Moorosi Tsiane
THE High Court has reserved judgment in the bail application of Foliki Makhutle, the man accused of murdering Lesotho Nursing and Midwifery Organisation (LeNMO) secretary Morephe Santi. It will pass its verdict on the bail application on 31 August 2026.
Justice Tšeliso Mokoko heard arguments from both the defence and prosecution on Tuesday before postponing the matter for judgment.
Makhutle, 42, of Sekamaneng in Khetheleng, is charged with murdering Mr Santi by allegedly shooting him six times on 10 April 2026.
In his bail application, Makhutle claims he acted in self-defence following a confrontation at his home.
According to court papers, he alleges that Mr Santi arrived at his residence intoxicated, carrying a bottle of Savanna cider, and demanded repayment of money allegedly owed to him. Makhutle says the confrontation escalated when Mr Santi pushed him before striking him in the face with the bottle.
He claims he fell to the ground and, fearing for his life as Mr Santi allegedly continued advancing towards him, drew his firearm and opened fire.
Representing Makhutle, Advocate Souru Malabulabu argued that the prosecution had failed to produce evidence showing that his client posed a flight risk or was likely to violate any bail conditions.
“My Lord, the state has failed to support their allegations in this matter. The killing was not planned or premeditated as the petitioner did not know that the deceased would come to the house or that there would be an altercation between them.
“It is wrong for the prosecution to say that a verdict of guilt will be returned by the trial court. The petitioner should be presumed innocent until proven otherwise.”
Adv Malabulabu further argued that refusing bail without evidence that Makhutle would breach bail conditions would amount to discrimination.
“Denying the petitioner bail will be discriminatory as there is no evidence that has been placed before court to prove that the petitioner is capable of violating bail conditions.”
He also urged the court to disregard petitions and public statements submitted by nursing organisations opposing Makhutle’s release, arguing that the fatal shooting arose from a personal dispute and was unrelated to Mr Santi’s role in the organisations.
“The court should not consider the statements by the nursing organisations as the killing of the deceased was not associated with those organisations but was personal.
“The court has liberty and discretion to grant bail as justice does not apply unilaterally. The court cannot deny the petitioner bail based on petitions presented by the prosecution. That will suggest that the court is influenced by public pressure and the principle of innocent until proven otherwise will be violated.”
The defence submitted that exceptional circumstances existed to justify bail, proposing stringent conditions, including sureties and the surrender of Makhutle’s travel documents.
In his affidavit, Makhutle describes himself as the sole breadwinner for his unemployed wife and three minor children. He says he works as an independent construction contractor and risks losing business contracts if he remains in custody.
He has proposed bail of M1,500, arguing that his permanent residence and family ties make him unlikely to abscond. He also undertook not to interfere with witnesses or ongoing investigations.
However, the Crown strongly opposed the application.
Crown Counsel, Adv Lehlohonolo Phooko, argued that the court must balance Makhutle’s constitutional rights with the interests of justice and public safety.
“The court is entitled to make its own inquiry in order to come to a just decision in the bail application. It is important to balance the interest of the petitioner and that of the public.
“A sense of peace and security may be undermined if the petitioner is granted bail. The court has to consider the seriousness of the offence and the manner in which the offence was committed, and the interests of justice outweigh the rights of the petitioner.”
Adv Phooko stressed that Makhutle is facing one of the most serious offences under Lesotho law.
“The petitioner is charged with a serious offence which attracts capital punishment or severe penalties. The nature of the offence is likely to induce a sense of shock among the community in which it was committed.”
He argued that releasing Makhutle would heighten fear within the community and undermine confidence in the justice system.
“There has been a sense of shock to the community and there is an outcry from the public.
“His release on bail will cause fear to the community and the interest of the public outweighs the right of the petitioner to get bail.
“He has not presented exceptional circumstances. He talks about his normal conditions and that is not enough.”
Adv Phooko also submitted that there was a real possibility Makhutle could interfere with prosecution witnesses because he personally knows several of them.
“There is a likelihood that he will intimidate, interfere with or influence state witnesses as he is aware of their identities. One of the witnesses is his girlfriend and another is his employee.
“The bail application should therefore be dismissed.”
Adv Napo Mafaesa, representing Mr Santi’s widow in an intervention application, also opposed bail, arguing that the victim’s family feared intimidation and possible unrest if Makhutle were released.
“My Lord, the defence must be proportional to the attack. At this moment the petitioner does not have the defence to the story he wants to project.”
He said Mr Santi’s widow had informed him that some community members had threatened to take matters into their own hands should Makhutle be granted bail.
“The wife of the deceased, as a victim of this crime, is entitled to oppose the bail application. She says that the community has threatened to take the law into their own hands if the petitioner is granted bail.
“They stay in the same area and are members of the same community.”
Adv Mafaesa argued that denying bail would best serve the interests of justice, particularly as the murder case has already been committed for trial.
“It will not be in the interest of justice to admit the petitioner to bail and the court will not be faulted in coming to a conclusion to deny him bail.
“He must wait until he is convicted or exonerated, and the matter has already been indicted, which indicates that it will be dealt with soon.”
Justice Mokoko reserved judgment to 31 August 2026, when he is expected to rule on whether Makhutle will be released on bail pending his murder trial.
