IN THE HIGH COURT OF LESOTHO
In the matter between:-
MAJAKE RAMOROKE - APPLICANT
DIRECTOR OF PUBLIC PROSECTIONS 1ST RESPONDENT
HER WORSHIP M. MOKHORO 2ND RESPONDENT
Delivered by the Honourable Madam Justice M. Mahase
On the 24th February 2011
Criminal Procedure – Leave to appeal to the Court of Appeal – Appeal already noted – Application for release on bail pending determination of application for leave to appeal.
The applicant filed an application for his release on bail pending the determination by this court of his application for leave to appeal to the Court of Appeal against the Order or decision of this Court dated the 1st December 2010.
In that Order, this Court had set aside the Order of the Learned Resident Magistrate and had instead ordered that the bail of application be estreated together with its sureties. It had also ordered that applicant be re-arrested and kept in jail for having violated the bail conditions which had been imposed upon him by the Learned Resident Magistrate. As a result, the applicant was arrested and kept in jail.
This Court had further ordered that the Crown should have the case against the applicant – accused in CR 581/2007 prosecuted to finality before the end of March 2011.
It is against this Order of this Court of the 1st December 2010, that the applicant has launched an appeal to the Court of Appeal in C. of A. (CIV) No. 11 of 2010. In particular, the applicant is challenging and appealing against the Order of this Court of the 1st December 2010 on the issue pertaining to the Order for the estreatment of the applicant’s/accused’s bail – vide applicant’s heads of argument, page 4 (last paragraph).
It has been submitted on behalf of the applicant in the instant application that the main issue for determination by this Court is leave to appeal to the Court of Appeal. The said application; so it is submitted, is made in terms of the provisions of Sections 8 (1) and (2) of the Court of Appeal Act No. 10 of 1978; read together with section 3 of the Court of Apppeal Rules of 2006.
As I see it, the purpose of this application is to pray for the release of the applicant on bail pending the determination of both the application for leave to appeal and the appeal itself provided leave is granted.
It has been argued and or submitted that the Rules make provision for bail application pending appeal only, but there is nothing in law preventing this Court (High Court) in the exercise of its discretion to hear and determine the applicant’s bail application pending determination for application for leave to appeal at this very stage. Counsel for applicant has however not referred this Court to any particular Rule he is referring to in this particular regard.
Be that as it may, it is trite that this Court has powers to admit to bail an appellant pending the determination of his appeal – vide section 14 (1) (a) of the Court of Appeal Act 109 of the Criminal Procedure and Evidence Act No. 9 of 1981 – which provides that:
“The High Court may, at any stage of any proceedings taken in any Court in respect of an offence admit the accused to bail”
There are many factors which come into play in determining whether or not to grant the application for bail pending appeal. Such factors and or considerations will differ from case to case. One such important consideration is the prospects of success on appeal. Of course, this Court is obliged to exercise its discretion whether or not to grant application for leave to appeal judiciously.
The issue pertaining to existence of the prospects of success on appeal has been dealt with in the numerous cases of this Court; to wit see: (to mention but a few):-
- Serobanyane and Another v. The Director of Public Prosecution 2005 – 2006 LAC at 231 – 232.
- Tsotang Pelea v. The Director of Public Prosecutions, LLR 1999 – 2001.
While the principles discussed herein the above cases are highly informative, the only distinguishing factor is that in those cases; unlike in the instant application, the Court was dealing with applications in which the applicants had already been charged, convicted and sentenced to various terms of imprisonment. In the instant application, the applicant was released on bail pending his trial on charges of attempted murder and others. He had violated some of the bail conditions which had been imposed upon him.
As a result of his repeated violation of the said bail conditions, the Learned Magistrate had ultimately convicted him of having committed the crime of contempt of Court and had accordingly sentenced him.
The applicant then challenged, by way of review proceedings to this Court, the procedure of him having been charged with having committed the offence of contempt of Court. He alleges that this procedure is irregular in the circumstances of his case.
On review, this Court set aside the Order of the Learned Resident Magistrate, and instead ordered that the applicant’s bail be estreated; and that applicant be re-arrested as there were allegations that he had, while having been admitted on bail been interfering with the crown witness; to wit his former (ex) wife.
Put differently, the applicant has now challenged the procedure adopted by this Court. Vide applicant’s heads of argument page 4, last paragraph.
In effect, the applicant herein seeks to be released on bail pending the determination of his application for leave to appeal and the final hearing of the appeal itself in C of A (CRI) No. 11 of 2010.
What the applicant has done is unprocedural because he has already filed and or noted an appeal before the Court of Appeal before he has been granted leave to do so by this Court. This is obviously against the numerous decisions of this Court and the Court of Appeal of Lesotho itself – and also against the provisions of section 8 (1) and (2) of the Court of Appeal Act (supra) read together with section 3 of the Court of Appeal Rules of 2006.
There is also no doubt in the mind of this Court that this instant application for leave to appeal to the Court of Appeal does not meet any of the requirements for such an application; which requirements were stated in the following cases, ( to mention but a few)
- Motlomelo v. The Magistrate and Another, L.A.C. (1990 – 1994) page 195 at 197; where in dealing with such an application, which was an appeal against the dismissal of the review application by Kheola J. (as he then was), the Court of Appeal had this to say:-
“Accordingly leave to the High Court, or, if such leave was refused, leave of the Court, was an indispensable precondition for noting an appeal to this Court….. It is common cause that no leave to appeal was sought from the High Court against Kheola J’s order dismissing appellant’s application for review …. There is accordingly no proper appeal before us”.
See also, the case of The Directorate on Corruption and Economic Offences and Others v. T?eliso Stephen Dlamini, C. of A. (CIV) No. 21 of 2009 (dated the 23/10/2009) (unreported) where the Court had this to say:-
“Accordingly, in terms of section 8 (1) of the Act, leave of the High Court, or if such leave was refused, leave of this Court, was a necessary pre-requisite for the noting of an appeal against the Court’s of quo’s order in that regard…. It is common cause that no such leave was sought. There is accordingly no proper appeal before us in relation to this issue”
There is therefore no doubt that the instant application for leave to appeal to the Court of Appeal is lacking in the most material requirements and as such it should not be allowed. No leave of ht High Court was sort before the appeal to the Court of Appeal was filed. This application will definitely suffer the same fate as the cases herein cited above by the crown in its opposition of the instant application.
This brings me to the issue of the prospects of success on appeal. This is also a fundamental perquisite which has to be satisfied by an applicant to an application of this nature.
The starting point in this regard will be the examination of the review powers of this Court and the relevant legislation in this regard are:
- High Court Act No. 5 of 1978section 7 (1) provides that:
“ The High Court shall have full power, jurisdiction and authority to review the proceedings of al subordinates Courts of Justice of Lesotho, and if necessary to set aside or correct the same”.
Now, having set aside the Order of the Learned Magistrate dated the 24th June 2009; there is/was nothing which prevented this Court from correcting same. The applicant’s argument that, in the circumstances of this case, this Court should never have estreated the applicant’s bail for the reason that it (Court) was never asked to issue such an Order, does not hold water and is untenable.
Indeed, the consequent result, after this Court has set aside that said order of the 24th June 2009 would be to have released the applicant for him to go about to commit further unlawful acts upon the complainant in that CR 58/2007.
It should be recalled that the reason why the applicant/accused in this case was so charged and convicted before the learned Magistrate was because he had, while having been released on bail pending the finalization or prosecution of that case, he had with impurity continued not only to assault the complainant, but the has also, and contrary to the bail conditions imposed upon by the court a quo, continued to go to their matrimonial home.
It is also making mockery of the law for anyone to argue or to expect that the application would himself pray that this court should estreat the bail imposed upon him. There is no way in which he could that as he would thereby deny himself freedom, which freedom has given power to do as he pleases with the complainant and in total disregard of his bail conditions.
This Court is further empowered in review proceedings to:
“…. alter or reverse the conviction or increase or reduce or vary the sentence of the Court which imposed the punishment”
(my underlining). Vide section 68 (2) (b) of the subordinate Court’s Act No. 9 of 1988.
Further still, this Court is empowered by the provisions of Rule 50 (1) (a) of the High Court Rules No. 9 of 1980, to review the decision or proceedings of any subordinate or other inferior Court and to correct or set aside such decision or proceedings.
It will be readily realized that this Court is given unfettered powers in review proceedings to correct, vary or set aside a decision, proceeding, conviction, and sentence from the court a quo and in appropriate cases.
There is nowhere in the above legislation referred to, where there is an indication that this Court is restricted or inhibited to do that which it is empowered to do in review proceedings. This Court is empowered to alter, or reverse or increase or reduce or vary proceedings of all subordinate courts regardless of which party has applied for review.
There is no limitation as to what this court should do in its inherent review jurisdiction; so that it should never been argued that the least this court should have done was to remit the case back to the Magistrate’s Court for whatever action, overlooks the powers which this Court (The High Court) has on review.
The applicant should appreciate and make a distinction between a mere setting aside of proceedings and setting aside a decision. Once this Court set aside the decision of the Learned Resident Magistrate of the 24th June 2009, It has to invoke the provisions of the two Acts referred to above which deal with review proceedings.
This is moreso in the light of the contents of the opposing affidavits filed herein by or on behalf of the respondents which clearly indicate and or outline the extend to which the applicant went in violating bail conditions which had been imposed upon him. These could not be ignored by this court, without it bringing into disrepute the administration of justice in this country.
The allegations therein raised by the crown as well as by the complainant in CR 581/2007 cannot just be ignored. The one and only way in which this Court is able to address issues pertaining to violence with impunity, of its orders is by taking appropriate steps against those who violate same.
I note, that indeed, the applicant has not denied that this Court has or that it is empowered to act in accordance with the relevant empowering legislation herein cited and relied upon by the crown in support of its arguments as contained in the heads of argument.
Lastly, this Court has been referred to the book, Criminal Procedure Handbook, 8th edition, 2007 (Juta) Edited by Jourbert and Bekker, where at page 334 they repeat and or emphasis the powers of this Court on review. They have this to say:
“The Court may set aside or correct the proceedings, or generally give such judgment or impose such sentence or make such order as the Magistrate could or should have given, imposed or made.
Having set aside the order or sentence of the Learned Magistrate, this Court has then made another order and since the decision of the Learned Resident Magistrate was in relation to the his (applicant’s) violation of the bail conditions, this Court was at large, once having been satisfied that he had indeed violated same; to order that his bail be estreated as it did.
In conclusion, it is clear from the above that all in all, and regard being had to the circumstances of this case, and to the powers of this Court in review proceedings, the applicant’s application for leave to appeal has no basis and it has to be dismissed.
This is moreso in the light of the fact that:
- An improper procedure has been followed or adopted in filing same. Applicant has already noted and filed an appeal to the Court of Appeal contrary to the clear provisions of relevant statutory provisions referred to herein above; as well as contrary to the pronouncement of both the High Court and the Court of Appeal of Lesotho in cases cited herein in this application
The appeal in question, has been so noted and filed with applicant having not sought leave to do so. This is improper also for the reason that no such application has been refused by this Court; in which case he would have to seek leave to note his appeal from the Court of Appeal itself.
There is nothing indicating that such an irregularly filed appeal has been withdrawn. In the circumstances the applicant has put the cart before the house (so to speak).
It then follows that such an appeal against the order of this Court; is bound to go and fail and or is going to be struck off the roll; as section 8 (1) of the Court of Appeal Act has not been followed in noting or filing same.
It is lastly noted that as at the time when the application for review of the proceedings of the Court a quo were argued, and at the time when this Court ordered that the applicant’s bail be estreated the circumstances about which the crown complaint, and which circumstances are contained and explained in the opposing affidavits of crown counsels Mr. Kanono, T. Fuma, as well as in that of Thando Mochekele and D/P/C. ‘Matli were still in existence.
The contents of their affidavits have not been rebutted by the applicant; as such they stand as they are – vide Plascon Evans Paints LTD v. Van Riebeek Paints (PTY) LTD. 1984 (3) 620 see also case of Tšeliso Kabinye v. Clerk of Court and Others C of A (CRI) No. 6 of 2010.
As a word of caution, Counsel should be adviced and or warmed that the procedure for seeking leave to appeal to the Court of Appeal is not just a mere formality which can be overlooked.
This is a necessary, essential and indispensable precondition. There is no shortcut route. This brings me to the issue of the affidavit of one Tumo Ramoroke which has been attached to the
applicant’s replying affidavit.
The crown has; correctly in the view of this Court submitted that this affidavit be quashed and disregarded because it contains fresh or new issues. The respondent is therefore not able to respond to or deal with for it being raised at this late stage of the pleadings. The applicant should have attached same to his founding papers but he did not do so, without much ado, this affidavit is indeed quashed and disregarded by this Court for the simple reason that it has been introduced at a very late stage of the pleadings and so the crown is not able to deal with it.
It is for the forgoing reasons that this Court has come to the conclusion that the applicant’s application for leave to appeal to the Court of Appeal be and is hereby dismissed.
Applicant’s application for release on bail pending appeal is refused. It follows therefore that, the order of this Court dated the 1st December 2010 should stand until after the trial in CR 581/2007 has been prosecuted to finality.
For Applicant - Mr. Rasekoai
For Respondent - Mr. Tlali
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