C of A(CRI) No. 2/2001
IN THE COURT OF APPEAL OF LESOTHO
In the matter between;
MOKHERANE TSATSANYANE APPLICANT
THE CROWN RESPONDENT
Held at Maseru
CORAM: Ramodibedi, J.A.
The applicant was one of a number of accused indicted on two counts of murder and one of robbery. He was convicted of theft of a motor car in reference to the robbery charge. On 15 May 2001 he was sentenced to 6 years imprisonment, half of which period was suspended subject to certain conditions. From July 1995 until his trial and conviction he had been released on bail and had complied with the bail conditions imposed.
C of A(CRI) No. 2/2001
The applicant sought the grant of bail after conviction in the High Court. It was refused. He renewed it before this court in conjunction with an application for condonation. This court has original jurisdiction to grant bail pending an appeal in certain circumstances. The critical consideration advanced in argument was that the prospects of the appeal succeeding were so manifest that on this ground bail should be granted. The court does not share counsel's optimism and the application for bail must fail. There is, however, some prospects of success and hence the grant of the condonation to which I have referred.
After conviction and sentence he applied to the learned trial judge, Lehohla J, for the grant of bail pending an appeal to this Court. This relief was refused by the trial judge on 28 of May 2001.
The appeal was set down for hearing in this Court on 1 October 2001. As regards the applicant, the matter could not be heard on the merits because he had failed to lodge heads of argument timeously or at all. Leave was granted to the applicant to apply for condonation for this default. Such leave was subsequently granted.
In his affidavit in support of prayer for condonation the applicant, after alleging facts in support of the condonation, simply proceeded to make averments advancing a case for his further release on bail. The affidavit ends with the following prayer "WHEREFORE I pray that it may please the Honourable Court to grant me the relief [bail] set out in the application affixed hereto." In fact no such notice was attached but one was independently filed. Quite obviously this application for bail ought to have been a substantive and separate one on notice of motion and not, as it were, an appendage to another application made with leave of this Court. However, since the respondent did not raise any objection to the procedure adopted, this irregularity can be overlooked.
There is no provision for an appeal to this court against a refusal of bail in the High Court. This court has, however, original jurisdiction to do so in appropriate circumstances by virtue of section 14 (1) (a) of the Court of Appeal Act, 16 of 1978.
The subsection reads as follows:
The Court or the High Court may, if it deems fit. on the application of the appellant and pending the determination of his appeal -
admit the appellant to bail."
The predecessor to this sub-section was section 10(1) of Proclamation No. 72 of 1954. Its wording is substantially the same and its import was considered by this court in Motloung & Others v Rex 1974-1975 LLR 380 at page 384: This was the view expressed in the judgment:
"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 (cf S. v.Berg 1962 (4) S.A. 111(0) at p. 114 A and B, per Smit,J.P., as applied in Riddoch v. Attorney-General of the Transvaal.) " (Emphasis added)
The requirement of "material change" is self evident. In the absence of any such change this court would in fact be exercising a right of appeal in the guise of the first instance jurisdiction conferred by section 14(l)(a).
Mr. Mdhluli, who appeared for the applicant, accepted the legal position as set out above, and considered that in order for the application to succeed he was obliged to point to a "material change" from the situation that existed when the application before the High Court failed. This counsel sought to do by submitting that the High Court erred in not finding that the prospects of success on appeal were so substantial that the appeal was bound, or virtually bound, to succeed. Accepting for the moment that the prospects of success are that strong, this consideration can never amount to a changed circumstance. This requirement has
reference to supervening facts after the High Court decision. These, if material, would entitle this Court to consider etc novo the grant of bail. See too Sekhobe v Rex L.L.R. 1993-1994 3X7. In that decision the following passage from S v Qhaka 1961 (4) S.A. 170 (H) at 171 was cited with approval:
'the fact that a magistrate has declined to admit an individual to bail does not preclude the person aggrieved from subsequently approaching the Supreme Court where it is shown that other circumstances justifying the grant of bail have arisen and where it will be proper for the Court to act." (Emphasis added)
Thus, even if one were to rate the prospects of success as high as counsel would have them, such fact cannot be regarded as a changed circumstance. This, however, is not to say that, in the event of a pending appeal having an indubitable prospect of success, this court would be precluded from granting bail on other grounds. For instance, to avoid the manifest injustice of a person remaining in custody who ought not to have been convicted. Such an equitable result could also be achieved by a review of the decision refusing bail in appropriate circumstances (cf the Motloung decision at page 384 C). It is, however, unnecessary to express any final view in this regard since at best for the applicant it can only be
said that he has a reasonable prospect of success on appeal. It is for this reason that Mrs. Moorosi, who appeared for the respondent, quite correctly in my view, did not oppose the grant of condonation for the late lodging of heads of argument on the part of the appellant.
In the result the application for the grant of bail is refused.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered on this........day of October, 2001
For the Applicant :
For Respondent :