Serabele and Others v Director of Public Prosecution (CIV/APN/333/2004 )

Case No: 
CIV/APN/333/2004
Media Neutral Citation: 
[2004] LSHC 87
Judgment Date: 
14 July, 2004

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CIV/APN/333/2004

IN THE HIGH COURT OF LESOTHO


In the matter between:-


LITABA SERABELE 1st APPLICANT

THABISO MAHLO 2nd APPLICANT

PITSO MOETI 3rd APLICANT

MPHO MALAKA 4th APPLICANT

AND

THE DIRECTOR OF PUBLIC

PROSECUTION RESPONDENT


JUDGMENT


Delivered by Honourable Ms Acting Justice N. Majara on the 14th July, 2004


Applicants approached this court for the granting of bail as they have prayed for in paragraph 7 of their petition on the following conditions:-


  1. That they pay cash bail deposit in the sum of M500.00

That they do not interfere with crown witnesses.

That they attend remands regularly.

That they report themselves at Lithoteng Police Station on every last Saturday of each and every month.


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The application was opposed and both counsel for applicants and respondent filed their respective papers and heads of argument. On the 6th of July, 2004 the matter was argued before me.


  1. The four petitioners are presently incarcerated at Mafeteng prison where they are awaiting trial on seven (7) charges, namely:- armed robbery, robbery, and five counts of being in contravention of Section 3(1)(2) of Act No. 17 of 1966 as amended by Act No. 4 of 1999 Internal Security (Arms and Ammunition) respectively.


  1. Petitioners' application started out with an outline of circumstances that led to their arrest and these are basically that, although on the day in question they were armed with weapons when they were stopped and arrested by the police on their way home from Masemouse in the district of Mohale's-Hoek, they were carrying the said weapons to protect themselves. Secondly, that the alleged robbery at a Chinese shop had taken place whilst they were at the shop to buy food and the purported robbers were unbeknownst to them.


  1. Petitioners' application for bail is basically premised on the ground that they are unlikely to abscond because of the following reasons:-

  2. 4.1 They are all Basotho citizen (sic).

4.2 They are all breadwinners in their respective families.


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5. Respondent's opposing papers comprised of the investigating officer, D/TPR Mokhachane's opposing affidavit and supporting affidavits of Thapelo Mokuku, a Crown Counsel in the Attorney General's Chambers, Li Wanrong, one of the complainants in the main case, Chen Qiws, another complainant in the case and the answering affidavit of another investigating officer in the case, D/SGT Lehata. The main grounds of respondent's opposition to bail are premised on the following factors as are listed in paragraph ten (10) of D/TPR Mokhachane's opposing affidavit :-


5.1 The evidence which is collected in the police docket discloses the existence of a prima facie case for applicants to answer.


5.2 Applicants are charged with a very serious crime.


5.3 The above two grounds and the possibility of a long term of imprisonment that applicants might serve if convicted, may provide a strong incentive for applicants to abscond and not stand their trial.


5.4 The crime with which applicants are charged falls within the ambit of the Amendment to the Criminal Procedure and Evidence Act of 1981 in respect of bail.


5.5 Investigations in the case are complete and the Public Prosecutor will soon be urged to summarily charge the applicants.


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6. I was also referred to a plethora of authorities on the general principles and considerations that a court should take into account when dealing with the issue of bail. Section 109. A (1) which is the amendment section to which this court has been referred, reads in part and in so far as is relevant to the case at hand:-


109 .A (1) "Notwithstanding any provision of this Act, where an

accused person is charged with-robbery, and the robbery involved-the use of a firearm by the accused, any co-perpetrator or participant in the robbery;


The court shall order that the accused person be detained in the 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 satisfies the court that exceptional circumstances exist which in the interest of justice permit his or her release. (My underlining).


7. I must at this early stage point out that in my humble opinion, over and above the usual principles governing bail, it is the provisions of this section that an applicant who is charged

with any of the crimes listed therein such as applicants in this case, should first and foremost satisfy. This means that from the onset, they should clearly and concisely demonstrate that exceptional circumstances do exist which in the interest of justice, would compel the court to release them.


8. Have applicants in this instance successfully discharged this onus? Applicants have stated two reasons upon which they asking this court to grant their release and these are that they


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are Basotho citizens and are all breadwinners in their respective families. I must say I was a little baffled at the brevity, flimsiness and/or lack of substance of the applicants' grounds or purported exceptional circumstances. However, I wish to point out that I am not in anyway suggesting that applicants ought to have listed countless reasons for them to have sufficiently met the requirements. In other words, it is quality and/or substance as opposed to quantity that I am referring to which means that even one reason can suffice if it is found to adequately meet the requirements of exceptional circumstances.


9. In my opinion, due to the nature of the charge and the statutory requirement that exceptional circumstances must be shown by an applicant in such a case, it is only proper to address this question first and foremost. If the court is satisfied that this requirement has been satisfied, it may then look at the other general principles that apply to bail applications in general.


10. The first question therefore that this court should address is, what are or what constitutes exceptional circumstances? In S v. Schietekat 1998 (2) SACR 707 at 714, Slomowitz AJ had this to say:-


"As to 'exceptional circumstances', they have no special magic. Of necessity they must be exceptional because of the stress laid on continued detention by reason of the serious nature of the crime charged. "

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I agree with this view. Applicants are not expected to come up with something magical or out of this world. My understanding of the term exceptional is, unusual or out of the ordinary. In other words, the exceptional circumstances should at least go beyond what is standard in the eyes of a reasonable person. There cannot therefore be one adequate definition or exhaustive criteria. In S v. Jonas 1998 (2) SACR 677, Horn AJ suggested a few examples of such circumstances viz,


"There can be as many circumstances which are exceptional as the term in essence implies. An urgent serious medical operation necessitating the accused's absence is one that springs to mind. A terminal illness may be another. It would be futile to attempt to provide a list of possibilities which will constitute such exceptional circumstances. To my mind, to incarcerate an innocent person for an offence which he did not commit could also be viewed as an exceptional circumstance. Where a man is charged....when everything else points to the fact that he could not have committed the offence because, e.g he has a cast-iron alibi, this would likewise constitute an exceptional circumstance. "


11 In the application before me do the two reasons that applicants

have provided namely, that they are Basotho citizens and breadwinners of their families qualify to be treated as exceptional circumstances? In my opinion, that is not the case. This is more so when taking into account the genuine dispute and in my opinion, overwhelming opposing grounds that have been given by respondent. This fact alone increased applicants' burden of showing the existence of circumstances so exceptional that a dismissal of their application for their release would defeat the ends of justice.


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12. Even if this court were to take into account the applicants' version of how they came to be arrested by the police and found in possession of unlicensed firearms, not to mention the reasons they advanced why they were found in possession of the same, mainly that it was to protect themselves, the explanation itself is so lamentably vague and weak that instead of convincing this court to find in their favour, the contrary should actually prevail.


13. For the above reasons, I am not even going to consider the other general bail considerations. I find that applicants have failed to discharge their onus as is required by the statutory provision as has been cited above. The application is therefore dismissed with costs to the respondent.


N. MAJARA

ACTING JUDGE


For Applicant : Ms Liphoto

For Respondent: Ms Makoko


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