Tuoane v Director of Public Prosecutions (CRI/APN/499/04 )

Case No: 
CRI/APN/499/04
Media Neutral Citation: 
[2004] LSHC 139
Judgment Date: 
8 November, 2004

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CRI/APN/499/04

IN THE HIGH COURT OF LESOTHO


In the matter between:

PHENYEKE TUOANE Applicant

V

DIRECTOR OF PUBLIC PROSECUTIONS Respondent


JUDGMENT


Delivered by the Honourable Mr Justice T Monapathi On the 8th Day of November, 2004


This is an application for bail. Applicant was arrested in July, 2004 on suspicion of what is described in the Preparatory Examination (PE) sheet as "ritual murder." See Annexure Al. Accused was charged with about five {5) other co-accused, namely: Motinyane Ntsonyana, Sekhoka Lefoka, Bereng Monki, Makhasane Chabalala and Pitso Heke under case number CR 209/004 of Leribe District Magistrate's Court.


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Applicant denies any involvement in this alleged offence nor having been in conflict with anyone "to his utter dismay and shock."


Accused appears charged with four other Accused Applicant herein undertakes to stand trial and abide by conditions as stated in the Founding Affidavit. The application is opposed.


Foremost to consider is that an accused person in the position of the Applicant is innocent until proved or unless proved guilty.


In support of the application which was on Notice of Motion was a seven paragraph Founding Affidavit of the Applicant. In support of the Crowns opposition was an answering affidavit of No. 7894 Detective Sergeant Takalimane (Takalimane) which was supported by one of Lechesa Maliao Crown Counsel in the office of the Director of Public Prosecutions.


A bail application which is by its nature merely an inquiry should not be elevated to something like a trial by any kind of approach or investigation. Neither would or should a court be invited to decisive or definitive proof of facts or serious issues of credibility.


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Significantly Takalimane says in paragraph 6 of his answering affidavit that:


"...he has evidence in the docket to the effect that applicant had taken part in the commission of an offence ".


This he repeats somewhere else. Perhaps this could to some extent be taken to be fuzzy or blurred or downright unclear. Read with others this cannot be so. This what the police officer says again most significantly on page 8 of his affidavit:


" Furthermore I wish to bring to the attention of the Honourable Court that the applicant acting in concert with his co-accused did kill the deceased here under and took away some of her body parts. We have evidence to the effect that that one Sekepe Sello who was going along with the deceased on the day in question will testify that he saw what transpired on that date" (my emphasis).


I found it difficult to accept the Applicant's counsel suggestion that for the purpose of indicating existence of prima facie evidence Takalimane should have said more. Why? There is a prima-facie case in that the alleged facts connect the Applicant with the crime charged. I will with


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respect not accept that more details than necessary should always be provided than what is sufficient to support a prima facie case in the context of a bail application such as the present


Furthermore I took it that in terms of Takalimane's deposition a crime has been committed. There was in addition evidence pointing out to someone who has been involved in the offence and that it is Applicant who was alleged as the person who has committed the offence.


I offer to repeat that a bail application is an inquiry. The basis of this is an investigation as to whether there is a prima facie case. The definition of a prima facie case should be given a relevant meaning for the purpose of enabling a presiding officer exercise his discretion. I refer to in that regard the case of IN RE: GONIWE 1994(3) SA 877 (SECLD). In that inquest case Zietsman J in dealing with the problem of a standard or weight of evidence in an inquest proceedings had this to say on page 879 at G - H.:


" the problem is that we are dealing with an inquisitorial not adversarial proceedings and it is difficult in the former type of proceedings to apply the test that is used in the latter type of proceedings" (my emphasis)


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The learned Judge in GONIWE's case (supra) had earlier in the judgment discussed the test in criminal proceedings (alter close of crown's case) about whether the prima facie case had been established on one hand and in a civil case (after close of plaintiff's case) on the other hand. He had concluded that none of tests were applicable in an inquest case. But the learned Judge, even though he spoke of inability to define with precision what the prima facie case was, he was able to point at the considerations which are proper in that inquest case such as reliability and credibility of witnesses. He spoke of another consideration and said at page 879 J, 88A.


"The fact that the evidence had been produced which, if accepted would if excepted to prove that some person had committed an offence which brought about the deceased's death will in my opinion, not to be sufficient to justify a positive finding if it is obvious to the presiding officer at the inquest that there is no prospect of such evidence being believed at the subsequent criminal trial", (my emphasis)


This is another test for existence of a prima facie case.


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The learned Judge in GONIWE's case concluded that the latter test is less stringent than that of proof beyond reasonable doubt and that the presiding officer needs merely to be of the opinion that there is evidence which is available and which may at subsequent trial may held to be credible and admissible. This is by no means a presumption that the other court may on the contrary not believe the accused. That is why the issues of unlikelihood (as Mr Teele contended) or otherwise the said Sekepe Sello (potential crown witness) having participated in the crime will then later be properly considered as a matter of serious proof.


I have concluded that although a court need not refuse bail despite existence of a strong prima facie case this remains a discretionary matter. See S VS ACHESON 1991 (2) SA 805(NmHC).


While I endorse that the liberty of an accused is paramount as balanced against the interest of administration of justice cases differ. In a case such as the present the interest of administration of justice appears, in my view, to be the dominant consideration.


Much as I pointed out at the factual basis for the existence of prima facie case I did not however accept that there was need that if an accused had a defence such as alibi in this case, this required a factual


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demonstration such as what Ms Dlangamandla for the Crown, in her submission, suggested. Neither did accused have to discharge any onus in that regard or at all. This would surely be a matter for the trial proper.


I accepted therefore with proof of prima facie case as the Crown has demonstrated there was a good basis for accepting the Director of Public Prosecution ipse dixit See statement of Mr Lechesa Mahao (Crown Counsel.)


For the purpose of my decision I did not deal with the issue of the exceptional circumstance (as requirement section 109 of the Criminal Procedure & Evidence Act as amended). I noted however that such circumstances are to be proved by an applicant for bail on balance of probabilities. See Lehlohonolo Kelane vs DPP CRI/APN/709/04 Nomncongco J dated 18th August, 2004. (unreported).



The impression that circumstantial exceptional circumstance mean unusual circumstance cannot be born out by precede or judgement of this court. What judges observe or conclude is that a circumstance may be exceptional in one case but not in another. The easiest example is that of an accused who applies for a bail on the ground that his father has to be buried. In the case of A this may not be an exceptional circumstance. This


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may be an exceptional circumstance in case B where the other prisoner seeks to be released and adds that he is the only person who can and who is responsible for the burial of his father.


In one case this court took as exceptional circumstance the fact that it appear that the Accused's defence was so solid and formidable that it smacked of injustice if the Accused was not sooner liberated. This had to do with the other twin principle that the court will lean in favour of the an accused who is presumed to be innocent as long as he has not been convicted. Secondly, in that case the very principle of protection of the interests of justice worked in favour of that applicant for bail.


As I said, in my discretion, I found that this was a case in which the application for bail ought to be dismissed and I so ordered.


T. Monapathi

Judge