IN THE HIGH COURT OF LESOTHO In the
Application of :
MOSALA LENKA Applicant
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
27th day of June, 1989.
The applicant who was convicted of Culpable Homicide in
a Criminal trial i.e. CRI/T/48/88 Rex vs Lenka (unreported) wherein
charged with murder, has approached this Court by way, of
Notice of Motion seeking bail as follows :-
That the applicant be granted andadmitted to bail
pending Appeal tothe Lesotho Court of Appeal on anyconditions
that the court may deemfit;
Granting such further and/or alternativerelief as
the court may deem fit.
The motion is opposed.
I have observed that in paragraph two of his petition
the applicant has referred to his Notice of appeal as well as the
which he relies for holding the view that both conviction
and sentence should be set aside.
In paragraph one the applicant states that he is serving
a sentence of eight (8) years' imprisonment. The actual sentence
reads as follows:-
"The accused is sentenced to eight (8) years'
imprisonment of which two (2) are suspended for three
(3) years on
condition that he is not convicted of a crime committed
during the period of the suspension and of which violence to a person
The applicant avers that he has good prospects of
success on appeal and points out that the trial Judge descended into
the arena by
cross-examining him instead of putting questions which
would elucidate any points which are obscure. He also' complains
he was strongly cross-examined in his evidence in chief and told
at the end of his cross-examination that his entire evidence is
lie.. He swears that the record which is presently being typed will
support this contention.
Much as these charges place me in an awkward position of
appearing to be defending my conduct of the case - I may Just point
I do not relish that awkwardness - it is however fitting to
treat this application as dispassionately as is required by law.
First it is regrettable that the record of proceedings
is not yet ready and therefore it is impossible for me to refer to
portions where it is complained that the trial Judge
descended into the arena. However my notes distinctly show that it
the course of the applicant's evidence in chief that he
introduced a fresh matter altogether which had never been either
to or elicited in cross-examination of the Crown witnesses.
Fearing that the applicant when pursuing this new line
of giving evidence he was unwittingly damaging his interest I drew to
the danger of giving evidence which might turn out to
be a lie and carry the stigma of being either a fabrication or an
See Phaloane vs Rex
1981(2) LL.R 246 where Maisels P. said:
"It is generally accepted that the functionof
counsel is to put the defence case to .the crown witnesses, not
only to avoidthe suspicion that the defence is fabricating,
but to provide the witnesses withthe opportunity of denying or
confirmingthe case for the accused "
I may point, out that, in a way, an intervention by the
trial Judge geared at bringing this to the attention of an accused
helps absolve the accused's counsel from an accusation that he
is wanting in his professional skill in that he never put his
case to the opposing party.
If indeed accused's counsel was instructed that Trooper
Monyalotsa threatened the accused with a firearm why would this have
put to either P.W.1 'Makhaola who was present throughout or
to Monyalotsa himself? Why should this important and . significant
of the accused's defence surface so late in the trial when it
could not be tested against the testimony of witnesses who were
The rest of the averments by the petitioner relate to
credibility of the witnesses. I need not go into that for I dealt
with it in
my Judgment before reaching the conclusion that was
It remains then to deal with the question of prospects
of success on appeal under circumstances raised by the applicant.
In his invaluable book The Due Process of Law 1980
publication Lord Denning says at 58 :
"Once upon a time there was a judge who talked too
much. He asked too many questions. One after another in quick
Of witnesses in the box. Of counsel in their submissions.
So much so that they counted up the number. His exceeded all the rest
together. Both counsel made it a ground of appeal."
See Jones vs National Coal Board (1957) 2 QB 55, where
Lord Denning said :
"No one can doubt that the. judge, in intervening
as he did, was actuated by the best motives. He was anxious to
the details of this complicated case, and asked questions
to get them clear in his mind.... He was anxious to investigate all
various criticisms that had been made .... Hence he took them up.
himself with 'the witnesses from time to time. He was anxious that
the case should not be dragged too long, and intimated clearly when
thought that a point had been sufficiently explored. All
those are worthy motives on which judges daily intervene in the
cases, and have done for centuries.
"Nevertheless, we are quite clear that the
interventions, taken together, were far more than they should have
however, a judge is not an umpire to
answer the question 'How's that?' His object, above all, is to find
out the truth, and to do
justice according to law.; and in the daily
pursuit of it the advocate plays an
honourable and necessary role
If a judge, .... should himself conduct the examination
of witnesses, 'he, so to speak, descends into the arena and is liable
his vision clouded by the dust of conflict' See Yuill vs
Yuill (1945) 1 ALL E.R. 183.
"Yes, he must keep his vision unclouded. Itis
all very well to paint justice blind,but she does better without
a bandage aroundher eyes. .
"Such are our standards. They are set so high that
we cannot hope to attain them all the time. In the pursuit of
keenness may outrun our sureness, and we may trip and
fall. That is what happened
here. A judge of acute perception
actuated by the best motives, has nevertheless himself
intervened so much in the conduct of the case that one of the parties
each of them - has come away complaining that he was not able
properly to put his case; and these complaints are, we think,
"After that case," says Lord Denning "there
were several appeals which came before us-
from other judges - on similar grounds.
lawyers used to get shorthand notes,
count up the number of questions asked by the judge and
by counsel, and then ask for a new trial. But I do not remember any
that succeeded on that ground."
In Rex vs Hepworth 1928 AD 265 at 277 Curlewis J.A. said
"A criminal trial is not a game where one side is
entitled to claim the benefit of any omission or mistake made by the
side, and a judge's position in a criminal trial is not merely
that of an umpire to see that the rules of the game are observed by
both sides. A judge is an administrator of justice, he is not merely
a figure head, he has not only to direct and control the proceedings
according to recognised rules of procedure but to see that justice is
The limits which a judge should observe in the conduct
of proceedings over which he is presiding have been set out in S vs
SA 828 at 832 as follows :-
(a) He should conduct the trial in such a way that
his open-mindedness, his im-
partiality and his fairness are manifest to all
He should refrain from indulging inquestioning
witnesses or the accused tosuch an extent that it may
precludehim from detachedly or objectivelyappreciating and
adjudicating upon theissues being fought out before him.
He should also refrain from questioninga witness or
an accused person in a waythat may intimidate or disconcert him
orunduly influence the quality or natureof his replies and
thus affect hisdemeanour or impair his credibility.
An impression that a judge is not conducting the trial
in a spirit of impartiality may arise from the frequency, length,
tone or content of the questions.
It, is important to note that in Rall above Trollip
A.J.A. said at 833
"The appellant's evidence in chief occupies eight
pages of the record. Cross-examination by the prosecutor covers 41
which the learned Judge often intervened and questioned
the appellant. I estimate those interventions to be in all about 18
Thereafter, and before the re-examination of appellant by his
counsel, the learned Judge proceeded to question him continuously for
34 pages in which he traversed in detail virtually the whole of his
version again. During the appellant's re-examination (25 pages)
learned Judge sometimes intervened with his own questions. True, many
of the questions were legitimately put to the appellant
learned Judge for elucidation or supplementation of appellant's
version. But in the main, especially during the continuous
questioning covered by the above-mentioned 34 pages, the
interrogation was tantamount to sheer cross-examination of the
in which leading questions were put to discredit him as a
witness. Many of them also conveyed Judicial disbelief or scepticism
his evidence on certain material aspects of his alleged
-But compare and contrast with p. 831 letter C.
See Harris vs Harris (1952) times, 9 April; Judgments
of the Court of Appeal, 1952, No. 148
It is important to consider the Swaziland Court of
Appeal decision in Doctor Hlatshwayo & Others vs The King App.
Case No, 47/84
(unreported) by Hannah C.J. concurred in by Maisels P.
(for a long time a Judge and later President of the Lesotho Court of
and Cohen A.J.A.
At page 6 the learned Chief Justice said :
"Next, complaint is made of the large number of
interventions made by the Judge. An analysis set out in the heads of
reveals that of 513 questions put to the first appellant in
cross-examination Crown Counsel asked 280 and the Judge asked 233
45%. Likewise during cross-examination of the first crown
witness the Judge interjected 32 times, during cross-examination
by the first appellant of another Crown witness he interjected 139
times and during cross-examination of an accomplice witness 19
Mr. Malinga submits that the frequency, length, timing, form and tone
the questions and interjections put by the Judge do not
convey open-mindedness, impartiality or fairness on his part.
"The first point which has to be made is that it
would be wholly wrong to deal with this criticism on the basis of
percentages. While it is true that a judge should
exercise restraint in the number of questions he asks there are a
variety of circumstances
which may lead a judge legitimately to ask
questions. Every judge is anxious to understand the evidence being
given before him and
will almost inevitably ask questions to get
details clear in his mind
A judge may also wish to get in his mind precisely what
an accused's case is and again he may decide to seek clarification
accused is in the witness box ..... A general calculation
based simply on the number of questions asked or interjections
ignores all these factors.
"Having read carefully through the record I am
satisfied that a large number of the questions were solely for the
clarification. However, it has to be recognised that on
occasions it does appear that the learned judge tended to take
his own hands and put questions to witnesses which would
have been better left to counsel.
I have anxiously considered these but at the end of the
day I am not in the least persuaded that it can properly be
therefrom that the learned judge was guilty of
partiality or unfairness, as Mr. Malinga contends, or that this was
created. Looking at the record, as a
whole, and while accepting that the overall number of
judicial interventions was too great, I am satisfied that the
were prompted by the worthiest of motives and not by a
None of the interventions in Rall or Hlatshwayo above
come any near the handful of questions put to the accused in the case
to the instant application in so far as it suggests
that on account of some irregularity in the conduct of proceedings at
prospects of success on appeal are good.
The sole purpose of these interventions which I don't
think would cover even three quarters of a page
of a page was to find out what his defence was. The
accused stood by his innocence in the face of credible evidence to
See Rall again p, 831 letter C.
Nothing was said on his behalf regarding the presence
of, let alone the threat with a gun to him by P.W.4 at the material
But it is this gun which when tested had gun powder
despite that when last fired it had been cleaned by the accused -
that the applicant
wishes to be ignored and advantage taken of the
other gun in regard to whose presence, even though it played no role,
he wishes to
. be given benefit of doubt. Yet it has repeatedly been
"an accused's claim to the benefit of a doubt
..... must not derive from speculation but must rest
upon a reasonable and solid foundation created either by
or gathered from reasonable inferences which are
not in conflict with, or outweighed by, the proved facts of the
See R vs Mlambo 1957(4) SA. 727 AD at 738.
In dismissing the appeal the Swazi Court of Appeal had
recourse to the application of section 327 of the Criminal Procedure
Act which is on all fours with our Section 329 (2) of
the C.P. & E. reading :-
"Notwithstanding that the ...Court is of the
opinion that any point raised might be decided in favour of the
accused, no conviction
or sentence shall be set aside or altered by
reason of any irregularity or defect in the record or
proceedingsunless it appears to
the Court of Appeal that a failure of
Justice has resulted therefrom."
The Court of Appeal Act No. 10 of 1978 section 8 (2)
also says :-
"Notwithstanding the fact that the Court is
of the opinion that the point raised in an appeal under
subsection (1) might be decided in favour of the appellant, the Court
if it considers that no substantial miscarriage of justice
has actually occurred, dismiss the appeal."
C/F C of A (CRI) A No. 12 "of 1974 Stephen Tsatsane
vs Rex (unreported) by Maisels P. as he then was at pp. 12 & 13.
It is an indisputable fact that the Court of Appeal does
not enjoy the advantages of a trial court which is steeped in the
of the trial proceedings. So, even though an appeal is a
retrial it is impossible for an appellate court to be exposed to the
atmosphere. It is to be appreciated that in all the authorities
cited in regard to judicial interventions an attempt was made to
the number of such interventions. Without benefit of the record it is
impossible to make an estimate of nor even fathom the
which such interventions were made in the instant matter. See Gilson
& Cohen (1944) 29 CR. App 174 pp. 178 & 181.
In considering an appeal regard is to be had to the fact
(a) ".... if the appellate court is merely
left in doubt as to the correctness of the conclusion,
then it will uphold it.
(b) An Appellate Court should not seekanxiously to
discover reasons adverseto the conclusions of the trial judge.No
judgment can ever be perfect and all-embracing, and it does not
necessarilyfollow that, because something has notbeen
mentioned, therefore it has not beenconsidered."
See Rex vs Dhlumayo & Another 1948(2) SA at 677 et
These considerations seem to appreciably minimise
prospects of success on appeal.
I have been referred to passages appearing in Rex vs
Kuzwayo 1949(3) SA 761 at 764 namely
(1) "We are aware that this Court is able to apply
a proper test with greater ease than the trial judge for the trial
in the nature of things find it somewhat difficult to look
at the matter from a purely objective stand-point; he has a natural
to say that his own
Judgment is so indubitably correct that the judges of
Appeal will concur therein."
See R vs Clewer (1953) 37 CR. APP. 37
I agree with the reasoning contained in (2) that
"It seems to me that if the trial court is in the
position that it can honestly say that the applicant will have a
prospect of success on appeal that must indicate that
there must be some doubt in the mind of the trial court, and if such
does exist, then there should not have been a conviction,. so
that the very strict application of this rule, in my opinion, renders
it very difficult to conceive of cases where leave to appeal should
In like manner I find difficulty in granting application
for bail pending appeal based on the view that' prospects of success
in the Superior Court because if this court is of that view
then it should not have convicted in the first place. It had the
of observing the demeanour of witnesses and their
appearance and whole personality. This should never be overlooked.
With regard to the question of bail, regard has, at this
stage to be had to the fact that presumption of innocence falls away
conviction has been secured.
It concerns the state that sentences of the court should
be carried out.
With regard to the conviction itself it is important to
note that the applicant has been found
guilty of Culpable Homicide on the basis of the Criminal
Law (Homicide Amendment) Proclamation 42/59 which defines this form
as murder but for the provisions of section 3 which help
reduce murder to Culpable Homicide if provocation has sufficiently
shown to be involved. Accordingly a heavy sentence was called
for and imposed.
Thus there cannot be any fear that by the time the
applicant's matter is heard on appeal he shall have
been made to suffer unnecessarily by completing his
prison term before the appeal hearing in the event that his appeal
would be upheld.
I have been referred to Rex vs Fourie 1948(3) SA. 548 at
549 where the following passage appears in Malan J's judgment :-
"It seems to me, especially in the case of a
serious crime, that a convicted person should not be admitted to
bail. He has been
convicted and his sentence is in force, and the
fact that he has noted an appeal or had a point of law reserved does
him to ask that the sentence imposed be stayed pending
the decision of his appeal."
It has been urged on me that on account of discrepencies
in the evidence of P.W.2 in the trial court when compared with that
preparatory examination depositions, and also of the fact that
conviction was based on his single evidence despite doubts as to his
credibility double cautionary rule should have been applied. But my
evaluation and assess-ment of his evidence left me in no doubt
he was a reliable and competent witness in terms of section 238 of
our CP & E. Hence he qualified as a credible eye witness.
the necessity for corrobbration fell away.
Questions of credibility and happenings at the
scene were sufficiently dealt with in the judgment that
I gave. If I entertained any doubt regarding these, then the
have been granted benefit of such doubt and
acquitted. Lord Denning has indicated that from 1957 to the end of
his term on the Appeal
Court bench no appeal was upheld founded on
complaints about judicial interventions during proceedings. The Swazi
Court of Appeal
is aware of no reported case in which the limits to
be observed by a judge in the conduct of proceedings over which he is
have been considered. See R vs Cain (1936) 25 CR. App. at
Quite clearly in Rall above the interventions were
beyond measure. Can the same be said of the case to which this
I think not.
The application for bail pending appeal is refused.
JUDGE. 27th June, 1989.
For Applicant : Mr. Mphalane For Respondent : Mr.
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