Mokalanyane v Director of Public Prosecutions (CRI/APN 513 of 95) [1995] LSCA 195 (8 December 1995)

CRI/APN/513/95 IN THE HIGH COURT OF LESOTHO In the matter between: REFILOE MOKALANYANE APPELLANT and DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT J U D G M E NT Delivered by the Honourable Mr. Justice G. N. Mofolo on the 8th day of December, 1995. This is a matter in which the Petitioner Refiloe Mokalanyane was arrested for and is charged with the offence of murder in that Count 1. In that on or about the 21st June. 1995 and at or near Lumisi's in the district of Mafeteng. the said accused did one or the other or all of them unlawfully and intentionally kill Armstrong Moeketsi and commit the crime of murder. Count 2 That the said accused are charged with the offence of murder In that upon or about the 21st June. 1995 and at or near Lumisi's in the district of Mafeteng, he said accused did one or another or all of them unlawfully and intentionally kill Refiloe 'Mamolulela Mofolo and commit the crime of murder. Count 3 - 2 - That the said accused are charged with the offence of robbery in that upon or about the 21st June. 1995 and at or near Lumisi's in the district of Mafeteng. the said accused did one or another or all of them unlawfully assault Sekoli Armstrong Moeketsi and Refiloe 'Mamolulela Mofolo by intentionally using force and violence with a firearm to wit a 9mm pistol to induce submission by the said Sekoli Armstrong Moeketsi and Refiloe 'Mamolulela Mofolo did take and steal from their person or from their presence out of their immediate care and protection certain properly to wit a motor vehicle, silver grey Jetta Registration numbers X2930. the property of Lesotho Government and did rob them of the same. Pending his indictment the Petitioner has petitioned this court to liberate him on bail as, according to paragraph 6 of his Petition. Your Petitioner submits that when he was charged before the Subordinate Court of the district of Mafeteng he got utterly shocked to learn of the charges as reflected in Annexure "A" attached hereunto. Your Petitioner can take this Honourable Court into his confidence that he is innocent and has never thought let alone commit murder he is alleged to have committed. Your Petitioner has a complete defence in that he has never committed any of the crimes he is charged with. The Petitioner's affidavit above must be read with and contracted with respondent's answering affidavit wherein No.7461 D/Tpr. M. P. Maduna says AD. PARA. 6 thereof. - 3 - I am surprised that the petitioner herein makes a bold, sweeping albeit vague assertion that he has a complete defence in that he has never committed any of the crimes he is charged with. Obviously this is vague and embarrassing. He says he is taking the court into his confidence that he is innocent. innocent. He could at least have said where he was on the material date. In as far as I am concerned he is silent. He has not in any manner shown how he is 5.2 On the other hand I wish to take this Honourable Court into my confidence and disclose that the evidence I have as contained in the statements in the docket in my possession disclose that the petitioner in the company of one of his co-accused were at the Golden Hotel Mateteng. It so happened that the 2 deceased persons who were officers of the Ministry of Education had parked their vehicle at the same hotel. The petitioner and his friend approached the 2 deceased and asked for a lift to Maseru. Being good Samaritans the deceased obliged them and the 4 proceeded to Maseru. However, on the way. the information discloses that one of the accused asked to pass water. It is immediately after he had alighted that he asked the deceased driver to raise up his hands. At this moment he had produced and pointed a firearm at him. Without further warning he pumped bullets into the deceased at point blank range. As if that was not enough he turned towards the deceased lady and shot her in the like manner. It is then that after this despicable deed the bodies of the deceased were dragged by the 2 accused to the side of the road. insensitive to the end. drove away in the government vehicle that had been driven by the deceased. Promptly thereafter the accused. 5.3 The Petitioner herein was arrested only on 17 July, 1995 as he correctly says. When he was arrested at Lithoteng Ha Seleso at his girlfriend's place, obviously the petitioner was in hiding and had been skulking in the neighbourhood and not going to his parental house where he is ordinary resident. His parents confirmed that he had been missing for sometime. It is significant that when he was eventually arrested the petitioner was found in possession of the clothing items worn by both the deceased on the day of their demise. These were a jacket and boots worn by the deceased man which were later identified and confirmed as his by his wife. There was also a black ladies leather jacket which was identified by the deceased husband and confirmed as hers - what more! The father of the petitioner whose statement I have in the docket positively says that shortly after the incident he had seen his son wearing these items which he had never seen before .... I have also been informed by the Crown that the gun which committed the murder has not been recovered and the petitioner may hamper investigations in this regard. Also, as the petitioner has relatives in South Africa who gave the petitioner the gun in return for some "stuff from the Kingdom it is feared the petitioner may flee the country. MR. MAIEANE for the petitioner has submitted quoting S. v. BENNET, 1976(3) S. A. p.652 at p.656 that in bail applications a balance must be struck between protecting the liberty of the individual and safe guarding and at the same time ensuring the proper administration of -justice, that the attitude of the Attorney-General is a factor which the Court would per se attach weight in balancing the probabilities; moreover, that the state cannot merely arrest in order to complete its investigations. Further, that there was to be a distinction between an application for bail pending trial and an application pending appeal and that in the former the inquiry is whether allegations against the applicant can be said to have been proved and in the latter whether, an accused having been convicted he would attend appeal proceedings. So far as Che petitioner not standing his trial and absconding to South Africa, Mr. Maieane has contended that there has always been extradition arrangements between South Africa and Lesotho in the form of Fugitives Offenders Act No.38 of 1967 even were it to be said, as the Crown submitted, that the present extradition arrangements are not vet in place. I have carefully listened to arguments on either side though I take note of the fact that the crime with which the petitioner is charged is a multiple one and that the petitioner is a youth of tender age and being an adolescent himself requires careful guidance and a sturdy approach to his affairs. In KASPEREN v. REX (1909 T. S.639) the Chief Justice was in this case quoted as saying the gravity of the offence with which the particular person is charged and the prima facie circumstances connected with it are factors to be taken into consideration for a man is always more likely not to stand his trial when the indictment against him involves the risk of his life. Detective Trooper Maduna has deposed that he has evidence at his disposal that items of clothing worn by the deceased persons have been found on the petitioner and if this is proved at the trial I can think of no evidence more damning. This piece of evidence, if proved, will pose untold risk to the - 6 - petitioner's life and I can well understand why the Director of Public Prosecutions fears the petitioner may abscond and consequently not stand his trial. In R. v. GRIGORIOU 1953(1) S. A. 479(T.) reviewing principles which guide courts in application for bail Millin J. referred to the case of McCarthy v. Rex, 1906 T. S.657 in which it was said: "The court is always desirous that an accused person should be allowed bail if it is clear that the interests of -justice will not be prejudiced thereby, more particularly if it thinks upon the facts before it that he will appear to stand trial in due course. In cases of murder, however, great caution is always exercised in deciding upon an application for bail." Millin J. continued: "The meaning of this last sentence, as appears from subsequent cases, is that the very fact that a person is charged with a crime which may entail the death penalty is in itself a motive to abscond. But that fact is not enough. If it were otherwise - if that fact were regarded as enough - no person charged with a capital offences could even hope for bail, and yet bail has in many cases been granted to persons charged with capital offences. The court looks at the circumstances of the case to see whether the person concerned expects, or ought to expect conviction. If it is found on circumstances disclosed to the court that the likelihood of conviction is substantial, that the person ought reasonably to expect conviction, then the likelihood of his absconding is greatly increased. Thus the court goes into the circumstances of the case, that is, the evidence at the disposal of the crown . where no preparatory examination has vet been held the court has to consider such material as is furnished by the accused himself (the his applicant) or representative." Attorney-General the or by In R. v. MTATSALA and ANOTHER. 1948(2) S. A. 585(E.). Although Lewis. J. had found that there was nothing in the papers 7 - either to suggest or make it evident or reasonably likely that if accused was granted bail he would abscond and the accused having deposed on oath that he had no intention of absconding and the accused not having been contradicted in this respect, the court found that since the accused was faced with a serious charge with the possibility of a capital sentences if convicted, that it cannot be disputed that the possibility of accused absconding is a point which could not be ignored and was consequently to be considered seriously. Curlewis, J. in Grobb v. Attorney-General (1915 T. P. D.9) faced with a case of high ason in which bail was sought said: "The first question lave to decide is whether there is prima facie evident before me that the applicant has committed a very great offence." I have already said that are is sufficient evidence that the offence with which the pensioner is charged is grave and more so because there are multiple offences. It has also been held that bail is not often granted where the accused is charged with murder and that circumstances must be exceptional for bail to be granted. See REX v. LEE. (1948) P. H. (1) H.30. In this application there are no such exceptional circumstances. I am satisfied that the Director of Public Prosecution's apprehensions and fears in opposing this bail are well founded and justified and I would accordingly refuse bail as I have done. After the conclusion of the Preparatory Examination (if any) the petitioner may renew his bail application before this court on such terms and conditions as may seem fair or just to him or renew his bail application during the progress of a Summary Trial should he be so indicted. G. N. MOFOLO JUDGE 8th December, 1995. For the Crown: Mr. Qhomane For the Applicant: Mr. Maieane