CRI/A/69/79IN THE HIGH COURT OF LESOTHOIn the Appeal of :NKO MAHLOANE Appellantv REX RespondentRULINGMade by the Hon. Mr. Justice F.X. Rooneyon the 27th day of April, 1981This is an application for leave to appeal to the Court of Appeal against the judgment of this Court dated 29th February, 1980 in the exercise of its appellate jurisdiction dismissing the applicant's appeal from his conviction and sentence in a subordinate court sitting at Maseru. The application was made to this Court on the 19th March, 1981.In the original proceedings before the magistrate, the present applicant was charged on two counts. The first was one of attempted murder and the second alleged the unlawful possession of a firearm contrary to section 3 of the Internal Security (Arms and Ammunition) Act 1966. The incident which gave rise to the prosecution occurrred as long ago as the 16th January, 1979. At the outset of the trial, the Crown withdrew the charge of attempted murder. The accused was convicted on the second count and fined M150 or five months imprisonment in default of payment. In this Court, the appeal against conviction was dismissed, but, the fine imposed by the magistrate was reduced to one of M50 without the alternative of imprisonment in default of payment. Other orders made by this Court on appeal are not relevant in the present application and need not be referred to further.Section 8 (1) of the Court of Appeal Act 1978 provides as follows:
2/ judgment
-2-judgment with leave of the judge of the High Court, or, when such leave is refused, with the 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".It has been pointed out in the course of this application that there is nothing in the High Court Act 1978 or the rules made thereunder, nor in the Court of Appeal Act nor in its rules, which prescribes the manner in which an application for leave to appeal to this Court should proceed. In particular no time has been laid down within which the application must be made to this Court. This is an omission which is unfortunate.Over a year was allowed to elapse before a proper application for leave to appeal was instituted in this Court. However, the applicant and his attorney were not inactive during this greater part of this period. They employed their energies in the wrong direction. They made an application to the Court of Appeal direct notwithstanding the unambiguous terms of Section 8 of the Court of Appeal Act. On the 12th January this year, the Court of Appeal in the matter ofMokolokolo v Rex (C of A (CRI) No. 5-6 of 1979, unreported) ordered that the application and two others which were similarly misguided should be struck off the roll.In Forrester v Rex (CRI/A/68/79, unreported) the ChiefJustice on the 3rd March, 1981 condoned the delay occasionedby the same error in procedure, bub, he reached the conclusion thatleave to appeal to the Court of Appeal should not be granted because the applicant had failed to satisfy him that his prospects of success on appeal were sufficient.In the present case, I am prepared to adopt a similar attitude to that portion of the delay which is attributable to the failure of the applicant's attorneys to adopt the correct procedure. However, if in the future attorneys make the same mistake, it will not avail them to rely upon this case or Forrester's. Where the law is clear, attorneys are not expected to ignore it.Between the 12th January and the 19th March, the applicant made no approach to this Court for leave to appeal and he has not set out in the affidavits filed in support any explanation3 / for this
-3-for this additional delay. One would have thought that as soon as the applicant's attorneys had discovered that they should not have approached the Court of Appeal direct, that they would have hastened to rectify the position at the earliest possible moment. In cases where an appeal lies of right to the Court of Appeal, the time within which notice of appeal must be filed is six weeks from the date of the judgment in the High Court. (Rule 3 (1) Court of Appeal Rules 1980.) This is some guide to the reasonableness of the present unexplained delay. Section 51 of the Interpretation Act 1977 provides that where no time is prescribed within which anything should be done, it shall be done without unreasonable delay. I take the view that the delay in applying to this Court is in all the circumstances unreasonable and this application must be refused.If the determination of this matter had rested upon its merits alone, I would have allowed the application on the ground that in the absence of authority, the Court of Appeal might reach a different conclusion on the issue as to whether in the light of the evidence adduced in the magistrate's court an inference must be drawn that the applicant was in possession of the firearm. This appears to me to be a matter of law rather than a matter of fact
F. X. ROONEY JUDGE