IN THE HIGH COURT OF LESOTHOIn the appeal of :
MOKONE MKHEEA Applicant
Delivered by the Hon. Mr. Justice M. P. Mofokeng on
the 21st day of November. 1983
The application for condonation of late noting of an
appeal was filed in this Court on 12th day of October, 1983. It was
set down for hearing on the 17th October 1983. On that day it
was apparently postponed to the 24th October 1983. It is not recorded
on the file as to who requested such a postponement. On the 24th
October, 1983, Advocates Mlonzi and Peete appeared for the Applicant
and Respondent respectively before the Chief Justice. It is recorded
on the file on that day that the papers were "insufficient
determine whether an application should be granted". The
application was then postponed to the 31st October 1983 to"enable
Mr. Mlonzi to file new adequate papers." On the 31st October
1983 Mr. Mlonzi requested that the application (original) be
An application (undated) for condonation of late noting
of appeal was filed of record on the 8th November 1983 and is set
hearing for the 21st November 1983 in "respect of
criminal case No. 94/83 held at Thaba Tseka's Magistrate Court on the
August 1983." However, a copy of the record of the
proceedings now enclosed in the file before me, relates to "case
112/1983." The previous application related to that case
whereas the present application relates to an entirely different
However, it shall be assumed that the present application is a
revival of the one which was postponed sine die.
The application should have been made on petition.
(Selebalo & Another v Rex, 1967-70 L.L.R. 101 at 102B).
Attached to the affidavit of the applicant are his
reasons for appeal. It is not necessary for me to comment thereon in
to draw attention to a decision of this Court in the
case of Mokheche v Rex, 1980(1) L.L.R. 139 at 140 where it was
held that a ground of appeal such as "the conviction is against
the evidence and weight
of the evidence" is not valid because it
does not sufficiently specify the issues of law or fact or of both
which are being
challenged. It does not also comply with the rules of
the Subordinate Court Rules which require that there must be a
setting out clearly and specifically the ground on
which the appeal is based and that such a statement
shall be lodged with the clerk of the Subordinate Court.
It is therefore imperative that the papers are properly
and adequately drawn before presentation to the Court.
I have quickly perused the record of the trial case. In
my view quite a number of the allegations made by the applicant in
would seem to hold water. Another Court may easily come
to an entirely different conclusion than that arrived at by the
In other words, there are prospects of success
in the appeal. It would appear, prima facie, that
inadmissible evidence was incorrectly received on numerous occasions.
It is a pitty, and such a waste of time, that this Court
asked to consider the question of whether or not to grant the
application sought and not go straight away into the merits
appeal itself. Many months will, no doubt, go by before the appeal
proper is heard and disposed of. In any event, the learned
magistrate still has to comply with the Rules of the Subordinate
The reasons for the applicant's delay have been
adequately explained especially in his circumstances. His affidavit,
not stand alone. It is supported. On the other hand
there is no opposing affidavit from the Respondent.
For the above mentioned reasons the application for late
noting of an appeal is granted.
Mr. Tsotsi makes an application for bail in terms of the
provisions of Section 109 of C.P.& E Act 1981 which reads:
"The High Court may, at any stage of any
proceedings taken in any Court in respect of an offence admit the
accused to bail."
If I understood him properly, he bases his application
on the following grounds:
It is the first time a bail application ismade in
The length of time that will elapse betweennow and
the actual hearing of the appealespecially if the applicant
turns out to besuccessful. The applicant will have beengreatly
There are special circumstances present here.The
trial was heard before the Thaba-Tsekasubordinate court which is
deep in themountains and it will necessitate a longjourney
by a vehicle or travelling by air,all of which will be very
costly to theapplicant.
There is no doubt in my mind that the High Court
possesses inherent jurisdiction to allow bail in all cases in which
it has not been
excluded by law. However, as rightly submitted by
counsel for the applicant, the application must be made to it in the
and not to have been made before. The court quite
appreciates the special circumstances of this case. But for these
be clearly understood that if a matter is already before
a magistrate the remedies under section 106 of the C.P.& E. Act
should first be exhausted before a High Court is approached
under Section 109.
Bail is then granted to the applicant and certain
conditions are also imposed.
The Crown does not oppose the granting of the
application for bail and the conditions imposed thereon.
For the Applicant : Mr. Tsotsi For the Respondent : Mr.
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