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Sello v The State (Criminal Appeal No. 20 of 1984 ) [1984] BWCA 19 (30 May 1984)
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IN THE COURT CK AFFLAL OF BOTSWANA
Criminal Appeal No. 20 of 1984 High Court Criminal Appeal No. 312 of 1983
In the matter between:
RAPULA TSHABANG SELLL0
Applicant
and
THE STATE
Respondent
Mr. M. Dibotelo for the Applicant Mr. Z. Makhwade for the Respondent
JUDGMENT
ISAACS. AJA
The Applicant was convicted in the Magistrates' Court of a contravention of section 324 of the Penal Code and sentenced to 4 years imprisonment of which 2 years tfas suspended for 3 years on specified conditions.
He appealed to the High Court, and his appeal was dismissed by the Acting Chief Justice Hannah A.C.J, who also refused him leave to appeal to this Court and also refused him bail. He now appeals to this Court for leave to appeal and also applies for Bail pending the determination of the appeal.
Section 11 of the Appeal Court Act provides:
•*>
"Subject to section 10 an appeal
shall lie from any decision of
the High Court, or if such leave
has been refused, with the leave
of the Court of Appeal in the
following cases
(d) From an decision in any
civil or criminal proceedings
given on appeal from any other
Court to the High Court
"
Thus, in the present case there is no appeal as of right and as the leave of the High Court was refused, the leave of the Court of Appeal is necessary before an appeal is competent.
Section 9 of the Appeal Court Act provides:-
"Subject as may be otherwise specifically provided by or under this Act, when determining the matter, the Court of Appeal shall be duly consisted of any three members, selected by the President, or of such other number of members, being not less than three , as the President may determine."
Section 9(A) provides:-
"In interlocutory matters a single judge of the Court of Appeal may exercise such powers of that Court as may be prescribed in rules made under section 16"
Section 1^(1) of the Act provides:-
MA single judge of the High Court or of the Court of Appeal may, on the application of the appellant, and pending the determination of the appeal:-
2
{;-
) Admit the appellant on
Bail
"
Rule 8(1) provides:-
"The Court may extend the time prescribed fordoing anything to which these Rules apply, or may direct a departure from these Rules in any way in the interests of justice."
Rule 8(3) provides:-
"An application under this Rule may be heard by a single judge of the Court designated by the President of the Court of Appeal. The President or such judge may grant
or refuse such application or may refer it to the Court for determination."
Rule 46 provides:-
"Any application for leave to appeal
may be heard by a single judge of the
Court designated by the Court of
Appeal. The President or such judge
may grant or refuse such application
or may refer it to the Court for
determination."
leave
It seems to me that a single judge can grant/to appeal, but only if such leave is granted can he grant bail.
In the present application I have considered the heads of argument regarding the merits of the case and consider it to be a question entirely of fact as to whether there has been a sufficient corroboration of the evidence o an accomplice.
3
As this has already been decided by a Judge, it seems to me that I, sitting as a single Judge of appeal should not decide the question, as on an appeal from such Judge. On the other hand I do not want to refuse leave to appeal.
Accordingly I refer the matter for the consideration of the full Court in terms of Rule 49.
I, however, am of the opinion, as I have already stated that as there is no appeal pending at this stage, I cannot grant the applicant bail.
In any case, the learned Acting Chief Justice has refused bail less than a week ago and I am not disposed to disagree with his discretion, sitting as a single Judge of appeal.
I, therefore, refer the questions both on the application for leave to appeal and for bail to the Full Court of Appeal.
GIVEN at the Court of Appeal, Lobatse, this 30th day of May 1984.
I. ISAACS ACTING JUDGE OF APPEAL
4
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