Faesa v Director of Public Prosecutions (CRI/APN/445/03)

Case No: 
CRI/APN/445/03
Media Neutral Citation: 
[2004] LSHC 26
Judgment Date: 
13 February, 2004

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CRI/APN/445/03

IN THE HIGH COURT OF LESOTHO


In the matter between:


TSELISO FAESA APPLICANT

VS

DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT


JUDGMENT


DELIVERED BY THE HON. MR. JUSTICE G. N. MOFOLO ON THE 13th DAY OF FEBRUARY, 2004


This is an application for bail. From papers before me, it would appear applicant was arrested on 16 June, 2003 and remanded in custody on 24 June, 2003. An identification parade had been held and accused positively identified.


From papers before me it is claimed that applicant applied for bail four (4) months ago and the application was refused. Reference to application for bail is very tense and no trouble was taken to annex bail application the tendency has gained ground in this court for application to be kept


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separately. One file containing judges papers and the other Registrars. It is extremely important that originating papers and all relevant papers be filed in the judge's file for more often than not some vital papers are not filed in the judge's file and he has to swerry around frantically looking for them. This is totally unnecessary for the result is that judgment is delayed by the judge having to run around to earth papers that should in the first 1stace have filed in his file. Assistant Registrars are to ensure that these instructions are strictly obeyed and complied with.


At the time of making this application the applicant has alleged 'I have been remanded in custody for more than two months without the matter being heard contrary to the Speedy Trials Act. I must also caution that whenever in any matter legislation is referred to it is incumbent on counsel to annex copy of the legislation and my cases referred to for easy reference by court and to minimizing on court's time. The applicant has applied that his bail application papers be incorporated and read together.


Detective Inspector Makoae in his opposing affidavit has relied on information by one Moroesi Ts'oaeli regarding applicant's involvement in the robbery. Unfortunately Moroesi has subscribed to no affidavit in these proceedings and this court is wary of relying on Moroesi's unsubstantiated allegations against the applicant's Inspector Makoae has also said the applicant is a light risk without providing cogent proof of the allegation. He has also said it is feared application will jeopardize investigations and interfere with crown witnesses.


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In administering justice, courts seek to strike a balance between protecting the liberty of the individual and safeguarding generally accepted that bail should not be refused unless there are sufficient grounds for believing that (he accused will not observe conditions of his release. Question is always whether factual circumstances surrounding the application and forming the basis of the first refusal for bail have changed. It would also seem where bail is refused on purely technical ground because, for example police investigation is proceeding or because the crown needs time to decide which witnesses to call the position would be different and renewal application brought when the matters have been resolved may well succeed. In other words, facts must exist before a court can exercise its discretion. It cannot be facts based on Moroesi's association with the application because, rightly so, in view of the fact that Moroesi's affidavit is unavailable, the crown has decided to drop the ground save for sec. 109A(2)(a)(ii) of the Criminal Procedure and Evidence Act as amended.


The Crown opposed the application in terms of section 109 of C P & E as amended. However, its Heads of Argument the Crown at paragraph 2.1 has submitted:


"The crown wish to put it on record that, the verifying affidavit of Moroesi is unavailable. A diligent search was made for her by the Investigating Officer but in vain."


Paragraph 2.2


"Wherefore, the Crown wishes to disregard is opposition in respect of the grounds as indicated safe for section 109A(l)(a)(ii) of C P & E as amended."


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In my view it is Moroesi's evidence were it available that implicates the accused and in the absence of her evidence I cannot conceive how the applicant gets implicated in the offence. Section 109A(2)(a)(ii) operates where there is evidence that an accused is involved in a crime for example, he is found in possession of goods subject matter of the offence or a weapon subject matter of the offence. It is Moroesi's evidence that would bring accused within the preview of the offence and in the absence of such evidence it cannot be said that accused or applicant is involved in the crime.


This court has no option but to release the applicant on bail is prayed.


Wherefore the application succeeds and applicant is released on bail on following bail terms:


  1. That applicant pay Ml,000.00 cash deposit.

  2. Applicant find surely in the sum of Ml,000.00.

  3. Surrender his travel documents

  4. Applicant report as Pitso Ground every Friday of the week between the hours of 6:00 a.m. and 6:00 p.m.

  5. Does no interfere with Crown Witnesses

  6. Attend remand and

  7. Stand trial.

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C.N.MOFOLO

JUDGE


For the Applicant: Mr. Teele

For the Crown: Ms. Sello


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