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.