C. of A. (CRI) No.5 of 1984
IN THE LESOTHO COURT OF APPEAL
In the Appeal of:
KHETHISA MOLAPO Appellant
vs
REX Respondent
HELD AT MASERU
Coram: SCHUTZ P.
MAHOMED J.A.
WENTZEL J.A.
JUDGMENT
Wentzel J.A.
In the Magistrate Court of Leribe there were three accused charged with raping 'Mateboho Lefama on the 10th of April, 1983. At the conclusion of that trial the Magistrate (Mr. Mphafi) acquitted two of the accused but convicted the present appellant (as I shall call him). The sentence imposed was 2 years imprisonment.
An appeal was heard by Molai J. He dismissed the appeal and confirmed the sentence; on the 15th of October, 1984 he refused leave to appeal to this Court. The appellant seeks the leave of this Court to appeal against the conviction; no appeal against the sentence is being pursued. The Crown opposed the grant of leave to appeal and, inter alia,
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submitted that the appellant was not able to appeal to this Court by reason of the provisions of Section 8(1) of the Court of Appeal Act 1978.
That section reads –
" any party to an appeal to the High Court may appeal to the Court against the High Court judgment with the leave of the judge of the High Court, or, when such leave of the Court on any ground of appeal which involves a question of law but not on a question of fact nor against severity of sentence".
The section is there to ease the burden of this Court of determining issues of fact in a second appeal in matters which originate in the Subordinate Courts and which have been determined there and which have been the subject of appeal to the High Court.
At the outset of the appeal the attention of Mr. Kuny (who appeared with Mr. Sello for the appellant) was invited to section 8(1) and Counsel was invited to address argument to this Court on whether the appeal was indeed one on a question of law and, if so, how that question should be formulated.
It is illuminating to interpose to say that the Magistrate had written in his judgment that he had treated the complainant's evidence with caution and had warned himself of the dangers of convicting without corroboration. As the Magistrate put it he "has" acquitted the second and third accused. The Magistrate however rejected the appellant's contention that the complainant had consented to intercourse and convicted him.
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Against that background Mr. Kuny submitted in the course of his argument that the question of law involved whether the Magistrate had properly cautioned himself and whether there was a proper basis for distinguishing the appellant from his two co-accused as the Magistrate had done.
The line which divides a question of law from one of fact is an obviously difficult one to draw satisfactorily. That having been said, however, it seems to me that in this case the Magistrate specifically warned himself of those special dangers which can be present in cases of sexual assault. The Magistrate heard the evidence and he saw the witnesses and formed his view of them. Even if it could be persuasively argued that he did not, in the result, approach the particular facts as another Court might have, that does not make the question which arises one which is not one of fact.
In the result I am of the view that the appellant had failed to raise any question of law and that we are being invited to reconsider the Magistrate's conclusions on the facts which Section 8(1) enjoins us not to do.
I should add that when leave to appeal is sought from the High Court or in this Court it is a salutary practice to define and record the question of law involved. To do so would introduce the discipline of ensuring, as far as that can be done, that Section 8(1) is present to the minds of those who want to appeal and those who determine whether they should be
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given leave to do so.
Leave to appeal is thus refused.
(Sgd)
E.M. WENTZEL
Judge of Appeal
I Agree (Sgd)
W. P. SCHUTZ
President
I agree (Sgd)
I. MAHOMED
Delivered this 25th day of January 1985 at MASERU.
For Appellant : Mr. Kuny Mr. Sello
For Respondent : Mr. Kabatsi
