Letsie v Director of Public Prosecutions (CRI/APN/596/2004)

Case No: 
CRI/APN/596/2004
Media Neutral Citation: 
[2004] LSHC 134
Judgment Date: 
1 November, 2004

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CRI/APN/596/2004

IN THE HIGH COURT OF LESOTHO

In the matter between:-

THABISO LETSIE Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent

JUDGMENT

I have already released the Applicant on bail today the 1st November, 2004 and promised that my written judgment would follow. This now is the judgment.

The Applicant sought to be released on bail pending a murder trial of one Utloang Moholisa. The Application was opposed.

In motivation of his Application, Counsel for the Applicant showed that the Respondent was not saying that there was a fear that Applicant was not going to stand trial or was going to abscond, but feared that he was going to interfere with crown witnesses.

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The Applicant contended that the Respondent has not shown on the papers that he has made known to the Applicant who the crown witnesses were. This was said on the basis that the Respondent caused one Nqhae, who claimed to be deceased's friend, to depose to an affidavit. Nqhae's affidavit showed that he was threatened by the Applicant and his co-accused, as he (Nqhae) attended Court for Applicant's remand. It had not been stated whether or not that Nqhae was a crown witness, thus rendering Nqhae's affidavit to be irrelevant.

The Applicant further contended that it had not been stated how he was going to hamper police investigations when he was not even aware of who the witnesses for the crown were. Also that the alleged prima facie case against the Applicant had not been disclosed. That was the reason why the Applicant had to speculate that he had been arrested for the murder of the deceased merely because of some earlier encounters with the deceased. Deceased was suspected by the Applicant to have stolen his vehicle and taking it out of the jurisdiction of our Courts to South Africa.

It only came out in the Respondent's heads of argument as to why they claimed to have a prima facie case against the Applicant. The heads which were only filed in Court. It was at that stage shown that Applicant was arrested after investigations led the Police to Applicant

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as the person who had contracted the two other accused persons to kill the deceased. A proper foundation on the papers filed ought to have been put before the Court.

The general principle in bail applications has been rightly stated by the crown, that, in instances of such nature the Court will always lean in the favour of the liberty of the subject and will always grant bail where possible, Swift's Law of Criminal Procedure, 2nd Edition at 149. That in dealing with applications of this nature, the Courts are always bound to:

- Strike a balance between protecting the liberty of an individual, safeguarding and ensuring the proper administration of justice.

- Take into account the presumption of innocence. Lean towards the granting of bail rather than refusing it. Criminal Procedure through cases by M.P. Mofokeng at 245.

The Court in Koning v A.G. 1915 TPD 224 had this to say, that "The Court is desirous that an accused should be allowed bail if it is clear that the interests of justice will not be prejudiced thereby, more particularly if it thinks upon the facts before it that he will appear to stand his trial in due course."

The Applicant in his founding papers undertook to stand trial as a

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businessman running four taxis, with a wife and two school going children. He also suggested surrendering his passport and reporting daily at the Mabote Police who according to him are a stone throw away from his home. The Court under the circumstances therefore felt that, if there was no fear that the Applicant will stand trial, he could be released on bail and stringent conditions given to take care of him interfering with crown witnesses.

The Criminal Procedure and Evidence (Amendment) Act 2002.

This Act provides for the power to detain accused persons who appear before Court charged with murder, rape etc. On a murder charge, there must have been pre-meditation. The accused shall be so detained unless he adduces evidence that exceptional circumstances exist for him to be released. There have been varying views regarding what exceptional circumstances should be interpreted to mean. Lethoana v DPP CRI/APN/3/2003, Makhaba & Another v DPP CRI/APN/730/2003, Matsepe & Others v DPP, CRI/APN/861/2002 (All unreported).

Some decisions show that exceptional circumstances mean factors not commonly found in every bail application or that they connote something out of the ordinary, which to me mean the same thing. Others say exceptional circumstances still mean circumstances which are of an

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ordinary nature to bail application, but when viewed in the context of a particular case, become exceptional or unusual S v Vanqa 2000 (2) SACR 371.

In this application, counsel for the Respondent failed to reveal in her papers the involvement of the Applicant in the commission of the crime in the opposing affidavit, it only came from her heads of arguments which were only filed in Court. They were not saying that there was any fear that the Applicant would not attend trial. Respondents' papers did not also show that the person who deposed to the supporting affidavit to the opposing affidavit was going to be a witness in the main trial.

My brother Mr Acting Justice Teele citing the case of S v Mauk 1999 (2) SACR 479 in CRI/APN/170/04 Monare v DPP, pointed out that "what is required in terms of the amendment would be clear and satisfactory proof on a balance of probabilities that the interests of justice will not be prejudiced." He considered in that judgment that the Amendment was not intended to fetter the Court's discretion but rather codifies what the Court has always held, as bail could still be allowed even where the crown opposes, if the Court is satisfied that the interests of justice would not be prejudiced.

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I entirely agree with the reasoning in that judgment, hence my releasing Applicant on bail on conditions that will follow hereinafter.

Under the circumstances of this application, the presumption of innocence operated in favour of the Applicant, which is no longer just a common law right but has been entrenched in the Lesotho Constitution Section 12 (2) (a) under the heading Right to fair trial.

I therefore released the Applicant on bail on the following conditions:

- Granted bail in the amount of M3000.00 cash deposit.

- To report to Mabote Police every Monday before 12.00

noon.

- Not to interfere with crown witnesses.

- To stand his trial.

- Get two independent sureties in the amount of M5000.00 each.

A. M. HLAJOANE JUDGE

4th November, 2004.

For Applicant - Mr Teele For Respondent - Ms Shale