The appeal had been filed in relation to his conviction on two counts of corruption and one count of money laundering. However, on Tuesday the bench of the Court of Appeal President Justice Tebogo Tau, Justices Lakhvinder Singh Walia and Baaitse Nkabinde told Morupisi he will go ahead with the appeal against his wishes. In a judgment headed by Justice Walia, Morupisi was said to have used in his argument for withdrawal a court rule which make no provision for leave of court calling it rather opportunistic “The appellant’s argument that the withdrawal was in terms of Rule 43 (1) where no provision is made for leave of court is at best opportunistic,” said Walia. He explained that there were also shades of disingenuity in that Morupisi in his argument deliberately avoided referring to a specific subrule under which the withdrawal was made. Justice Walia stated that subrule (1) was only sprung on them in the heads of argument and that what Morupisi sought to do was to isolate subrule (1) from the other provisions of Rule 43. “This he cannot do, for in terms of Section 29 (1) of the Interpretation Act (Cap 01:04), an Act or Instrument shall be construed as a whole. 25. Each of subrules (1) and (4) of Rule 43 deals with the withdrawal of an appeal. Subrule (1) deals with withdrawal before the hearing, and subrule (4) deals with withdrawal after an appeal has been called for hearing,” he pointed out. Justice Walia said while no leave is required if withdrawal is made before the hearing, no withdrawal may be made without leave of court after the appeal has been called.
The judge, in detailing the ruling, explained that in terms of the Rules of the Court, a clear distinction is made between civil and criminal appeals. He stated that Rule 43 is concerned with criminal appeals and that each of these rules is differently expressed and has its own characteristics. According to the judgment, Rule 43 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 Register. It further reads 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 respondent, the prison authority, and the Registrar of the court below, and shall return to the Registrar of the court below the original file and exhibits received from him or her. Justice Walia said the rule shall not apply to an appeal involving the sentence of death, which is dealt with in terms of Rule 4. “After an appeal has been called on the date set for hearing, it may be withdrawn only with the leave of the court, which shall not be granted if the court is of the view that it is proper to exercise any of its powers under Rule 32 to vary the conviction returned or the sentence imposed by the court below. (subrule (3) above has been held to be ultra vires the Court of Appeal Act),” said Justice Walia. He stated that the issue under consideration in the matter is based on a proper interpretation of Rule 43, revealing that in his view, the determination can be made by the application of interpretation generally referred to as the golden rule. “The golden rule, simply stated, Iis that the language in a document or statute is to be given its grammatical and ordinary meaning unless that would result in some absurdity, repugnancy or inconsistency with the rest of the instrument. In applying the golden rule, sight must not be lost of the context in which the provision to be interpreted is used,” Justice Walia said.
He mentioned that there are two elements of Rule 43 (4) at play, one, the date set for hearing and two, the calling of the appeal on the date so set noting that in the context of the Rules of the Court, a prescribed sequence of events is provided before the appeal is called for hearing. Furthermore, he explained that Rule 3 (4) provides that, "The Registrar shall by no later than November 30 in each year cause to be published in the Gazette the proposed dates of each session for the following year. While Rule 3 (5) provides that, "The Registrar shall in addition no later than three weeks before the start of each session other than application sessions cause to be published in the Gazette confirmed session dates, and the list of cases proposed to be heard in that session, and shall thereafter (or as soon as practical in the case of application sessions) cause to be delivered to all parties a Notice of Hearing for roll-call and the roll showing dates of hearing of each appeal or application."
He once more pointed out that Rule 3 (10) provided that each session of the court shall commence with a general roll-call to be attended by parties or their counsel at which hearing dates shall be confirmed by the court for each appeal or application to be heard during that session. In reference to the Rules of Court, Justice Walia said the sequence was followed properly in the appeal and the date of hearing was specifically notified at the roll-call. “Splitting hairs by seeking to differentiate between roll-call and hearing is, in my view, mischievous. This court has dealt with numerous incidences of withdrawals of appeals, both before the date of hearing and after the appeal has been called for hearing,” he said. He said on that ground alone, the purported withdrawal cannot be allowed to stand and briefly dealt with the other argument advanced by Morupisi, starting with Rule 32. The judge explained that in terms of Rule 43 (4), leave shall not be granted where the court is of the view that it is proper to exercise any of its powers under Rule 32 to vary the conviction returned or the sentence imposed by the court below.
Justice Walia emphasised that the portion of Rule 32 relevant to the ruling was subrule (2), which provided that the court shall have power to draw inferences of fact and to give judgment and make any order which ought to have been made by the court below and to make such further or other order as the court may deem fit. In conclusion Walia stated that the aforesaid powers may be exercised by the court notwithstanding that an appeal may be that part only of the judgment be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from, or complained of, the decision. He struck out the notice of withdrawal and ordered that the appeal shall proceed on the grounds filed.
