C of A (CRI) No.9 of 2005
IN THE COURT OF APPEAL OF LESOTHO
In the matter between
GLEN TEBOHO SEROBANYANE 1st Applicant
MOKOMA MANUEL MOTHAKATHI 2nd Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Held at Maseru
CORAM: SMALBERGER, JA
MELUNSKY, JA
KUMLEBEN, JA
Summary
Bail - refusal of pending appeal against conviction - application for review - gross irregularity alleged -factual disputes dealt with - considerations relevant to the granting of bail after conviction – onus of showing judge a quo acted irregularly and failed to apply his mind not discharged - application dismissed.
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JUDGMENT
SMALBERGER. JA
[1] On 2 September 2005, after a trial in the High Court, Maqutu J convicted the first applicant of one count of fraud; the second applicant was convicted of one count of theft and two counts of fraud. They were sentenced to imprisonment for periods of two and three years respectively.
[2] The applicants were arrested in 2001 and had been out on bail prior to and for the duration of their trial. Immediately after they were sentenced their attorney, Mr Mphalane, applied in chambers to Maqutu J for bail pending an appeal against their convictions. Also present at the time was Mr Louw who had conducted the prosecution on behalf of the Crown. The precise events that occurred in Maqutu J's chambers are the subject of considerable dispute, about which more will be said later. The only formal record that was kept was a terse handwritten note by the learned judge signed by him. It reads:
"On the 2nd September 2005 Mr Mphalane for the accused 2 and 4 [the applicants] asks for bail pending appeal. Mr Louw for the Crown does not oppose bail. Court: Bail is refused."
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[3] On 3 October 2005 the applicants filed on application for review in this Court in which they sought an order:
"That the decision of the Honourable Judge Maqutu dated 2nd September 2005 refusing bail for the applicants be reviewed, corrected and set aside and the applicants be granted bail on such conditions as the above Honourable Court may deem it fit, pending
appeal noted to the above Honourable Court."
[4] This Court agreed to consider the matter as one of urgency. It was set down for hearing on 18 October 2005. By that time answering and replying affidavits had been filed and heads of argument submitted on behalf of the parties. The answering affidavits of the respondent purport to set out in detail the events preceding the refusal of bail by Maqutu J. While the respondent confirms that the granting of bail is not opposed by the Crown, he raises issues with regard to whether this Court is entitled to interfere with the exercise of the learned judge's discretion in refusing bail.
[5] The Court of Appeal Act 10 of 1978 ("the Act") does not provide for appeals to the Court of Appeal against High Court decisions refusing the grant of bail. The Court does, however, have jurisdiction to entertain review proceedings instituted against
decisions of the High Court on bail applications on grounds of
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gross irregularity or illegality which result in a failure of justice and render such decisions a nullity. (See BOLOFO AND OTHERS v DIRECTOR OF PUBLIC PROSECUTIONS, LAC (1995-99)231.) In the course of his judgment Steyn P, dealing with the review of bail proceedings said, inter alia (at 242 E-G): "Clearly if the decision of a court adjudicating a bail application is e.g. mala fide, arbitrary or so grossly unreasonable as to be demonstrative of the fact that the decision-maker had failed to apply his mind, such a decision would be a nullity and capable of challenge and revocation on review."
Whether or not a decision is vitiated by such conduct will depend upon the facts of each particular case.
[6] I now turn to the events surrounding the bail application. In his founding (supporting) affidavit Mr Mphalane described what occurred as follows:
"4. I indicated to the Learned Judge that the accused intend to appeal against conviction and that I had already caused notice of appeal as well as grounds of appeal to be prepared on behalf of the two accused and I therefore, there and then applied for bail on behalf of the applicants pending appeal and I argued that there are
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prospects of success in the appeal and Adv Louw for the Crown did not oppose bail.
The Learned Judge appeared to have been very exhausted after having read [a] lengthy judgment and did not listen to the argument I made on behalf of the applicants and outrightly without applying his mind and without giving reasons refused bail."
He then went on to add:
"7. I respectfully submit that by not applying his mind properly to the bail application and by arbitrarily refusing bail his Lordship, the Honourable Mr Maqutu committed a gross irregularity which entitles this honourable court to review, correct and set aside his decision and substitute the same with an order granting the applicants bail."
[7] Mr Louw filed an answering affidavit in response to Mr Mphalane's affidavit. According to him an informal bail application (i.e. one not supported by a formal notice or affidavits) was made at the conference table in Maqutu J's chambers; that the gist of the
application was that the applicants had attended their trial throughout and had reasonable prospects of success on appeal;
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that a debate took place between Maqutu J and Mr Mphalane regarding the matter; that Maqutu J was of the opinion "that the granting of bail was not automatic and that good reasons had to be presented"; and that he informed Maqutu J that he had been instructed not to oppose the application. He went on to say in paragraph 8 of his affidavit:
"8.1 I did not observe the Learned Judge to be Very exhausted' after the reading of the very lengthy judgment.
8.2 My recollection further is that Learned Judge Maqutu did indeed listen to the oral argument presented on behalf of the Applicants,
did reason with Mphalane regarding his grounds, did consider them and thereafter dismissed the application.
8.3 My recollection is that Learned Judge Maqutu did not 'outrightly' refuse bail 'without applying his mind'.
8.4 I do confirm that Learned Judge Maqutu did not give reasons regarding the refusal of bail. It was apparent that he was not
satisfied with that which was placed before him.
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8.5 I further wish to indicate that Mphalane did not ask for any reasons after the ruling was made."
[8] In his replying affidavit Mr Mphalane responded to Mr Louw's affidavit with the following portrayal of events:-
"6.2 It is however not correct that the application was made without formal written applications supported by the affidavits. What transpired on that day is that after we had entered the chambers of the Honourable Judge Maqutu with Adv Louw we sat around the conference table with the Judge and I explained the purpose of our visit. While I was explaining the purpose of our visit, his Lordship the Honourable Judge already commented that he was not going to give the accused bail.
6.3 I tried to persuade his Lordship to hear (sic) and I informed him that I had written bail applications as well as the grounds of appeal already prepared, instead of calling for the applications to look at he asked whether I was expecting conviction my answer was that I was expecting anything to happen, Adv Louw was with me, he said to us that he was going to refuse bail.
6.4 In an attempt to persuade him while I had the
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written bail applications in my hand, I tried to argue that the accused had prospects of success in their appeal. His response was that he was not hearing an application for leave to appeal and he dismissed my argument which argument he was not even recording,
repeated that he was not going to give them bail. Then it was useless to give him written bail applications because he told us that he was not going to give them bail.
6.5 It was only after that that he called for a paper to write on and after he had asked Adv Louw whether he is opposing bail, then he wrote what he has written on his ruling on page 20 of the record.
6.6 At the time I was making this application I was aware of the provisions of section 14 of the Court of Appeal Act No.5 of 1975(sic)
hence the reason why I had prepared the written applications which were supported by affidavits and the grounds of appeal as a
precaution in case anyone of the accused or all of them were convicted."
He went on to make, inter alia, the following statements "The Honourable Mr Justice Maqutu was not interested in looking at them [the affidavits] as he was already
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saying repeatedly that he was not going to give them bail."
"I confirm that Learned Judge did not take part in the argument, all he was saying repeatedly is that he was refusing bail and he did not even look at the applications I had with me."
[9] Mr Mphalane's replying affidavit stands in stark contrast to his founding affidavit. The relevant paragraphs of the latter give the impression that Mr Mphalane informally applied for bail; was heard in argument; that Mr Louw then indicated that he did not oppose bail; and that Maqutu J thereupon simply dismissed the application out of hand, the inference being that he did so without properly applying his mind to the matter. This provides a very weak foundation for a finding of gross irregularity. The gist of his replying affidavit is that he went to Maqutu J's chambers armed with a formal bail application; that Maqutu J immediately, and before hearing argument, took up the attitude that he was not going to grant the applicants bail; that he persisted in that attitude; refused to look at the bail applications; effectively refused Mr Mphalane a hearing and turned a deaf ear to anything he was trying to put forward in support of the bail application. This is essentially new material which should have been incorporated into the founding affidavit. Strictly speaking it cannot be raised for the
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first time in the replying affidavit, but regard will be had thereto.
[10] If Maqutu J's initial response was as Mr Mphalane now contends in his replying affidavit, it is inconceivable, given its importance, that it was not mentioned, let alone emphasised, in his founding affidavit for, if correct, it shows that Maqutu J simply closed his mind to any suggestion of bail and in doing so acted arbitrarily and grossly irregularly. Any reasonable practitioner would have made it the foundation of the application for review. It is disingenuous to suggest, as Mr Mphalane attempted to do in argument, that the reason for not providing a complete picture in his founding affidavit was that he did not anticipate opposition from the Crown to the review application. It is after all the function of this Court to determine whether Maqutu J had committed a gross irregularity and one would have expected all material facts relating to his conduct to have been stated in the founding affidavit.
[11] The fact that this material allegation, unmentioned before and prima facie at variance with the founding allegations, surfaces for the first time in the replying affidavit inevitably casts grave doubts on its veracity and serves to discredit Mr Mphalane's version of the events. Needless to say, what Mr Mphalane alleges is not in keeping with the conduct one would expect from an experienced
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judge. Mr Louw's version appears to be a more likely version of the events. There is no reason to doubt his integrity or the accuracy of his observations. His role was more that of an objective observer of the relevant events rather than a participant in them. In my view the applicants have not discharged the onus upon them of establishing that they were not given a proper bail hearing and that any gross irregularities were committed by Maqutu J in the conduct of the hearing. The question remains, however, whether, in refusing bail, he properly applied his mind to the matter, and whether, in the circumstances of the present matter, it can be inferred from his denial of bail that he failed to do.
[12] A judge has a discretion, to be exercised judicially, whether to grant or refuse bail. Bail cannot simply be had for the asking. In MOTLOUNG AND OTHERS v REX (1974-1975) LLR 370 at 372 it was said that "[g]rranting 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." Different considerations apply depending upon whether bail is sought before conviction, or after conviction pending an appeal. (See S v WILLIAMS 1981(1)SA 1170(ZA)at 1172H-1173B.) While the proper approach should as far as possible be "towards allowing
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liberty to persons where that can be done without any danger to the administration of justice (S v WILLIAMS at 1173 A) a judge may, in the exercise of his discretion whether to grant bail after conviction pending an appeal, properly take into account, inter alia, the following considerations:
It is generally desirable and in the interests of sound and effective administration of justice that a convicted person, who is presumed to have had a fair trial, should be required to commence serving his sentence as soon as possible (cf S v BEER 1986(2) SA3075 (SEC) at 310B-C).
The presumption of innocence which precedes conviction no longer applies;
The danger of absconding may be greater after conviction and the imposition of a custodial sentence, when an accused person knows
what his fate is, than before, when he may still live in hope of an acquittal. The fact that an accused has complied with his bail conditions before conviction is, per se, no guarantee that he will continue to do so pending appeal;
The prospects of success on appeal (R v FOURIE 1948(3)
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SA 548 (T) at 549; S v DE ABREU 1980(4) SA94 (W) at 100A; S v WILLIAMS, supra, at 1172H);
The facts and circumstances of the particular case under consideration.
[13] Maqutu J did not give any reasons for his refusal to grant bail. This is understandable as the proceedings were conducted informally. At no subsequent stage was he asked by the applicants' attorney to furnish reasons for his decision. We are therefore in the dark as to the precise factors which influenced his decision to refuse bail. While the attitude of the Crown is relevant, Maqutu J ultimately had to exercise his own discretion. This is not a case where it can be said that no justification exists for the refusal of bail, and that Maqutu J could accordingly not have applied his mind properly to the matter. Neither applicant gave evidence in his defence which left the Crown's evidence incriminating them unchallenged. This is relevant to their ultimate prospects of success. It would be invidious, however, to embark upon an assessment of those prospects at this stage. Suffice it to say that, on an overall conspectus, there are cogent considerations which could have justified Maqutu J refusing bail in the present matter after conviction in the proper exercise of his discretion. In
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the circumstances it has not been shown by the applicants (the onus being on them) that Maqutu J failed to apply his mind properly to the question of bail. The review application therefore cannot succeed.
[14] It was submitted on behalf of the applicants that in the event of our not granting the review application we should, under the prayer "further and/or alternative relief, treat the application as one for bail in terms of section 14(l)(a) of the Act. That section empowers this Court to admit an appellant to bail "if it deems fit, on the application of an appellant and pending the determination of his appeal. 'lt is in virtually identical terms to its forerunner, section 10(l)(a) of the Court of Appeal Proclamation 72 of 1954. In considering that section this Court held, in MOTLOUNG AND
OTHERS v REX (1974-1975) LLR 380 at 384 A-B, that:-"We are of opinion that this court has no jurisdiction to hear an application made to it for release on bail under the subsection where an application by the applicant has already been made to the High Court for such release and such application has been refused, if there has been no material change in the situation since the application was so refused."
(See also LETSIE v REX 1993-1994 LLR-LB 387 at 390.) It follows that a pre-condition to this Court entertaining a second bail
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application in terms of section 14(1) of the Act is that there should have been a material change in the situation which existed when Maqutu J refused bail. There has been no such change since that time. A material change is one relating to an alteration in the circumstances affecting an applicant which, viewed objectively, is likely to influence a decision to grant bail. The fact that notices of appeal and grounds of appeal have been filed since Maqutu J ruled on the bail application do not constitute such a change. The further application for bail accordingly cannot succeed.
[15] As the sentences imposed upon the applicants are relatively short, if the hearing of their appeal is delayed, the danger exists that they may have served their sentences before their appeal is finalised. It appears from the papers before us that the appeal record, if not completed, is near completion. In the circumstances it would be appropriate for the Registrar to consider setting their appeal down for hearing at an early date.
[16] The applicants' review application is dismissed.
J.W. SMALBERGER
JUDGE OF APPEAL
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I agree
L.S. MELUNSKY
M.E. KUMLEBEN
DELIVERED AT MASERU THIS 20th DAY OF OCTOBER 2005.
For the Applicants: Mr N. Mphalane
For the Respondent: Mr D. P. Molyneaux
