CRI/A/69/79
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
NKO MAHLOANE     Appellant
v
REX      Respondent
RULING
Made by the Hon. Mr. Justice F.X. Rooney
on the 27th day of April, 1981
This 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

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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 of
Mokolokolo 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 Chief
Justice on the 3rd March, 1981 condoned the delay occasioned
by the same error in procedure, bub, he reached the conclusion that
leave 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 explanation
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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