Kambule v Director of Public Prosecutions (CRI/APN/516/04)

Case No: 
CRI/APN/516/04
Media Neutral Citation: 
[2004] LSHC 99
Judgment Date: 
20 August, 2004

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CRI/APN/516/04

IN THE HIGH COURT OF LESOTHO


In the matter between:


NDALENE KAMBULE APPELLANT

And

DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT


JUDGMENT


DELIVERED BY THE HONOURABLE MRS JUSTICE KJ. GUNI ON THE 20th August, 2004


Postponement ......... What is a postponement? When should the postponement be granted.


BAIL


Powers of the High Court to admit the accused to bail Direction given to the court by Section 109(l)(c) CRIMINAL PROCEDURE AND EVIDENCE (Amendment) ACT 2002.


The Burden of proof that there are exceptional circumstances justifying the release of the accused on bail, rests on the accused.


The accused is to prove on the balance of probabilities that there are exceptional circumstances which permit his release in the interests of justice.


This is a matter of bail application which is opposed. Once the filing of the pleadings was complete the matter was set down for hearing. It was placed before me to hear the argument presented by the parties at the appointed date, time and place. Despite being aware that the matter has been placed before the court for hearing of the argument the respondent did not appear. The respondent is the office of the Director of Public Prosecutions. In the Director of Public Prosecutions' office two officers were handling this matter.


That is Mr. S- Seema and Mr- Mahao. None of these two officers was present before this court when the matter was called for the hearing. Ms. N.G. Thabane for applicant was present before the court. She indicated to the court that she is appearing for the applicant and that she is prepared and ready to proceed but no one was appearing for the respondent. She pointed out to the court that she met one of the officers from the Director of Public Prosecutions' office whose name she could not remember, who indicated to her that Mr. Mahao is not coming to court. She felt she could not seek for the postponement of the hearing but elected to proceed. The reasons for her election to proceed were set out by her as follows:-firstly, there will be unnecessary delay when the pleadings are complete and the parties have filed the heads of argument. Secondly, there are two officers at the Director of Public Prosecutions' office, who are familiar with this matter and anyone of them could have appeared today before court.


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Thirdly, there is no application before this court seeking the postponement of the matter. Fourthly, if the court grants the postponement the consequential delay will prejudice the applicant who is likely to lose his job the longer he remains incarcerated. This will be a very severe punishment meted out even before the accused is convicted of any wrong doing.


POSTPONEMENT


A postponement of any matter which is called for the hearing before the court, must be formally and properly sought before that court. The grounds and reasons for seeking the postponement of the matter at the time it should be heard, must be fully set out and placed before that court for its consideration. The postponement is a type of a relief which can only be granted to a party who seeks it with the reasons fully set out and placed before that court which may grant the postponement sought. When the court is not satisfied with the reasons for which the postponement is being sought, the court is not obliged to grant the postponement of the matter, masupha SOLE Vs BRENDAN PETER CULUNAN CONSTITUTIONAL CASE NO.3 OF 2002 - not yet reported. The postponement is not always available for the taking if and when any party seeks it.


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Mr. Phoofolo who appeared for Mr. Sole, sought a postponement of the hearing on the grounds that Mr- Sole had no money as yet to pay the Senior Counsel whom they wish to engage to represent Mr. Sole. Further more that particular Senior Counsel was not yet admitted to appear before our courts. Therefore there was a need to postpone the hearing to enable Mr- Sole to look for money from unknown sources in order to pay that Senior Counsel - who may then seek admission to practice in our courts. The postponement sought was for an indefinite period. The other party was going to be prejudiced by that postponement. In our present case that could be the position. There is no indication where the respondent is and when if at all the respondent will appear before court. What is more important is the fact that there is no one there before court, seeking the postponement.


The absence of the counsel who should be appearing before the court, may deny the court his or her assistance, but it does not invariably necessitates the postponement of the hearing of the matter. The court is not prevented by the absence of the lawyer from proceeding to hear the matter.


Edicate, courtesy and professionalism demand that a legal practitioner who for reasons beyond his/her control, is unable to attend the hearing of any matter in court, must prior to or at the hearing of the matter in question, arrange with one of his or her


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colleagues to appear in court at his or her instance, and ask the court to excuse his or her none appearance at that hearing of the matter in question. The reasons for his or her none appearance be fully set out before that court. If the matter cannot be handled by any other lawyer then the postponement must be sought to enable that lawyer to come to court to attend to the matter in question some other time.


A failure by the legal practitioners to appear before the court at the expected time without being excused by that court, is contemptuous. The court does not only frown at such misconduct, but must bring the culprit to book.


The two officers from the Director of Public Prosecutions' office who actually each played an active part in the handling of this matter, are Mr. Seema and Mr. Mahao. Mr. S. Seema has deposit to an affidavit in support of the opposition to the granting of this bail application. In the affidavit he avers that he is in charge of the prosecution service in this matter. He further alleges that he has meticulously read the affidavit of this applicant and he understood it very well. He also avers to have read and that he understands the opposing affidavit deposed to by Sgt. Makhube - the chief investigating officer in the robbery case in which this applicant is allegedly involved. He expresses a strong conviction that this applicant took part in the alleged crime of robbery. Apart from reading the statements filed in the police docket, the crown counsel –


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Mr. S. Seema alleges that he interviewed the investigating officer who confirmed the suspicions the crown counsel has already formed when perusing the police docket. The point is clearly made by Mr. S. Seema that he is familiar with the matter and has the relevant facts at his finger tips. Therefore in my view he could at any time deal with this bail application.


As far as Mr- Mahao is concerned, he had prepared and submitted written argument. He seems to have been the one designated to appear before court to argue the respondent's case. The argument against the granting of this application is well thought out, meticulously set out and supported by relevant authorities. Anyone could read it out, follow and understand the points raised. At the appointed date, time and place Mr. Mahao was unwell. He did not come to court.


Why no one came from the Director of Public Prosecutions' office to deal in anyway with this matter is beyond my understanding. Courtesy required that there should have been someone from the Director of Public Prosecutions' office to appear before the court now that the matter was properly enrolled and called for hearing. It is unacceptable that no one represented the respondent at the hearing of this matter.


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It was in those circumstances that I decided to proceed to hear the application and determine whether or not to grant this bail application despite the failure by the crown counsel to appear before court to present the respondent's case.


BAIL

To bail out according to "The Concise Oxford English Dictionary"


is to rescue. The applicant herein has found himself in a difficult situation. That is to say, he suddenly without notice to his employer found himself unable to report for duty because he is in custody awaiting trial on a charge of armed robbery. On the face of the matter he has taken a French leave which will entitle his employer to take steps to fill the vacancy which may be causing unwarranted difficulties and disruption at work. The employer may turn that French leave into dismissal of the absent employee. Seeing the possibility of losing his job while remaining in custody the applicant wishing to be rescued from that situation of losing his job, approached this court to seek his release on bail. When dealing with an application for bail pending trial, it is necessary to strike a balance as far as possible, between protecting the liberty of the individual and safeguarding and ensuring the proper administration of justice (S v ESSACK 1956 (2) SA 161 at page 162C).


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There are various grounds on which an application for bail may or may not be granted. Those are set out at page 248 of CRIMINAL LAW AND PROCEDURE THROUGH CASES complied by The Late Honourable Judge Mofokeng of Lesotho High Court. They are:-


  1. The seriousness of the crime charged.

  2. The fear that the accused will interfere with the investigations of the crime charged.

  3. The likelihood that the accused may abscond.


The seriousness of the offence is not by itself per se a ground for refusal to admit the accused on bail (liebman v attorney general 1950 (1) sa 607), There must be other factors which support the seriousness of the offence charge to make the release of the accused on bail a genuine risk. Those other factors may be the fear that the accused will not stand trial on that serious crime or that the accused will commit other serious crimes while on bail. These grounds on which bail may or may not be granted operate together. If there is fear that the accused will interfere with witnesses it follows that he will be doing so in order to defeat the ends of justice. In our present case, the crown does not fear that the accused will interfere with the investigations. They rely on the grounds of the seriousness of the crime and the likelihood of escaping from facing the charge in court. I do not believe that this accused will run away. He has his job which he does not want to lose by running away from it.


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Again Lesotho is not such a big country that a person can disappear from the eye of the law and never be reached by that long arm of the law.


POWERS OF THE COURT TO ADMIT THE ACCUSED TO BAIL


The applicant in this matter is one of the accused persons who are charged with the crime of ARMED ROBBERY. In terms of section


109 CRIMINAL LAW AND PROCEDURE ACT NO. 9 OF 1981. the High Court has unlimited powers to admit to bail any accused person. The section provides as follows:-


" The High Court may, at any stage of any proceedings taken in any court in respect of an offence admit the accused to bail".


The prevalence of the commission of the serious crimes forced the legislature in its wisdom to take steps in an attempt to curb the rate at which such serious and violent crimes were being committed. The legislature gave powers to the court to detain in custody an accused person who is charged with any of the following crimes:- murder, rape, robbery, stock theft and other serious offences by enacting


THE CRIMINAL PROCEDURE AND EVIDENCE (AMENDMENT) ACT 2002.


In consideration of the individual's constitutional right to personal liberty, it was recognized and accepted that this individual right to liberty must have a corresponding burden of responsibility.


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The effect of the above amendment Act is that the individual who commits serious and violent crimes legally forfeits his or her right to liberty. The legislature while authorizing the court to detain such an offender, seeks to provide the same offender with yet another opportunity to approach the court and show cause why he or she should not be detained in custody. The burden of proof is always placed on him who alleges [mokalanyane mokalanyane v rex 1978(1) llr 40 at 42-3]. Previously it always rested upon the crown. Presently it has been shifted onto the offender [criminal PROCEDURE AND EVIDENCE (Amendment) ACT 2002] supra. That onus is place on the offender who must discharge it on a lesser scale, that is on the balance of probabilities, [mokalanyane v REX] (supra). The relevant portion of that section reads as follows:-


"109 (1) Powers of the court to detain accused on a charge of robbery................


(c) Where an accused person is charged with robbery and the robbery involved


  1. the use of a firearm by the accused, or any co-perpetrator or participant in robbery..................


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 satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release"


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There is no definition or lists of exceptional circumstances. The determination of the circumstances as being exceptional depends on the merits of each individual case. What is exceptional circumstance in one case may not be regarded similarly as exceptional in another case. The accused person in our case supports his family with the income he earns from his employment. He is a sole bread winner of his mother who is a widow. It was argued by Ms. Thabane that the prevailing poverty in our country is of great concern to everyone. People should not be forced into poverty if that can be avoided. Government is making a conserted effort to alleviate this poverty by creating job opportunities. Job loses where possible should be avoided. Although the government is trying its level best to facilitate the creation of jobs, not very many jobs are made available as quickly as they are needed. There is in fact a crisis of unemployment in this country. The applicant must be allowed to continue to work. The likelihood of losing his job by incarceration is exceptional. This is found to be an exception circumstances which justify the release of this accused on bail in the interests of justice if only to avoid the loss of his present job. Therefore the application for bail is granted on the terms set out in the notice of motion.


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K.J. GUNI

JUDGE


FOR APPELLANT : MS. THABANE

FOR RESPONDENT : MR. MAHAO


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