Mokeseng v Director of Public Prosecutions (CRI/APN 117 of 2000) [2000] LSCA 13 (20 March 2000)

CRI/APN/117/2000 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n :- S A L LA M O K H E S E NG A P P L I C A NT and T HE D I R E C T OR OF P U B L IC P R O S E C U T I O NS R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r s. Justice K. J. G u ni on the 20th d ay of M a r ch 2 0 00 T h is applicant w i s h es to be admitted to bail p e n d i ng trial. He is presently held in the M a s e ru Central Prison awaiting trial on a c h a r ge of m u r d e r. A d m i s s i on to bail for a n y o ne a c c u s ed of m u r d e r, w h i ch u n d o u b t e d l y, is o ne of the m o st serious offences in this K i n g d o m, is a routine process. D o z e ns of a applications for bail pass, u n o p p o s e d, t h r o u gh these courts e v e ry w e e k. T he right to personal liberty is g u a r a n t e ed a nd protected as p r o v i d ed by the s u p r e me l aw of this land. [ C h a p t er 1 1, S e c t i on 6: ( 1 9 9 3) C O N S T I T U T I ON OF L E S O T H O] T he courts, pursuant to the constitutional provisions cited a b o v e, a d m it n u m e r o us applicants to bail at all times. It is in very exceptional circumstances w h e re an accused person is refused bail. It did not c o me as a surprise to me w h en during the perusal of these papers filed of record in this application, it e m e r g ed that this applicant allegedly c o m m i t t ed this crime of m u r d er while on bail on another charge of the crime of m u r d er - CR 95/95. Within the space of five years or so he h as allegedly c o m m i t t ed t wo murders. It appears that this applicant w as arrested and charged with the crime of m u r d er in CR 95/95. He applied for and w as released on bail. He has n ow been arrested again a nd has b e en charged with the crime of m u r d er CR 11/2000. I am u n h a p py with regard to insufficiency of the facts put before this court. B ut nevertheless I h a ve to c o me to a conclusion. Bail applications are all the time hurriedly prepared. M o st important and relevant facts are inadvertently or deliberately left out. T he response to such application is also required to be provided forthwith without giving the police w ho are involved in the investigations of the crime, for w h i ch the applicant has b e en arrested, e n o u gh time to research the issues raised a nd those related to t h e m, in order to give a complete picture of w h at sort of a case is under consideration. As a result of having before me half truths of scanty facts, invariably I h a ve to m a ke a decision without being properly informed. Applicant withheld material relevant facts relating to his previous conduct. R e s p o n d e nt a nd those supporting the opposition to the granting of bail to this applicant, filed affidavits w h i ch raise those issues left out by this applicant. In an attempt to deal with the issues raised by respondent's affidavit in his replying affidavit, this applicant b e c a me a respondent - n ow answering charges levelled against h im in the o p p o s i ng affidavit, with total disregard of his F o u n d i ng affidavit. T he result is an untidy patch w o rk w h i ch fails to s h ow clearly the precise case of this applicant. At the e nd of the passage through this m a ze , the h a ze picture w h i ch e m e r g es therefrom is as follows: This accused w as arrested a nd charged with m u r d er in 1995. He applied for and w as granted bail on specified conditions. Of those conditions, the following are relevant for the assessment of his future conduct: 1. He w as ordered to attend r e m a n ds as stipulated . 2. He w as ordered to report himself at the Police Station at specified intervals. This applicant d o es not d e ny that he w as on bail a nd these w e re s o me of the conditions of his bail. He also does not d e ny breaching such conditions. He gives flimsy e x c u s es w h i ch s h ow that he d o es n ot regard the m a t t er w i th the s e r i o u s n e ss it d e s e r v e s. T he r e s p o n d e nt h as o p p o s ed the release on bail of this a c c u s ed on the g r o u nd that he is likely to a b s c o n d. T he fears that this a c c u s ed will a b s c o nd are raised in t he m i nd of the r e s p o n d e n t, by the a c c u s e d 's p r e v i o us c o n d u ct w h i ch is the factor w h i ch m u st be c o n s i d e r ed in order to d e t e r m i ne w h e t h er or n ot this a c c u s ed s h o u ld be trusted to m a ke h i m s e lf available to stand trial S. V. T h o m h i ll 1 9 98 ( 2 ) S . A. C r i m i n al L aw R e p o rt 1 7 7. T he record of his p r e v i o us c o n d u ct as indicated in his o wn a v e r m e n ts in the replying affidavit, is as follows: He d i s c o n t i n u ed attending r e m a n ds w h en he w as " i n f o r m ed that the c h a r ge sheet against w h i ch his r e m a n ds w e re r e c o r d ed is lost. He reported at the Police Station until the r e c o rd w as full of reporting s t a m ps w h en the police a d v i s ed h im to go a nd l o ok for w o rk until he c o u ld be s u m m o n ed to court." T h e se conditions of bail are m a de by the court as an o r d er of court. As s u c h, t h ey c an o n ly be varied or cancelled by the court. T he e a se w i th w h i ch this a c c u s ed cancelled t h em m u st be c o n s i d e r ed seriously. S . V. T H O R N H I LL 1 9 98 ( 1) S . A. C r i m i n al L aw report at p a ge 1 7 7. T he reading, of his e x c u s es for the b r e a ch of the bail condition, gives the i m p r e s s i on that he feels that he is in control a nd h as authority to v a r y, or cancel t h o se conditions as he pleased. A c c o r d i ng to h im the record of reporting w as full of s t a m p s ." He s o u n ds fed u p. He h ad b e en reporting for t oo long. He feels justified to take the l aw in his o wn h a n ds a nd d e c i de e n o u gh is e n o u g h. He is u n e m p l o y e d. He a p p e a rs to h a ve no fix a b o d e. He c an be a n y w h e re for a ny length of period as s h o wn in his f o u n d i ng affidavit that he w as in his village on C h r i s t m as e v e. He w as at M a s e ru at Ha T h a m ae for n ew year. He w as in B l o e m f o n t e in in the R e p u b l ic of S o u th A f r i ca until his arrest. T he public prosecutor a nd police m a n, are m e m b e rs of the l aw e n f o r c e m e nt a g e n cy of the c r o w n. T h ey k n ow a nd m u st respect court orders. It is unlikely that t h ey c an instigate the b r e a ch of bail conditions or g i ve directives s u ch as t h o se allegedly g i v en to this a c c u s ed by t h e m. T h e re is, u n d e n i a b l y, s o me corruption in the justice s y s t e m. C o u rt r e c o r ds do go m i s s i n g: T h ey are sold to a c c u s ed p e r s o ns or destroyed, for the sole p u r p o se of defeating the e n ds of justices. As far as the Public P r o s e c u t or is c o n c e r n e d, this a c c u s ed h as a b s c o n d e d. T he P r e p a r a t o ry E x a m i n a t i on w h i ch s h o u ld h a ve b e en held, failed to p r o c e ed b e c a u se of this a c c u s e d 's a b s e n c e. It is a r g u ed on b e h a lf of this applicant that it is n ot this P r o s e c u t or w ho released h i m. T he a c c u s ed w as released by the p r o s e c u t or w ho c a n n ot be n a m ed n or described. T he p o l i c e m an w ho a d v i s ed this a c c u s ed to go a nd l o ok for w o rk a nd stop reporting h i m s e lf as o r d e r ed by the court is also n a m e l e s s, unidentifiable a nd e v en indescribable. T h e se e x c u s es are so ridiculous, the a c c u s ed m u st h a ve c o n c o c t ed t h em hurriedly w h en he n o t i c ed that his p a s s ed w as c a t c h i ng up w i th h i m. In order to strike a p r o p er b a l a n ce b e t w e en his right to liberty a nd the interests of society for the p r o p er administration of justice the applicant's p r e v i o us b e h a v i o ur m u st be c o n s i d e r ed in the light of his p r e s e nt a v e r m e n ts that he will stand trial S . V E S S A CS 1 9 65 ( 2) S . A. 1 6 1. In o ur p r e s e nt application, applicant h as n ot m a de a ny a v e r m e n ts that he will stand trial. He s u p p o s e d ly will stand trial if o r d e r ed by this court to do so. I n e ed n ot m e n t i on the indications m a de by his p r e v i o us c o n d u ct as far as respect of court o r d er is c o n c e r n e d. B e c a u se he w as arrested in the R e p u b l ic of S o u th A f r i ca a nd h a n d ed o v er to the L e s o t ho Police by m e m b e rs of S o u th A f r i c an Police S e r v i c e, the applicant in his f o u n d i ng affidavit dealt m a i n ly w i th his d e p a r t u re f r om L e s o t ho a nd the r e a s o ns for s u ch departure. T he a c c u s ed c l a i ms that for no a p p a r e nt r e a s on he w as u n l a w f u l ly attacked by s o me m en of his village. He s o u g ht r e f u ge in his relatives h o u s e. T he m en w a i t ed outside the h o u se for h i m. He e s c a p e d, u n d er the c o v er of d a r k n e s s. He ran a w ay by night b e c a u se he feared that he will be c a u g ht w h en the d ay b r e a k s. A c c o r d i ng to h im he n a r r o w ly e s c a p ed death. W h e re d o es he r un t o? O ne m i g ht be inclined to think the m an w ho is r u n n i ng for his d e ar life will go to a refuge w h e re his life w o u ld be s e c u r ed a nd culprits b r o u g ht to b o o k. T h e re is a police station nearest his village. T he investigating officer in this c a se is f r om the Police Station. T he applicant did n ot go to that Police Station. He c a me to Ha T h a m ae - M a s e r u. T h e re a g a i n, he did n ot c o n s i d er r u n n i ng to the police station to report the m a t t er a nd s e ek protection. He w e nt to his brother in Bloemfontein. He h ad p a s s ed n u m e r o us Police Stations in M a s e ru w h en he w e nt to report, that attack u p on h im by his f e l l ow villagers, to his brother. He r e m a i n ed in Bloemfontein f r om 10th J a n u a r y, 2 0 00 until he w as arrested on 1st F e b r u a r y, 2 0 0 0. He w as therefore nearly a m o n th there. T h is a c c u s ed d o es n ot s h ow this court that he h as a ny substantial ties w i th a ny p e r m a n e nt residence. He a p p e a rs to live a n y w h e re a nd e v e ry w h e re for a ny length of period. All the issues d i s c u s s ed a nd c o n s i d e r ed in S . V. A c h e s o n, for the p u r p o se of striking p r o p er b a l a n ce b e t w e en the interests of the society for the p r o p er administration of justice a nd the interests of the individual right to liberty, are f o u nd m i s s i ng in this application. S. V. A c h e s on 1 9 91 ( 2) S. A. 8 05 at p a ge 8 08 F - G. He d o es n ot say he h as a p e r m a n e nt h o me a n y w h e r e. He s a ys n o t h i ng a b o ut his family a nd the family ties. He is u n e m p l o y e d. T h e re is just n o t h i ng to h o ld h im a n y w h e r e. H is p r e v i o us record s h o ws that he c an v e ry easily e v a de a ny bail condition S. A. T H O R N H I LL [supra]. He w as arrested w h i le on t he run. A n o t h er reason w h i ch w as not directly raised by respondent, is his likelihood to continue committing similar offences, if released. T he accused w as on bail awaiting trial on a charge of m u r d er w h en he allegedly c o m m i t t ed this m u r d e r. There is a need if only for the protection of the society to k e ep this accused in custody in order to stop h im from committing further murders. It is an aggravation against release on bail for a ny accused w ho is likely to c o m m it similar offences while on bail. This is a proper case to invoke the provision of section 6(e) Constitution of Lesotho 1993. Bail is refused. K . G U NI J U D GE 20th M a r ch 2000 For Applicant: Mr M p o po For Respondent: Ms Dlangamandla