CRI/APN/194/83

IN THE
HIGH COURT OF LESOTHO

In the
appeal of :

MOKONE
MKHEEA Applicant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M. P. Mofokeng on the 21st day of November.
1983

The
application for condonation of late noting of an appeal was filed in
this Court on 12th day of October, 1983. It was then set
down for
hearing on the 17th October 1983. On that day it was apparently
postponed to the 24th October 1983. It is not recorded
on the file as
to who requested such a postponement. On the 24th October, 1983,
Advocates Mlonzi and Peete appeared for the Applicant
and Respondent
respectively before the Chief Justice. It is recorded on the file on
that day that the papers were "insufficient
to determine whether
an application should be granted". The application was then
postponed to the 31st October 1983 to"enable
Mr. Mlonzi to file
new adequate papers." On the 31st October 1983 Mr. Mlonzi
requested that the application (original) be
postponed sine die.

2

An
application (undated) for condonation of late noting of appeal was
filed of record on the 8th November 1983 and is set down for
hearing
for the 21st November 1983 in "respect of criminal case No.
94/83 held at Thaba Tseka's Magistrate Court on the 11th
August
1983." However, a copy of the record of the proceedings now
enclosed in the file before me, relates to "case no
112/1983."
The previous application related to that case whereas the present
application relates to an entirely different
case. However, it shall
be assumed that the present application is a revival of the one which
was postponed sine die.

The
application should have been made on petition. (Selebalo &
Another v Rex, 1967-70 L.L.R. 101 at 102B).

Attached
to the affidavit of the applicant are his reasons for appeal. It is
not necessary for me to comment thereon in detail except
to draw
attention to a decision of this Court in the case of Mokheche v Rex,
1980(1) L.L.R. 139 at 140 where it was held that a
ground of appeal
such as "the conviction is against the evidence and weight of
the evidence" is not valid because it
does not sufficiently
specify the issues of law or fact or of both which are being
challenged. It does not also comply with the
rules of the Subordinate
Court Rules which require that there must be a written statement
setting out clearly and specifically
the ground on

3

which the
appeal is based and that such a statement shall be lodged with the
clerk of the Subordinate Court.

It is
therefore imperative that the papers are properly and adequately
drawn before presentation to the Court.

I have
quickly perused the record of the trial case. In my view quite a
number of the allegations made by the applicant in his affidavit

would seem to hold water. Another Court may easily come to an
entirely different conclusion than that arrived at by the learned

magistrate. In other words, there are prospects of success in the
appeal. It would appear, prima facie, that inadmissible evidence
was
incorrectly received on numerous occasions. It is a pitty, and such a
waste of time, that this Court is only asked to consider
the question
of whether or not to grant the application sought and not go straight
away into the merits of the appeal itself. Many
months will, no
doubt, go by before the appeal proper is heard and disposed of. In
any event, the learned magistrate still has
to comply with the Rules
of the Subordinate Court.

The
reasons for the applicant's delay have been adequately explained
especially in his circumstances. His affidavit, moreover, did
not
stand alone. It is supported. On the other hand there is no opposing
affidavit from the Respondent.

4

For the
above mentioned reasons the application for late noting of an appeal
is granted.

Mr.
Tsotsi makes an application for bail in terms of the provisions of
Section 109 of C.P.& E Act 1981 which reads:

"The High Court may, at any stage of any proceedings taken in
any Court in respect of an offence admit the accused to bail."

If I
understood him properly, he bases his application on the following
grounds:

1. It
   is the first time a bail application is made in this matter.

   
   

2. The
   length of time that will elapse between now and the actual hearing
   of the appeal especially if the applicant turns out to
   be
   successful. The applicant will have been greatly prejudiced.

   
   

3. There
   are special circumstances present here. The trial was heard before
   the Thaba-Tseka subordinate court which is deep in the
   mountains and
   it will necessitate a long journey by a vehicle or travelling by
   air, all of which will be very costly to the applicant.

   
   

There is
no doubt in my mind that the High Court possesses inherent
jurisdiction to allow bail in all cases in which it has not
been
excluded by law. However, as rightly submitted by counsel for the
applicant, the application must be made to it in the first
instance,
and not to have been made before. The court quite appreciates the
special circumstances of this case. But for these circumstances,
it
must

5

be
clearly understood that if a matter is already before a magistrate
the remedies under section 106 of the C.P.& E. Act (supra)
should
first be exhausted before a High Court is approached under Section
109.

Bail is
then granted to the applicant and certain conditions are also
imposed.

The Crown
does not oppose the granting of the application for bail and the
conditions imposed thereon.

JUDGE

21st
November, 1983

For the
Applicant : Mr. Tsotsi

For the
Respondent : Mr. Pitso