HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS Respondent
by the Hon. Mr. Justice B.K. Molai on the 8th day of June
January, 1992,the applicant herein filed, with the Registar of the
High Court, a notice of motion in which he moved the court
order framed in the following terms:
"(a) Condoning the applicant's failure to note his appeal within
the time prescribed by
applicant to bail ponding appeal on such terms and conditions as
this Honourable Court may impose.
applicant such further and/or alternative relief."
perhaps, convenient to mention, in the interest of clarity, chat
prior to 5th July, 1991, the applicant and another person
before the Subordinate Court of
charged with Theft Common on the allegations that on or about 22nd
May, 1991 at or near Peka Ha Lepholisa in the district
they unlawfully and intentionally stole a television and a video, the
property or in the lawful possession of Cassim
charge was put to them, the applicant pleaded not guilty whilst his
co-accused pleaded guilty. Separation of trials was
applied for and
ordered. The trial then proceeded against the co-accused, who was
subsequently found guilty as charged and sentenced
to pay a fine or
serve a term of imprisonment in default of payment of the fine.
July, 1991, the trial against the applicant proceeded. He was, on 9th
July, 1991, found guilty as charged and sentenced to
serve a term of
3 years imprisonment without an option of a fine. As it has already
been pointed out earlier, on 6th January, 1991
i.e. some 6 months
after he had been convicted and sentenced, the applicant filed, with
the Registrar of this court, the present
application (on notice of
motion), which was, however, not served on the Respondent until 6th
February, 1992, for relief as aforesaid.
February, 1992, the Respondent filed Notice of intention to oppose in
which he stated, inter alia, that the sentence imposed
applicant was rather excessive.
consequently oppose only the application for bail i.e. not the
applications for condonation and leave to appeal out of
Notwithstanding his notice of intention to oppose bail application,
it is worth noting that no opposing affidavits have been
support of the Respondent's opposition.
recent decision CRI/APN/3/92 Ntsane Lipholo and 2 Others. v. Director
of Public Prosecutions (Unreported) this court has had
to point out that where the Director of Public Prosecutions objects
to a bail application, it will carefully consider
and not lightly
discard the objection. However, that does not mean the Director of
Public Prosecutions can just file a notice of
intention to oppose and
then rest. He must file an affidavit in which he states the grounds
of his objection. In the absence of
any such affidavit, there is, in
my opinion, nothing upon which the court can justifiably refuse the
applicant's bail application.
I have already pointed out that in his notice of intention to oppose,
the Respondent conceded chat the sentence imposed
on the applicant
was excessive. That being so, it must be accepted that the applicant
has prospects of success in his appeal against
the sencence. It is
significant to observe chat the notice of appeal which the Respondent
does not propose to contest, at least
as regards sentence is filed
Registrar of this Court and not the Subordinate court. If the
applicant's failure to appeal within the time limit allowed
law were to be condoned, it means that the applicant will have to go
and lodge his appeal at the Subordinate court. There
is no telling
how long it will take to process the appeal from the Subordinate
Court to the High Court. If the application for
bail pending his
appeal were to be turned down, the applicant may well find that by
the time the appeal is successfully heard by
the High Court he has
served either Che whole or substantial portion of the very sentence
against which he is appealing. In the
circumstances, the refusal of
bail application would be highly prejudicial to the applicant.
therefore, I make the following order:
failure to note appeal within the period prescribed by law is
must lodge his appeal at the subordinate court of Leribe within 14
days from the date of this judgment.
bail application pending his appeal is allowed on the following
must pay M100 cash deposit;
his passport to the police.
to the nearest police station (Hlotse) on every last Saturday of
the month at or before 12 noon.
an independent person to stand him surety in the amount of M300.
hie appeal on a date Co be arranged with the Registrar of the High
arrangements to pay the M100 deposit and find surety in Che amount of
M300 must be made at the subordinate court of Leribe and
office of the Registrar of the High Court.
Applicant: : Mr. Phoofolo
Respondent: Mr. Sakoane.
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