High Court’s decision to deny bail to nurse’s accused killer correct

THE High Court deserves commendation for taking a firm and considered approach in refusing bail to Foliki Makhutle, the man accused of murdering Lesotho Nurses Association (LeNMO) Secretary-General Morephe Santi.

Justice Tšeliso Mokoko’s decision, delivered on Monday, is important not because every murder accused should automatically be denied bail, but because it shows that the right to bail must be balanced against the interests of justice, the protection of witnesses and the integrity of criminal proceedings.

Mr Makhutle is accused of shooting Mr Santi dead on 10 April 2026. He had applied for M1,500 bail, but the Crown and the deceased’s wife opposed the application.

The court was particularly concerned about the potential for interference with witnesses. One of the witnesses is reportedly Mr Makhutle’s girlfriend, while others are his employees. The court found that his release could make it difficult to prevent contact between him and those witnesses, and could prejudice the Crown’s case.

Bail must not become a mechanism through which an accused person can influence witnesses, frustrate investigations or undermine a trial. Equally, it must never be used as a form of punishment before an accused person has been convicted.

The presumption of innocence remains fundamental to criminal justice, but it does not mean every accused person must be released regardless of the circumstances of the case. Courts must weigh the particular facts of each application and determine whether release would endanger the interests of justice. In Mr Makhutle’s case, Justice Mokoko appears to have done precisely that.

Recent events illustrate what can go wrong when criminal proceedings are disrupted by an accused person’s failure to comply with court processes. The murder trial of Mafeteng businessman Teboho Tšolo was thrown into disarray last Thursday after he failed to appear in court. Mr Tšolo is facing charges arising from the killing of former Naledi Funeral Planners shareholder Panyane Phiri in August 2024.

The trial had already started, with four witnesses, including eyewitnesses, having testified. When Mr Tšolo failed to appear at the scheduled 27 August 2026 proceedings, the court was forced to wait while attempts were made to establish his whereabouts. A warrant for his arrest was eventually issued after Justice ‘Mafelile Ralebese found him in contempt of court.

The episode is a reminder that the criminal justice system is vulnerable when accused persons out of custody fail to comply with their obligations. Prosecutors, witnesses, lawyers and judges can spend considerable time and public resources preparing for a trial, only for proceedings to stall because an accused person disappears.

There is a more disturbing dimension to this debate. On 23 July 2026, an angry mob in Peka reportedly burned a murder suspect to death after he had been granted bail. The incident is deeply troubling and must not become an argument for mob justice. The law cannot be replaced by the anger of a crowd.

The suspect, Mosala Rathaba, and his wife, ‘Matsoakae Rathaba, had been arrested in connection with the fatal shooting of a 57-year-old neighbour. Police alleged that Mr Rathaba was already out on bail in a separate malicious-damage case involving the same victim, and that he had hired men to carry out the killing. Eight people were subsequently charged in connection with his murder, police said on Monday.

We must be careful not to suggest that denying Mr Rathaba bail would certainly have prevented his killing. No one can know that. What can be said is that every case in which a person released on bail is subsequently killed, absconds, interferes with proceedings or is accused of a further offence reinforces the need for bail decisions to be rigorous and evidence-based.

This is precisely why Parliament must urgently conclude its work on the Bail Bill, 2024. The Bill seeks to consolidate and harmonise existing laws and practices relating to pre-trial release. It provides a framework for determining when bail should be granted, refused or revoked, and mechanisms for considering the safety concerns of victims.

The National Assembly’s own records show the Bill was already before the House, with the Portfolio Committee on Law and Public Safety Cluster report tabled and a programme set for its second and third readings in May 2025. Why, then, is such consequential legislation still not passed? We cannot afford endless delays on legislation that directly affects the administration of criminal justice.

A modern bail framework should give judges clear, consistent criteria for dealing with serious offences. It should strengthen safeguards against witness intimidation, flight from justice and interference with investigations, while protecting the constitutional rights of accused persons against arbitrary detention. The answer is neither blanket denial of bail for everyone accused of murder, nor indiscriminate release simply because bail is a recognised legal right. It is judicial discretion guided by clear legislation, reliable information and a proper assessment of risk in each case.

Justice Mokoko’s decision in the Santi case should be welcomed as that principle in practice. It sends a message that the seriousness of an offence, the risk of witness interference and the wider interests of justice cannot be treated as afterthoughts in bail proceedings. But the courts cannot carry this responsibility alone. Parliament must finish the Bail Bill. Police must ensure accused persons on bail comply with their conditions. Prosecutors must vigorously oppose bail where genuine risks can be demonstrated. And the public must resist the temptation to substitute mob justice for the courts.

Lesotho needs a justice system that is both firm and fair – one that protects the rights of the accused while protecting victims, witnesses and society; legislation that gives judges the tools to make sound bail decisions; and trials that proceed without being derailed by accused persons who disregard court orders. Most of all, Basotho need confidence that justice will be done through lawful institutions.

For that reason, the High Court’s refusal to grant Mr Makhutle bail is a decision worthy of respect. It should not become a licence for denying bail in every murder case. Instead, it should set a standard: where there is credible evidence that an accused person’s release could prejudice witnesses or compromise the administration of justice, the courts must not hesitate to put the interests of justice first. Parliament should now do its part and bring the Bail Bill to conclusion.

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