C. of A.
(CRI) 16 of 86
LESOTHO COURT OF APPEAL
an application to this Court in terms of Section 8(1) of the Court of
Appeal Act for leave to appeal, such leave already
refused by the High Court.
matter originated in a magistrate's court, where Applicant was found
guilty of theft, and sentenced to 2 years' imprisonment.
An appeal to
the High Court was dismissed; hence the present application.
of Section 8(1), a further appeal to this Court is competent only on
a question of law. It is perhaps understandable that
an applicant who
is anxious to appeal to this Court will endeavour
formulate a point of law to be argued. This Court has in the past
frequently warned against dressing up questions of fact as
were questions of law. It seems that Mr. Pheko, who appeared for
Applicant before us, had this warning in mind, but that
endeavouring to formulate what could rightly be categorized as a
question of law, he posed a question that does not really go
root of the natter.
appears from the judgment delivered in the High Court that the
following facts were common cause at the trial:
Applicant was a representative of The Employment Bureau of Africa
(TEBA), and charged with the responsibility of drawing
TEBA's bank account to pay remittances claimed by miners;
on 8th December, 1982. he drew a cheque on TEBA's bank account for
M115,000, and received M14,965 (the balance of M45 having
deducted as commission):
this money was not used for any authorized purpose, and was not
repaid to TEBA.
evidence that on 8th December, 1982, Applicant had purchases diamonds
from one of the Crown witnesses. After meeting this
witness, he had
said he was going to the bank for money, and after a short while, had
returned with an envelope which contained
five bundles of M2,000
each, made up of the notes.
appears also that the evidence disclosed that on 14th
1983, M4,500 was pointed out to the police by the Applicant in a hole
covered with a stone and bundles of wood. He apparently
that he usually kept his money there.
gave evidence to explain what had happened to the M15,000 which he
had withdrawn from TEBA's account at the bank. Briefly
it was to the
effect that he had withdrawn the money with the intention of
assisting a trader who "usually paid miners' remittances
Tlokoeng and often ran short of cash to pay the remittances". It
transpired, however, when he called on the trader, that
had not encountered any difficulties in payment. He was asked to come
back on 17th December (i.e. 9 days later). He
took the money back
with him and put it in his safe.
he did go back on 17th December, and that the trader then did need
money, but instead of paying him in cash, he gave him
a cheque and
put the money back in his safe. The only explanation given for this
unusual conduct was that he would go back to the
trader the next week
( and presumably, would then use the cash).
balance of the explanation is to the effect that the money then went
missing, not from the safe, but from a wardrobe into which
he had now
put the money. The explanation as to how the money got from the safe
to the wardrobe was that while he was driving back
to the trader at
Tlokoeng on 24th December, he suddenly remembered that he had been
authorized to entertain the
a party at the TEBA residence, and so took the money out of his car
and locked it in a wardrobe at the TEBA residence.
He claims it later
went missing from the wardrobe.
magistrate did not believe this explanation and held it was false
beyond any reasonable doubt, and on appeal to the High Court,
Learned Judge was not persuaded that he was wrong. we have not seen
the record of the case, but from the judgment in the High
cannot say that no reasonable court could have come to the conclusion
which the magistrate did. On the contrary, from
the evidence as
summarized in the judgment, we can say that any reasonable court
would probably have come to the same conclusion.
question of law which has been formulated by Applicant relates,
however, not to what has been summarized above, but to what
In the course of his judgment in dismissing the appeal in the High
Court, the Learned Judge drew an inference that R10,000
of the money
drawn by Applicant on 8th December had been used by him to pay for
the diamonds. Mr. Pheko contends that this particular
not the only reasonable inference which could have been drawn from
the facts, and he contends that a point of law
can be formulated in
relation to this particular inference.
comments may not be inappropriate at this stage. In the case of
Matooane vs Phillip, (C. of A. (CIV) No. 10 of 1984), extracts
which were sent to all practitioners in Court of Appeal Circular No.3
of 1985, the reasons why a further appeal to this Court
is allowed in
relation to questions of law, but not of
were set out.
these is that a question of fact generally concerns only the parties
in the case, hereas a question of law has broader application,
the case of a factual issue, it is considered that the rights of
parties have been sufficiently protected if they have had an
opportunity to argue their case in at least two courts.
also pointed out that it is possible in every case to dress up a
question of fact as a question of law by framing it on the
"whether a reasonable court could, on the evidence before the
trial Court, have come to the same conclusion". Nevertheless
Court of Appeal indicated in Matooane v Phillip that this practice
should not be encouraged. Even if, strictly speaking, this
question of law, the Court retains a discretion whether or not to
grant leave to appeal, and if the question of law is no
more than an
artificial attempt to dress up a factual question, leave will
probably be refused.
issue of law is whether an inference is the only reasonable inference
which could be drawn, and whether all other reasonable
have been excluded, the issue is generally one of fact, although in
some cases it may amount to a misdirection by the
trial Court, in
which case the appeal before the High Court would not have been a
proper or adequate adjudication, and justice
may require that the
parties be afforded an opportunity of re-arguing the matter before
another Court. But the drawing of a wrong
inference is not always a
Courts will scrutinize very carefully every so-called "question
of law" to see what the issue really is.
brings me to the second comment. In Molapo v Rex (C. of A. (CRI) No.
5 of 1984), it was indicated that where leave to appeal
is sought, it
is a salutary practice to formulate the law point precisely, and to
state this clearly in the application for leave,
rather than to wait
until the heads of argument are drafted and then formulate it. If
this is done, then it may help focus attention
on whether the
question at issue is one in respect of which leave is likely to be
present case, it is net necessary to determine whether the point
formulated is really a point of law, or merely a question
dressed up as one of law, or whether it can be said that no
reasonable court could validly have drawn this inference. Evan
these two questions were answered in favour of Applicant, that would
not in my view assist him on appeal. The conviction could
legitimately have been reached without drawing any inference as to
what Applicant had done with the missing M10,000 on the simple
that he had admittedly drawn M15,000 from TEBA's funds, had
admittedly not used it for TEBA's purposes, did not produce more
M4,500 in cash, and gave an explanation for not having used the
M15,000 for authorized-purposes which was unacceptable.
view, it cannot be said that no reasonable court could nave convicted
on such a basis, even in the absence of the
drawn by the judge hearing the appeal as to what was done with the
M10,000. There are no prospects of success in this
appeal, and the
application for leave is accordingly refused.
Judge of Appeal
Sgd: ....... W.P.SCHUTZ.......
W. P. SCHUTZ
agree Sgd: ........ I.MAHOMED.........
Judge of Appeal
on this 23rd day of JANUARY. 1987, at MASERU.
Applicant : Mr. L. Pheko
Respondent : Mrs. M. Bosiu
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