IN THE HIGH COURT OF LESOTHO
In the Application of:
MOTLALENTOA MAQELEPO Applicant
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Delivered by the Hon. Mr. Justice B.K. Molai
On 6th January, 1992, the applicant herein filed, with
the Registar of the High Court, a notice of motion in which he moved
for an order framed in the following terms:
"(a) Condoning the applicant's failure to note his
appeal within the time prescribed by
(b) Admitting applicant to bail ponding appeal on such
terms and conditions as this Honourable Court may impose.
(e) Granting applicant such further and/or alternative
It is, perhaps, convenient to mention, in the interest
of clarity, chat prior to 5th July, 1991, the applicant and another
appeared, before the Subordinate Court of
Leribe, charged with Theft Common on the allegations
that on or about 22nd May, 1991 at or near Peka Ha Lepholisa in the
of Leribe, they unlawfully and intentionally stole a
television and a video, the property or in the lawful possession of
When the charge was put to them, the applicant pleaded
not guilty whilst his co-accused pleaded guilty. Separation of trials
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.
On 5th July, 1991, the trial against the applicant
proceeded. He was, on 9th July, 1991, found guilty as charged and
serve a term of 3 years imprisonment without an option
of a fine. As it has already been pointed out earlier, on 6th
i.e. some 6 months after he had been convicted and
sentenced, the applicant filed, with the Registrar of this court, the
application (on notice of motion), which was, however, not
served on the Respondent until 6th February, 1992, for relief as
On 18th February, 1992, the Respondent filed Notice of
intention to oppose in which he stated, inter alia, that the sentence
against the applicant was rather excessive.
He would consequently oppose only the application for
bail i.e. not the applications for condonation and leave to appeal
out of time. Notwithstanding his notice of intention to
oppose bail application, it is worth noting that no opposing
been filed in support of the Respondent's opposition.
In a recent decision CRI/APN/3/92 Ntsane Lipholo and 2
Others. v. Director of Public Prosecutions (Unreported) this court
the occasion to point out that where the Director of Public
Prosecutions objects to a bail application, it will carefully
and not lightly discard the objection. However, that does
not mean the Director of Public Prosecutions can just file a notice
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.
Moreover, I have already pointed out that in his notice
of intention to oppose, the Respondent conceded chat the sentence
on the applicant was excessive. That being so, it must be
accepted that the applicant has prospects of success in his appeal
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
with the Registrar of this Court and not the Subordinate
court. If the applicant's failure to appeal within the time limit
by the 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
I would, therefore, I make the following order:
Applicant's failure to note appeal withinthe period
prescribed by law is condoned.
Applicant must lodge his appeal at thesubordinate
court of Leribe within 14days from the date of this judgment.
Applicant's bail application pending hisappeal is
allowed on the followingconditions:
(1) He must pay M100 cash deposit;
Surrender his passport to thepolice.
Report to the nearest policestation (Hlotse) on
every lastSaturday of the month at orbefore 12 noon.
find an independent person tostand him surety in
the amountof M300.
Prosecute hie appeal on a dateCo be arranged
with theRegistrar of the High Court.
The arrangements to pay the M100 deposit and find surety
in Che amount of M300 must be made at the subordinate court of Leribe
not the office of the Registrar of the High Court.
JUDGE 8th JUNE 1992.
For Applicant: : Mr. Phoofolo For Respondent: Mr.
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