HIGH COURT OF LESOTHO
MOCHEKOANE First Applicant
MOCHEKOANE Second Applicant
MATSUKULU Third Applicant
OF PUBLIC PROSECUTIONS
For the Applicant : Mr. Mabulu
Respondent Mr Ngcobo
by Honourable Mr Justice T Monapathi on the 19th January, 2005.
I made a
decision on 23rd December, 2004 to dismiss this application. This I
did because I was of opinion that a sentence should
not be disturbed
merely because no reasons have been given therefor. Prejudice or
something more substantial and compelling must
be given for any
attack on sentence.
application was titled "Notice of Application", "In
the matter of application for leave to appeal out of time".
will call any of the Applicants herein "Appellant" wherever
it is convenient. The reason is that Applicants
of applying for condonation of late noting of appeal sometimes call
themselves Appellants in the papers.
Founding Affidavit of Phakeli Mochekoane the First Appellant is an
eleven paragraph document. These three Applicants had been
on 11th November, 2002. They were consequently charged with the
offence of stock theft involving four (4) head of cattle
having been in lawful possession of Semele Matekane in Count 1.
II the Applicants were charged again with the offence of stock theft
of two (2) head of cattle allegedly stolen on the
same day as above
being allegedly owned by the same complainant or having been in
lawful possession of the complainant.
statement in paragraph 5 of the said affidavit of the First Applicant
(who also spoke for others) shows that they pleaded guilty
charge and were convicted after the close of the Crown's case. They
were each afterwards sentenced to five (5) years imprisonment
an option of a fine. In this regard the First Applicant seems to
speak for other appellants who have filed their supporting
and associated themselves with the contents to which they adhered in
"so far as they relate".... to them.
It is to
be noted that the main complaint is about none other than the
sentence imposed. In that respect this is shown as follows
paragraph 6 of the affidavit of First Applicant which reads:
"It my respectful submission that I have reasonable prospects of
success in the appeal I intent lodging at least on sentence
another court properly advised, might on the facts and how arrive at
a different decision. This application is thus not made
of delay" (my emphasis)
therefore becomes clear that the issue is about sentence.
reasons which these Applicants put forward for their asking for
condonation of the late filing of appeal. These are contained
paragraph 8, 9 and 10 of First Applicant's affidavit. However, they
ought not to detain us now. Mine is to indicate how process
abused and how misconceived this application is.
hereunder to quote from the document attached to the application
entitled "Notice of Appeal Out of Time". Presumably
intended to indicate what the grounds of appeal, as a matter of
substance, will look like. It is as follows:-
"APPEAL OUT OF TIME.
failed to lodge our appeal timeousely because we did not know that
there was a time limit.
families look some time to raise funds in order to enable us to seek
were not in with our families for sometime as we were still in
prison in order to enable us to give them instructions."
apparent confusion between grounds of appeal and reasons for
condonation can be explained easily by accepting that this
is itself an epitome of confusion. The real complaint as
I said is about sentence and this is further shown paragraphs 6 and 7
of the affidavit which reads:
" It is my respectful submission that I have reasonable
prospects of success in the appeal I intend lodging, at least on
sentence, as another court properly advised, might on the facts and
how arrive at a different decision. This application is thus
for purposes of delay." (My emphasis)
"I have been informed by counsel and verily believe same to be
true that in law, it is imperative that accused person should
the reasons for his sentence at the time the sentence is passed. This
never happened with us." (My emphasis)
the issue of absence of reasons for sentence nothing more is said by
be shown how the problem of lack of particularity in the papers and
absence of demonstration of prejudice on the part of
a party applying
for an indulgence can be disastrous. The first issue is this. It is
not indicated by the Applicants what the real
basis of the complaint
is. That means a substantial and compelling reason.
a sentence can be attacked as being too harsh or too lenient
depending on individual cases, but the court has not been,
instance, told what the particular fault is about the sentence of the
court a quo in that connection except to say that
sentence have not been given.
As can be
clearly seen there are no factors put forth by the Applicants that
would call for a variation of sentence by a court on
appeal. To that
extent, it is not even indicated on what basis another court would
considered view, without allegation of prejudice, it not a good
reason merely that, because the reasons for sentence have
indicated, such a sentence should be varied. This approach by
Applicant would therefore amount to and, it does in my opinion,
amount to abuse of process of court. In any case there would be no
good reason why proceedings would be nullified because of an
irregularity of a modest or non - serious nature. The same was said
even in a matter of constitutional nature where such a point
taken. See S v SHIKUGA 1997 (A) B.C.L.R 1321 at p. 1327E-H.
above reasons this application ought to be dismissed.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law