CRI\APN\376\92

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

MATSELISO
KHOJANE Applicant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 3rd day of December, 1992

This is
an application brought on Notice of Motion for an order granting the
applicant leave to appeal to the Court of Appeal in
terms of Section
8 of the Court of Appeal Act No. 10 of 1978.

This
application follows an order summarily dismissing the appeal on 2nd
September 1992. The summary dismissal was in terms of Section
327 of
the Criminal Procedure and Evidence Act of 1981.

The
section provides :

"If an appeal against a conviction or sentence from a
subordinate court has been duly noted, the court of appeal, on
perusing
the record of the case, including the appellant's statement
setting out the grounds upon which the appeal is based, and any due

notice of amendment thereof, and any further document that may have
duly become part of the record, may if it considered that there
is no
sufficient ground for interfering, dismiss the appeal summarily."

2

Because
on perusal of the record this Court found no cause for interfering it
dismissed the appeal summarily in terms of the section
cited loc.cit.

At the
hearing of this application set down for 3rd December, 1992 after
failure to have had it heard on 7th October, 1992, Mr.
Mafisa for the
applicant informed the Court that the Crown had intimated to him that
there would be no opposition to this application.
Regrettably the
Crown did not attend Court on 3rd December, 1992, thus leaving the
matter entirely in the hands of the Court,

The
applicant has attached to the application papers two Notices of
hearing of the appeal in CRI\A\61\90 marked MK2 and MK3 for
the
respective hearing dates 28th February, 1992 and 17th September,
1992.

My
perusal of the file in CRI\A\61\90 does not reveal that anything
nearing compliance with provisions of Section 327 quoted above
was
done any time before the purported hearing date in February, save
that the applicant presumably came to Court that day. I say

presumably because there is no indication on the record of the appeal
to show what the fate of that day's hearing was or whether
any of the
parties came before Court that day.

3

When the
matter came before me shortly before 2-9-92 I attended to it and
disposed of it in terms of Section 327 of the Criminal
Procedure and
Evidence on the date reflected.

Unfortunately
the Registrar did not observe the results of the appeal which were
clearly reflected on the appeal record. Consequently
he set this
appeal down for hearing on 17th September, 1992 without communicating
to the appellant as he should have done, the
result of the appeal.
Consequently the appellant dutifully came to Court on 17th September,
1992 only to be told that his appeal
had been disposed of on 2nd
September, 1992. See applicant's averments in paragraphs 4 and 5.

The
applicant avers that she was denied the opportunity to present her
appeal after she had been given a date on which to do so.
It is my
humble opinion that this false sense of grievance could not have
arisen if on not only one occasion but twice everything
wrong was not
committed by the office of the Registrar.

It was
wrong in the first place to have set down the appeal at the first
occasion in February without heeding provisions of Section
327 of the
Criminal Procedure and Evidence and its practical implications.
Apparently an iniquitous practice developed in which
a Criminal
Appeal could be placed on the roll without a judge having directed
that this be done. This unwelcome

4

departure
from propriety unfortunately had a firm and stifling stranglehold on
an otherwise wholesome practice that was in accordance
with the law
and good practice. The unwholesome practice was that a judge was
denied the judicial function to dismiss summarily
an appeal that he
genuinely and reasonably perceived to be frivolous and without merit,
because to do so would run counter to a
sound practice the importance
of which was highlighted by the Court of Appeal in Redvers Teboho
Seholoholo vs Rex C. of A. (CRI)
No.2 OF 1984 (unreported) at Page 10
where Aaron JA stated

"It was conceded by Counsel for the Crown, and correctly so,
that the judge a quo had erred in increasing the sentence from
12
months to 2 years without first warning the appellant of his
intention so to do, and without affording him an opportunity of

addressing argument on the point whether it should be so increased".

To my
mind such opportunity and warning would best be communicated to the
appellant at the time when he was served with notice of
hearing, and
in any event after the judge who was seized of the appeal had perused
the record and given the directive to the Registrar
to inform the
appellant that on the hearing date he should come prepared to say why
the sentence should not be enhanced in the
event that conviction is
confirmed on appeal.

I may
just in passing, comment that the importance of the procedure implied
in Section 327 of the Criminal Procedure and

5

Evidence
and followed in practice by this Court in many years was illustrated
by the Court of Appeal in setting aside the 2 years'
imprisonment
imposed by the Court a quo and replacing it with its own brand of 2
years' imprisonment.

It was
wrong that after the Court, in the instant matter, had dismissed the
appeal summarily it was set down again for hearing.
However the
Registrar filed his sworn affidavit indicating that he had
erroneously placed CRI\A\61\90 - Khojane vs Rex on the roll
for the
week ending 18-09-92 while the Judge had summarily dismissed the
appeal on 2-9-92, The Registrar swore that he was not
aware that the
matter had been dealt with under Section 327 of our Criminal
Procedure and Evidence. I would only add that it would
be to the
benefit of the Registrar if he read recordings minuted by the Court
on the Court records. It is strange that the appellant
was served
with a subsequent notice of hearing but not with the appeal result
that preceded it. Had the Registrar or his staff
paid attention to
the recording minuted on the judge's file this embarrassing situation
would not have arisen. Remissness of this
kind can only detract from
any claim to efficiency on the part of the Registrar's office. I
would earnestly suggest that the Registrar
of this Court should make
it his business to ensure that every file leaving a judge's desk
should go straight to him to enable
him to carry out whatever orders
are minuted thereon.

6

The
salutary practice referred to above can best be

illustrated
by borrowing from the learned Mofokeng J's judgment in William Mabote
vs Rex CRI\A\55\83 (unreported) at page 5 where
it is stated :

"When the copies of the record of the case reach the Registrar
of the High Court, he causes one copy of the case to be placed
before
a judge of the High Court who will peruse the whole record and then
decide whether the appeal may summarily be dismissed
in terms of
section 327 of the Act or whether he will order the appeal to be
argued in the normal way i.e. in open court. If the
judge elects to
do the former, then that will be the end of the matter as far as the
High Court is concerned. If he decides on
the latter course, the
appeal will be heard in the normal way i.e. the Court causes (through
the Registrar) a notice to be given,
to the appellant, his Counsel
and also to the Director of Public Prosecutions, of the time when and
place at which the appeal will
be heard (Section 328 of the Act)".

The same
sentiments were expressed in Phohlo vs Rex CRI\A\22\86 and Pulumo vs
Rex CRI\A\37\88 (both unreported).

In no
circumstances therefore would the exercise of a judge's powers under
Section 327 of our Criminal Procedure and Evidence be
seen as a
denial of an opportunity to be heard. This section was intended by
the legislature to militate against bringing any frivolous
appeals
which are devoid of any merit. The salutary effect of the invocation
of this section is that the parties are relieved of
the necessity to
come before court and moon their time away in fruitless idleness.
Further the appellant is spared the

7

necessity
of incurring travelling expenses from his home, if on bail, to court.

To avoid
all the unfortunate incidents which were attendant on the instant
appeal the Registrar should always, before setting down
any criminal
appeal for hearing, ensure that he has familiarised himself with and
observed the court's recording minuted usually
on the left hand
outside cover of the file. I suspect that in this instance he
confined his attention to the Registrar's file without
regard to the
Judge's file when issuing the two notices of hearing referred to
above.

Section 8
of the Court of Appeal Act No.10 of 1978 specifically provides that a
second appeal should be on a question of law. It
was my considered
opinion that the question

"whether there was any evidence upon which a reasonable court
could have convicted the accused"

could
only be answered in the affirmative. Therefore in this matter it
appeared to me that there was no question of law involved
and thus
provisions of section 8 were not satisfied. Thus in the ordinary way
this application should be refused. But because of
the grievance that
arose from the careless manner in which this matter was handled and
for which the appellant is not at fault,
and because she must have
assumed that the notices of

8

hearing
she received keyed up in her a legitimate expectation to have her day
in Court, I was persuaded reluctantly to grant her
leave to appeal on
this very irrelevant ground.

For
Applicant : Mr. Mafisa

For
Respondent: No Appearance