C. of A.
(CRI) NO. 5-6 OF 1979

IN THE
LESOTHO COURT OF APPEAL

In the
Application of :

MOHL'OUOA
MATETE MOKOLOKOLO Applicant

v.

REX
Respondent

HELD AT
MASERU

CORAM:

MAISELS,
P.

TEBBUTT ,
J.A

VAN
WINSEN, J.A.

JUDGMENT

Van
Winsen, J.A.

This is
an application directed to this Court asking the Court to grant
applicant leave to appeal against his conviction by the
Magistrate
for the district of Mafeteng on a charge of extortion and for
condonation of the late filing of the application. Applicant
had
unsuccessfully appealed to the High Court of Lesotho against his
conviction and the Judgment dismissing the appeal was delivered
on
the 23rd of February 1979. No action was taken by the applicant with
the. object of initiating a further appeal to this Court
until an
undated notice of an application for such leave was delivered to the
Registrar of this Court, Applicant had made no attempt
to approach
the High Court for leave to launch a further appeal against the
Judgment of the Magistrate.

2

Section 8
of the Court of Appeal Act 10 of 1978 (the Act) provides as follows
:-

"Any party to an appeal to the High Court may appeal to the
Court against the High Court judgment with the 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 question of fact nor against severity of sentence".

By Legal
Notice No. 10 of 1980 the President of the Court of Appeal in the
exercise of the powers conferred upon him bys.22 of the
Act gave
notice of the repeal of the then existing Court of Appeal Rules 1955
and the substitution therefor of a new set of Court
of Appeal Rules
(The Rules). These latter Rules (Rule 2) prescribe the procedure to
be followed where an application for leave
to appeal is necessary to
this Court in a criminal matter in terms of s.8 of the Act where
leave has been refused by the High Court,

The Rules
however made no provision for the procedure to be followed by a
litigant wishing to approach the High Court for leave
to appeal to
this Court. Similarly, there appears to be no procedure prescribed in
the High Court Rules specifically dealing with
the manner and the
time within which an approach should be made to the High Court to
obtain leave to appeal in terms of s.8 of
the Act. This is an
unfortunate lacuna in the Rules of the High Court and it may be
thought desirable to remedy the position by
an amendment of the High
Court Rules. Until this is done it would not be inappropriate to seek
such leave by verbal application
at the conclusion of the trial or
subsequently to approach the High Court for leave to appeal by way of
an application on notice
of motion as envisaged by the High Court
Rule 8(1) and (2).

However
that may be, the absence of any procedure prescribed in either set of
rules for applying for leave to the High Court confers
no
jurisdiction on this Court to bye-pass the clear injunction contained
in s.8 of the Act and itself assume the function of granting
leave to
appeal.

3

Applicant's
counsel raised a doubt as to whether the Act had ever been put into
operation. There is no reason to doubt that the
Act is in fact in
operation. The Act was assented to on the 6th of September 1978 and,
it was published in Gazette No. 34 dated
the 15th of September, 1978.
Section 16 of the Interpretation Act 19 of 1977 provides that every
act shall be published in the
Gazette and shall come into operation
on the expiration of the day next preceding the day of the
publication unless the act concerned
or some other law provides
another day for its commencement. Neither the Act nor any other law
provide for a date of commencement
other than the date of the
publication in the Gazette. It thus follows that the Act came into
operation at the beginning of the
day in which it was published in
the Gazette, and that it was binding on the parties to the present
litigation as from that date.

It is for
the above reasons that the Court struck out the application to this
Court for leave to appeal. The way remains open to
applicant to
follow the correct procedure by approaching the High Court for leave
to appeal.

In the
case of M. Mahloane v. Rex and Forrester v. Rex orders were also made
striking off the respective applications from the roll.
These cases
are in pari materia with the present case and though the
circumstances are not identical both the latter cases labour
under
defects similar to those present in the case being dealt with and the
orders were there made for the same reason.

Signed: L.De V. Van Winsen

L.VE V. VAN WINSEN

Judge of Appeal

I agree
Signed: I.A. Maisels

I.A. MAISELS

President

I agree
Signed: P.H. Tebbutt

P.H. TEBBUTT

Judge of Appeal

Delivered
this 12th day of January, 1981 at MASERU.

For
Applicants

For
Respondents