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C. of
A(CRI)No.9/89

IN THE
COURT OF APPEAL OF LESOTHO

In the
Matter:

DIRECTOR
OF PUBLIC PROSECUTIONS...Appellant

AND

LETSIELO
FOROMANE ................Respondent

Held at
Maseru

Coram:

Mahomed P

Browde,
J.A.

Kotze'
J.A.

JUDGMENT

Kotze
J.A.

This is
an appeal by the Director of Public Prosecutions following upon the
conviction of the respondent by Molai J. and assessors
on a charge of
murder. There is also before us an application to condone the late
filing with the Registrar
of the appellant's heads of argument.
The application and the appeal were heard simultaneously.

The
background to the appeal can be briefly stated. The

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respondent
was tried in the High Court by Molai J. and assessors on an
indictment that he unlawfully and intentionally killed Phafomene

Tlaka. At the commencement of the trial the defence admitted all the
depositions – some seven in number - made by the prosecution

witnesses at the preparatory examination. When the appellant
testified at the trial in his own defence the effect of his testimony

was to
contradict portion of the admitted depositions and in
effect to withdraw part thereof. Molai J., despite objection by
counsel for
the Crown, ruled that the appellant "is,
on
principle, entitled to do so". At the conclusion of the
trial the appellant was, by unanimous decision convicted of murder -

the finding being that "in assaulting the deceased as he did,
the accused had the requisite subjective intention to kill,
at least
in the legal sense." Extenuating circumstances were found to be
present and a sentence of nine years imprisonment
was imposed.

The
grounds of appeal are framed as follows:

"The
learned judge misdirected himself in law by holding:

1. that
   the accused who unreservedly admitted all the P.E. depositions was
   entitled to resile from the same in his evidence;

   
   

2. that
   on the facts of the case, the accused was guilty of murder in the
   legal sense

   
   

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(dolus eventualis) as opposed to murder in the direct sense (dolus
directus)

Although,
as indicated above, the notice of appeal categorises the aggrieved
findings as matters of law, counsel for the appellant
was permitted
by virtue of the provisions or Section 7(2) of the Court of Appeal
Act ±0 of 1978 as substituted by Section
2 of the Court of
Appeal (Amendment) Act 8 of 1985, to argue the appeal on the wider
basis irrespective of the said findings being
matters of fact or law.

The
substituted section 7(2) of the Court of Appeal Act provides;

"If the Director of Public Prosecutions is dissatisfied with any
judgment of the
High Court on any matter of fact or law, he may
appeal against such judgment to the court."

The
purpose of the substituted section 7(2) is not to confer jurisdiction
on this Court to proclaim academic or the- oretical opinions
or to
appeal against reasons as opposed to orders. What it envisages is
that perceptible concrete results should flow from an
appeal by the
Director of Public Prosecutions. In the words of INNES, C.J. in
Geldenhuvs and Neethling v. Beuthin. 1918 A.D. 426
at 441: "After
all, Courts
of Law exist for the settlement of concrete
controversies and actual infringements of rights, not to pronounce
upon abstract questions,
or to advise upon differing contentions,
however important"

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Turning
to the first ground of appeal what the appellant seeks to achieve is
to obtain a declaration that once an accused person
admits facts
testified to by witnesses at a
preparatory examination, he is
precluded from gainsaying such facts or portions thereof when he
testifies in his own defence. To
accede to this contention can have
not the slightest bearing on the outcome or the present case. The
Crown achieved its purpose
to secure a conviction. To obtain a
declaration that the respondent should have been prevented from
resiling from his original
admission will in no way enhance the
object which the Crown sought to achieve by instituting the
prosecution, more especially as
we were assured by counsel during
argument, that the object of the appeal was not to secure an
increased sentence but merely to
"straighten"
the
judgment of the High Court. It follows that to uphold the first
ground of appeal would amount to the making of a pronouncement
of
mere academic interest. It follows, accordingly, that the first
ground should in my view, be dismissed.

With
reference to the second ground of appeal, the question whether the
species of intent to be attributed to the respondent should
be
directus or eventualis could at best, in the instant case, only have
a bearing on sentence. As such, again, bearing in mind
the
disinclination of the Crown to secure an increased sentence, what is
sought is an academic

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judgment
and not the resolution of a concrete dispute. This ground also
should, in my view, be dismissed

In the
result, there being no prospect of success, I am of the opinion that
leave to condone the late filing of the heads of argument
should be
declined.

G.P.C.
KOTZE

JUDGE OF
APPEAL

I agree.
Leave to condone the late filing of the heads of arguments is
refused.

I.
MAHOMED

PRESIDENT

I agree:

J. BROWDE

JUDGE OF
APPEAL

Delivered
at Maseru on 20th day of July 1992.