HIGH COURT OF LESOTHO
by the Honourable Judge M. Mahase On the 26th October 2007
an appeal against conviction and sentence.
applicant was charged with the offence of having contravened the
Provisions of the Sexual Offences Act No. 3 of 2003.
sentenced to a period of ten (10) years imprisonment. He noted an
appeal against the conviction and sentence whilst he also
simultaneously moved an application for release on bail pending
application for bail pending appeal was dismissed by his Worship Mr.
Loko; hence the noting of this appeal in terms of the Provisions
Section 108 of the Criminal Procedure and Evidence Act No. 9 of 1981.
to the papers filed herein, the only and overriding reason for the
refusal of the application for bail pending appeal
was that the
application is against the Provisions of Section 326(1) and (1)(b) of
part XVIII of the Criminal Procedure and Evidence
Act No. 9 of 1981.
section reads as follows: (I quote the relevant portions) 326(1) "The
execution of the sentence of a subordinate
court shall not be
suspended by reason of any appeal against a conviction unless:
sentence is that the accused be whipped, in which case sentence
shall not be executed until the appeal has been heard and
court from which the appeal is made thinks fit to order that the
accused be admitted to bail or if he is sentenced to any
imprisonment, that the appeal has been heard and decided".
noted that the court before which this application for bail pending
appeal has been noted, remarked that "the application
pending appeal was made in Terms of the Provisions of the Subordinate
Court (Bail Conditions) Rules 2005 as contained
in Legal Notice No. 9
of the 16th February 2005.
of that Legal Notice reads as follows:
"Where a convicted accused is granted bail pending appeal, the
presiding officer shall impose as one of the bail conditions
of hearing of the appeal in the High Court.
Rule 2(2) The date of hearing shall not be less than thirty days and
not more than ninety days from the date of the noting of the
and shall be communicated to the appellant upon being granted bail".
be noted from the above that nowhere is it provided in these Rules
that the presiding officer is obliged to grant an
for bail pending appeal where such had been filed by an already
convicted and sentenced applicant.
or Provisions of Rule 2(1) and (2) are mandatory only as to what
should be done after the presiding officer has granted
words, the Rules in question do not abrogate the Provisions of
Section 326(1) of the Criminal Procedure and Evidence Act
No. 9 of
1981; which provisions are also mandatory.
instant application, the applicant's application for release on bail
pending appeal was refused by the presiding officer
who was a trier
of the case in question. The reason for the refusal of the said
application being that, and this was the only and
the application was against the provisions of the above named Section
of the Criminal Procedure and Evidence
Act No.9 of 1981.
the presiding officer did not think that it was fit to order that the
accused be admitted on bail pending appeal because
the accused has
been sentenced to a term of imprisonment. It is a matter of common
cause that the accused/applicant has been sentenced
to a period of
imprisonment. In other words the presumption of the accused's
innocence no long operates in his favour.
presiding officer granted the application for release on bail of the
accused who he had just sentenced a few days ago to
that term of
imprisonment, he would have clearly violated the Provisions of
Section 326(1) of the Criminal Procedure and Evidence
Act No. 9 of
1981. It should be recalled that the said application for release on
bail was moved on the very same day that the
conviction and sentence had been noted.
application been granted clearly the execution of that sentence in
such a serious case would definitely have been suspended
the Provisions of Section 326(1) of the Criminal Procedure and
Evidence Act (Supra).
bear in mind that the granting of bail pending appeal is not
automatic. Strong reasons calling for a departure from this
statement of the law would be required. Vide MOTLOUNG AND OTHERS vs
REX 1974-75 LLR 370 AT 372.
in question i.e. Rules contained in Legal Notice No.9 of 2006 dated
the 16th February
alter and supplement the Provisions of Section 326(1) of the Criminal
Procedure and Evidence Act (Supra).
"There is a presumption of innocence which operates in favour of
the person seeking bail even where one has already been convicted
unturnable; so also is the suggestion that the learned trial
magistrate has, with impunity ignored the Act of Parliament The
Criminal Procedure and Evidence Act is an Act of Parliament and an
important piece of legislation whose provisions override
Provisions of the said Rules.
Rules (Bail Conditions) Rules 2005 only regulate the conduct of
subordinates court where the presiding officers are or
persuaded to grant bail pending appeal. In such circumstances, the
presiding magistrates are obliged to impose as one
of the bail
conditions a dated of hearing of the appeal in the High Court. Vide
Rule 2(1) and so on.
purpose for the above Rules is to obviate the need for issuing court
process calling the accused to attend court for the hearing
appeal in the High court.
serves to ensure that the accused does not fail to attend court for
the prosecution of his appeal and thereby avoid the consequences
the conviction where the appeal be not upheld.
other words, the said Rules are meant to regulate the conduct of the
subordinate courts and indeed of all the other parties
crown where bail is granted pending appeal to the High Court.
not meant to change any of the relevant Provisions regarding
applications of this nature. Indeed the execution of the sentence
a subordinate court shall not be suspended by reason of any appeal
against a conviction Vide Section 326(1) of the Criminal
and Evidence Act No. 9 of 1981.
This is so except under certain specified circumstances - Vide
Section 326(1), (a) and (b) supra. Strong reasons would be required
for the court to deviate from the above stated Provisions of the Law.
court has accordingly come to the conclusion that in the instant
application, there are no exceptional circumstances justifying
departure from the general rule.
MOTLOUNG AND OTHERS v REX (Supra).
foregoing reasons, this application is dismissed.
be noted that this court is aware that the record of proceedings in
the subordinate court for the district of Qacha's
nek has to date
(i.e. when this application was argued before the High Court) not
been typed in preparation for onward transmission
to the Registrar of
this Court. This is so despite the fact that the appeal against
conviction and the refusal of bail herein was
lodged some three
months after that refusal.
this situation is still obtaining, the Clerk of Court has ignored the
Provisions of Rule 62(3) and (8) of the Subordinate
Court Rules 1996
as contained in Legal Notice No. 132 of 1996.
court would urge her/him to comply with the Provisions of the said
Rule so as to ensure the proper administration of justice
avoid causing any prejudice to the accused/ appellant.
Applicant - Adv. T. Fosa
Crown - Adv. T. Fuma
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