CRI/APN/92/95

IN THE
HIGH COURT OF LESOTHO

In the
Application of;

'MAMAKOAOE
MOKOKOANE Applicant

and

DIRECTOR
OF PUBLIC PROSECUTIONS Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr. Justice B.K.Molai on the 1st day of March, 1995.

On 17th
February, 1995, I dismissed this application and stated that reasons
therefor would be filed at a later stage. These now
follow.

The
applicant herein filed, with the Registrar of the High Court, a
notice of motion in which she moved the court for an order framed
in
the following terms:

"(a) Releasing applicant on bail on conditions appearing in
paragraph 14 of the petition.

2. Granting
   applicant such further and/or alternative relief as this Honourable
   court may deem fit."

   
   

2

The
notice of motion was accompanied by a petition and a verifying
affidavit. The Respondent intimated intention to oppose this
matter
but filed no answering affidavit. It could safely be assumed,
therefore, that that facts disclosed in the petition were
common
cause.

In as far
as it was relevant, the applicant alleged, in her petition, that she
had been convicted on six (6) counts of Theft by
false pretences. A
sentence of six (6) years was imposed on each of the counts. She was
consequently kept in custody and serving
her sentence at the Maseru
Female Prison. An appeal against both the convictions and the
sentences had been noted to the Court
of Appeal and, therefore,
pending.

The
applicant further alleged that she was reliably informed that many
appeals had, some time ago, been noted to the court of appeal.
There
was a backlog in transcribing the records of proceedings thereof in
readiness for hearing by the Court of Appeal, The record
of
proceedings in her trial was long and it would be some time before it
was transcribed and ready to be placed before the Court
of Appeal. By
the time the record was transcribed and finally ready to be placed
before Court of Appeal, the applicant would have
served a large
portion of her

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sentence.
That would be prejudicial to her case as the applicant reasonably
believed that she had ample prospects of success in
the pending
appeal. Hence the institution of these proceedings for an order as
aforesaid.

I
considered it worth noting that the applicant had been convicted and
sentenced, as alleged, on 14th February, 1995. She had moved
the
court for the order aforesaid on 16th February, 1995 i.e. only two
days after the trial had been completed. 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.

It was
not enough for the applicant to allege that she had ample prospects
of success in the pending appeal and then rested. It
was important
that she disclosed the grounds upon which she relied for her
allegation that there were ample prospects of success
in the pending
appeal. The applicant had not done so. Nor had I been shown the
grounds of her appeal. I was not, therefore, in
a position to judge
the probabilities of success in the pending appeal.

4

The
applicant had, in my view, been convicted of very serious crimes viz.
six (6) counts of Theft by false pretences involving large
sums of
Government money. A term of imprisonment totalling 36 years had been
imposed. I entirely agreed with Lewis, J. who at p.
549 of the
decision in Rex v. Fourie 1948 (3) S.A. 548 had this to say on the
issued.

"...in the case of a serious crime, 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 of his appeal."

See also
the decision in Makhoabenyane Motloung and Others v. Rex 1974-75 LLR
370 where Cotran,J. (as he then was) had this to say
at p. 372:

"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."

I was not
convinced that strong reasons existed to justify a departure from the
general rule and release the applicant on bail in
the instant case.
As it has already been pointed out earlier, . I

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consequently
dismissed the application.

B.K.
MOLAI

JUDGE

1st
March, 1995.

For
Applicant : Mr. Pheko

For
Respondent: Mr. Lenono.