Makhaba and Another v Director of Public Prosecutions (CRI/APN/12/03 )

Case No: 
CRI/APN/12/03
Media Neutral Citation: 
[2003] LSHC 30
Judgment Date: 
7 March, 2003

Downloads

CRI/APN/12/03

IN THE HIGH COURT OF LESOTHO


In the application of:

MOTSIELEHI MAKHABA 1st Applicant

'MANAPO MOPELI 2nd Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS Respondent


Judgment


Delivered by the Honourable Mr. Justice B.K. Molai on the 7th day of March , 2003


The applicants herein have filed, with the Registrar of the High Court, a notice of motion in which they move the court for an order, inter alia, releasing them on bail, pending the trial in which they and another person are charged with murder and armed robbery. The respondent has intimated intention to oppose. The parties have duly filed affidavits.


2


The facts disclosed by affidavits are, in a nutshell, that applicants, unmarried citizens of Lesotho and passport holders thereof live at ha Thetsane, here in Maseru. The1st applicant is a business woman whilst the 2nd applicant is her domestic helper.


On or about 13th December 2002 the 1st applicant broke her leg and as a result is now a sickly person. She has attached a medical report (annexure "MM2") as proof thereof. In the contention of 1st applicant, the conditions al the prison are not conducive to her recovery and long detention in prison may result in her long term disability.


On behalf of the respondent, Motlatsi Molokoane, a Crown Counsel i n the department of the respondent, has deposed to an opposing affidavit in which he associates himself with the sentiments expressed in the affidavit of D/Sgt Khatleli, the chief investigating officer, in this case. In his opposing affidavit D/Sgt Khatleli averred that prison officers have a duty to send those those in their custody to hospital for medical attention. The 1st applicant is, therefore, entitled to attend the hospital for medical attention should the need arise.


This to be observed that D/Sgt Khatleli does not dispute the fact that 1st applicant is a sickly person, and rightly so in my view because the latter has attached annexure "MM2" as proof thereof. I am prepared to accept the uncontradicted evidence that 1st applicant is a sickly person.


3


The applicants aver that time the offences against which they stand charged were allegedly committed (17 December 2002), they were at Mohlomi hospital, visiting 2nd applicant's brother by the name of Frank Mopeli who had been admitted at the hospital and subsequently passed away on 19th December 2002. As proof that Frank Mopeli had passed away on the 19th December 2001,1st applicant attached a death certificate, annexure "MM1" It is to be observed, however, that according to annexure "MM1" Frank Mopeli died at Queen Elizabeth II hospital and, therefore, not at Mohlomi hospital.


Be that as it may, the applicants aver that when they left Mohlomi hospital on 17"' December 2002 they proceeded to a place called Roma where they stayed with the relatives of 1st applicant who needed a rest due to her illness. On 21st December 2002 the 1st applicant released the 2nd applicant to go for Christmas at her home viz. ha Josias in the area of ha Mantsebo. However, on 30th December 2002 she (1st applicant) received, from her mother, a telephone message that she and 2nd applicant were wanted by the police in connection with the offences against which they now stand charged. 1st applicant immediately contacted the 2nd applicant and the two proceeded to Pitso Ground Police Post. On arrival at the police post, they were arrested and charged with murder and armed robbery, as aforesaid. They were subsequently remanded in custody at the Maseru Central Prison where they have since been awaiting their trial.


According to them, the applicants were not involved in the


4


commission of the offences against which they stand charged. They had merely been implicated falsely by their co-accused, one Retselisitsoe Molaoa who informed them that he had done so as a result of torture perpetrated on him by the police. That was on 31st December 2002 when the co-accused come to the Magistrate Court for his second remand. The respondent denied the applicants' averment that their co-accused ever talk to them on 31st December 2002 as alleged.


It is not really disputed that, the applicants' co-accused was arrested and remanded in custody on 17th December 2002 and 19th December 2002, respectively. S. 106(2) of the Criminal Procedure and Evidence Act, 1981 empowers a Magistrate court to remand an accused person in custody for a period not exceeding 15 days. Assuming the correctness of the averment that the applicants' co-accused was first remanded in custody on 19th December 2002, it follows that his second remand was due on 3rd January 2003.The applicants cannot, be correct, therefore, in their averment that on 31st December 2002 the co-accused came for his second remand at the Magistrate Court where they met and talked with him.


In the averments of the applicants the 2nd applicant had a very sick and unemployed father to look after. She was the only one working in her family. Her continued detention in prison meant that there would be no one in the family to take care of the financial funeral arrangements for her late brother,Frank Mopeli, whose corpse had been lying at the mortuary since 19th december2002. However, on 8th January 2003, the 2nd


5


applicant's own father, Josias Rantsubise Mopeli, himself deposed to an opposing affidavit in which he vehemently denied the averments of the applicants. I le averred that he was not a sickly person; he was self-employed; and the corpse of his late son, Frank Mopeli, was no longer at the mortuary as he had already buried it.


In their affidavits, the applicants averred that, if released on bail, they would abide by whatever conditions imposed by the court and had no intention of absconding. A fact, however, denied by the respondent, according in whom the applicants disappeared and could not be traced by the police1 for two weeks following the commission of the offences against which they stand charged. It is, however, significant to observe that the applicants have explained that they were at Roma where 1st applicant was taking a rest with relatives because of her illness. The moment they learned that the police were looking for them in connection with the offences against which they stand charged, the applicants reported themselves to the police, at Pitso Ground Police Post. The fact that the applicants came to the police post on their own and not under arrest does not, in my view, depict them as people who intended to abscond.


The court was told that in terms of section 109 A (1) of the Criminal Procedure and Evidence Act, 1981 as amended by Criminal procedure and Evidence (Amendment) Act, 2002 the applicants could not be released on bail. The section reads, in part:


6


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

with............

(a) ......................................................................

(b) ......................................................................

(c) robbery, and the robbery involved -

(i) the use of a firearm by the accused, any perpetrator or participant in the robbery;

(d ......................................................................

(e) .....................................................................


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


It was argued on behalf of the applicants that section 109 A (1) of the Criminal Procedure and Evidence Act, 1981 as amended by Criminal Procedure and Evidence (Amendment) Act, 2002 was unconstitutional inasmuch as it intringed the provisions of the Lesotho Constitution 1993 of which section 6(1) afforded the applicants the right to personal liberty e.g. the right not to be detained. It is to be observed, however, that section 6 (1) (e) of the Constitution provides, in part:


6 (l) Every person shall be entitled to personal liberty, that is to say, he shall not be arrested or detained save as may be authorised by law in any of the following cases, that is to say-

(a) ......................................................................

(b) ......................................................................

(c) ......................................................................

(d) ......................................................................

(e) upon reasonable suspicion of his having

committed, or being about to commit, a

criminal offence under the law of Lesotho;

.....................................................................

I have underscord the word "save" in the above cited section 6 (!)


7


of the Constitution to intimate my view that the right to personal liberty, like all other rights in the Bill of Rights which is enshrined in the Lesotho Constitution 1993 may be limited by the Law. Where a person is charged, inter alia, with tinned robbery, as the applicants are, in the present case, his right to personal liberty is limited by the provisions of section 109 A (1) (c) (i) of the Criminal Procedure and Evidence Act, 1981 as amended by Criminal Procedure and Evidence (Amendment) Act, 2002. That being so, I am unable to agree with the argument advanced on behalf of the applicants.


In the present case the evidence which the 2nd applicant has adduced as justification for her release on bail is that she has a sick unemployed father to look after; she is the only person working in her family and her continued detention in prison means that there will be nobody in the family to take care of the financial funeral arrangements for her deceased brother, Frank Mopeli, whose corpse is still lying at the mortuary. The 2nd applicant's own father has, however, deposed to an opposing affidavit in which he tells the court, on oath, that he is not a sickly person; he is a self-employed person; he has already buried the corpse of his late son, Frank Mopeli; and there is, therefore, no truth in the evidence which the 2nd applicant has adduced as justification for her release on bail. In the circumstances, I am not satisfied that the contradicted evidence of 2nd applicant is a justification for her release on bail.


As regards the 1st applicant, I have accepted her uncontradicted


8


evidence that she has a four (4) years old minor child to look after; she has broken her leg and is as a result, unable to walk properly. In my view,the 1st applicant's evidence is such that it can properly be considered exceptional circumstances entitling her to be released on bail. The 1st applicant is in result, granted bail on the following conditions:


  1. Payment of M500.00 cash deposit,

  2. Surrender her passport to the police at Pitso Ground

Police Post,

(c) Report to the police, at Pitso Ground Police Post, on

every Wednesday of the week at or before 12 noon,

  1. Not to interfere with the Crown witnesses,

  2. Attend remands and stand her trial.

Payment of the bail deposit must be made at the office of the Magistrate Court and not at the office of the Registrar of the High Court.


B. K. MOLAI

JUDGE


7th March, 2003


For Applicants : Adv. R. Mathaba

For Respondent ; Mr. Seitlheko