1

CRI/T/44/2000

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

MOKHERANE
TSATSANYANE Applicant

vs

REX
Respondent

RULING ON
BAIL APPLICATION

Delivered
by the Hon. Mr Justice M L Lehohla on the 28th day of May, 2001.

The
applicant herein applies for bail pending appeal to the Court of
Appeal.

The
application is opposed.

The
applicant has attached his grounds of appeal to the notice of motion.
I don't think it would be proper for me to react to the grounds of
appeal as that is a matter outside the jurisdiction of this Court.

2

I however
gathered from the applicant's replying affidavit at paragraph 5.5 a
complete misconception of the law by the applicant who says :

"I was convicted of theft simpliciter and as accessory after the
fact. The principal offender was not identified".

This is a
misconception because if the applicant maintains he was convicted of
theft as an accessory after the fact he implies that he was charged
with theft in the first place. But that is not the case. He has not
been convicted as an accessory after any of the charges laid. He has
been convicted of theft on the operation of the statute which
provides an invisible verdict of theft where a charge of robbery has
not been proved. See section 185(l)(d) read with section 343 of the
Criminal Procedure and Evidence Act 7 of 1981.

Section
343 relates to receiving stolen property knowing it to have been
stolen.

Indeed Mr
Mahlakeng for the applicant on being shown the above state of affairs
which was made plain in the judgment of this Court at trial owned up
that he only came to realise the full and proper meaning of the above
sections after he had prepared papers relied on in this application.

3

I find no
difficulty in saying therefore under the circumstances the applicant

cannot be
said to have discharged the onus cast on him to demonstrate that he
has prospects of success on appeal when plainly his train has
lamentably left the metals. He is barking up the wrong tree if he
maintains as shown in his affidavits that he has been convicted as an
accessory after the fact. It is irrelevant therefore to seek to show
that the applicant has not been shown to have tampered with the
engine or chassis numbers because here he is convicted of theft
simpliciter. It is a further misconception on his part to bemoan the
fact that no evidence has been led to show who the principal offender
is. Under operation of the statute relied on the thief is the one in
whose unlawful possession another's property is found and no
reasonable explanation is proffered for the possession.

Another
aspect worthy of consideration in matters of this nature is provided
in Rex vs Fourie 1948(3) SA 548 at 549 where Malan J said :

"It seems to me, especially in the case of a serious crime, that
a convicted person should not be admitted to bail. He has been
convicted and his sentence is in force, and 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 be stayed pending the decision on
appeal". Contrast supplied by me.

4

Mr
Mahlakeng relying on a different portion of this judgment seemed to
overlook the significance of the word especially appearing in the
above quotation. In my view it merely supplies a contrast among cases
where bail should not be granted. The phrase in which this word
occurs lays down a general rule which is not at variance with the
view expressed in the following sentence that an appellant who has
been convicted is not entitled to have the sentence that has been
imposed, stayed. While this is an attitude expressed in regard to a
generality of cases, in serious cases this has to be observed with
even greater vigour.

Bail
pending appeal in my view is rather an exception rather than the
rule. The underlying principle is that at this stage the presumption
of innocence has fallen away and the convict has to serve his
sentence.

In Rex vs
Milne and Erleigh 1950(4) SA 601 at 602 Lucas J said in reacting to
Malan J's dictum above :

"That case did not decide anything more than this, that the mere
fact that leave to appeal had been granted did not of itself entitle
a convicted person to be allowed out on bail. It did not prohibit the
granting of bail because the crime was serious"

In the
same breath Lucas J recognises at p. 603 that:

5

"A number of tests have been suggested but in the end the
question of granting bail is one in the discretion of the court. The
court naturally, because it would otherwise have given this decision,
believes that its decision is sound. It is, however, possible that
the appellate Division might take another view".

The words
of Lucas J are ad idem with sentiments expressed in Rex vs Kuzwayo
1949(3) SA 761 at 764 to the following effect:

"We are aware that this Court is able to apply a proper test
with greater ease than the trial Judge for the trial Judge must in
the nature of things find it somewhat difficult to look at the matter
from a purely objective stand-point; he has a natural reluctance to
say that his own judgment is so indubitably correct that the Judges
on Appeal will concur therein".

See also
R vs Clewer (1953) 73 Cr. App. 37 where the reasoning in 2 is to the
following effect:

"It seems to me that if the trial Court is in a position that it
can honestly say that the applicant will have a reasonable prospect
of success on appeal that must indicate that there must be some doubt
in the mind of the trial Court, and if such doubt does exist, then
there should not have been a conviction, so that the very strict
application of this rule, in my opinion, renders it difficult to
conceive of cases where leave to appeal should be granted".

While the
above cases tend to favour granting of bail pending appeal there is a
plethora of local cases militating against such practice : See
CRI/APN/614/93 Ndabe Khoarai vs Rex (unreported) at page 5 where it
said :

6

".................in an application for bail pending appeal
there is no question of innocence or liberty of the person because he
has already been found guilty by a Court of competent jurisdiction,
the Court having proved his guilt beyond a reasonable doubt.
Therefore the refusal of bail is the rule rather than the exception.
There have to be very strong reasons. See Makhoabenyane Motloung and
Others vs Rex 1974-75 LLR 370 at 372 AC (HC).

Secondly that the person having been tried by a competent Court is
presumed to have had a fair trial and ought to start serving his
sentence forthwith. See Stephen Meyer vs Rex CRI/A/4/77".

Indeed
the notice of Appeal and grounds attached to it signify the
applicant's zealousness in his intent to appeal. But that is not
enough regard being had to the fact that in all cases where he has
not been sentenced to death he is obliged to prepare the record of
proceedings and pay for such preparation or at least a requisite
amount of deposit to that effect. No proof has been furnished to this
Court that in fact the applicant has done so. There is also a
question of appeal fees that this Court has not been favoured with
proof that they have been paid.

In paying
particular regard to these details this Court shares the views
expressed in Khomotso Kudubane Moshaga vs The State Criminal Appeal
No. 197 (unreported) at p.4 by the Botswana Chief Justice to the
following effect:

"I say this because although bail in England is now governed by
the Bail

7

Act, 1976
which came into force on the 17th April, 1978, certain fundamental
precepts have emerged, generally by way of Practice Notes, and these
make it clear –

1. that
   once a verdict has been returned, a further renewal of bail should
   be regarded as exceptional (see Practice Note published at (1974) 2
   ALL E.R. 974, and

   
   

2. that
   in considering bail after conviction the first question to be
   addressed is whether there exists a particular and cogent ground of
   appeal and if there is no such ground bail should not be granted; (I
   respectfully endorse and agree with this statement)

   
   

3. bail
   should not be granted with regard to sentence merely in the light of
   mitigation to which the judicial officer has in his opinion given
   due weight, or in regard to conviction on a ground where he
   considers the chance of a successful appeal is not substantial;

   
   

4. the
   length of the period which might elapse before the hearing of an
   appeal is not of itself a good ground for granting bail but such
   period, if there are otherwise good grounds for bail, may be one
   factor in the decision whether or not to grant
   bail...........................".

   
   

I favour
the attitude expressed by a sister Ex High Commission Territory Court
as it depicts similar problems faced by Lesotho and provides a sound
and ready solution thereto.

Saying
this I cannot but point at the predicament Molai J was faced with in

8

CRI/APN/92/95 'Mamakoae Mokokoane vs Rex (unreported) at p.3 where
the learned Judge said :

"There was no definite proof that there would be inordinate
delay in transcribing the record of proceedings. Her allegation that
that would be the case was at the time, sheer speculation on which
the court could not, in my opinion, properly rely".

The
question of inordinate delay was a factor taken into account in
Sekhobe Letsie vs Rex by the Court of Appeal after at least one Court
of Appeal session had passed without the appeal being heard and
without clear prospects that it would be ready for hearing in the
next session.

Nothing
averred in the instant application persuades me that the applicant
should be freed on bail.

Consequently
the application for bail pending appeal is refused.

JUDGE

28th May,
2001

For
Applicant : Mr Mahlakeng

For
Respondent : Miss Maqutu