to have been so relaxed


with his girl friend even when police were announcing their presence outside. When they were finally forced out of the house by the tear gas they were both still in their under-wears yet police had warned them that they were going to collect tear gas.

I did not go into the question of how the police got to know that the Applicant was a suspect. It was through their investigations, that they acquired such information. Neither did I consider the fact that the firearm alleged to have been used in the commission of the offences was found in Applicant's possession as that fact only came out for the first time in Respondent's heads of argument. The investigating officer had only mentioned that he had seized the firearm and charged Applicant of unlawful possession of the gun, but the charge sheet never reflected that charge. Had this been placed on record timeously, it would have assisted the Court in determining whether or not the crown had & prima facie case against the Applicant.

In deciding whether to grant bail or not, the Court considers whether the granting of bail is likely to prejudice the ends of justice taking into account the circumstances of a particular case.

I have already given an ex temporae ruling on the matter refusing the


granting of bail to the Applicant on the 5th July, 2004. I chose to call for viva voce evidence in order to establish exactly why the use of tear gas was necessary in order to effect arrest and the time exactly when the arrest took place. Parties were both agreed that it was around 1.00 p.m. Applicant said it was at 1.15 p.m. when Respondent said it was 1.30 p.m.

Applicant had said that he heard a gun shot as he was inside his house with his girl friend, but later changed to say it was a gun being cocked. All these went to show that even on the four occasions that the police went to Applicant's place he had been hiding inside his house. Applicant even told this Court that he had been aware since May this year that the police were looking for him. Unlike in the case of Polaki supra where Applicant surrendered himself to the Court, when Applicant learned that the police were looking for him and threatening to shoot him, he never surrendered himself either to Court or police but chose to hide.

The worst part of it was that the Applicant was not staying at a permanent home but at a rented flat. Chances were open for him to move houses anytime as he pleased, thus making it impossible for police to arrest him. How then could it be trusted that he could stand trial and not abscond?

I was therefore inclined to agree with the reasoning advanced by my


learned Acting Judge Teele (as he then was) in Monare v DPP CRI/APN/17/04 (unreported) that the normal considerations that the Court has always taken into account in bail applications are still applicable even under the Criminal Procedure and Evidence (Amendment) Act No. 10 of 2002.

The main consideration here was whether or not if released on bail Applicant was going to stand trial. The circumstances surrounding his arrest pointed to the contrary. The main trial had been set for hearing on the 30th June, 2004 but when on the 5th July this case was argued, this Court was informed that the case never proceeded as the defence asked for a postponement.

Though bail had been refused, the Applicant was informed that he could still re-new his Application in future if the main trial was not proceeded with within a reasonable time.


20th July, 2004.

For Applicant: Mr Thulo

For Respondent: Ms Motinyane