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CIV/APN/619/2004

IN THE HIGH COURT OF LESOTHO

In the matter between:-

PHAKELI MOCHEKOANE First Applicant

TEBELLO MOCHEKOANE Second Applicant

COLEARA MATSUKULU Third Applicant

AND

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent For the Applicant : Mr. Mabulu

For the Respondent Mr Ngcobo

JUDGMENT

Delivered by Honourable Mr Justice T Monapathi on the 19th January, 2005.

I made a decision on 23rd December, 2004 to dismiss this application. This I did because I was of opinion that a sentence should not be disturbed merely because no reasons have been given therefor. Prejudice or something more substantial and compelling must be given for any attack on sentence.

This application was titled "Notice of Application", "In the matter of application for leave to appeal out of time". I will call any of the Applicants herein "Appellant" wherever it is convenient. The reason is that Applicants

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By reason of applying for condonation of late noting of appeal sometimes call themselves Appellants in the papers.

The Founding Affidavit of Phakeli Mochekoane the First Appellant is an eleven paragraph document. These three Applicants had been arrested on 11th November, 2002. They were consequently charged with the offence of stock theft involving four (4) head of cattle allegedly having been in lawful possession of Semele Matekane in Count 1.

In count II the Applicants were charged again with the offence of stock theft of two (2) head of cattle allegedly stolen on the same day as above being allegedly owned by the same complainant or having been in lawful possession of the complainant.

The statement in paragraph 5 of the said affidavit of the First Applicant (who also spoke for others) shows that they pleaded guilty to the charge and were convicted after the close of the Crown's case. They were each afterwards sentenced to five (5) years imprisonment without an option of a fine. In this regard the First Applicant seems to speak for other appellants who have filed their supporting affidavits and associated themselves with the contents to which they adhered in "so far as they relate".... to them.

It is to be noted that the main complaint is about none other than the sentence imposed. In that respect this is shown as follows in paragraph 6 of the affidavit of First Applicant which reads:

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"It my respectful submission that I have reasonable prospects of success in the appeal I intent lodging at least on sentence as another court properly advised, might on the facts and how arrive at a different decision. This application is thus not made for purposes of delay" (my emphasis)

It therefore becomes clear that the issue is about sentence.

There are reasons which these Applicants put forward for their asking for condonation of the late filing of appeal. These are contained in paragraph 8, 9 and 10 of First Applicant's affidavit. However, they ought not to detain us now. Mine is to indicate how process can be abused and how misconceived this application is.

I start hereunder to quote from the document attached to the application entitled "Notice of Appeal Out of Time". Presumably this is intended to indicate what the grounds of appeal, as a matter of substance, will look like. It is as follows:-

"APPEAL OUT OF TIME.

1. We failed to lodge our appeal timeousely because we did not know that there was a time limit.

2. Our families look some time to raise funds in order to enable us to seek legal opinion.

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3. We were not in with our families for sometime as we were still in prison in order to enable us to give them instructions."

The apparent confusion between grounds of appeal and reasons for condonation can be explained easily by accepting that this application is itself an epitome of confusion. The real complaint as I said is about sentence and this is further shown paragraphs 6 and 7 of the affidavit which reads:

" It is my respectful submission that I have reasonable prospects of success in the appeal I intend lodging, at least on sentence, as another court properly advised, might on the facts and how arrive at a different decision. This application is thus not made for purposes of delay." (My emphasis)

And paragraph 7,

"I have been informed by counsel and verily believe same to be true that in law, it is imperative that accused person should know the reasons for his sentence at the time the sentence is passed. This never happened with us." (My emphasis)

Except the issue of absence of reasons for sentence nothing more is said by Appellants.

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It will be shown how the problem of lack of particularity in the papers and absence of demonstration of prejudice on the part of a party applying for an indulgence can be disastrous. The first issue is this. It is not indicated by the Applicants what the real basis of the complaint is. That means a substantial and compelling reason.

Secondly, a sentence can be attacked as being too harsh or too lenient depending on individual cases, but the court has not been, in this instance, told what the particular fault is about the sentence of the court a quo in that connection except to say that reasons for sentence have not been given.

As can be clearly seen there are no factors put forth by the Applicants that would call for a variation of sentence by a court on appeal. To that extent, it is not even indicated on what basis another court would find differently.

In my considered view, without allegation of prejudice, it not a good reason merely that, because the reasons for sentence have not been indicated, such a sentence should be varied. This approach by Applicant would therefore amount to and, it does in my opinion, amount to abuse of process of court. In any case there would be no good reason why proceedings would be nullified because of an irregularity of a modest or non - serious nature. The same was said even in a matter of constitutional nature where such a point was taken. See S v SHIKUGA 1997 (A) B.C.L.R 1321 at p. 1327E-H.

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For the above reasons this application ought to be dismissed.

T Monapathi

Judge