CRI/A/102-103/84

IN THE HIGH COURT OF LESOTHO

In the Appeal of :

PAKI TSOSANE 1st Appellant

CHABANA TSOSANE 2nd Appellant

V

REX Respondent

JUDGEMENT

Delivered by the Hon. Mr. Justice J.L. Kheola on the 25th February, 1985.

The appellants were charged with the offence of stock theft in that upon or about the 10th January, 1981 at or near Malibamatso cattle post in the district of Thaba Tseka the said accused did each or both of them wrongfully, unlawfully and intentionally steal thirty sheep the property or in the lawful possession of Moshosho Lekhooana. There was a second charge concerning the theft of 40 sheep the property of Pheelo Ramone. The accused pleaded not guilty to both charges but they were found guilty as charged on count 1 and each of them was sentenced to two (2) years' imprisonment.

The learned magistrate said nothing about the second charge. It is trite law that once the accused persons have pleaded to a charge, they are entitled to a verdict even if no evidence has been led. In the present case the Crown led evidence of Pheello Ramone who alleged that he found one of his

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missing sheep in the possession of the appellants through their shepherd. The sheep was found in the same flock of sheep in which the sheep of Moshosho were found. I shall deal with this irregularity at the end of my judgment. The appellants now appeal

to this Court against both conviction and sentence in count 1.

The complainant, Moshosho Lekhooana, deposed that in January, 1981 his two hundred sheep were at a cattle post near the banks of Malibamatso River. Mafole Rasenoko (P.W.2) was looking after them. They were all earmarked stump on the R/E and two half-moons behind the L/E. They were all painted with rod paint behind the right 'arm' . During January, 1981 Mafole reported that thirty sheep were missing. He (complainant) made the usual report to the nearest police station and he also instructed Mafole to search for them because at that time he was ill, Mafole later returned and told him that he had found some of the sheep at the cattle post of the appellants but had left them behind. The police were informed and one Trooper Qokolo accompanied by Mafole and Pheello went to Senqunyane. They brought back five sheep of which three had lambs. Four of the sheep had their original earmarks intact but the earmarks of the fifth sheep had been tampered with by the insertion of another half-moon on the L/E. Two " lambs had not yet been earmarked while the third was earmarked. All the lambs were still suckling from their mothers.

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Mafole Ramone's evidence was to the effect that after he had reported the loss of the sheep to the complainant he and Phehello and other men from the anti-stock theft league searched for the missing sheep. They arrived at the cattle post of the appellants at Senqunyane where they found a small boy named Thabiso Mphanya (P.W.3) who was the shepherd of the second appellant. Immediately after they had arrived at the cattle post and identified some of their missing sheep, the appellants arrived and were very aggressive. Mafole says that they became scared and decided to leave the sheep behind. Tpr. Qokolo accompanied them back to the cattle post where they found five of the missing sheep and three lambs. One sheep belonging to Pheello (P.W.4) was also found at the cattle post. As the appellants were not present at the cattle post when Trooper Qokolo and his party arrived, Thabiso Mphanya was instructed to inform the appellants to report themselves at Thaba-Tseka police station. The sheep were driven to Thaba-Tseka,

Under cross-examination Mafole said that the appellants said they bought the sheep. He admitted that a jackal can disperse sheep if they are not kept in a kraal at night but he denied that because of a jackal sheep could stray very far from their cattle post. He said from his cattle post to Senqunyane is two days' journey.

I now come to the evidence of Thabiso Mphanya who

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was the shepherd of the second appellant. He herded the sheep of both appellants at a cattle post situated at Senqunyane. His employer had three sets of earmarks, viz. Monoto R/E and ½ moons infront L/E, yokeskei and swallow tail on both ears; stump and two ½ moons (but the witness could not remember on which ear). One day the complainant arrived and identified some seven sheep as their property. These sheep were some of the ten sheep that were brought to the cattle post by the appellants alleging that they had bought them at Thaba Tseka. They were painted with red paint behind the right front leg. The complainant and his party went away leaving the sheep behind. They returned later accompanied by a policeman and a group of men. On the two occasions the men came to the cattle post, the appellants were at home. He denied that the police ever confronted him with the appellants.

The evidence of Pheello Ramone is in most respects similar to that of the complainant. He said that they did not arrest the shepherd because there would be no one to look after the animals.

Trooper Qokolo deposed that he went to the appellants' cattle post on the 7th February, 1982. When he met the appellants in August, 1982 he confronted them with Thabiso and they claimed the sheep as their property and said they bought them at Mapoteng.

The last Crown witness was Mahomed Tlali who is a gazetted headman. In 1981 the appellants arrived in

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his village driving more than 20 sheep bearing the following earmarks: R/E stump L/E two half-moons behind, they had red paint mark behind the left front leg. The appellants produced bewyses which were very old and appeared to have been erased. He took the appellants together with the sheep to his senior chief who later released the sheep to the appellants on the ground that there was no complainant, I shall disregard the evidence of this witness for the simple reason that on the 1st May, 1984 the learned magistrate allowed the appellants to reserve cross-examination for their lawyer who had failed to appear that day. The case was postponed to the 21st May, The appellants were warned to inform their lawyer of the new date. On that day he again failed to appear and the case was postponed to the 4th June. On that day he again failed to turn up. By this time the second appellant had also disappeared The case was postponed to the 18th June. Again the lawyer and the second appellant failed to appear. A warrant of arrest was issued and the case was postponed to the 2nd July. On that day the court decided to proceed in the absence of the lawyer. I think the Court was justified because on several occasions the appellants were on several occasions the appellants were advised to bring their lawyer to court, alternatively they were advised to instruct another lawyer, Dr. Tsotsi, who has an office at Thaba-Tseka. The only irregularity committed by the court is that when the learned magistrate decided to proceed in the absence of the lawyer he failed to give the appellants

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the chance to cross-examine the witness. He ought to have told them that as their lawyer had vanished into thin air they were given the opportunity to cross-examine that witness.

The appellants elected to remain silent.

At the hearing of this appeal the appellants were represented by Dr. Tsotsi. He submitted that the sheep were not found in the possession of the appellants and that none of them bore the earmarks of the appellants. I must point out that P.W.3, the person in whose possession the sheep were found, was the shepherd of the second appellant. He was looking after the sheep of both appellants. One may be said to possess a thing which is at one's cattle post or in one's house or in the custody of one's servant or agent (Mpesi v Rex. 1967-1970 LLR. 112). It is not correct that the sheep did not bear the earmarks of any of the appellants. P.W.3 said the second appellant had three sets of earmarks. The earmarks described in the third set are similar to those of the complainant (see page 5 line 10 of the record). There was no need for the second appellant to tamper with the earmarks because they were similar to his.

Dr. Tsotsi argued that P.W.3 was an accomplice, his evidence required corroboration or a warning by the Presiding Officer of dangers inherrent in accepting such evidence. I disagree. P.W.3 is not an accomplice. When the appellants brought the sheep to the cattle post he asked them where the sheep came from and he

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was informed by the appellants that they bought them at Thaba-Tseka. An accomplice is a person who is liable to be prosecuted either for the same offence as that with which the accused is charged, or as an accessory to such offence (S. v. Kellner, 1963(2) S,A. 435). The mere fact that P.W.3 was found in possession of the sheep does not make him an accomplice because he gave a satisfactory account of his possession.

There is no evidence that P.W.3 was ever arrested by the police; so the allegation that having been arrested for possession of the sheep P.W.3 could have been promised immunity in return for implicating the appellants falsely is not supported by any evidence. If the policeman was of the same opinion as the defence counsel that P.W.3 was an accomplice, there was nothing wrong in asking him to give evidence for the Crown. It is a normal practice for the police to inform an accomplice and ask him if he is willing to give evidence against his co-accused. This approach to an accomplice by the police cannot be called a promise to implicate the accused falsely. However, as I have stated above P.W.3 was not an accomplice and the public prosecutor did not declare him as such because he apparently did nob regard him as an accomplice.

It is true that there is a conflict between the evidence of P.W.3 and that of the Crown witnesses as regards the presence of the appellants at the cattle post when the complainant and his party arrived there. P.W.3 says they were not there but P.W.2 and P.W.4 say

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they arrived and were very aggressive, P.W.2 said that the reason why they left the sheep behind was that they were scared of the appellants. This explanation appears to me to be a reasonable explanation why the sheep were left behind. P.W.3 says they just left the sheep behind for no reason but when the Court put a leading question to him whether the appellants did not arrive, he said he could not remember because the events had taken place a long time ago. It cannot be said with any degree of certainty that P.W.2 and P.W.4 were lying when they say the appellants arrived because P.W.3's memory does not appear to be good. There were many things that he had forgotten because the events leading to this case took place in January, 1981 but the trial started on the 10th January, 1984. It means that when the sheep were stolen he was about 16 years old and three years later he was called upon to give evidence. It is understandable why he forgot so many things such as the earmarks of the first appellant; the number of sheep the appellants first brought to the cattle post and the number of sheep returned to the cattle post by the appellants after they had driven them home.

The evidence of P.W.3 is corroborated by P.W.2 and P.W.5 that the appellants said the sheep were theirs. It seems to me that this is the reason why even after P.W.2 and P.W.4 had left the sheep at the cattle post, the appellants made no attempt to remove them before the police came. They apparently thought that they had a good title to the sheep. Trooper Qokolo told the

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Court a quo that the appellants first said they bought the sheep but later changed and said the sheep were the progeny of their sheep. At the trial it was put to the witnesses that the appellants would say they do not know anything about the sheep that had remained at their cattle post for more than a year. The trial Court believed the Crown witnesses and in doing so I cannot say there was any misdirection. After all the appellants decided not to give any evidence; a factor which the Court a quo was entitled to take into account because Crown witnesses gave evidence which directly implicated the appellants. Their failure to testify or to rebut a prima facie case against them, was almost bound to strengthen the case for the prosecution (S v Nkombani, 1963(4) S.A. 877 (A.D.) at p. 893G, S. v Snyman 1968(2) S.A. 582 (A.D.) at p. 588G).

The last question that I want to deal with is whether the trial court was right to convict the appellants of the theft of 30 sheep. In convicting the appellants the learned magistrate relied on the evidence of P.W.6. For reasons I have given above I rejected that evidence. We are now left with the evidence of P.W.3 who says the appellants brought more than ten sheep but he could not be precise. Trooper Qokolo and his party found only five sheep and three lambs. The evidence reveals that the sheep went missing in January, 1981 and that the five sheep were recovered in February, 1982. In my view the period between the loss and the finding was not recent enough

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to Justify an inference that the appellants stole all the missing sheep. Anything could have happened to the other sheep during that long interval. In the result the proper verdict ought to have been one of guilty of the theft of eight sheep.

With regard to count 2 the proper thing to do would be for this Court to send back to the trial court the proceedings of this case with the instruction that the learned magistrate should return a proper verdict. I do not propose to follow that procedure for the obvious reason that this case has been hanging over the heads of the appellants for well over four years, I find the appellants not guilty in count 2.

For the reasons given above the appeal against conviction in count 1 partly succeeds. The appellants are found guilty of the theft of eight sheep. The sentence is accordingly reduced to nine (9) months' imprisonment with effect from the date of their conviction.

JUDGE

25th February, 1985.

For the Appellants : Dr. Tsotsi

For the Crown : Miss Nku.