Moabi Sesioana V Director of Public Prosecutions (CRI/T/228/2023) [2023] LSHC 209 (27 September 2023)

# Moabi Sesioana V Director of Public Prosecutions (CRI/T/228/2023) [2023] LSHC 209 (27 September 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/209/eng@2023-09-27) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/209/eng@2023-09-27) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/209/eng@2023-09-27) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/209/eng@2023-09-27) [ __](mailto:?subject=Take a look at this document from LesLII: Moabi Sesioana V Director of Public Prosecutions …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/209/eng@2023-09-27) [ Download PDF (369.3 KB) ](/akn/ls/judgment/lshc/2023/209/eng@2023-09-27/source) Report a problem __ * Share * [ Download PDF (369.3 KB) ](/akn/ls/judgment/lshc/2023/209/eng@2023-09-27/source) * * * * * Report a problem __ ##### Moabi Sesioana V Director of Public Prosecutions (CRI/T/228/2023) [2023] LSHC 209 (27 September 2023) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Moabi Sesioana V Director of Public Prosecutions (CRI/T/228/2023) [2023] LSHC 209 (27 September 2023) Copy Media Neutral Citation [2023] LSHC 209 Copy Hearing date 26 September 2023 Court [High Court](/judgments/LSHC/) Case number CRI/T/228/2023 Judges [Hlaele J](/judgments/all/?judges=Hlaele%20J) Judgment date 27 September 2023 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Refugees](/taxonomy/case-indexes/case-indexes-refugees) * [Criminal law](/taxonomy/case-indexes/case-indexes-refugees-criminal-law) * [Bail](/taxonomy/case-indexes/case-indexes-refugees-criminal-law-bail) * [Refusal of bail](/taxonomy/case-indexes/case-indexes-refugees-criminal-law-refusal-of-bail) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT MASERU****CRI/T/228/2023** In the matter between **MOABI SESIOANA********PETITIONER** **AND** **** **DIRECTOR OF PUBLIC PROSECUTIONS********RESPONDENT** **Neutral Citation** : Rex v Moabi Sesioana [2023] LSHC 209 CRI (27th September 2023) **CORAM : HLAELE J.** **HEARD : 26 TH SEPTEMBER 2023** **DELIVERED : 27 th SEPTEMBER 2023** **SUMMARY** _: Petitioner for bail failed to comply with Section 109(A)1 of the Criminal Procedure and Evidence Act in that he failed to outline exceptional circumstances entitling him to the granting of bail._ **_ANNOTATIONS_****:** **_CITED CASES_** : 1. Thabo Tsukulu v The Director of Public Prosecution (CIV/APN/0431 2017) Para 8 and Para 10 2\. Mosa Raymond Mokete vs Director of Public Prosecutions CRI/APN/0342/2014 3\. Leutsoa v Director of Public Prosecutions 4\. Re Sam [2017] VSC 91 [[22]](https://jade.io/article/612118/section/140724) 5\. Leutsoa v Director of Public Prosecutions 6\. Bokang Malataliana v DPPC of A no. 4 of 2020 7\. S v Peterson 2008(2) SACR 8\. Bolofo v DPP LAC (1995-1999) At 252-253 **_STATUES_** 1\. Criminal Procedure and Evidence Act,1981 **_BOOKS_** 1. Van der Berg J. 1986. _Bail- A practitioners Guide._ P61. Juta &Co Ltd. **_RULING ON BAIL APPLICATION_** **HLAELE J** **[1]****__****_INTRODUCTION_** 1.1 The Petitioner applied for bail on the 10th July 2023. The prosecution opposed the bail. This triggered the court to put the litigants to terms of filing pleadings in preparation for hearing. The matter was then sent for allocation. The matter came before me and was set down for hearing on the 26th September 2023. **[2]****PETITIONER’S CASE** 2.1 The petitioner came before court applying that the court release him on bail. To this end he formulated his prayers coupled with the conditions he sought. They read: _Your petitioner humbly prays to be admitted to bail on the following:_ 1. _That he shall attend remands._ 2. _That he will pay cash bail deposit of M1000.00_ 3. _That he stands trial_ 4. _That he will not interfere with crown witnesses_ 5. _That he will not hamper police investigation_ 6. _That he will report at Bokong police station on the day of the remand_. **[3]****EXCEPTIONAL CIRCUMSTANCES** 3.1 In terms of the charge that was read to the accused by the magistrate[1] the petitioner was charged with the crime of murder in terms of section 40(1) of the Penal Code, read with section 40(2) and 26(1) of the same Code. They read as follows: Sections 40(1) and (2): 40. _(1) Any person who performs any unlawful act or omission with the intention of causing the death of another person, commits the offence of murder if such death results from his or her act or omission._ _(2) The punishment on conviction for murder shall be a sentence of death._ _Section 26(1):_ 26. _(1) Where two or more persons share a common intention or pur­pose to pursue an unlawful purpose together, and in the pursuit of such purpose an offence is committed, then each party to the common intention is deemed to have committed the offence._ 3.2 In any application for bail where an accused person is charged under these sections triggers the operation of section 109(4)(1) of the _Criminal Procedure and Evidence Act (as amended) (CP &E_). The same provides: **_Power of court to detain accused on a charge of murder, rape, robbery etc_** _“109. (A)(1) Notwithstanding any provisions of this Act, when an accused person is charged with –_ 1. **_murder_** _under the following circumstances:_ 1. _the killing was planned or premeditated murder and the victim was;_ _…_ 2. **_The crime was committed by a person, group of persons or syndicate acting in the purported execution or furtherance of a common purpose or conspiracy _.__** 2. _an offence referred to in part II of Schedule I –_ 1. _when the accused has previously been convicted of an offence referred to in the schedule;_ 2. _where the offence was allegedly committed while he or she was released on bail in respect of an offence referred to in the schedule -_ **“ _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 interest of justice permit his or her release……”_ ** (_My emphasis)_ 3.3 As appears above herein, the petitioner is charged with murder in that he acted in concert and/or common purpose with others. This therefore falls squarely within the ambit of section 109A (1) of the CP&E (as amended). It follows therefore that this petitioner should provide this court with the existence of exceptional circumstances which in the interest of justice permit his release. 3.4 This requirement for the existence of exceptional circumstances has been a subject matter deliberated upon in our courts. The law, and indeed the interpretation of what it is that this piece of legislation requires is now somewhat settled. 3.5 To cite Peete J in unravelling what these circumstances are, he admitted that they cannot be bottled into precision as they are determinable on a case by case. He said; _“Exceptional Circumstances” – what are they? In my view, “exceptional circumstances” cannot be defined with precision that fits all cases. It has been said that circumstances must be unusual sui generis and not ordinary. Since 2002, our courts have in many cases sought to define the exceptional circumstances. Like interests of justice, exceptional circumstances, defy precise definition or parameters. A measure of holistic objectivity is required, and each case must be treated ad hoc upon its own particular circumstances.**[2]**_ Adding his voice to the unboxable nature of determining what exceptional circumstances are, Sakoane AJ (as he then was) warned against a “one size, fits all” approach. [3] Confirming this amoebic nature of exceptional circumstances, and ultimately validating its constitutionality, the Constitutional court in the case of **_Leutsoa v Director of Public Prosecutions_******[4]******** stated that; _What may constitute exceptional circumstances in any case depends, as reflected in the cases cited above, on the discretion of the presiding officer and the facts peculiar to a matter. Put another way; in the context of section 109A, exceptional circumstances may exist because of a single exceptional circumstance or a combination of circumstances, none of which might individually be considered exceptional, but viewed as a whole can be taken as exceptional to the extent that bail is justified, even considering the very serious nature of the charge. These may include the strength of the prosecution case, an applicant’s personal circumstances, absence of factors showing that the applicant poses a threat/danger to witnesses or is likely to abscond. It might also include a case in which the applicant needs an urgent medical attention or has an intellectual disability or some special vulnerability. The list is not exhaustive._ 3.6 The conclusion that can be drawn from these cases is that, although devoid of a definite definition, this requirement for exceptional circumstance does not mean that they are not ascertainable. The court has pronounced that they are any circumstances that “take the case out of the normal”[5] in order to justify that a petitioner can be admitted to bail. 3.7 As a result of this intervention by the legislature, the onus is on the petitioner to show that there exist exceptional circumstances to justify his admission to bail. [6] 3.8 In order to determine whether the petitioner in the present application has complied with these requirements, I turn to the facts of the case to make this determination. **[4]****FACTS OF THE CASE.** 4.1 The petitioner outlined the following facts : That on the day of his arrest, he was on his way to his legal representative’s office so as the later could assist him in surrendering himself to the police. It is his allegation that this intended move was intercepted by his arrest. He was subsequently charged as appears in the charge sheet. He continues in the petition to narrate his version of the investigation and how it disclosed that he was not involved in the murder of the deceased as appears in the charge sheet. His version is not admitted by the Respondents as will later transpire. **[5]****PETITIONER’S ECXEPTIONAL CIRCUMSTANCCES** 5.1 In his sworn statement, the petitioner states the following as his exceptional circumstances: * That he was arrested whilst he was on his way to surrender himself. * That he had been in cooperation with the police; * That he surrendered guns to the police; * That he is innocent. 5.2 I now turn to look at these to establish whether the petitioner has indeed reached the threshold of establishing that exceptional circumstances justify his release on bail. The use of the word threshold should not be read to mean that this court is of the view that a certain standard has to be met. Or rather the need for exceptional circumstances to be proven is read by this court to mean that bail is made impossible to attain. That is not how this court will approach the matter. Rather, this court is well advised that what the legislature did is to make bail “less easy”[7] to obtain. 5.3 In the exercise of my discretion in granting bail I align myself with the dictum in **_Bokang Malataliana v DPP_**[8] where the court said despite the absence of the universality of the definition of what constitutes exceptional circumstances, the court, in exercising its discretion whether to grant bail, has to look at the facts of each case holistically in order to determine the existence or otherwise of the exceptional circumstances. 5.4 I commence by interrogating whether the petitioner was indeed on his way to his lawyer’s chambers so as to arrange that he hands himself to the police. This allegation is met with stern opposition wherein the police, they state (deponent to answering affidavit) that it could not be that at the date he was taken to the police by the police on the 21st June he was on a mission to hand himself over. To thwart this allegation, the deponent posits that if this were so, then the petitioner would have handed himself over as far back as 23rd May 2023 when they had informed his headman and brother that upon spotting the petitioner, they should inform him that he has to report to the police station. Indeed, the petitioner confirms that he was home around the 28th May. He however did not report himself. He alleges that he was unaware of the summoning. During argument Advocate Akhosi conceded that the normal and reliable mode of communication in a rural setup is to inform the chief of the area. Counsel accepted that this mode of communication is foolproof. He therefore accepted and conceded that it is improbable that the petitioner could not have received the message from the headman. The same concession was made about his brother. This being the case, this laid to rest the bare denial by the petitioner that he did not receive a message from the chief. 5.5 Even if I were to accept that the petitioner was on a mission to hand himself over to the police, isn’t this what good citizens do? So much so that this act can be elevated to the status of exceptional circumstance that entitles the petitioner to be admitted to bail? 5.6 Hlajoane J puts it aptly in the case of **_T_**** _seliso Mohlababe v DPP**[9]**_** where she cited the case of**_Mabathooana v DPP_** , she puts it as thus; _As was said in ‘**Mabathooana** supra, what the petitioner has stated as exceptional circumstances are matters common to most honest people._ 5.7 The same can be said about voluntarily handing over the guns in aid of investigations. The court in **_S v Peterson_**[10]stated that the fact alleged to constitute exceptional circumstance must be “unusual, extraordinary, peculiar, or simply different.” An honest citizen will assist the police in the investigation of a crime. Advocate Akhosi failed to convince this court that there was something peculiar in the circumstances of this case that would render this seemingly normal act as exception. 5.8 In **_S v Peterson_** the Court held that ___‘Generally speaking, “exceptional” is indicative of something unusual, extraordinary, remarkable, peculiar or simply different but that because of varying degrees, it will therefore depend on the context and on the particular circumstances of the case under consideration._ Even if stretched to its fullest contextual interpretation, pitied against the facts of this case, there is nothing peculiar about handing over guns to the police during an investigation. 5.9 I have also considered whether in the context of this case, the totality of the facts presented constitute exceptional circumstances unique to the particular circumstances of this case. From the papers before court, it appears that from inception of the investigations, the petitioner voluntarily led the investigation team to the weapons, I suspect the ones possibly used in the commission of the alleged crime.[11] Meaning from the commencement of the investigation, the petitioner has been a good citizen. His mannerism was consistent with what Hlajoane J defined as “matters common to most honest people.” Thus, even if he was on his way to handing over himself, a fact which I have discarded as improbable in the light of the fact that he did not respond to the summons in May 23rd, that act would have been a continuation of him being an honest person, not anything peculiar, out of this world or simply exceptional. 5.10 On the strength of the cases discussed and the facts outlined by the petitioner in his sworn statement and the submissions of Advocate Akhosi during argument, I am of the view that the petitioner has not submitted to this court exceptional circumstances that move this court to make him eligible for his petition to be admitted to bail. 5.11 I move onto the traditional requirements of bail, that is the issue of flight risk. I had said during my ruling on the 27th September that the petitioner is a flight risk. I proceed to outline the basis of this finding. **[6]****IS THE PETITIONER A FLIGHT RISK?** **Failure to attend remands in a pending case** 6.1 At paragraph 13.4 of the opposing affidavit, the deponent thereat stipulates that whilst the petitioner applies for bail in this case, he is still remanded on bail in a certain case being CR115/2021 in the Mafeteng district. During the hearing of this petition, I disclosed to counsel that I had caused the record of the proceedings from the magistrate court in Mafeteng to be made available to me so that I can garner from it the status of the bail conditions of the petitioner. The parties accepted this as they said these are court documents. I had also caused copies to be dispatched to both parties. 6.2 From the minutes of the Magistrate records, it transpired that, the petitioner requested that he be excused from attending remands as they inconvenienced him being an employee in the Republic of South Africa. This was granted. The court accepted his request and ordered that he was to attend remands every six months. This translates to mean that he was to attend remands twice a year. However, the record reveals that despite this easing of the conditions of bail, this petitioner still failed to attend remands. 6.3 The attendance of remands is a procedural requirement that ensures the availability of an accused person to attend trail once, amongst others, investigations are completed and the case is ripe to hearing. It is employed to rein-in the accused within the control of the court. It also plays the role of ensuring that he does not flee as remands are like a watchdog. Failure to attend remands therefore is indicative that once the matter is ripe for trail, to ensure the attendce of an accused who is on bail may prove impossible. 6.4 Having displayed that he is prone to failing to attend remands (even in a case where the charge is not as steep as the current one), the petitioner is a possible flight risk. Van der Berg[12] states; _If the accused on a previous occasion, religiously observed his bail conditions, that will count in his favour. If on the other hand, the accused had in the past absconded, that will work against him._ __ **[7]****ACCUSED’S EASE OF MOVEMENT BETWEEN LESOTHO AND REPUBLIC OF SOUTH AFRICA:** 7.1 Another factor that pointed towards the petitioner being a flight risk is the following; During addresses by both counsels, it transpired from annexure MS1to the petitioner’s papers that: * On the 5th April 2023, the Applicant left Lesotho for south Africa. * On the 2nd May 2023 he re-entered Lesotho. * On the 7th May 2023 he left Lesotho to South Africa. * On the 21st May 2023 he left Lesotho to South Africa * On the 27th May 2023 he left Lesotho to South Africa * On the 28th May 2023 he left South Africa to Lesotho * On the 6th June 2023 he left Lesotho to South Africa. * On the 21st June he left South Africa to Lesotho. 7.2 From the above analysis of the movements of the petitioner, it is clear, and this was conceded by Advocate Akhosi, that the petitioner can move between the boarder of Lesotho and South Africa without submitting himself to the boarder authorities so as to be regulated by immigration laws. This unlawful free movement between the two (2) countries, undetected, renders the petitioner a flight risk in that he can escape to the Republic of South and possibly beyond, unnoticed. This puts him in the category of him a flight risk. 7.3 Advocate Akhosi submitted that this can be cured by taking his passports or traveling documents as part of his bail conditions. However, this petitioner has shown that he can come and go without the need for a passport. This is so because on three occasions (21st, 27th and 28th May) he re-entered south Africa without having had his passport stamped for entry into Lesotho (or departure from South Africa). 7.4 Advocate Akhosi made further submissions that the petitioner works in South Africa and resides there. This he said, diminishes the status of him being a flight risk for he has a “permanent address” where he can be located. This is however contradicted in that, at 6(a) of the founding papers, the petitioner did not provide the court with a fixed address of where he works in South Africa, nor where he resides. That this poses a challenge was picked up by Advocate Lepheane. She extended her argument and relied on the case of **_Bolofo V DPP_**[13] to argue the notion of “the possible flight from the country.” She submitted that these are indicative that the petitioner is a flight risk. **[8]********THE STRENGTH OF PROSECUTION CASE** 8.1 Advocate Lepheane relied on the argument detailing the strength of the Prosecution case and submitted in her heads of argument that the petitioner is facing serious charges where four innocent people have died. The argument continues that, a heavy sentence including capital punishments awaits the petitioner in the event that he is convicted. She went on to state that the strength of the evidence gathered thus far against the petitioner points towards his involvement in the crime he is charged with. She thus submitted that the cumulative effect of these three factors combined, would easily influence the petitioner to evade trial. This argument at face value smacks of the court predetermining the outcome of the main trial. It is however a factor that the courts can consider in a bail application as stated in the case of **_S v Smith_******[14]****. It was stated in Smith’s case that considerations such as the strength of the evidence gathered against the petitioner in the main case and also the nature of the case affect the application the tilting of the scales in a bail application. I accept this with caution as alluded to in Smith’s case that to place heavy weight on such consideration would lead to the maladministration of Justice. Miller J put it as thus; _Each case must be considered on its merits, but I am inclined to agree with counsel for the state that, if the offence is on the type which experience shows usually leads to the accused effecting his escape through familiar and well-known routes, and if it appears moreover that his association with others who have effected their escape when similarly charged is sufficiently intimate to show a probability that he would follow suit, that might b sufficient ground for refusing bail._While accepting those considerations as being entitled to reasonable weight in the scale, one must not over-emphasise their importance for to do so would lead to the conclusion that no person charged with offences of this nature, and to whom routes of escape might conceivably be available to adjoining territories, can ever be released on bail_._ _(My emphasis)_ 8.2 To this Advocate Akhosi has responded in his heads of argument that Advocate Lepheana’s argument puts the cart before the horse in that it determines the innocence or guilt of the accused, who at this stage is constitutionally presumed innocent. I disagree with this agreement on the strength of Smith’s case cited above. **CONCLUSION** 8.3 I have considered all the arguments presented to me and I have come to the following conclusion; 1. That the petitioner has not presented before this court any exceptional circumstances rendering the administration of justice safe to grant him bail 2. That the petitioner is charged with a serious offence and that the prosecution garnered strong evidence against him. 3. That the petitioner is a flight risk, even the confiscation of his travel documents does not reduce that risk. From the foregoing, I make the following ruling; **[9]****RULING** 9.1 The application for bail is denied. \------------------------------ **M. G. HLAELE** **JUDGE** For Crown: Adv. T. Lepheane For Defence: Adv. H.A Letima * * * [1] Page 8- 12 of the record [2] **_Thabo Tsukulu v the director of Public Prosecutions_******(CRIAPN04312017) page 8 para 10 **_**[3]**_****__****_Mosa Raymond Mokete vs Director of Public Prosecutions_**** __** CRI/APN/0342/2014 [4] **_Leutsoa v Director of Public Prosecutions_**** __**[[2020] LSHC 18](/akn/ls/judgment/lshc/2020/18) [5] ** _Re Sam_** __[2017] VSC 91 [[22]](https://jade.io/article/612118/section/140724) [6] ** _Leutsoa v Director of Public Prosecutions_**** __**[[2020] LSHC 18](/akn/ls/judgment/lshc/2020/18) [7] **Per Peete J in the case of Tsukulu v DPP** ****[8]******Bokang Malataliana v DPPC of A no. 4 of 2020** [9] **_Tseliso Mohlabane V DPP_** CRI.APN/18/2012 [10] **_S v Peterson_** 2008(2) SACR [11] Paragraph 10.2 of the opposing affidavit at page 17 of the record. [12] Van der Berg J. 1986. _Bail- A practitioners Guide._ P61. Juta &Co Ltd. ****[13]**********Bolofo v DPP LAC** (1995-1999) At 252-253 [14] **S v Smith and Another** 1969(4) SA 175 (N) at 177 E-F #### __Related documents ▲ To the top >