CRI/APN/641/95

IN THE
HIGH COURT OF LESOTHO

In the
application of :

TSELE
RALEBITSO

vs

DIRECTOR
OF PUBLIC PROSECUTIONS

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 21st day of
December, 1995

This
application has been brought to this Court by way of a notice of
motion, for admitting the Applicant to bail pending appeal.
This is
in connection with an appeal filed on the 28th November 1995 against
the decision of the magistrate of Maseru in his review
of a
Semonokong Local Court case number CR 45/95. The appeal is against
both conviction and sentence in the matter which Appellant
was
charged with Abusive Language and Assault Common. He was on 14th
November 1995 found guilty and sentenced to Ml,000.00 or 1
year
imprisonment by that local Court. The sentence was on the 16th
November 1995 reviewed by the magistrate of Maseru and enhanced
to
M2,000.00 or 2 years imprisonment without the option of a fine. In
the notice

2

of motion
11th day of December 1995 was appointed for hearing of the
application. My record reveals that it was subsequently brought

before Court on the 14th December 1995 and then to today.

I recall
quite well that I alerted Mr. Fosa as to a few problems that would
confront him in this proceedings. First and foremost,
it was the fact
that the magistrate had in fact made a decision in which he refused
the Appellant bail on the 29th November 1995.
Normally and in
accordance with practice and policy of the Court one would have
thought that the matter would now come to this
Court by way of an
appeal against the magistrate's decision. This did not happen. This
policy is followed despite the section 109
of the Criminal Procedure
and Evidence Act 1981 which says : "The High Court may at any
stage of any proceedings taken in
any Court in respect of an. offence
admit the accused to bail" . Even in the light of the wording of
section 109 of the C.
P. & E. an applicant would need to
demonstrate good reasons why he would want to apply for bail in this
Court not in a Subordinate
Court. Amongst this would be a show of
special circumstances. (See MAKHOABENYANE MOTLOUNG & OTHERS vs
REX 1974-1975 L.L.R.
370) Due to the special circumstances of this
appeal and the proceedings I am inclined to condone this irregularity
or neglect
by the Applicant. A perception therefore that

3

I would
be reluctantly allowing the application would be a fair one. I had
intimated to Mr. Fosa that one of the ways of curing
the defect would
be to file a late notice of appeal and then ask for condonation. That
he did not do.

This
morning my attention was brought to Review Order No.7 in REX v
MOKHELE MOKHELE CRI/A/21/95 in which the learned Judge M. L.
Lehohla
had made a remark at page two of the Order, that :

"Consequently this Court relying in its inherent powers treats
this matter as if on review. Therefore this Court directs that
his
conviction be quashed........"

It is
clear that the matter had come by way of appeal. I must confess that
without a complete perusal of the record on which the
decision was
made one would find it difficult to really gauge all the matters
fully, more especially the undelying facts. But I
am satisfied that
when certain factors are considered which do not squarely fall to be
treated as an appeal, those factors constituting
such irregularities
which could not have been anticipated or were overlooked the matter
can be created as a review. In this Mokhele's
appeal Mokhele's
co-accused who had been convicted but had not appealed. It was clear
that the

4

conviction
could not be supported even against Mokhele's co-accused. Firstly
because the offence of which he has been convicted
was non-existent.
Next, because the evidence amply showed that he was innocent
throughout the entire investigation of the case,
its prosecution and
its conclusion. I am not satisfied that this decision has relevance
to this matter of the application. It may
have relevance to the
matter of the appeal itself,

I have
seen the magistrate's written comments on his refusal to admit the
Applicant to bail. He spoke of the absence of prospects
of success in
the appeal. But he did not address the central aspect of the
irregular summons procedure that the Applicant complained
about. It
may be the matter was not brought to his attention. The record will
clear all the doubts. If the issue of the summons
was brought to the
magistrate's attention I would not agree with the magistrate's
conclusion. It is a seriously arguable matter
that the
Applicant/Appellant could have been called by a civil summons to a
criminal proceedings without proper notice. I do not
decide now,
whether to believe the Applicant at this stage. Although we still
labour under the problem of the absence of the magistrate's
recorded
ruling on review and secondly on the absence of the Applicant's
attitude (protest) as recorded against this alleged irregularity
on
the record itself, the point taken

5

by the
Applicant would be a good point. I am not saying it is valid. It is a
point on which, if it succeeds, can result in the appeal
itself
succeeding and the proceedings of the lower court and the
magistrate's ruling being quashed and set aside respectively.
It is
also a question of whether if the point is demonstrated, it was bona
fide taken. For the present purpose I would decide that
there are
prospects of success in the appeal.

I have
pointed out another problem that would be in the way of the
Applicant. It is the absence of the record. I agree that this
would
heavily weigh against the Applicant in the appeal itself but not for
the purposes of the present proceedings. Once the matter
of the
existence of prospects of success was successfully investigated, as
in the instant matter, the real importance of the record
itself can
only relate to the argument of the appeal on merits. This is how I
have, therefore, considered this absence of the original
record and
the magistrate's comments on review. This I have done having borne in
mind the special problem that the record was not
available, it having
been sent back by the magistrate to the local Court. I did not think
this should weigh against the Applicant.
This I also felt having
observed that it did not have a disabling effect on the application
for bail itself.

6

I am
satisfied that although this Applicant's Counsel does not in his
paper speak about intention to appeal against the magistrate's

refusal or an appeal strictly speaking, it is clear that his action
was consequent upon his dissatisfaction with that decision.
I have
said that despite the defect in procedure I was prepared to have
matter condoned, in the sense, that it be treated as another

application (a fresh one rather) but not as an appeal. I say that
this Court relying on its inherent power and on the special
circumstances allow this Applicant to bail and hereby imposes normal
conditions on an application for bail pending appeal.

I
therefore imposed the following conditions of bail:

1. The
   Applicant shall pay in a cash bail deposit in the sum of M200.00.

   
   

2. The
   Applicant shall attend on. the hearing of his appeal whose date is
   fixed as. 3rd May 1996.

   
   

3. The
   Applicant shall report at Semonkong R.L.M.P. post once a month on
   the last Friday of the month between 8.30 a.m. -4.30 p.m.

   
   

7

4. Applicant
   undertakes to have the record of appeal prepared and filed in this
   Court.

   
   

T.
MONAPATHI

JUDGE