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money he had withdrawn for that purpose but reimbursed them by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.