C. of A.
(CRI) No. 5 of 1981

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

OSCAR
MAKAKAMELA LELUMA Appellant

V

REX
Respondent

HELD AT
MASERU

Coram:

MAISELS
P.

VAN
WINSEN, J.A.

MARAIS,
A.J.A.

JUDGMENT

Marais,
A.J.A.

This is
an application for condonation of the applicant's failure to apply
timeously for leave to appeal to this Court against his
conviction
upon a charge of theft, and the sentence imposed upon him, by the
Subordinate Court of the District of Leribe, and for
leave to appeal.

The
appellant appealed to the High Court. His appeal was dismissed by the
Chief Justice, and the conviction and sentence were confirmed.
A
variation was made with reference to the order that the vehicle,
which was the subject of the theft charge, be returned to the

complainant, but in all other respects, the conviction and sentence
was confirmed. Leave to appeal to this Court was refused by
the Chief
Justice.

The Crown
has raised, by way of an objection in limine, the point that no
appeal lies to this Court in terms of section 8(1) of
the Court of
Appeal Act No. 10 of 1978. That section reads :

"Any party to an appeal to the High Court may appeal to the
Court against the High Court judgment, with leave of the judge
of the
High Court, or, when such leave is refused, with the leave of the
Court on any ground of appeal which involves a question
of law but
not on a

2

question
of fact nor against severity of sentence".

The short
point raised by the Crown is that the grounds of appeal upon which
appellant wishes to rely in his proposed appeal to
this Court, all
relate to questions of fact, or to the severity of sentence imposed,
and thus, in terms of section 8(1), no further
appeal is permissible.
It would appear that the construction which the Crown places upon
section 8(1) of the Court of Appeal Act
is a correct one, and that
there is indeed no appeal to this Court on a question of fact, or
against severity of sentence, where
an appeal has already been heard
by the High Court.

It is
clear from the grounds of appeal and, indeed, from the heads of
argument which have been filed in support of the application
for
leave to appeal, that the issues which the appellant would canvas in
the appeal are all questions of fact. Indeed, Mr. Beckley,
who
appeared for the applicant, very fairly conceded that he was unable
to contend that there was any issue which could qualify
as a question
of law, and thus render the matter amenable to the jurisdiction of
this Court.

In the
circumstances, this Court has no jurisdiction to entertain the
application and leave to appeal must be refuse

R.M. Marais

Signed: .......................

R.M. MARAIS

Acting Judge of Appeal

I.A. Maisels

I agree
Signed: .......................

I.A. MAISELS

President

L.de V. Van Winsen

I agree
Signed: ......................

L.de V. Van Winsen

Judge of
Appeal Delivered on this 30th day of June 1981 at MASERU.

For
Appellant : Mr. A.P. Beckley

For
Respondent: Mr. G.S. Mdhluli