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: -

1. That
   he be granted leave to appeal out of time.

   
   

2. That
   he be released on bail pending appeal on such terms and conditions
   as this Honourable Court may deem fit.

   
   

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3. That
   he be directed to file his Notice and grounds of appeal within
   fourteen (14) days of the granting of this order.

   
   

4. 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;

1. 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.

2. 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.

   
   

3. 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.

   
   

4. 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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