08 Dec 2022

The Court of Appeal has decided not to deal with Mompati Matlhare’s application for leave to appeal out of time as it was deemed to be invalid.

Delivering the Court of Appeal ruling on Friday, Judge Mercy Garekwe said an application for leave to appeal out of time must give an acceptable reason for delay and show reasonable prospects of success on appeal.

“The application for leave to appeal out of time filed on March 26, 2020 as well as the notice and grounds of appeal filed independently on October 5, 2022 are invalid processes and thus are struck out,” said Judge Garekwe.

The Court of Appeal indicated that the applicant was tried and convicted of the offences of murder and assault occasioning actual bodily harm.

Judge Garekwe said Matlhare was accused of causing death of one Lere Marotsi on October 19, 2012 and unlawful assault of Mbatshi Amos on the head with a stone.

She said he was convicted on both counts on October 9, 2019, where he was sentenced to 12 years imprisonment in respect of the murder charge and three years imprisonment to the charge of assault occasioning actual bodily harm.

In the event that the applicant was not satisfied with his conviction and sentence, Matlhare ought to have noted his appeal within six weeks from the date of his sentence, something he had failed to do, she said.

The CoA said the applicant placed the blame for non-filing of his appeal at the door step of his attorney.

“He contends that he gave the attorney instructions to note an appeal immediately upon the pronouncement of his sentence, but the attorney failed to do so, only filing this application after eight weeks,” said Judge Garekwe.

Therefore, the applicant indicated that if the sins of his attorney were visited upon him, he would be greatly prejudiced more so that he had good prospects of success on appeal.

Judge Garekwe said Matlhare’s application for leave was filed with the Court of Appeal on March 26, 2020, and it was within six months of the delivery of sentence.

Though in compliant with the time frame, Judge Garekwe said the application was not accompanied by a draft notice and grounds of appeal.

Additionally, the court established that the notice and grounds of appeal were filed at a later date independently on October 5, 2022.

Judge Garekwe said, “If the court was to complete the otherwise incomplete application for leave by including the notice and grounds of appeal filed on October 5, 2022, the application can then only be deemed to have been filed on October 5, 2022.”

She further said if the application was deemed to have been filed on October 5, 2022, which was out of time, it must have exceptional circumstances accounting for the delay and satisfy strong prospects of appeal. ENDS