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CRI/APN/601/2000

IN THE HIGH COURT OF LESOTHO

In the matter between:

TSOTANG PELEA APPLICANT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. Justice T. Monapathi on
the 25th day of October 2000

This was an application for bail pending appeal. It was
being opposed by Respondent. Applicant was convicted of the crime of
murder
by this Court on the 24th January 2000 and sentenced to a term
of 5 years imprisonment. He has noted an appeal to Court of Appeal
of
Lesotho against this conviction and now seeks to be released on bail
pending the hearing of his appeal. Since Applicant's appeal
has not
been enrolled for October 2000 sitting of the Court of Appeal his
appeal may be heard in the March/April 2001 sitting of
Court of
Appeal.

Applicant further says that due to circumstances beyond
his control the

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record of the appeal was not finished timeously for
filing to the Court of Appeal whose sitting was scheduled for October
this year.
Applicant said to date the record of proceedings to the
appeal has not been finalized but all the same he had promised that
the appeal
would only come in the April 2001 session. He says this
delay was being prejudicial to him as he wanted to know his fate
soonest.

Applicant averred that he had prospects of success on
appeal as it appeared fully in the annexure TP "1" (Notice
of appeal
and the grounds of appeal). Regard being heard to the
circumstances explored in that annexure he respectfully averred that
another
Court would come to a different conclusion. He craved leave
of this Court to incorporate the contents of annexure TP "1"
as if specifically averred therein. The said notice of appeal as said
included grounds of appeal which abundantly stated issues in
some
four pages most of which questioned the findings of the Court on
questions purely of credibility of witnesses.

Applicant's Counsel, Mr. Mpaka, made submissions on the
law in matters of bail pending appeal and he spoke about the
following issues:
Firstly that the statutory rights to bail does not
apply in cases where an offender who has received custodial sentence
lodges notice
of appeal either against conviction or sentence or
both. That the decision whether or not to grant bail in such cases is
a question
for the exercise of judicial discretion by the Court. He
referred to the work of C Charterton in BAIL, LAW AND PRACTICE,
London,
Butterworths 1986 p59 par. 3.17 and p 60 thereof. He spoke
about the discretion of the Court as explained in pages 59 and 60. He
said the principle was that in considering bail pending appeal the
Court will naturally take into account the increased risk of
abscondment
in view of the fact that the accused has been convicted
and sentenced and was not merely awaiting the outcome of his trial.
He referred
in that regard to the work of Ferreira CRIMINAL PROCEDURE
IN THE LOWER COURTS (1979) p.216

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and secondly to BAIL PRACTITIONER'S GUIDE by J Van den
Berg Juta & Co. Ltd Cape Town 1986 at p.118.

Secondly, Counsel further posed a question as to whether
there exists strong and cogent reasons and if there was no such
reasons bail
should not be granted when there has already been a
conviction. In that regard he referred the Court to the case of NDABE
KHOARAI
v D P P 1993 -1994 LLR and LB 1 at p 4.

Thirdly that 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 a chance of a successful
appeal is not
substantial. This was about prospects of success.

And then fourthly, that the length of the period which
might elapse before the hearing of Court of Appeal is not in itself a
good
ground for bail. It may be one factor in the decision whether or
not to grant bail but the 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. Counsel concluded that regard being had to the
above it was submitted with respect that the Applicant
had made out a
sufficient case to be granted bail as prayed for in the notice of
motion.

I then had submissions by the Respondent's Counsel Mr.
Lenono. He started by saying of that the attitude of our Courts in
applications
of this nature has been reinstated in a number of times
before in particular he spoke of the case of MAKHOABENYANE MOTLOUNG
AND OTHERS
v REX 1974-1975 LLR

p.370 at 372(b) where the learned judge was said to have
stated:

"Granting of bail pending appeal is not automatic
from a superior

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court and very strong reasons indeed would be needed to
justify a departure from this."

This authority was followed also in the case of MAMAKOAE
MOKOKOANE v DPP CRI/APN/92/95. Counsel further submitted that in the
case
of STEPHEN MEYER v R CRI/APN/4/77 No.3 of the 27th June 1977
Cotran CJ, as he then was, said:

"The principle under which the Court grants bail
pending appeal are well known. It is not as readily granted as when
the application
is one for bail pending trial. To grant it is the
exception rather than the rule for it is presumed that an accused
having been tried
by Court of competent jurisdiction had had a fair
trial and ought to start serving his sentence forthwith."

With regard to this statement that an accused person had
to start serving his sentence forthwith, I had earlier questioned Mr.
Mpaka,
as to what the policy of the Court was to be and what were the
guidelines to the Court in a situation where an accused person is
convicted and he goes to prison to serve a sentence of imprisonment.
And then in such circumstances the Court is being asked to release
him pending the hearing of appeal, the risk being abundant that the
accused person would have to go back to prison and serve the
remainder of the prison sentence. What the policy of the Court should
be more especially on the prejudice to the accused himself
and
prejudice to the administration of justice. I reminded Mr. Mpaka that
there is a remark about this factor in that work of Chatterton
BAIL,
LAW AND PRACTICE and I will comment about that remark later in my
judgment.

Mr. Lenono argued further to say that in R v FOURE
1948(3) SA 508 at

549 which was quoted with approval in the case of
MOTLOUNG (supra) where

it was said:

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"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 be stet pending the decision of his appeal."

In similar judicial thinking in the case of MICHAEL
MASEKO v R CRI/A/58/87 Sir Peter Allen J held that when a fairly long
sentence,
and in that case appeal was against a two year sentence,
accused's bail should be refused. The Crown accordingly in the light
of
the last authority submitted that the doctrine of stare decisis
dictated that this application must fail. It meant that judicial
precedent indicated that in circumstances such as this one bail
should not be allowed.

I accepted the Crown's argument that the very anchor of
foundation of Applicant's contention seems to be perched on the
credibility
of Crown witnesses as I have already remarked. Outside
that there are no special circumstances which he points out as
entitling him
to qualify for a departure from the general rule and to
be released on bail.

The Crown further submitted that the onus lied on the
Applicant to show that another Court may reasonably come to a
different finding
regarding the correctness of his conviction. I was
not persuaded by Mr. Mpaka's argument that the question of the
proximity of the
Accused and the deceased when the fatal shot was
fired indicated that there could have been an attack that the Accused
warded off
in self defence.

I indicated to Mr. Mpaka in no uncertain terms that I
had found that there had been no attack from the deceased and that I
did not
believe that there was a knife involved in the attack. I was
on the other hand persuaded that more than

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anything else the Accused seemed to have attacked the
deceased during a frenzy of serious provocation from the deceased.
This fact
of provocation if found as a defence overwhelmingly proved
that there was an excuse of some kind in favour of the accused. And
it
was this very factor of provocation which the Accused insistently
denied despite invitation from the Court that facts pointed out
to
the existence of such provocation.

In my mind I felt that had Accused take the chance he
could have proved a defence that he acted through provocation, I
would have
found that he attacked the deceased not in self defence
because he was severely provoked and he could accordingly take the
opportunity
of a defence of provocation. This he resisted despite
invitation from the Court. This I say in response to the fact that
another
Court could find that the Accused was provoked but still that
Court if it finds that there was a defence it could not mean that the
Accused would completely be acquitted. He could still be convicted of
another offence more particularly Culpable Homicide as this
can be
seen clearly from section 3 of the CRIMINAL LAW HOMICIDE AMENDMENT
PROCLAMATION NO.42 of 1959 section 3 which says that if
a person acts
in a way that causes death in the heat of passion caused by sudden
provocation he is guilty of Culpable Homicide only
and not guilty of
murder. The conviction would still be one that attracts a sentence of
imprisonment.

The Crown further submitted quite correctly that there
was also an onus on other aspect of whether prospects of success
existed that
another Court may reasonably interfere with the sentence
imposed. In S v NDLOVU AND ANOTHER 1999(2) SA at 645 at 650E
particularly
it has been said:

"The first question arising in my view is whether
the reasonable possibility exists of avoiding a sentence of
imprisonment on
appeal. In

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S v ANDERSON (supra) at 343(c) Fleming JP stated the
question to be whether the appeal will succeed but on a lessor
standard, whether
the appeal was free from predictable failure to
avoid imprisonment." (My underlining)

In this regard the Learned Judge referred to two
extremes that is one on one hand where the appeal was likely to
succeed and on the
other hand where the Appellant would have no
prospect of avoiding imprisonment and would therefore gain
postponement not avoidance.
In the latter event Learned Judge in my
respectful view correctly held at 432F:

"A Court will not allow bail procedures to
frustrate punishment procedures which have been duly formalised. See
S v HLONGWANE
1984(4) SA 79T at 102 E-G."

This underlines the issue that in applying for bail the
main ground is that another offence will be substituted, then the
question
is whether when that other crime is substituted Appellant
will still be liable to serve a term of imprisonment. If the answer
is
in the affirmative then there is no value in allowing the
Appellant out on bail on that account. On submitting further Mr.
Lenono
said that in TSITA v REGINA 1959 HCTLR at 2 paragraph C today
Elyan AJ said:

"Of course the primary consideration in my opinion
in an application such as this is always whether there would be on
appeal
be a reasonable prospect of success. In other words prospects
of disturbing the conviction."

Even with regard to this consideration of the prospects
of disturbing the conviction I go back to say that the grounds of
appeal solely
speak about matters about the credibility of witnesses.
There is nothing by way of taking a point or even questioning any
issue in
a serious way other than about the conduct and demeanor of
the witness which is primarily a question of credibility. The aspect
of
credibility is one which the trial court has the best opportunity
of judging at the best of times.

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The Crown finally submitted that the matter before this
Court was an unprocedural one and it ought to be struck off on that
ground.
Mr. Lenono cited section 101(3) of the C.P.&E. Act 1981
which expressly provides that:

"Every written application for bail shall be in the
form of petition." Crown Counsel argued to say that in RATIA v R
1976
LLR 141 at 142 the Court stated that it could condone
unprocedural applications only in exceptional circumstances and cast
the onus
on the Applicant to show such circumstances. The Crown
contended that it was the same with the present application that the
procedure
was wrong and no exceptional circumstances were stated for
the need to condone the unprocedural application. The Crown then
submitted
that on the basis of judicial authority referred to above
and the special circumstances of the case the onus cast on the
Applicant
had not been discharged should accordingly fail.

This Court dealt with an application for bail pending
appeal in MOTHIBELI LETSIE RAMALUMANE v DIRECTOR OF PUBLIC
PROSECUTIONS CIV/APN/244/99,16th
August, 1999. In that case the Court
agreed that based on flawed definition of accessory after the fact
the Court on appeal would
probably reach a difficult conclusion as to
the crime with which the accused was guilty of. It was not that the
Accused/Applicant
would be acquitted. The Court found that this could
not be a basis for good prospects of success on appeal.

The Court in RAMALUMANE'S case dealt with that issue
which I have earlier referred to herein (at page 4) about the broad
policy consideration
when an accused has already served part of his
sentence and yet wanted to be allowed out on bail pending appeal. I
quoted from page
60 paragraph 3.17 of the said work of Clifford
Chatterton in BAIL, LAW AND PRACTICE (supra). I emphasised from that
statement that
it had to be for exceptional reasons and in the
interest of justice

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that an accused may be released on bail. In addition
that it would not be in the interest of just to have "an
appellant taken
back into custody over which he had been on bail."
I also referred to R v FOURE (supra) in relation to the above
consideration
and to release on bail in serious crimes. See also S v
DE ABBREAU 1980(4) SA 94(W) at 100 at H to note that the :

" fundamental principle is in favour of the liberty
of the subject

and that bail should only be refused if there is a real
danger that justice will not be done."

Even when the probability would be substitution of a
conviction for another or a different sentence it cannot be said that
justice
will not have been done in refusing the appellant bail
pending appeal.

I found that in the circumstances of the case my
discretion would not allow release of the Applicant on bail hence the
application
must fail.

T. MONAPATHI

JUDGE

For the Applicant : Mr. Mpaka
For the Respondent:
Mr. Lenono