20 Jun 2024

An attempt by Carter Morupisi to withdraw an appeal against his conviction and sentence has been thwarted by the Court of Appeal (CoA).

The CoA on June 19 ruled that Morupisi appeal against conviction and sentence must proceed as filed. Morupisi had filed a notice to withdraw his appeal on February 29, 2024.

Therefore, the appeal is set to continue on June 25,  where the CoA will allow the parties to present arguments on the merits of the appeal relating to whether to or not to vary sentence.

Delivering the ruling, Judge Singh Walia said the ruling dealt with the central question of whether a criminal appeal may be withdrawn without leave of court after the appeal has been called on the date set for its hearing.

Judge Walia said the arising question followed the respondent raising an objection to the appellant filing a notice withdrawing his appeal after it has been called. Morupisi was convicted by the High Court on two counts of corruption and one of money laundering.

Judge Walia said the appellant duly filed his notice of appeal on numerous grounds.

“He sought an order that his convictions and sentences in all the three charges be set aside and be replaced by an order directing that he be discharged and acquitted of all counts,” he said.

He said on February 29, the appellant filed a notice of withdrawal and there was no mention of the rule under which the withdrawal was sought. Following that, Judge Walia said on March 5, the respondent (the state), filed a notice of opposition to the withdrawal of the appeal.

He said after filing the notice opposing the withdrawal, on March 13, the respondent filed heads of argument relating to the variation of the sentences imposed but no heads of argument were filed on behalf of the appellant, supposedly in light of the purported withdrawal of appeal.

Judge Walia said the matter again came before court on March 19, 2024 when the parties were directed to file their respective heads of argument on the central question of, ‘Whether the appeal was properly withdrawn’.

In answering the question at hand, Judge Walia said  the respondent argued that interpretation of rule 43 of the Rules of the Court of Appeal was that leave of court was necessary if the appeal was to be drawn after the appeal was called.

Rule 43 (1) provides that; “An appellant may, at any time before the hearing, abandon his or her appeal or application by giving notice of withdrawal thereof in writing to the Registrar, and upon such notice being given, the appeal shall be deemed to have been dismissed by the court, and shall be so entered in the Criminal Appeal Registry.”

Rule 43 (3) further states that upon receipt of a notice of withdrawal duly completed and signed or marked by the appellant or his or her authorised representative, the registrar shall give notice thereof to the court below, and shall return to the Registrar of the court below the original file and exhibits received from him or her.

Furthermore, Rule 43 (4) in part indicates that; “After an appeal has been called on the date set for hearing, it may be withdrawn only with the leave of the court…”

Judge Walia said there were two elements of rule 43(4) at play, one being the date set for hearing and the other being the calling of the appeal on the date so set.

Judge Walia said the appellant argued that the court should mero motu (voluntarily without influence from another person) give consideration to invoke rule 11 and permit the purported withdrawal.

Rule 11(1) reads; “The court may exceptionally, either mero motu or on application, extend the time set for doing anything to which the rules apply, or may direct or condone a departure from the rules in the interest of justice.”

The appellant was also appealing to the court to invoke Rule 11(2) stating in part that any application for any other purposes permitted by the rules, shall be made on notice to the other party and shall be supported by an affidavit setting forth good and substantial reasons for the applicant.

The case was before the trio of Walia, Tebogo Tau, Bess Nkabinde. The appellant was represented by Mr Busang Manewe while the respondent was represented by the duo of Ms Kentse Molome and Mr Moagi Ndlovu. Ends