…as Crown argues Court of Appeal cannot hear case
Moorosi Tsiane
THE fight over bail for Folike Makhutle, the man accused of gunning down Lesotho Nurses Association (LeNMO) Secretary-General Morephe Santi, has hit a legal hurdle at the Court of Appeal, with the Crown challenging the court’s jurisdiction to hear the matter.
Advocate (Adv) Lehlohonolo Phooko, representing the Crown, has argued that the country’s apex court cannot entertain Makhutle’s appeal against the High Court’s refusal to grant him bail, insisting that he should have sought a review of the decision instead.
The challenge has thrown the appeal into uncertainty, with the Court of Appeal expected to deliver its ruling on the jurisdiction question on Monday.
Makhutle is accused of shooting Mr Santi dead on 10 April 2026. He subsequently applied for bail of M1500, but his application was opposed by Adv Phooko and the deceased’s wife.
High Court Judge Tšeliso Mokoko sided with the Crown and Mr Santi’s wife, refusing to release Makhutle on bail.
Dissatisfied with the decision, Makhutle and his lawyer, Adv Lepeli Molapo, took the matter to the Court of Appeal. However, the Crown challenged the legal basis of the appeal before the court could consider its merits.
When the matter came before a panel comprising Court of Appeal President, Justice Kananelo Mosito, and acting Justices Johann van der Westhuizen and Realeboha Mathaba on Friday, Adv Phooko raised two preliminary points of law.
First, he argued that the court lacked jurisdiction to hear an appeal against the High Court’s refusal to grant bail. Second, he contended that Makhutle had failed to join Mr Santi’s wife as a party to the appeal, despite her substantial interest in the proceedings.
“My Lords, it is our submission that there cannot be an appeal emanating from the refusal of the bail from the High Court. This court does not have jurisdiction to entertain this matter in terms of Section 14 of the Court of Appeal Act,” Adv Phooko argued.
He maintained that bail applications were sui generis — proceedings of a special or unique nature — and could not be taken on appeal to the Court of Appeal.
According to Adv Phooko, if Makhutle was dissatisfied with Justice Mokoko’s decision, he should have approached the High Court for a review rather than taking the matter directly to the apex court.
“My Lords, bail applications are sui generis in nature and are not adversarial so they cannot be entertained by the Court of Appeal. If they are not satisfied with the High Court decision, they ought to have filed for review before the same court,” he said.
On the second preliminary point, Adv Phooko argued that Mr Santi’s wife should have been joined as a party to the appeal because she had applied to intervene in the original bail proceedings and had a substantial interest in their outcome.
However, Adv Molapo challenged the Crown’s arguments, insisting that the Court of Appeal had the constitutional authority to hear the matter.
He relied on Sections 123(4) and 123(5) of the Constitution, arguing that the provisions empowered the apex court to hear appeals arising from the High Court.
“This court has jurisdiction to entertain this matter according to Section 123(4) and (5) of the Constitution because it gives this court superior powers to deal with the appeals of the matters arising from the High Court,” Adv Molapo argued.
He also disputed the Crown’s contention that the appeal was defective because Mr Santi’s wife had not been formally joined as a party.
Adv Molapo told the court that no order had directed that she be joined as a litigant, arguing that she had merely been permitted to intervene in the original bail application.
He further submitted that the deceased’s wife had personally been served with the appeal papers, as well as the application for condonation for the late filing of the appeal.
“There has not been an issue of non-joinder. The wife of the deceased, there was no order that she should be joined as a litigant in the matter. She was just allowed to intervene in the bail application through her intervention application,” he said.
However, in addressing the issue of service, Adv Molapo asked the court to allow him time to formally serve Mr Santi’s wife and submit proof of service.
“However, My Lords, I propose that the court direct that we serve the wife and this matter be moved to the end of this session,” he said.
After hearing submissions from both sides and questioning the lawyers on the legal issues, Justice Mosito directed that judgment on the jurisdiction question would be delivered on Monday.
In the meantime, Adv Molapo was ordered to serve Mr Santi’s wife and provide the court with a return of service as proof.
The court’s ruling will determine whether Makhutle’s bail appeal can proceed to consideration on its merits.