CRI/APN/823/04
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the Matter Between:
PITSO SIMON SENYANE APPLICANT
And
THE DIRECTOR OF PUBLIC
PROSECUTIONS RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Acting Justice N Majara on the 13th May 2005
Applicant herein is seeking relief from the court in the following terms: -
That he be granted leave to appeal out of time.
That he be released on bail pending appeal on such terms and conditions as this Honourable Court may deem fit.
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That he be directed to file his Notice and grounds of appeal within fourteen (14) days of the granting of this order.
Granting him such further and/or alternative relief as this Honourable Court may deem fit.
On the date of hearing, both counsel for applicant Mr Ntoko and counsel for respondent, Mr Seema informed the court that the crown had not filed their opposing papers because both sides had agreed that they will argue the matter on the question of bail only.
Mr Ntoko then proceeded to move the application for bail pending appeal on the grounds that applicant herein was convicted by the Mohale's Hoek Magistrate Court and sentenced to eight (8) years imprisonment on the basis of the following grounds;
(i) his own plea of guilty;
(ii) that he was seen with his co-accused
(iii) a confession of the said co-accused.
It was Mr Ntoko's submission that the trial court should not have drawn an adverse inference simply from the fact that applicant was seen with his co-accused. In addition, it was
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applicant's case that although he had mentioned to the trial magistrate that he was awaiting his defence counsel, he was forced to proceed in the latter's absence by the court.
In reaction, Mr Seema argued that the underlying principle when considering bail pending appeal is prospects of success. He submitted that applicant admitted his guilt and was convicted on that basis and on the cumulative facts of the evidence that was placed before the court as outlined in respondent's heads of argument. He prayed that the application for bail should be refused.
In his reply, Mr Ntoko contended that as far as the question of prospects of success is concerned applicant stood a chance for the reasons outlined in paragraph 12 of his founding affidavit. In the said paragraph applicant deposed as follows;
"I have been advised by Counsel of record herein and verily believe same true that the outline of the facts in this case as concerns me, and indeed as disclosed by the record of proceedings in CR306/03, falls short of the above mentioned prerequisite and thus could not be a valid basis for my conviction and sentence aforesaid, for the following reasons;
The fact that I was identified as A1's companion on the day the vehicle was left at Taung, is per se not
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conclusive proof that I took part in the commission of the offence charged, at least as a co-perpetrator.
Ex facie the record of proceedings in CR306/0, (sic) the Court a quo was wrong to allow the prosecution in its outline of the facts to canvass incriminating statements allegedly made by my co-accused in CR306/03, which in all probabilities influenced the Court a quo in arriving at the verdict, it did in my case.
As evidenced by the tenor of its reasons, for sentence, the Court a quo clearly considered only the probabilities against me and none in my favour.
The Court a quo made a very crucial mistake by not enquiring as to how Mantsamaeeng Morena-mmele allegedly identified me as Al's companion in the absence of evidence indicating that she already knew me before the aforesaid incident.
In their heads of argument, it was also submitted on behalf of applicant that where an accused person pleads guilty and the prosecutor accepts such plea and outlines the facts, such facts must disclose the offence charged.
As I have already mentioned earlier, respondent did not file any opposing papers, he however filed his heads of argument wherein he reacted to the points raised by applicant.
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Respondent submitted that on the argument of identification of applicant herein not being conclusive proof that he took part in the commission of the offence, there was other incriminating evidence against him, as well as circumstantial evidence that linked him to the commission of the offence, over and above the fact that applicant pleaded guilty to the charge.
Respondent submitted further that the trial court did not have to inquire whether the witness already knew the applicant because the accused had already pleaded guilty and had not challenged the issue of identification, nor had he pleaded that there was mistaken identity. It was Mr Seema's further submission that over and above that, the trial court was not bound to make an inquiry into the issue, for it was enough even if the witness had seen the applicant once. It was respondent's further contention that applicant bears the burden of proof that he has reasonable prospects of success on appeal and that in casu, applicant had failed to discharge this onus.
On the general principles of bail, respondent contended that the court should take into account the increased risk of abscondment in view of the fact that applicant has been convicted and sentenced. Mr Seema submitted that applicant is highly likely to abscond in the event that the appeal is
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dismissed as he already knows the terms of sentence awaiting him.
I now proceed to deal with the issues raised. From the typed record of proceedings, what emerges is that both applicant herein and his co-accused in the trial court pleaded guilty to the charge. After an outline of the facts by the public prosecutor, both admitted them as true.
The most material aspects of the facts as gleaned from the record are that of the evidence of Mantsamaeeng Morena-mmele, an aunt to applicant's co-accused. From her evidence, it is difficult not to draw an inference that both applicant and his co-accused were acting in concert. This is because although it is the co-accused who was driving, they were together when they arrived at her house, sat in the car until she came out to enquire why they had not gone into the house, slept together at her place and left with the promise to collect the car which they never did. These facts do not suggest applicant having only been on a joy ride, oblivious to what was happening. If anything, it suggests the situation to the contrary i.e., that they had a common purpose and were acting in concert. See the comments of the Court of Appeal in the case of Tseliso Monaleli and Another v Rex C of A 6/2004 (CRI/T/64/01) p4-5.
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I agree with counsel for the applicant that where an accused pleads guilty and the prosecutor accepts such plea and outlines the facts, the outline must disclose the offence charged. However, in my opinion, in casu, the facts as outlined by the public prosecutor and admitted by applicant did disclose the offence charged.
Admittedly, the witness said she had never seen applicant prior to that night. She however identified him later in court as her nephew's companion. In addition, applicant did spent the night at her place so she had ample opportunity to see him well enough to be able to recognize him at a later stage without any problems.
All these factors were not challenged by applicant. As Mr Seema rightly pointed out, the trial court was right in admitting the witness's evidence with regard to applicant's identity which was never put in issue at all. In addition, the rest of the circumstantial was very damning against both of them. The court a quo was therefore correct in convicting applicant and his co-accused on the basis of the evidence placed before it.
On the issue of the triad court allowing the prosecution to canvass incriminating statements allegedly made by applicant's co-accused and admitting such statements,
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Section 230 of the Criminal Procedure and Evidence Act 9 of 1981 provides as follows;
"No confession made by any person shall be admissible as evidence against another person"
Mr Ntoko's submission was therefore correct that such evidence ought not have been allowed and used against applicant. See also the case of R v Zawels 1937 AD 342 at 348-9 wherein Curlewis CJ stated that "... testimony by a co-accused which amounted to a confession of his own guilt would not be admissible against the other accused, although this would not affect the admissibility of the rest of his evidence."
In my opinion, in the light of the above legal position, the only aspect of the evidence which ought not have been admitted is that of applicant's co-accused confessing to the police upon handing over the vehicle keys, that he was with applicant when he stole the vehicle.
The question is therefore whether in the circumstances, minus the confession, the court a quo would still not have convicted applicant herein. In my opinion, it would still have. The facts, i.e. the circumstantial evidence mostly from Mantsamaeeng's testimony already proved applicant's guilt beyond a reasonable doubt even if the co-accused's incriminating statements had not been admitted by the trial court. This particular ground therefore does not take applicant's case any further and as such, falls by the wayside.
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The next question is whether in light of the above reasons, applicant has discharged the onus of showing that he does have prospects of success on appeal which would then entitle him to be admitted on bail. Once again, the answer is in the negative. The crown has discharged its onus or proving applicant's guilt beyond a reasonable doubt and in my opinion, he has no prospects of success on appeal.
In the case of S v Williams 1981 (!) SA 1170 at 1172, when discussing some of the considerations in an application for bail pending appeal, Friedman CJ had this to say;
"...the proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice. In my view, to apply this test properly it is necessary to put in the balance both the likelihood of the applicant absconding and the prospects of success. Clearly, the two factors are interconnected because the less likely the prospects of success are the more inducement there is on an applicant to abscond. In every case where bail after conviction is sought the onus is on the applicant to show why justice requires that he should be granted bail."
Applying the above test in casu, and in the light of the reasons as I have already shown above, applicant has very little
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prospects of success if any, on appeal. This in turn raises the likelihood that if he were to be released on bail, he might abscond because he already knows the type of sentence he has been condemned to by the court a quo. In addition, applicant has not successfully discharged the onus of showing why under these circumstances the dictates of justice require that he should be granted bail. See the case of S v De Abreu 1980 (4) SA 94 at 100.
On the issue of applicant having been denied the opportunity to be represented on the date of hearing, it would appear that the trial court, which was in the best position to determine this factor was of the view that on the basis of the numerous postponements of the matter and the fact that applicant had been informed of the date of hearing well in advance, he had the duty to have informed his lawyer of this date. I am therefore reluctant to find differently under the circumstances as I would have no basis to make a finding on this issue to the contrary.
I did not consider the issue of sentence and the other grounds which were raised in the Notice of Motion for the reasons that both counsels had agreed to address me on the issue of bail only.
For the above reasons the application is dismissed.
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There is no order as to costs.
N. Majara
Acting Judge
For Applicant : Mr Ntoko
For Respondent: Mr Seema
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