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CRI/APN/614/93

IN THE
HIGH COURT OF LESOTHO

In the
application of

NDABE
KHOARAI

vs

DIRECTOR
OF PUBLIC PROSECUTIONS

JUDGMENT

Delivered
by the Honourable Acting Mr Justice T Monapathi on the 9th day of
February. 1994

This is
an application for admission to bail pending appeal, against decision
of the Magistrate's Court of Leribe of the 16th September,
1993

The
Applicant had been charged with Housebreaking with intent to steal
and theft The Applicant was charged with four co-accused,
Applicant
admitted guilt to the charge and was sentenced to a term of five (5)
years imprisonment without an option of a fine.
He was dissatisfied
and filed an appeal,

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It is
also common cause that the Applicant approached the High Court on an
application for leave to appeal out of time against his
conviction
and sentence This was made under application number CBI/APN/614/93
Leave was granted as prayed on the 23rd November
1993 Counsels are in
agreement that in an application for condonation of late noting of
appeal the Court has to look into and investigate
if applicant has
any prospects of success on appeal, The question at the present stage
of the proceedings is Does this Court again
have to look into whether
there are prospects of success on appeal? If not what are other
considerations that apply This will be
answered later in the
judgment.

Mr Mathe
for Applicant has raised the following issue which he submits will
show that there are prospects of success in the appeal,
which entitle
the Applicant to be admitted to bail pending his appeal They are the
following Firstly, that the Applicant before
the Court a quo was not
allowed legal representation as he should have, and as it is his
legal right and a basic right in terms
of the constitution of this
Country Broadly put, it means that the magistrate was duty bound to
advise the accused of his right
to such legal representation That the
failure of the magistrate so to advise the accused renders that the
proceedings null and
void, and that as a result

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they be
started de novo Secondly in terms of section 240 (b) of the Criminal
Procedure and Evidence Act 1981, the magistrate was
enjoined to ask
the accused person, who had pleaded guilty, whether he accepted the
Public Prosecutor's outline of the facts (as
after the accused's
admission of guilt to the charge) or not. It is common cause that
there is no record of a statement in the
proceedings that this had
been done by the magistrate, Mr Mathe submitted that the effect of
the omission by the magistrate, was
such a serious irregularity, as a
consequence of which the proceedings ought to be declared vitiated
that they be commenced de
novo, before a different magistrate

I am
satisfied that the granting of bail pending appeal is not automatic
As in an application for bail pending review, the considerations
are
the same, namely whether the ends of justice will be served or not

I am not
prepared to accede to Mr, Sakoane's submission that bv reason of the
fact that the Applicant ought to have applied for
bail before the
magistrate a quo the application ought not to be entertained It will
be observed that except for the fact that
the Applicant came to Court
on application for condonation of late noting of appeal or leave so
to note appeal out of time, this
would normally be a subordinate's
Court matter But I

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believe
that, nonetheless, I would be empowered to entertain the application,
when regard is had to section 109 of the Criminal
Procedure and
Evidence Act, 1981 (the C.P.&E ) which is unambiguous in its
stipulation 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," In any event I am inclined
towards exercising
my discretion to entertain the application

I have
taken a view that in addition to other factors such as the risk of
absconding and the severity of sentence, prospects of
success on
appeal have significance I have found the following South African
cases very persuasive. They are

S v WILLIAMS 1981 (1) SA 1171 (ZAD)

S v DE ABREU 1980 (4) SA 95 (W)

There
were no addresses concerning other considerations except prospects of
success on appeal, which engaged the whole of the Counsel's
attention
I supposed that Counsel felt that the application's success or
failure did not turn on the other considerations Indeed
Mr Sakoane
remarked that there was this extreme likelihood that a Judge who is
seized with the matter on appeal would have once
more to inquire into
the prospects of success That is true But that cannot be avoided, The
whole

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exercise
is sanctioned by our rules of procedure

I am not
unmindful and I endorse the following salutary principle as submitted
by the Crown That 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 guilty beyond a reasonable doubt Therefore
the refusal of bail is the rule rather than
the exception, There has
to be very strong reasons See MAKHOABENYANE MOTLOUNG AND OTHERS v REX
1974-75 LLR 370 at 372 AC (HC)

Secondly,
that the person having been tried by a competent Court he is presumed
to have had a fair trial and ought to start serving
his sentence
forthwith See STEPHEN MEYER v REX CRI/A/4/77 (Unreported) A Botswana
case of KHOMOTSO v DUMANE MOSHATA Criminal Appeal
No 97 of 1986 has
been referred to me by Mr, Sakoane I found that I could not resist an
abundant quotation from page 6 of the judgment
as follows

"(l)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 794) 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 with

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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 is
otherwise good grounds
for bail, may be one factor in the decision whether or not to grant
bail, but a judicial officer who is
minded to take this factor into
account may find it advisable to contact the Registrar in order that
he may have an accurate and
up-to-date assessment of the likely
waiting time."

As said
herein before Mr Mathe wanted to persuade me that the absence of the
magistrate's statement is such an irregularity that
it vitiated the
proceedings I do not agree, The accused admitted guilt to a charge
that he fully understood It cannot be speculated
that he was not
accepting the outline of the facts made by the public Prosecutor.
Indeed up to now he does not question the contents
of the statement
nor the charge. If so he should have made a statement on Affidavit To
agree to the submission would amount to
taking technicalities too far
That would result only in blinding this Court to a situation where
real and substantial justice has
in fact taken place That would also
militate against the major policy of the said section 240, of the C.P
&E namely to facilitate
and assist accused persons in their
desire to admit guilt to offenses they have committed Some accused
person are full of remorse
and want to clear their

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consciences
This is quite different a question from where the prosecutor's
outline of facts does not disclose an offence I have
had a look into
the headnote of the following South African Cases, They are in
Afrikaans, only the headnotes have been translated
into English The
cases are S v MKHIZE 1978 (1) SA 266, S v DAUD 1978 (2) sa 403, and S
v BARON 1978 (2) SA 510 It appears that
there is a difference from
our Section 240 of the Criminal Procedure and Evidence Act, 1981. It
looks like in terms of their Section
112 (1) (b) of their Act number
51 of 1977, that after recording of a plea of guilty the magistrate
is enjoined to question the
accused as to the facts and the basis of
the charge, including on the elements of the charge I observe that
there is a difference
in procedure I am not therefore persuaded by
the judgments.

It is
proper how to deal with the other issue submitted by Applicant's
Counsel There is absolutely no doubt that the protection
of the
accused's right to a free trial is to be found in the constitution
(See Section 12 (d)) and the procedural laws of this
Country This is
borne out by quite a number of decisions of this Court See for
example MOSOEUNYANE MOTHUNTSANE vs REX CRI/APN/48/86
(unreported) and
LEHLOHONOLO PULUMO vs REX CRI/A/327/88 (unreported) But the important
consideration nowadays and presently (Since
most rights are enshrined
on

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broadly
accepted) is how the rights are to be exercised and put into practice
in practical cases

I believe
that as a general rule a presiding Officer is not obliged to advise
an accused person to seek legal representation It
is not his duty I
am persuaded however, that there are exceptional cases, where it is
expected that he can give such an advice,
or put the other way that
he ought to have given such an advice It is still questionable, in my
mind, whether it can be called
a duty There are exceptional cases,
for example, where an accused person has serious limitation of the
mind or intellect or when
a case is of a serious nature or where the
accused appears clearly not to understand the nature of the
proceedings At any stage
in the proceedings it is to be expected that
presiding officer should have given such advice These are exceptions
The normal situation
and what is expected of an accused person, is
that he will ask to be afforded an opportunity to such legal
representation The right
of an accused persons to legal
representatives is only violated where the accused asserts it but the
Court proceeds with a trial
despite a clear desire and request by the
accused to procure legal representation

In the
instant case, that is before the Court a quo, an

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accused
person in full understanding of the charge and the facts admitted
guilt What would legal representation be for? This is
even more
questionable where he did not ask for one The accused person was not
prejudiced It is contended that this is consistent
with the greater
policy of the Section 240 of C P &E. to afford a speedy mechanism
for accused person, to admit guilt and receive
the Court's verdict
and sentence, which is only natural and to be expected in the nature
of administration of justice At the same
time it may even be the wish
of the accused person to avoid the delay and the expenses of legal
representation I do not think the
decision in the unreported Court of
Appeal case of KHUTLISI v REX - C of A CRI/NO 5 OF 1989 at page 7-8
has the effect suggested,
namely, that in all cases where an accused
person has not been advised of his right to such legal representation
the proceeding
are vit'iated I do observe that in all cases where the
proceedings were nullified, those were cases in which the accused
person
had himself asked to be afforded an opportunity for such legal
representation but his request was refused Counsel has cited to me

the following foreign cases which I have found particularly
instructive and persuasive The cases are POWELL vs ALABAMA (1932) 287

US 45, GIDEON vs WAINRIGHT 327 US 335, MAPHANE vs STATE Botswana
Court of Appeal No 12 of 1991

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I made a
finding that, in my view there are no compelling reasons nor are
there prospects of success in the Applicants appeal which
entitle
applicant to be admitted to bail pending his appeal The application
is accordingly refused

T.
MONAPATHI

ACTING
JUDGE

9th
February, 1994

For the
Applicant Mr Mathe

For the
Crown Mr Sakoane