Hlasoa and Another v Director of Public Prosecutions (CRI/APN 153 of 2000) [2000] LSCA 1 (20 April 2000)

1 C R I / A P N / 1 5 3 / 2 0 00 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: S E J A - B A N NA H L A S OA S E L U M A NE F O P H I SI and 1ST 2ND A P P L I C A NT A P P L I C A NT 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 R e a s o ns for J u d g m e nt F or A p p l i c a n ts : M r. M. M a t h a f e ng F or C r o wn : M r. T. Kotele D e l i v e r ed by the H o n o u r a b le M r. Justice T. M o n a p a t hi on the 20th d ay of April 2 0 00 On the 11th April 2 0 00 I p r o c e e d ed to h e ar this application for bail a nd h e a rd address by Applicants' C o u n s el M r. M a t h a f e n g. After that I m a de my ruling. M r. M a t h a f e ng h ad filed a t wo p a ge d o c u m e nt of skeleton submissions, of two paragraphs, which he called "heads of a r g u m e nt filed on behalf of Applicants". It w as obviously a going through the motions exercise w h i ch w as disappointing. In the heads causes such as M A T I ME v R EX 1971-73 L LR 4 9, S v C A S K ER 1971(4) 5 0 4, C A S S IM v R E G I O N AL M A G I S T R A TE P R E T O R IA 1 9 62 (2) SA 4 40 were cited most perfunctorily inasmuch as their legal significance w as not elaborated. Perhaps something m o re should have been said about M A L E F E T S A NE S O O LA v D PP C R I P / A P N / 3 9 /8 if the case reported as S O O LA v D I R E C T OR OF P U B L IC P R O S E C U T I O NS 1981(2) L LR 2 27 w as m e a n t. It surely should have been m o re than w h at w as said which w as that: " T he fear of prosecution that the applicants face a serious charge is unfounded. T he prosecution has no justification for substituting itself as the arbiter." It is because the case is a g o od authority for the proposition that the Director of Public Prosecutions m u st like others support his statement in which he opposes bail. T h at this Court requires Counsel to file heads of a r g u m e nt is a sound policy that should be constantly followed by Counsel without m a k i ng pretences. Preparation of heads teaches a nd practices Counsel in the art a nd technique of writing. T h at brings about control and discipline to the proceedings. T he other result is saving of time of presentation of submissions in Court. Therefore written submissions ought to take m o re of the Court's time than oral submission. This appears to be a global trend. It has to be emphasised that at a high level a g o od lawyer will be a g o od writer a nd not necessarily a g o od speaker. T h e re w as no appearance by the C r o w n. M r. Kotele just appeared later after I had m a de my ruling. He said he had been before M r. Justice Peete's Court. He properly conceded that h ad not h ad the presence of m i nd to have suggested that in the m e a n t i me the instant matter be stood d o wn because he h ad preferred to start with the matter in the other Court. M r. M a t h a f e ng h ad looked a r o u nd a nd waited for at least forty five (45) minutes after w h i ch he strongly felt that he should be heard even in the absence of the other side. H a v i ng received no explanation I agreed. T he charge that caused the r e m a nd in custody of the Applicant w as about the m u r d er of o ne L e t s e me M o t h o a l e. T he m u r d er w as said to h a ve occurred on the 3rd M ay 1999 at or near T s i me in the district of B u t ha Buthe. T he circumstances surrounding the deceased's death were not stated by either side. Incidentally neither Applicant stated whether he h ad k n o wn the deceased. T he First Applicant only said that on the 26th January 2 0 0 0, he w as with M a h lo Tsotetsi, L e t h o ba S e k h a m a n e, Motlalepula Tsotetsi w h en they set out to look for the livestock of o ne Tsotsi Tsotetsi w h i ch h ad b e en stolen by a r m ed thieves at his cattle post (vide paragraph 4 of founding affidavit). He said furthermore that they w e re arrested while still searching for the said livestock. To their d i s m ay it w as alleged that they h ad killed the d e c e a s e d, as in the c h a r ge sheet, in M ay 1 9 9 9. He said he verily averred that he k n ew n o t h i ng a b o ut the d e a th of the deceased (vide p a r a g r a ph 5 of f o u n d i ng affidavit). Still on the question of the circumstances of the deceased's d e a th the S e c o nd Applicant h ad these to say. He w i s h ed to c o n f i rm w h at the First Applicant h ad said in so far as it related to h i m. T h is he said despite the fact that n o t h i ng h ad b e en said by the First Applicant a b o ut this S e c o nd Applicant. In a similar m a n n er this Applicant did n ot say w h e t h er he k n ew the d e c e a s ed or not. Similarly, again, he said n o t h i ng a b o ut the circumstances of the killing of the deceased. Still, furthermore, on the question of the c i r c u m s t a n ce of the deceased's death o ne w o u ld h a ve expected to h e ar m o re f r om the a n s w e r i ng affidavit t h r o u gh the investigating officer w ho w as N o . 7 4 56 D / T pr K o t s a na of the L e s o t ho M o u n t ed Police Service. T h is w o u ld necessarily advert to w h e t h er or n ot there w as a prima facie case against the Applicants. It is i m p o r t a nt b e c a u se it has b e en held that e v en if the State's case is w e ak w h e re a prima facie case exists an accused c an still be denied bail if it is d e e m ed to be in the interest of justice. S ee S v D L H A M I NI 1997(1) S A CR 54 ( W ). It c a me o ut as d i s a p p o i n t m e nt of a serious kind therefore w h en nothing c a me close to revealing the existence of prima facie case. T he police officer's affidavit w as used to support the opposition to release of these Applicants. H a v i ng admitted that the Applicants were arrested on the 26th January 2 0 00 he wished to reveal the circumstances leading to the arrest of the Applicants. It c a me out to be nothing towards indicating the circumstances of the death of the deceased and neither w as there a suggestion, as o ne w o u ld have expected as to h ow this linked with or connected the Applicants. It once again begged the question of the existence of prima facie case. D / T pr Kotsana said that the investigations revealed that immediately after the commission of the offence the Applicants could not be found at their places of residence whereas the police h ad usually a nd on the said occasion visited these h o m es with intention of arresting them. I thought this would have been a useful statement if it was enlarged to s h ow w h at steps were taken, m ay be through the chief, and whether m e m b e rs of the Applicants households were contacted in the process of looking for the Applicants. If sufficient, this could have g o ne towards showing that the Applicants were likely to abscond or were unreliable. But it would certainly not indicate the circumstances of the death of the deceased. In paragraph 5 of First Applicant D / T pr Kotsana it w as noted and accepted that the Applicants were at their cattle posts but " To our dismay w h en the police got to there the Applicants were to no avail, until they w e re arrested on the date in question." As to h ow this w o u ld assist in the inquiry it w as not to be clarified. Perhaps o ne w o u ld h a ve expected to be s h o wn its significance f r om the ipse dixit of C r o wn Counsel A d v. N a po R a n t s a ne as contained in his supporting affidavit. It w as not Co be. I c a me to this aspect later on in the j u d g m e n t. O ne of the grounds for refusal of the application w as to be gleaned from paragraph 8(b) of D / T pr Kotsana's affidavit in w h i ch he said: "Furthermore to a dd that the first applicant still stands another m u r d er case CR n u m b er w h i ch is 4 / 98 (See A n n e x u re " A" attached thereto). He w as already not attending r e m a n ds on the aforementioned case a nd I h a ve a fear that the s a me consequences might result." This, in my view, w as an unfair imputation of a propensity on the part of the First Applicant w h i ch ought not to be allowed. Besides that the S e c o nd R e s p o n d e nt h ad not been co-accused in the charge nor h ad he therefore c o m m i t t ed the alleged transgression. I found it difficult to accept the reason as being s o u nd or the ground as being good. It appears that in South Africa factor such as above, for e x a m p le or other evidence, f r om w h i ch inference c an be d r a wn that an accused h ad abused prior grant of bail by indulging in criminal c o n d u ct u n c o n n e c t ed with the c h a r ge in question, c an be taken into account. S ee S v P E T E R S EN A ND A N O T H ER 1992(2) S A CR 5 2 ( C) I looked at the attitude of the C r o wn t h r o u gh the supporting affidavit of A d v o c a te N. R a n t s a n e. Instead of s h o w i ng the w ay in w h i ch the administration of justice w o u ld be h a m p e r ed A d v o c a te R a n t s a ne m e r e ly said: "I h a ve read the docket in w h i ch the applicants c h a r g ed with m u r d e r. I h a ve also h ad the opportunity to interview the investigating officer in the matter. It is my h u m b le submission that if released on bail, the applicants will h a m p er the course of justice." H ow a nd in w h at m a n n er a nd on w h i ch g r o u n d s? M o re should h a ve b e en said even by w ay of a brief s u m m a ry a nd in an attempt to s h ow that the scale (in the balance) o u g ht to be tilted towards sacrificing the liberty of the Applicants by their non-release as against the proper administration of justice. S ee S v B E N N ET 1976(3) SA 6 5 2. As to the weight to be attached to the A t t o r n ey General's (Director of Public Prosecutions in Lesotho) ipse dixit S ee S v B E N N ET (supra) at 6 5 4H - 6 5 5 A - B. T he statement by the Director of Public Prosecutions perforce has to be a little articulate in order to carry a certain weight. S ee M o f o k e ng J's r e m a r ks in S O O LA v D I R E C T OR OF P U B L IC P R O S E C U T I O NS (supra) at page 279 (second paragraph). I concluded that there were no good grounds for the opposition of the release of the Applicants and their admission to bail. T he Court consequently m a de the following Order: "Applicants were admitted to bail on those conditions as suggested except that they should report at Butha-Buthe Police Station every fortnight "on Fridays between 8.30 am and 4.30 p m. To attend on remands and on days appointed for trial." T Monapathi Judge J u d g m e nt n o t ed by A d v. K . K. M o h au for C o u n s el