CRI/APN/63/85
IN THE HIGH COURT OF LESOTHO In the Application of
MOTLALENTOA MATSUMUNYANE Applicant
REX Respondent
REASONS FOR JUDGMENT
Filed by the Hon Mr Justice J.L. Kheola on the 21st day of April, 1986
This is an application for leave pursuant to section 3 (1) of the Court of Appeal Act of 1978 to appeal to the Court of Appeal, It is also an application for an order releasing the applicant on bail pending the appeal
On the 12th May, 1986 I dismissed the application and indicated that the reasons will be filed later. These now follow.
On the 15th August, 1984 the applicant was found guilty by the Resident Magistrate of Mokhotlong of theft of R14,955-00 the property of the Employment Bureau of Africa Limited. He was sentenced to two years' imprisonment. He appealed to the High Court against the conviction and the sentence.
On the 21st April, 1986 I dismissed the appeal. The facts found proved were that on the 8th December, 1984 the applicant withdrew the sum of R15,000 from the account of Employment Bureau of Africa Limited at Mokhotlong branch of Lesotho Bank, An amount of R45 was deducted from R15.000 as commission. As employee of the Employment Bureau of Africa (TEBA) the applicant was expected to reimburse traders who had paid miners' remittances on behalf of Teba.
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The applicant did not reimburse the traders out of the money he had withdrawn for that purpose but reimbursed them by cheque. Out of the R14,955 that he withdrew he used R10.000 to buy a rough and uncut diamond from one of the Crown witnesses who was acting on behalf of another person He then buried an amount of R4,500 near his home. This amount was later unearthed by the applicant after leading the police to the spot where the money was buried
The applicant's explanation that the money was stolen at Teba's residence at Mokhotlong was rejected by the Court below and by this Court.
The applicant is now seeking leave to appeal to the Court of Appeal on the ground that I misdirected myself in some respects in considering the evidence before me. As it was pointed out in the case of Zakaria Matooane v. Teboho Phillip, C. of A (CIV) No, 10 of 1984 (unreported) some question of law come very close to being questions of fact. However in the present case I am convinced that there is no question of law but an attempt is being made to dress up a question of fact as a question of law. I came to the conclusion that a reasonable Court, properly directed, would on the evidence before trial court have come to the same conclusion as 1 have done.
I refused to issue the certificate for leave to appeal to the Court of Appeal on the further ground that the applicant has no prospects of success in the Court of Appeal and that he has no arguable case.
J.L. KHEOLA JUDGE.
27th May, 1986.
For Applicant - Mr. Pheko For Crown - Mrs Bosiu.
