Thabo Khetheng & Ano. V Director of Public Prosecutions (C of A (CRI REV) 2/2025) [2025] LSCA 77 (7 November 2025)

# Thabo Khetheng & Ano. V Director of Public Prosecutions (C of A (CRI REV) 2/2025) [2025] LSCA 77 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/77/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/77/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/77/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/77/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Thabo Khetheng & Ano. 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V Director of Public Prosecutions (C of A (CRI REV) 2/2025) [2025] LSCA 77 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 77 Copy Hearing date 7 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CRI REV) 2/2025 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ), [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Constitutional Law](/taxonomy/case-indexes/case-indexes-commercial-constitutional-law) * [Natural Justice](/taxonomy/case-indexes/case-indexes-commercial-constitutional-law-natural-justice) * [Refugees](/taxonomy/case-indexes/case-indexes-refugees) * [Constitutional law](/taxonomy/case-indexes/case-indexes-refugees-constitutional-law) * [Bill of Rights](/taxonomy/case-indexes/case-indexes-refugees-constitutional-law-bill-of-rights) * [Declaration of invalidity](/taxonomy/case-indexes/case-indexes-refugees-constitutional-law-declaration-of-invalidity) Summary ###### Flynote Constitutional Law — Open Justice — Bail Proceedings Conducted in Chambers — Whether Proceedings in Chambers Render Bail Order a Nullity — Exceptional Circumstances Justifying Departure from Open Court Requirement — None Shown — Principle of Transparency and Public Confidence in Criminal Justice — Victims’ Right to Information — Review Jurisdiction of Court of Appeal. Read full summary * * * Skip to document content ###### Flynote Constitutional Law — Open Justice — Bail Proceedings Conducted in Chambers — Whether Proceedings in Chambers Render Bail Order a Nullity — Exceptional Circumstances Justifying Departure from Open Court Requirement — None Shown — Principle of Transparency and Public Confidence in Criminal Justice — Victims’ Right to Information — Review Jurisdiction of Court of Appeal. LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CRI-REV) NO. 2/2025 In the matter between: THABO KHETHENG 1ST APPLICANT MABULA KHETHENG 2ND APPLICANT and DIRECTOR OF PUBLIC PROSECUTIONS 1ST RESPONDENT MOLAHLEHI LETSOEPA 2ND RESPONDENT LAW SOCIETY OF LESOTHO 3RD RESPONDENT THE ATTORNEY GENERAL 4TH RESPONDENT CORAM: MOSITO P SAKOANE CJ DAMASEB AJA MUSONDA AJA VAN VER WESTHUIZEN AJA HEARD: 7 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 2 FLYNOTE Constitutional Law — Open Justice — Bail Proceedings Conducted in Chambers — Whether Proceedings in Chambers Render Bail Order a Nullity — Exceptional Circumstances Justifying Departure from Open Court Requirement — None Shown — Principle of Transparency and Public Confidence in Criminal Justice — Victims’ Right to Information — Review Jurisdiction of Court of Appeal. The applicants, being the family of the deceased police constable allegedly murdered by the second respondent, sought review of the High Court’s decision admitting the second respondent (a former Police Commissioner) to bail. The bail petition had been heard and finalised in chambers during the High Court vacation. The applicants contended that this contravened the constitutional and statutory requirement that court proceedings be held in open court. Held: 1. The Court of Appeal has jurisdiction to review High Court decisions granting or refusing bail where a gross irregularity renders the proceedings a nullity. 2. The constitutional and statutory framework — section 12(9) of the Constitution of Lesotho and section 13 of the High Court Act 1978 — prescribes that judicial proceedings must, as a rule, be conducted in open court to ensure transparency and uphold public confidence in the administration of justice. 3. Departure from this principle is permissible only in clearly justified and exceptional circumstances, which must appear on record. 4. A bail petition is not a private matter between an accused and the prosecution; victims of crime have a legitimate interest in its outcome. 5. The mere convenience of holding proceedings in chambers due to cold weather does not constitute an exceptional circumstance. 6. The High Court’s failure to record any justification for hearing the bail petition in chambers amounted to a gross irregularity rendering the proceedings a nullity. 3 Held further: Bail proceedings must be conducted in open court unless exceptional circumstances are shown. In the absence of such justification, bail granted in chambers violates the principle of open justice and is invalid. Order: The bail proceedings conducted before Ralebese J in chambers were declared a nullity. The order admitting the second respondent to bail was reviewed and set aside. The matter was remitted to the High Court for a fresh hearing of the bail petition in open court. Authorities referred to: • Thabane and Others v Justice Mahase and Others • Bolofo and Another v Director of Public Prosecutions • Molise and Others v Basotho Congress Party and Others Coram: Mosito P; Sakoane CJ; Damaseb, Musonda and Van der Westhuizen AJJA. Delivered: 7 November 2025. JUDGMENT P.T. DAMASEB AJA Introduction [1] This is an urgent review application that concerns the decision of the High Court (Ralebese J) to admit the second respondent (the petitioner) to bail. The petitioner is the former Commissioner of the Lesotho Mounted Police who resigned from that office in 2017, fled to South Africa and had been living in that country for over 7 years, and returned to Lesotho in February 2025. Upon his return he was arrested and charged for the alleged 4 murder of a former police constable (PC Mokalekale Khetheng) – the son of the first applicant and brother of the second applicant. [2] It is the process that led to the release of the petitioner on bail on 3 July 2025 that is the subject matter of the present review application. The review application was instituted in this Court by the first and second applicants who are dissatisfied with the High Court’s order releasing the petitioner on bail after entertaining the proceedings in chambers instead of in open court. The applicants have jointly applied, as victims of a crime allegedly committed by the petitioner in relation to the late PC Khetheng. It is not in dispute that they have the legal standing to do so. [3] This Court has the jurisdiction to review the High Court’s decision made in the course of a bail petition: Bolofo & Another v Director of Public Prosecutions1 and Thabane and Others v Justice Mahase and Others2. The jurisdiction extends to both the refusal and granting of bail by the High Court.3 In order to review and set aside an order of the High Court granting or refusing bail, this Court must ‘find an irregularity or illegality sufficiently gross to render the High Court’s decision a nullity’.4 Also, if the High Court’s decision is ‘mala fide, arbitrary or so grossly unreasonable as to be demonstrative …that the decision maker . . . failed to apply his mind. . . .’5 1Bolofo & Another v Director of Public Prosecutions LAC (1995-1999) 231 at 245H. 2 Thabane and Others v Justice Mahase and Others LAC (2019-2020) at 550 para 12. 3 Id. 4 Id. 5 Bolofo supra at 13 and Thabane supra at para 13. 5 [4] The applicants rely on a host of grounds and allegations in support of their case that the bail proceedings before Ralebese J were mired by irregularities justifying the review and setting aside of the order admitting the petitioner to bail. [5] During oral argument of the review the applicants’ counsel, Mr Leputhing, conceded, correctly in my view, that, but for one ground, the raft of the grounds and the accompanying allegations were not established. Nothing further needs to be said about those grounds which became untenable in light of the petitioner’s answering affidavit which, on account of the test in motion proceedings - and more so in the absence of a reply - stood to be accepted.6 Remaining potential irregularity [6] The potential irregularity which remained is the common cause fact that the bail proceedings before Ralebese J were conducted and finalised in chambers. The potential for irregularity on that admitted fact arises from this Court’s judgment in Thabane. [7] In Thabane7, writing for a unanimous Court, Van der Westhuizen AJA stated the following - in circumstances where a bail application was entertained in chambers: 6 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 620 (A). 7 Supra fn 3. 6 ‘[24] …if the proceedings took place in open Court, the applicants and the public would have had the benefit of transparency, an important element of a democracy under the rule of law. This would have done much good for the legitimacy of the criminal justice system of Lesotho. There is reason for the general requirement that court proceedings must be open to the public, except in exceptional circumstances, for example the protection of children. ‘Justice must not only be done; it must be seen to be done’. (My underling for emphasis). [8] The dictum in Thabane is anchored on both the constitutional and statutory requirement that judicial proceedings must be conducted in open court. According to s 12(9) of the Constitution of Lesotho: ‘(9) Except with the agreement of all parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public. (10) Nothing in subsection (9) shall prevent the court or other adjudicating authority from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court or other authority— (a) may by law be empowered to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings; or (b) may by law be empowered or required to do in the interests of defence, public safety or public order.’ (Emphasis supplied). 7 [9] Section 13 of the High Court Act8 provides: ‘Save as otherwise provided in this Act, the pleadings and proceedings of the High Court shall be carried on and the sentences, decrees, judgments and orders thereof pronounced and declared in open court, but a judge may, if he thinks fit and at any time of the proceedings, order the court to be cleared or order any person or class of persons to leave the court.’ [10] Extolling the values of open justice underpinned by s 13 of the High Court Act, Mosito P held in Molise and Others v Basotho Congress Party and Others9 that all judicial proceedings must be in open court and that if that peremptory statutory prescript is violated, such proceedings will be a nullity.10 The learned President made allowance that there could be exceptional circumstances where proceedings might not be in open court.11 Proceedings in the High Court [11] On 3 July 2025 Ralebese J gave reasons for releasing the petitioner on bail. From those reasons the following is apparent. The petitioner’s bail petition was heard on 12th and 20th June 2025. Judgment was then reserved and handed down on 3 July 2025. The first respondent, Director of Public Prosecutions (DPP), was the only respondent. The DPP opposed the bail petition. The petitioner was charged before the Maseru Magistrate Court with the alleged murder of late PC Khetheng on 29 March 2016. The charge sheet alleged that the petitioner committed the offence by conspiring with persons who had been indicted and are now being 8 High Court [Act 5 of 1978](/akn/ls/act/1978/5). 9 Molise and Others v Basotho Congress Party and Others LAC (2019-2020) at para 20F-H. 10 Id paras 20 -23. 11 Id para 20. 8 tried in the High Court for the alleged murder of late PC Khetheng. One such alleged conspirator was Tšukulu. [12] The circumstances in which the petitioner was charged engaged s 109A(1) of the Criminal Procedure and Evidence [Act 9 of 1981](/akn/ls/act/1981/9) as amended (CPEA). In terms of this provision, where an accused is charged with murder allegedly committed by a group of persons or a syndicate acting in the furtherance of a common purpose or a conspiracy; or where the charge involves the murder of a law enforcement officer, the accused must be remanded in custody unless he or she presents evidence which satisfies the court that exceptional circumstances exist which justify his or her release on bail ‘in the interest of justice’. [13] First, the DPP purported to oppose the bail petition before Ralebese J on the basis that the petitioner failed to demonstrate the existence of exceptional circumstances as required by s 109A(1) of the CPEA. Secondly, that because the petitioner had in 2017 fled the country before he could be indicted, he was a flight risk. Thirdly, that there was the risk that the petitioner will influence and intimidate the Crown’s witnesses if released on bail. Fourthly, because a petition for bail by a certain Thabo Tšukulu, separately charged with the murder PC Khetheng, was refused, the petitioner’s bail petition should suffer the same fate. [14] In his bail petition, the petitioner presented evidence that when he fled to South Africa in 2017 it was out of fear for his safety as the Government of the day created conditions that put his life 9 at risk, and he genuinely feared for his life. He denied complicity in the murder of late PC Khetheng. He voluntarily returned to Lesotho and handed himself over to the authorities when he was charged. He was then released and cautioned to report himself the following day to be arraigned, which he did. He was taken to the Maseru Magistrate Court and was remanded in custody and then appeared before Ralebese J to petition for bail. [15] The DPP’s opposition to the petitioner’s bail application came to naught as the affidavit in opposition was not commissioned. The court a quo therefore treated the bail petition as unopposed and the petitioner’s averments unchallenged. Because the petitioner’s version was unchallenged, the court a quo accepted his version that he did not participate in the murder of late PC Khetheng and was therefore ‘prima facie’ innocent. In addition, the court a quo also found other circumstances such as the poor health of the petitioner (hypertension and diabetes), the absence of adequate treatment options in the correctional facilities for his medical conditions, to be exceptional circumstances. The court was also satisfied that it was in the interest of justice to release the petitioner on bail. [16] The High Court made the following order in respect of the petitioner: ‘(a) He should pay M5,000 as bail deposit; (b) he should stand his trail to finality; (c ) He should not interfere with the crown witnesses; (d) He should attend remands unless excused by the court; 10 (e ) He should report himself to Police Headquarters every Friday of each month between 8H00 am and 5H00 pm’. The Review [17] As I have already explained, of the raft of alleged grounds and accompanying allegations in support of the review application against the court a quo’s conduct of the petitioner’s bail petition, the only viable one is the fact that the proceedings were not conducted in open court. [18] In support of this ground, the applicants made the following averments: that the petitioner was admitted to bail ‘under questionable circumstances’ and that ‘supreme interest may well be at stake …where it would appear that the bail application was heard in chambers under circumstances to which there is required a lot of explanation’. They state that this Court’s approach is that hearings must be in open court and not be ‘shrouded in secrecy’. They express their unhappiness that the petitioner’s bail petition was entertained and granted in chambers. [19] They add, for good measure, that ‘Transparency connotes openness, frankness, honesty, absence of bias, collusion…’. The applicants aver further that ‘The Crown is responsible for protection of the interests of victims of crime’. As ‘the victims of crime [of the petitioner] we were unaware of his bail application and the final outcome thereof until we got informal information that he had been released. . .’ 11 [20] When they so became aware they directed a demand letter to the DPP which remained unanswered. In that letter, the following is stated amongst others: the deceased PC Khetheng’s family’s views were not sought concerning the petitioner’s bail petition. They wished to understand what happened concerning the bail petition of the petitioner and they entertained doubts as to the correctness of the petitioner’s release on bail. They also stated that the file concerning the bail petition ‘is not traceable from the High Court Registry’. [21] In the present proceedings, the DPP’s representative filed of record an affidavit to place certain facts before Court and to abide the decision of this Court - without entering the fray. The DPP’s affidavit is deposed by a Crown Attorney then acting as the DPP. According to this deponent, the petitioner was previously indicted jointly with others for the murder of PC Khetheng; that his trial was separated from the trial of the other co-conspirators because he was ‘at large when their trial commenced’. According to the deponent, the failure to commission the affidavit in opposition to the petitioner’s petition was ‘a genuine mistake’ which was only discovered during the hearing. [22] The deponent states further: ‘16. The hearing of the [bail] application was indeed …in chambers and it was during the High Court vacation…The [presiding judge] found it fit to hold it in chambers, as it was within her discretion to do so. 17. The applicants were indeed not consulted and/or informed about the bail application…but the public interests always remain as the [DPP’s] first 12 consideration…That is the interests of the deceased’s family as the witnesses or complainants in the criminal case were taken into consideration when dealing with the [petitioner’s] bail application.’ [23] The petitioner opposed the review application and filed an answering affidavit. In so far as the remaining ground of review is concerned, he made the following allegations: he was informed by his lawyer that before the hearing of the petition, the judge’s clerk invited parties’ lawyers into Judge’s Chambers to ascertain whether there were members of the public or anyone interested to attend the proceedings. [24] Having satisfied herself that ‘there were no such attendees’, the lawyers were invited into Chambers as it was ‘very cold during those days’. He then adds that ‘it was a lapse of judgment on all the concerned parties to tacitly consent to my bail Petition being heard in Judge’s Chambers…’ [25] According to the deponent, ‘While the error of judgment was unjustifiable – it was not done with any ulterior motive of subverting the administration of justice; and no serious prejudice was suffered by the applicants’. The petitioner’s averments on why the petition was heard in Chambers is confirmed by King’s Counsel (Mda) who represented him at the bail petition. [26] The applicants seek the following relief: ‘. . . 13 a. Condoning applicant’s non-compliance with the rules relating to time periods, service and forms and that this application be disposed of as urgent in terms of the Rules of Court; b. An order reviewing the decision in terms of which second respondent was admitted to bail; c. An order committing second respondent to jail pending his trial for murder of Mokalakale Khetheng; d. The costs of this application are to be paid by the Respondents on the scale of attorney and own client. . . . ’ Discussion [27] The question that arises is whether there were exceptional circumstances to warrant departure from s 13 of the High Court Act and the constitutional principle of open justice. [28] It bears mention that nowhere in the court a quo’s judgment is any explanation given for the departure from the requirement that a bail petition must be heard in open court. [29] Mr Mafaesa for the petitioner submitted in oral argument that there was no irregularity because the petition was heard in chambers ‘by agreement between the parties’. He relied on s 13 of the Constitution and states that by agreement between the parties judicial proceedings may be held in chambers. This submission is unsound. First, a bail petition is not a private matter between an accused and the prosecution. Second, the Court, if the prosecutor fails to do so, is there to assure the rights of all who have a stake in the criminal justice process. That is so because, in our modern democracy, a victim of a crime is not a peripheral adjunct. 14 [30] As the South African Constitutional Court had occasion to observe:12 ‘The right of an accused to a fair trial requires fairness to the accused, as well as fairness to the public as represented by the state. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime’. [31] Murder is not a victimless crime. The victims in this case, the family of PC Khetheng, had the right to know what was going on concerning the last remaining suspect in the murder of their son and brother. They were not made aware of the return of the petitioner, his arrest and appearance at court. [32] The fact that, even after becoming so aware through other sources, their legitimate plea for information from the DPP was ignored not only demonstrates that the DPP failed to act in their interest at the bail petition but also negates the assertion on behalf of the DPP in these proceedings that its role was to act in the public interest. [33] The conduct of court proceedings in open court is a foundational component of the constitutional principle of open justice. Open justice serves both to ensure public confidence in the judicial process and to safeguard the integrity of the legal system. It allows the public and the press to scrutinise judicial decisions, 12 S v Jaipal 2005 (4) SA 581 (CC) para 29. 15 thereby promoting transparency, accountability, and fairness. The presumption in favour of open proceedings acts as a vital check on the exercise of judicial power and helps to prevent arbitrary decision-making. [34] While there may be limited and justified exceptions where confidentiality is necessary—such as in cases involving vulnerable parties or sensitive national security issues—any departure from openness must be carefully scrutinised and clearly justified. The open court principle is not merely procedural; it is a substantive guarantee inherent in a democratic society committed to the rule of law. [35] Exceptional circumstances must be pleaded and or placed on record for a bail proceeding to proceed in chambers. Certainly, they must be apparent from the written reasons of the presiding officer. It is not a matter to be treated in a cavalier or perfunctory fashion. [36] To simply state that the presiding officer ascertained if anyone wished to attend the proceedings, fails to appreciate that the family of the deceased need not only to be aware of the bail petition but that they might wish to express their views on the matter to the investigating officer and by extension the prosecutor. Although such views do not bind the Crown, it assures confidence that those affected by the ‘audacity of the crime’ are being listened to. 16 Disposition [37] In the present case, it is not explained by the DPP why the family of the deceased was not informed that the petitioner had returned to Lesotho, his arrest or the impending bail application. Neither the DPP nor the petitioner engage with this Court’s binding rationes decidendi in Thabane and Bolofo13 - that bail proceedings must be heard in open court unless there are exceptional circumstances. They needed to demonstrate in these proceedings that such exceptional circumstances existed, their nature and that they were given due consideration by the court a quo. [38] Unless there are compelling circumstances as elaborated in this judgment, mere convenience such as escaping the cold weather is not an exceptional circumstance. Should it become necessary for a bail application to be heard in chambers, the court must ensure that persons likely to have an interest in the proceedings, especially the victim or family members, are informed that they are welcome and in fact encouraged to attend. The media should also be allowed if present. It is important that the court proceeds transparently, bearing in mind that the default position is that a bail petition must be heard in open court and in chambers as an exception. In the absence of exceptional circumstances for entertaining the petitioner’s bail petition in chambers, doing so is an irregularity sufficiently gross to nullify those proceedings. [39] It is not proper for this Court, as urged by Mr Leputhing, to order the detention of the petitioner. The police will determine what 13 Supra, fn 3 and 2. 17 is the appropriate course to pursue in the light of this Court’s order. An appropriate order would be to remit the matter to the High Court to consider the bail petition afresh in open court according to law. Order [40] In the result, the following order is made: 1. The bail proceedings conducted before Ralebese J on 12th and 20th June 2025 are hereby declared a nullity. 2. The judgment and order of the High Court admitting the second respondent to bail is reviewed and set aside. 3. The bail petition of the second respondent, following his arrest and remand, is remitted to the High Court to be heard and determined afresh. 4. There is no order of costs. _______________________________ P. T DAMASEB ACTING JUSTICE OF APPEAL I agree: ––––––––––––––––––––––––––––––– K. E MOSITO PRESIDENT OF THE COURT OF APPEAL 18 I agree: _______________________________ S.P. SAKOANE CHIEF JUSTICE I agree: _______________________________ P MUSONDA ACTING JUSTICE OF APPEAL I agree: ________________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR APPLICANT: ADV CJ LEPHUTHING FOR 1ST RESPONDENT: ADV R SETLOJOANE FOR 2ND RESPONDENT: ADV N MAFAESA (assisted by ADV B MOSHOESHOE) #### __Related documents ▲ To the top >