C of A (CRI) No. 7 of
2005

IN
THE COURT OF APPEAL OF LESOTHO

In
the matter between:

DIRECTOR
OF PUBLIC PROSECUTIONS APPELLANT

and

KELEBONE
MOKHOPI RESPONDENT

Held
at Maseru on the 6^th of October 2005

CORAM

Steyn,
P

Smalberger,
JA

Kumleben,
JA

JUDGMENT

Appeal by the Crown against the
reasons given by the High Court – such an appeal cannot be
considered or adjudicated upon by the
Court of Appeal – its powers
are limited to those conferred on it by the Court of Appeal Act 1978
as amended by the Court of Appeal
Amendment Act 8 of 1985 – such
appeal can only be considered if it is directed against “the
judgment” of the High Court not
against its reasons for judgment –
Appeal struck from the Roll – however comments by the court a
quo complained of insupportable.

STEYN,
P

In this matter the
Director of Public Prosecutions (the appellant) has noted an appeal
to this Court arising from proceedings in
the High Court. The
grounds of appeal read as follows:

“1.

The trial court erred and misdirected
itself in holding that a Magistrate is not expected to depose to any
affidavit in a review application
where he or she is cited as one of
the respondents.

2.

The trial court erred and misdirected
itself in holding that a Magistrate does not have to defend anything
as he shall be functus officio in a review application where
he or she is cited as one of the respondents.”

It is to be noted that
the appellant does not challenge the decision of the High Court. This
was to set aside the proceedings in
the lower court as irregular and
to refer “the matter to start de novo before a different
magistrate”.

The nature of the
challenge levelled by the appellant is clarified by the heads of
argument filed on his behalf. The relevant passage
reads as follows:

“The basis of the present appeal is
not whether the Learned Judge a quo was right or wrong in
setting aside the proceedings as irregular. The basis of the
appeal is the reasoning that “a magistrate is not expected
to depose to any affidavit, that he does not have to defend anything
as he shall be functus officio.”

We advised Counsel for
the Crown at the roll call that we would wish to hear argument as to
whether the Court could hear an appeal
which was not directed at the
decision of the court a quo but against its reasons.

In her argument Ms.
Dlangamandla submitted that the appeal was noted because the judgment
of the High Court made “a blanket ruling
on the position of
magistrates in applications of this nature”. Such an approach
could have a serious and destructive impact on
future review
proceedings.

In
order to understand the nature of the Crown’s complaint it is
necessary to summarise the relevant proceedings.

The appellant had
indicted the respondent (Mokhopi) in the Magistrate’s Court on a
charge of attempted murder. He was convicted
and sentenced to 4
years’ imprisonment on the 7^th of August 2003. On the
10^th of December 2004 he filed a notice of motion in the
High Court seeking to review the proceedings in the Magistrate’s
Court on the
grounds that an irregularity had been committed inasmuch
as there had been no interpreter present and that
he had not understood the charge. Despite opposition by the Crown
the High Court upheld
the respondent’s complaint and granted the
order set out above.

In motivating the Court’s
decision the learned Judge (Hlajoane J) said the following:

“This is one of those unfortunate
cases where Applicant is applying for review on the basis that there
was no interpreter during the
proceedings in CR 118/2000. The
Applicant was charged and convicted of attempted murder and sentenced
to four (4) years Imprisonment.

The Respondents have only filed a
notice of intention to oppose but never filed any opposing
affidavits. On the face of the charge
sheet one M. Makara appears to
have been the interpreter, but the Applicant says as a fact that
there was no interpreter. I do not
see why the Prosecutor or the
same interpreter has not filed any affidavit to show that in fact M.
Makara was there in Court and
was interpreting the proceedings.”

She is then recorded as
making the comment referred to above; i.e “We cannot expect a
magistrate to depose to any affidavit, he
does not have to defend
anything as he shall be functus officio.”

The decision by the High
Court to make the order setting aside the proceedings is not
challenged by the Crown and this Court is therefore
not asked to make
any order granting definitive relief. What the Court has been asked
to do is to adjudicate upon the correctness
of the reasoning of the
court a quo and not upon its decision.

The question is, does the
Court have jurisdiction to do this? i.e. can it hear an appeal which
does not call upon it to make any order
granting “some
definite and distinct relief.” See Dickinson
and Another v Fisher’s Executors 1914 AD
424 at p.427.

The powers of the Court
of Appeal are contained in the Court of Appeal Act 1978 as amended by
Act No. 8 of 1985.

The relevant empowering
provision is set out in section 2 of the Court of Appeal Amendment
Act 1985 which reads as follows:

“(2) 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 right of appeal is
authorised by this provision if it is directed “against such
judgment.”

It is, in my view, clear
that there can be no appeal against the reasons for a decision of the
High Court. See in this regard the
reasoning in Constantia
Insurance Co Ltd v Nohamba 1986 (3) SA 27(A) at pp. 42-43 where
the authorities in support of this approach are collected by Nicholas
AJA (as he then was).
See more particularly the decision in Western
Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd
1948 SA 353(A) the head-note of which reads as follows:

“The
Court, having mero
motu
raised the point that the notice of appeal was not against the
Court’s order but against that part of the reasons for judgment
in
which the Court a
quo
had held that the appellants had acted arbitrarily, struck the appeal
off the roll with costs.”

See
also the reasoning on p. 355 op. cit.

The comment made by
Hlajoane J that the magistrate was “functus officio” and
accordingly not competent to depose to an affidavit was clearly
misguided and insupportable and should not serve as a precedent.

However, it is not competent for this Court to grant relief in an
appeal when the decision of the court a quo is not challenged.
It follows that the appeal must be struck from the roll.

It
is ordered accordingly.

____________

J.H.
STEYN

PRESIDENT

_________________

J.W.
SMALBERGER

JUDGE
OF APPEAL

________________

M.E.
KUMLEBEN

JUDGE
OF APPEAL

Delivered
at Maseru on the 20^th day of October 2005

For Appellant : Ms. T.
Dlangamandla

No appearance for the
Respondent.