HIGH COURT OF LESOTHO
matter between: -
OF PUBLIC PROSECUTIONS RESPONDENT
by the Honourable Madam Justice N. Majara on the 29th November 2007
herein together with others, was charged with, convicted for murder
and sentenced to three (3) years imprisonment without
the option of a
fine by this Court. He is applying for bail pending appeal. The
application is opposed by the Crown.
support thereof, Mr. Ntsene who represents applicant herein made the
following submissions. Firstly, that in every case where
sought after conviction, the onus is on the applicant to show why
justice requires that he should be granted bail.
that the basic requirements that applicant has to meet before he can
be granted bail, are as follows:-
must be no reasonable possibility that the applicant will abscond
and thereby avoid punishment and thus defeat the ends
must be a reasonable possibility that a sentence other than
imprisonment will be imposed upon him, either in the form of
or a wholly suspended custodian sentence.
interests of justice will not be prejudiced if bail is granted.
must be prospects for success.
Ntsene submitted further that the onus resting on applicant to
satisfy the court that he/she has good prospects of success on
is the most important and that all the others simply follow because
the more likely the prospects, the less likely the inducement
doctrine of common purpose on the basis of which applicant herein was
convicted it was Counsel's submission that for applicant
to have been
found liable, he ought to have participated in the crime with the
necessary mens rea and that his liability is not
Counsel for applicant listed the prerequisites which have to be
satisfied for a finding of common purpose where there was
arrangement as they were laid down in S v Mgedezi & Others 1989
(1) SA 687 at 705 1-7B. It was his submission that
prerequisites have not been satisfied by the Crown evidence in casu.
regard, it was Counsel' submission that none of the crown witnesses
have placed applicant on the scene of crime either by
as one of the people who were there or mentioning how he conducted
himself in pursuance of the alleged crime.
that while they concede that the defence of alibi was raised at a
late stage when the Crown witnesses could no longer react,
evidence had dismally failed to place applicant on the scene and that
the evidence by the defence that tended to incriminate
could not in itself discharge the burden of proof placed on the
despite the fact that applicant and the Crown witnesses were fellow
villagers and the offence occurred at day light, none
of the Crown
witnesses related the role he played whereas they were able to do so
with regard to his co-accused and that in the
absence of such
evidence, applicant could not have acted with a common purpose
especially since there is no
pertaining to his intention or his active participation on that day.
that since there are prospects of success on appeal, applicant is not
a flight risk and that the ends of justice will not
be defeated if he
is admitted on bail.
side of the Crown, Mr. Peete made the following submissions; firstly
that, as a general rule a convicted person should not
be admitted on
bail especially in the case of a serious crime and that the fact that
he has noted an appeal or had a point of law
reserved does not
entitle him to ask that the sentence imposed on him upon conviction
be stayed pending the decision of his appeal.
that deviation from this general rule requires very strong reasons
such as the existence of exceptional circumstances warranting
factors which the Court has to take into account when exercising its
judicial discretion whether to grant bail after conviction
appeal as they were stated in the case of Glen Teboho Serobanyane &
Another v Director of Public Prosecutions C of
A (CRI) No. 9 of 2005
(unreported) are as follows:-
is generally desirable and in the interests of sound and effective
administration of justice that a convicted person, who is
to have had a fair trial should be required to commence serving his
sentence as soon as possible.
presumption of innocence which precedes conviction no longer
danger of absconding may be greater after conviction and the
imposition of a custodial sentence when an accused person knows
fate is, than before, when he may still live in hope of an
acquittal. The fact that an accused has complied with his bail
conditions before conviction is per se no guarantee that he will
continue to do so pending appeal.
prospects of success on appeal.
facts and circumstances of the particular case under consideration.
end, it was Mr. Peete's submission that there is a danger that
applicant will abscond if granted bail pending appeal regard
had to the fact that the offence which they committed is serious and
the custodial sentence imposed on him is likely to tempt
him to flee.
made the contention that the Court is entitled to convict on the
evidence of a single witness if it is satisfied
reasonable doubt that such evidence is true and that this may be the
case notwithstanding that he is in some respects an
Counsel submitted that in the present application, the prospects of
success are not clear cut especially when applicant
the evidence incriminating them.
starting point, I feel constrained to mention that in my occupational
life as a judicial officer both in the lower and higher
bench I am
personally dealing with this kind of application for the very first
time. For this reason I think it is apposite to
disclose from the
onset that I find it a very unusual and difficult situation.
because while bail pending appeal forms part of the criminal justice
system, for me to be called upon to determine whether
or not I should
release the very same person whom I convicted especially on the basic
ground that he has definite prospects of
success is to me, is no
different from being called upon to review my own decision and make a
finding whether or not I erred which
would be the effect of my
finding that there are definite prospects of success in this matter.
reason I felt a bit consoled upon my later coming across the
sentiments that were expressed by the learned
A.C.J (as he then was) in Makhoabenyane Motloung and Others v Rex
1974-75 LL370 at 371, quoted to this Court wherein having
himself in a similar situation he had this to say, especially with
regard to the submission that appellants had every reasonable
of success on appeal:-
"On Mr. Kuny's first submission, I am afraid I have been placed
in an embarrassment or an unusual predicament I have been
judge in this case, and whilst on the one hand, where a recourse to
an appellate tribunal can be had, no court can presume
judgment is correct, on the other hand it would be more or less a
negation of my findings, and a fortiori in a criminal
proof must be beyond reasonable doubt, were I to hold that the
applicants have a reasonable chance of success and especially
nearly all the grounds of appeal challenge findings of fact or
credibility of witnesses, and few, if any, legal points
in the present application, the main ground of appeal is that
applicant herein has definite prospects of success. This
by Mr. Ntsene's submission in his written heads of argument in
quoting from the case of Sehloho Monatsi and Others v
Public Prosecutions CRI/APN/244/05 at pp 5-6 (unreported) that:-
"The onus resting on applicant to satisfy the court that he or
she has good prospects of on appeal, is the important one because
satisfaction of the court on all other requirements simply follows as
of necessity once it is established that the applicant
of success on appeal."
same token, I find it extremely difficult to either agree or disagree
with this submission lest I am seen and/or heard to
justifying my findings or retracting from same. However, be that as
it may, since other factors besides definite prospects
have been submitted to this Court for consideration herein. I intend
to proceed with this application in that regard.
Peete has correctly pointed out in quoting the Court in the
Serobanyane case (supra) it is generally desirable and in the
interests of sound and effective administration of justice that a
convicted person, who is presumed to have had a fair trial should
required to commence serving his sentence as soon as possible.
of the factors already aforementioned in support thereof the question
in this case is whether applicant herein has placed
before this Court
exceptional circumstances that would warrant a departure from this
general position. This is because, as it has
been correctly stated by
the Court in Serobanyane's case (supra) p11, bail cannot simply be
had for the asking.
opinion, applicant in casu, has not successfully done so for the
reason that most of the factors that he has placed
this Court for its consideration are standard ones which are usually
applied in ordinary bail applications. That is, aside
from that of
definite prospects of success which I have already alluded to above
that, firstly, there must be no reasonable possibility
applicant will abscond and thereby avoid punishment and thus defeat
the ends of justice. Secondly, that there must be
possibility that a sentence other than imprisonment will be imposed
upon him, either in the form of a fine or a wholly
custodian sentence and lastly, that the interests of justice will not
be prejudiced if applicant is admitted on bail,
no exceptional factor
has been placed before this court.
more the case when all these are weighed against the factors that
were laid down in the Serobanyane case (supra) and other
referred to therein, to wit;
presumption of innocence which precedes conviction no longer applies.
The danger of absconding may be greater after conviction
imposition of a custodial sentence when an accused person knows his
fate is, than before, when he may still live in hope
of an acquittal.
The fact that an accused has complied with his bail conditions before
conviction is per se no guarantee that he
will continue to do so
pending appeal as well as the facts and circumstances of the
particular case under consideration.
above this, most of the other issues traversed in support of this
application are in my opinion, ideally best left for
the Court of Appeal since this Court has already made its own
findings in their regard.
It is for
the above reasons that I accordingly dismiss this application.
applicant : Mr. P Ntsene
respondent: Mr. Peete
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