IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

SERAME
LINAKE APPLICANT

and

DIRECTOR
OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 9^th
September 2008

This is an
application for bail pending appeal. Applicant herein was charged
with the offence of murder and after hearing the matter
I returned a
verdict of guilty as charged and sentenced him to a term of eight (8)
years in prison. He has noted an appeal against
both conviction and
sentence hence this application. It is opposed.

In terms of the
founding affidavit and heads of argument filed by Mr.
Masiphole
on behalf of applicant the following submissions have been made;

1. 
   Before conviction
   and sentence applicant had been attending remands religiously, never
   violated his bail conditions and attended
   his trial to finality;

   
   

2. 
   Before
   conviction, applicant had been a member of the Lesotho Police Force,
   a law enforcement agent and a law-abiding citizen;

   
   

3. 
   Applicant is
   prepared to stand the rigours of the sentence and punishment that
   may be imposed upon him by the Court of Appeal;

   
   

4. 
   He undertakes not
   to breach the conditions of his release on bail pending appeal;

   
   

5. 
   He binds himself
   that he can find a person to stand as surety in the sum fixed by the
   Court and avers that he is neither a flight
   risk nor does he has any
   incentive to flee.

   
   

6. 
   He has prospects
   of success on appeal for the reason that this Court failed to
   assess, analyze and evaluate his defence during
   trial.

   
   

7. 
   There is a
   possibility that he might be acquitted on the murder charge, or
   convicted of a lesser charge.

   
   

On the other hand,
Mr.
Mahao,
Crown Counsel made the following submissions in his heads of
argument and in opposition to the application;

That firstly, the
onus of proof regarding bail pending appeal rests with the applicant
who has to show that justice will not be
endangered if he is released
on bail and that he has reasonable prospects of success in the
appeal. That, the mere stipulation
that there are prospects of
success is not enough and applicant has to place formidable
information that shows that he is likely
to succeed on appeal.

Secondly, that
society demands that those who have committed crimes should be
punished for their misdeeds and that it would be an
unsatisfactory
result if an accused person who has been found guilty and serving his
sentence is set free on the mere allegation
that he has prospects of
success on appeal.

Thirdly, the
gravity of the offence for which the applicant has been convicted and
the severity of the sentence already imposed
speak volumes about the
alleged prospects of success. That, the bare averment that he has
reasonable prospects of success on appeal
is devoid of any merit.

Fourthly, judicial
decisions are unanimous that the objection to the granting of bail by
the Director of Public Prosecutions must
not be lightly considered by
the Court.

In his
supplementary heads of argument, Mr.
Masiphole
urged the Court to accept applicant’s averments as
unchallenged. It was his submission that there is non-compliance by
respondent with the Rules of Court to
wit,
Rule
8 (10)
in that after notice of intention to oppose was filed of record, no
answering affidavit was filed thereof. He added that High
Court Rule 22 (3)
has also not been complied with. Counsel submitted that failure to
file an answering affidavit is not only without weight but
is also
tantamount to no opposition at all because the correctness of
applicant’s averments that are contained in his founding

affidavit and made under oath was not challenged.

Counsel for
applicant added that in motion proceedings, parties cross-examine
each other through the filing of affidavits and that
failure to file
same renders applicant’s averments unchallenged and therefore
acceptable.

I now proceed to
deal with the submissions and find it convenient to start with those
contained in the supplementary heads.

With regard to
High
Court Rule 22 (3),
it is my view that it has incorrectly been cited in this application
because it deals exclusively with trial proceedings and what
a
defendant’s plea in that regard should entail. This means that
even the cited authorities to that end have no relevance
to the
present matter. As a result, it would be futile to consider them for
purposes of determining this application. I therefore
dismiss this
point without further ado.

In terms of the
provisions of High
Court Rule 8 (10),
indeed any party who opposes an order sought in the applicant’s
notice of motion is mandated to within the time stated in
the said
notice, give applicant notice in writing that he intends to oppose
the application. This is in terms of paragraph (a)
of the Rule
whereas in terms of paragraph (b) such a party is called upon within
fourteen days of notifying the applicant of his
intention to oppose
the application, deliver his answering affidavit (if any), together
with any other documents he wishes to include.

Sub-rule (13) in
turn reads as follows:-

“Where no
answering affidavit for any notice referred to in sub-rule 10 (c) has
been delivered within the period referred to in sub-rule
10 (b) the
applicant may within four days of the expiry of such period apply to
the registrar to allocate a date for the hearing
of the application.
Where an answering affidavit or notice is delivered the applicant may
apply for such allocation within four
days of the delivery of his
replying affidavit or if no replying affidavit has been delivered
within four days of the expiry of
the period referred to in sub-rule
11. If the applicant fails to apply for such allocation within the
appropriate period as stated
aforesaid, the respondent may do so
immediately upon the expiry thereof….”

In my view,
properly interpreted, the peremptory nature of the rule is with
regard to observance of the time periods within which
all affidavits
should have been filed. In other words, no party is obliged to file
affidavits hence the qualification (if
any)
in paragraph (b) of sub-rule 10. Further, these paragraphs should in
my opinion, be read together and not in isolation in order
to
understand the context of the entire rule that is why the rule gives
the lee-way granted to the opposing party to raise any
question of
law without filing any answering affidavit per the provisions of
paragraph (c).

This is because,
it is possible and reasonable for a party to not challenge the
veracity of the facts alleged in the founding affidavit
but to
instead base his case on a point(s) of law. That is why the Rules of
Court also allow a point of law to be raised at any
stage before
delivery of judgment because it is a question that need not be
determined on the basis of the alleged facts.

It is therefore my
view that it is possible to oppose an application for bail pending
appeal without filing any answering affidavit
because such an
application does not rely on the facts inasmuch as it does on the
principles and consideration of the law.

In these
circumstances, it is my opinion that the submission by applicant
that failure by respondent to file an answering affidavit
is
tantamount to failure to cross-examine a witness is therefore flawed
because witnesses are not cross-examined on the law but
rather, on
the facts and/or evidence. For this reason, the authorities quoted
in this regard by Counsel for applicant such as
Lehlehla
v R LAC 2000-2004, R v Qqatsa and Others 1975 (2) SA 191
to mention but a few, do not take this submission anywhere because
they are concerned with issues of testing the correctness or

otherwise of witnesses’ evidence and/or credibility.

Thus in the
Lehlehla
Case, Steyn
P (as he then was) was expressing sentiments with respect to
unchallenged evidence and not points of law because they are
not
evidence.

It is for these
reasons that I accordingly dismiss the submissions raised in the
supplementary heads of argument intoto.

I now proceed to
deal with the general considerations of bail pending appeal. These
were stated in inter
alia,
the case of Glen
Teboho Serobanyane & Another v Director of Public Prosecutions C
of A (CRI) No. 9 of 2005 (unreported)
as follows:-

1. 
   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 be required to commence serving his sentence as
   soon as possible.

   
   

2. 
   The presumption
   of innocence which precedes conviction no longer applies.

   
   

3. 
   The danger of
   absconding may be greater after conviction and the imposition of a
   custodial sentence when an accused person knows
   his fate is, greater
   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.

   
   

4. 
   The prospects of
   success on appeal.

   
   

I proceed to deal
with the last consideration first, namely, the prospects of success.

I usually find
this ground the most challenging one for obvious reasons, i.e. having
made a finding as the trial Judge that an accused
person is guilty
beyond a reasonable doubt after weighing all the evidence, it is not
very easy for me to turn around and accept
that he has reasonable
prospects of success for in my view that might be seen as a
concession on my part. However, since it is
one of the main grounds
for consideration in an application of this nature I will proceed to
consider it on the basis of authorities
that have been laid down in
this regard.

That the decision
to grant bail pending appeal is in the discretion of the Court is
trite. As it has been correctly stated in the
case of Rex
v Milne and Erleigh 1950 (4) SA 601 at 603,
the Court naturally, because it would not otherwise have given a
particular decision, believes that its decision is sound. However,

Lucas J stated further that:-

“It is
however, possible that the Appellate Division might take another
view.”

This is also
undisputable. Bearing these two factors in mind, the principle that
has been laid down is that the proper approach
should be towards
allowing liberty to persons where that can be done without any danger
to the administration of justice. To that
end, in the case of S
v Williams 1981 (1) SA 1170 at 1173 quoted
to this Court, Fieldsend CJ (as he then was) stated as follows:-

“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.”

In the present
case, whilst the accused averred that he has prospects of success, he
added nothing further to sustain this averment.
Admittedly he also
undertakes not to breach any of the condition of his release on bail,
and goes on to suggest the stringent
conditions referred to above. I
however do not hear any averments from him that show why justice
requires that he should be granted
bail pending appeal yet he has
been convicted of and sentenced for a capital offence.

I therefore find
it difficult to say that he has successfully discharged the onus on
him as have been suggested in the above authorities
and those quoted
therein. This is especially so regard also being had to the
sentiments that have been expressed by the late Mofokeng
M.P. in
his
Criminal Law and Procedure Through Cases p 308
where he stated that:-

“Bail
pending appeal is not as readily granted as when the application is
one of bail pending trial. To
grant it is an exception rather than the rule
for it is presumed that an accused, having been tried by a Court of
competent jurisdiction, has had a fair trial and ought to start

serving his sentence.”
(my underlining)

In addition, in
the case of Motloung
& Others V Rex 1974-75 LLR 370 at 372, quoted
to this Court, the Court stated as follows:-

“Granting
of bail pending appeal is not automatic from a Superior Court and
very strong reasons indeed would be needed to justify
a departure
from this rule.”

In casu,
I have already stated that aside from asserting that he has
reasonable prospects of success on appeal, applicant has failed to

satisfy this requirement. While I agree with the submission made by
his Counsel that there are cases where convictions have been

overturned by appellate courts and/or sentences have been varied, it
cannot be disputed that the converse is also true, i.e. there
are
lots of cases where convictions have been confirmed and/or sentences
enhanced so that this argument alone cannot be the basis
for my
granting the accused bail pending his appeal.

It is for the
above reasons that I dismiss this application.

N.
MAJARA

JUDGE

For
applicant : Mr. Masiphole

For
respondent : Mr. Mahao