HIGH COURT OF LESOTHO
ADOLPH MOSAASE APPELLANT
by the Honourable Madam Justice N. Majara on the 30th
By way of
Notice of Motion, appellant herein appeals against an effective
sentence of two (2) years imprisonment imposed on him
by the Court a
quo. He was convicted on three (3) counts of fraud and sentenced to
two (2) years imprisonment on each count The
Magistrate ordered that
the sentences should run concurrently.
appeal was lodged out of time and appellant made an application for
condonation for the late filing. The Crown opposed the application
terms of Rule 8 (10) © of the High Court Rules on the grounds
that appellant herein did not fully set out his reasons for
and secondly that the
has failed to show that he has prospects of success on appeal. The
said Rule provides as follows;
"Any person objecting to the granting of an order sought in the
applicant's notice of motion shall: if he intends to raise
question of law without any answering 'affidavit, he shall deliver
notice of this intention to do so, within the time aforesaid,
forth such question"
date of hearing, Mr Tladi for the Crown moved the court to dismiss
the application both for condonation and the appeal itself.
submissions, he also made reference to the Court record and the
grounds of appeal as stated in the Notice of Motion.
reaction, Mr Phoofolo, Counsel for the appellant contended that the
Rule upon which respondent's opposition was premised applies
and not criminal matters and that even if it is found to be
applicable the party who wishes to rely on it has to confine
to the facts.
question of whether the Rule is applicable, I find that Mr Tladi was
within his rights to oppose the application on its terms.
approached the Court by way of Notice of Motion and the sub-section
allows opposition thereof in the manner as prescribed.
question of reference to the facts, I agree with Mr Phoofolo's
contention that by electing to go this route and not filing
answering affidavit, respondent is confined to arguing the question
of law only and nothing further.
regard to the issue of filing an appeal out of time, authorities are
bound that any party who approaches the court seeking
to allow him to approach it out of time bears the onus of stating
sufficient and satisfactory reasons for such an
indulgence. See the
remarks of Ramodibedi J (as he then was) in the case of Ntsukunyane
Mphanya v Khalaki Sello 1997-1998 LLR 167
at 170 wherein he quoted
with approval the case of Duncan T/A SAN SALES V HERBOR INVESTMENTS
(PTY) LTD, 1974 (2) SA 214.
the question which this Court has to determine is whether appellant
herein has satisfied this requirement. In his Founding
averred as follows;
"After my conviction and sentence it was my wish to appeal
against the sentence, but I was unable to obtain legal assistance
the matter. It was only recently that my parents obtained the
services of an attorney to assist me. "
I do not
accept that appellant herein has stated sufficient and satisfactory
reasons for his late filing of the appeal. He has not
discharged the onus on him. I say so because he simply tells the
court that it was his wish to obtain legal assistance but
to. This is not sufficient. It is my opinion that he should have
taken this Court into his confidence and told it how
or why was he
unable to obtain such assistance. Anybody can come before the court
and tell it "I was unable to".
opinion, to simply state inability is very vague and highly
unsatisfactory where one is seeking the Court's indulgence. If
anything, it gives the Court the impression that he does not have
sufficient reasons or he did not do anything about the matter
it was too late.
goes further to state that it was only recently that his parents were
able to obtain the same for him. The term recent
is relative. The
Court has no idea when recent is because appellant failed to specify
the time. The Court is now given the task
of speculating the reasons
for appellant's inability such as, had his parents been unwilling to
assist him before; were they still
cross with him because from the
record of the court a quo as attached his father was the complainant
in all the three counts for
which he was convicted and sentenced; was
it due to financial constraints on his part (he does operate a
telephone business); was
he denied the right by the prison
authorities to meet with a lawyer or what exactly prevented him from
obtaining the legal assistance?
There are countless possibilities and
in the absence of any sufficient and satisfactory reasons, the Court
will not grant the indulgence
above reasons the application is accordingly dismissed.
Appellant : Mr Phoofolo
Respondent : Mr Tlali
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