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