C. of A.
(CRI) No.5 of 1984
LESOTHO COURT OF APPEAL
Magistrate Court of Leribe there were three accused charged with
raping 'Mateboho Lefama on the 10th of April, 1983. At the
of that trial the Magistrate (Mr. Mphafi) acquitted two of the
accused but convicted the present appellant (as I shall
The sentence imposed was 2 years imprisonment.
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
pursued. The Crown opposed the grant of leave to appeal and, inter
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
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
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
nor against severity of sentence".
section is there to ease the burden of this Court of determining
issues of fact in a second appeal in matters which originate
Subordinate Courts and which have been determined there and which
have been the subject of appeal to the High Court.
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
illuminating to interpose to say that the Magistrate had written in
his judgment that he had treated the complainant's evidence
caution and had warned himself of the dangers of convicting without
corroboration. As the Magistrate put it he "has"
the second and third accused. The Magistrate however rejected the
appellant's contention that the complainant had consented
intercourse and convicted him.
that background Mr. Kuny submitted in the course of his argument that
the question of law involved whether the Magistrate
cautioned himself and whether there was a proper basis for
distinguishing the appellant from his two co-accused
Magistrate had done.
which divides a question of law from one of fact is an obviously
difficult one to draw satisfactorily. That having been
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.
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
Magistrate's conclusions on the facts which Section 8(1) enjoins us
not to do.
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
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
leave to do so.
appeal is thus refused.
Judge of Appeal
W. P. SCHUTZ
Judge of Appeal
this 25th day of January 1985 at MASERU.
Appellant : Mr. Kuny Mr. Sello
Respondent : Mr. Kabatsi
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