CRI/A/8/85
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
'MATEBELLO MAKOATLE Appellant
V
REX Respondent
JUDGMENT
Delivered by the Hon. Acting Mr. Justice S. Peete on the 21st June, 1985.
The appellant, aged about 49 years, was convicted of the crime of arson by Mr. G.T. Jane, the magistrate at Thaba-Tseke. The appellant
pleaded guilty to the charge which had alleged that on or about the 25th day of December 1985, and at Paraffin village in the district of Thaba-Tseka the appellant had set fire to a house - an immovable property of one Tlali Tlali with intent to injure him in such
property.
The public prosecutor's brief outline of the facts indeed in a greet hurry to get over with the case without caring at all if his
statement disclosed an offence. Under our law arson consists in the "unlawful setting immovable structure on fire with intent to injure another." (Hunt Vol. 11. S.A. Criminal Law - p. 768). The evidence outlined by the Crown must disclose an offence. R. v Khama, 1981(1) LLR. 128. These are the facts which the accused is usually asked to admit or deny. If these facts do not
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disclose an offence, the accused must be acquitted even if he admits them. It is irrelevant that the charge is otherwise alleging the necessary allegations of the offence. The charge sheet cannot supply the facts or essentials not alleged in the outline of the case.
In the present case, Mr. Ramodibedi for the appellant, took the stand that the public prosecutor failed to allege that the house of Tlali Tlali was an immovable property. This indeed the prosecution failed to do; and this court without any additional evidence, cannot take a judicial notice or cognisance of the fact that a house is necessarily an immovable structure. It is upon this ground that the court is of the view that an offence of arson was not proved to have been committed. The prosecutor was certainly careless in outlining his case and as it often happens, this Court will have no option but to uphold the appeals of persons who are in fact guilty.
That is not the end of the matter. A verdict of malicious injury to property is however a competent verdict on an arson charge. (8. v Moten 1963(2) S.A. 521) and this Court can properly in the circumstances of this case substitute the verdict of malicious injury to property. Insufficient though the outlined facts, they however disclosed that the accused unlawfully and maliciously injured the property of Tlali Tlali by setting
fire to it. The proper verdict to be entered is therefore as follows :
"Guilty of malicious injury to property."
Regarding the sentence, Mr. Ramodibedi submitted that it was rather severe more so because since the
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appellant was not legally represented at the trial, mitigating personal circumstances were not fully canvassed. The learned magistrate did not inquire why the appellant burned the house. She is also a first offender in the afternoon of her life and I am of the opinion that a lesser sentence with an option of a fine would meet the interests of the case. The sentence of the Court is altered to read :
"M50.00 or 2 months' imprisonment..
ACTING JUDGE.
21st June, 1985.
For the Appellant : Mr. Ramodibedi
For the Crown : Mr. Seholoholo.