HIGH COURT OF LESOTHO
Appeal of :
the Hon. Mr. Justice B.K. Molai on the 15th day of May, 1985.
already dismissed this appeal and the following are my reasons for
appellant appeared before the Subordinate Court of Butha-Buthe
charged with two counts of Stock Theft on the allegations that
Count I "Upon or about the 29th September, 1983 and at or near
Boiketlo in the district of Butha-Buthe, the said accused did
wrongfully, unlawfully and intentionally steal one cow the property
or in the lawful possession of Khoboli Raletsoho."
Count II "Upon or about the day between 1st and 30th September,
1983 and at or near Khukhune at Tanarai's in the district
Butha-Buthe the said accused did wrongfully, unlawfully and
intentionally steal one horse the property or in the lawful
of Nkosenye Motsekeli."
he pleaded not guilty to the charges, the Appellant was, at the end
of the trial, found guilty as charged and sentenced
to serve a term
of 12 months imprisonment on each count.
against both his convictions and sentences that the Appellant has
appealed to this court on the grounds that the convictions
against the evidence and the sentences excessive. .
evidence of P.W.5, Tpr. Jersy, was that he was a member of the Stock
Theft Unit stationed in Butha-Buthe. During December, 1983
he was on
patrol at Matsoaing when he came to Appellant's home and noticed a
red cow, white underbelly and a chestnut foal with
no earmarks next
to Appellant's house. He asked the Appellant as to whom those animals
belonged and the Appellant replied that
they were his property.
P.W.5 noticed, however, that the earmarks on the cow were not the
same as the earmarks which the Appellant
had, on an earlier occasion,
described as his. Questioned about that the Appellant told P.W.5 that
it was because he had bought
the cow from the Republic of South
Africa. The Appellant could not, however,disclose the name of the
seller nor could he produce
any document as proof that he had bought
the cow from some other person. P.W.5 became suspicious about the
legality of the Appellant's
possesion of the two animals. He
nevertheless decided to leave the animals in the possession of the
Appellant while he carried
out further investigations about them.
When he later returned to the Appellant's home, P.W.5 found only the
foal. The cow was no
further investigations, P.W.5 found the same cow in the possession of
P.W.3 Panya Phetane, who explained that it was the property
Appellant. P.W.3 testified on oath and confirmed that the cow was
found by P.W.5 in his possession after the Appellant had
lent it to
him for ploughing.
to P.W.5, he then took possession of both the cow and the foal which
he brought to the police pound in Butha-Buthe. Both
the cow and the
foal had, however, subsequently died at the pound while still in the
custody of the police and only their hides
were produced as exhibits
at the trial.
Appellant gave evidence on oath and denied knowledge of the two
animals. In particular he denied that P.W.5 ever came to him
home where he found the cow and the foal which he (appellant) said
were his property. He denied to have told P.W.5 that
he had bought
the cow from the Republic of South Africa. In fact, on the day P.W.5
alleged to have come to his home he (Appellant)
The Appellant likewise denied the evidence of P.W.3 that he had lent
him the cow for ploughing.
magistrate before whom all witnesses appeared and testified accepted
as the truth the evidence of P.W.5 corroborated,
to some extent, by
P.W.3 that the animals were found in the possession of the Appellant.
He rejected as false the Appellant's story
that P.W.5 never found him
in possession of the two animals.
not disputed that P.W.5 was a member of the Stock Theft Unit in the
police force. As such it is in the nature of his work
deals with a large number of people. I see no apparent motive why
P.W.5 should pick upon the Appellant and falsely incriminate
this case. The probabilities are high, therefore that P.W.5 was
testifying to the truth when he told the Court that he had
two animals in the possession of the Appellant who then explained
that they were his property. I am not prepared to interfere
finding of the trial magistrate on this point.
It is not
clear to me why P.W.I, S.T. Smallberg, a farmer in the Orange Free
State province of the Republic of South Africa was
called as a
witness in this case. There was nothing in the evidence of P.W.5 to
suggest that the Appellant, or anybody for that
matter, mentioned him
as the person from whom the appellant had obtained any of the
animals,, the subject matter of the present
as it may, P.W.1 told the Court that he owned animals some of which
he sold to various people. P.W.I was positive, however,
that he had
never sold any animals to the Appellant whom he saw for the first
time before the trial Court.
evidence of P.W.2, the complainant,in count 1 was that one night in
September, 1983 he had fastened one of his cows in his kraal.
a red cow, white under-belly with a white brush. It was earmarked R/E
L/E stump. In the morning he found the cow missing from the kraal. No
one had his permission to take it away and so he started
a search for
the missing cow.
course of the search, he came to the police pound at Butha-Buthe
where he identified his missing cow. It then had additional
superimposed on his original earmarks. He, however, had no difficulty
in identifying the cow as his property because its
were still partially visible.
P.W.4, the complainant in count II, testified that one evening in
September 1983, he tethered his mare together with its
foal at his
home in Khukhune. On the following morning,he found both the mare and
the foal missing. He too had not permitted any
one to take away his
animals. He, therefore, started searching for them. One day during
the search, he found that the mare had
returned home on its own. He,
therefore, continued the search for only the foal. In January,
1984, he came to the police pound
in Butha-Buthe where he identified
the missing foal. The foal had not yet been earmarked and so he
identified it by its colours
only. It was a chestnut foal with a
star, four socks and a whitish brush with some dark colours.
P.W.2 and P.W.4 confirmed the evidence of P.W.5.that the cow and the
foal had since died and only their hides were before the
evidence of P.W.2 and P.W.4 that in September, 1983 they were
deprived of their animals without their consent, and, therefore,
unlawfully, was not really disputed. In my view, the trial
magistrate rightly accepted it as the truth. That being so, the
issue that remained for the determination of the court was whether or
not the unlawful taking of the animals was done with
intention to steal i.e. to permanently deprive the complainants of
reasons already explained, I have pointed out that there was nothing
unreasonable in the trial
accepting, as he did, the evidence of P.W.5 that the animals were, in
December, 1983, found in the possession of the
appellant who then
claimed them as his own property. The intention to steal is not
something that we can reach with any of our
five senses. It is a
matter of inference from either the acts or words of the appellant.
From the fact that when P.W.5 found the
animals in his possession,
the appellant claimed them as his property, the only reasonable
inference to be drawn was that he (the
appellant) had the intention
to permanently deprive the complainants of those animals.
therefore, came to the conclusion that the answer to the question
whether or not the unlawful taking of complainants' animals
effected with the requisite intention to steal was in the affirmative
and the trial magistrate correctly found the appellant
charged on both counts.
majority of our society still depends heavily on animals for its day
to day life. That accounts for the seriousness of the crime
Theft. Ironically stock theft is one of the offences that are
committed with monotonous repetition in this country. Regard
had to the seriousness of this offence, I was not convinced that the
sentences imposed on the appellant in the present case
were so harsh
or exessive as to call for the interference of this court.
I came to
the conclusion, therefore, that the appeal ought not to succeed and
accordingly dismissed it.
Appellant : Mr. Phakoane
Respondent : Miss Moruthane'.
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