HIGH COURT OF LESOTHO
by the Honourable Sir Peter Allen on the 10th day of April, 1987.
Appellant was convicted by a magistrate at Leribe on 16 September,
1986, of stock theft (stealing 15 sheep) and sentenced to
pay a fine
of M500 or imprisonment for 12 months in default.
offence occurred at night by moonlight and the conviction of the
Appellant depended largely upon the identification of him by
young boys who were eyewitnesses. The main ground of appeal is
the doubtfulness of the reliability on such identification
Crown also concedes that the identification by those boys was
insufficient and not very convincing.
occurred on 6 June, 1985, and the trial took place in September 1986,
one year and three months later. Thus the witness
(P.W.3), who said in court that he was 15 years old, would have been
years old at the time of the offence. His testimony was that he woke
up and saw three men stealing the sheep and that he
Appellant by moonlight because he knew him and he was only about 10
paces away. The witness admitted that the men
had their backs to him
as they were driving away the sheep. He added that he recognised the
Appellant when he turned round to throw
stones at them when the boys
shouted at them. He attempted to strengthen his identification by
saying that the Appellant wore a
Setsoto blanket which he claimed
only the Appellant owned in that village. I wonder how he would know
not appear to me to be a very convincing identification. It would
have been easy to mistake a person's face in such conditions
witness might well have been mistaken or lying in regard to the
blanket. I would expect to find some sort of corroboration
relying upon it.
boy, Moshe Mofeli (P.W.4) said he was only 10 years old in Court. So
he was perhaps 8 or 9 at the time of the theft. He
was clearly of
tender years and the courts have to take special precautions when
such a child is offered as a witness.
court record merely shows that he was put on oath. This is most
unsatisfactory. In such cases the magistrate should first
the child on a voire
as to ascertain whether or not he understands the meaning and
significance of an oath. Otherwise it is pointless to allow
take an oath. The magistrate must also question the child in order to
discover whether he is intelligent and he understands
difference between telling the truth and lies and the need for him to
be truthful in his testimony.
child is sufficiently intelligent and he understands questions and
the need to be truthful* but he does not understand what
is meant by
an oath, then he can be allowed to testify unsworn under s.222 C.P. &
E. Act, 1981. But such evidence would require
corroboration and it
could not be used itself to corroborate any other evidence.
As far as
I can see, the magistrate failed to follow this procedure and
consequently the testimony of this child should not have
recorded and it cannot safely be relied upon. In fact his evidence
was of a similar type of alleged identification to that
of the other
boy, Thabo (P.W.3), and so it was not very convincing anyway,
particularly as it occurred at night and the thieves
the identification testimony of these two boys there was really no
case against the Appellant for none of the stolen animals
in his possession. so there was no corroboration of that sort.
with counsel both for the Appellant and for the Crown, that it would
be dangerous to rely alone upon this evidence of identification.
There were obviously possibilities of the boys being mistaken and
this inevitably raises an element of doubt about the conviction.
this appeal is allowed and the conviction of the Appellant for stock
theft is quashed and the sentence set aside. The
bail of the
Appellant is discharged.
Appellant : Mr. Mpopo
: Mr. Mokhobo
present on bail. Judgment delivered.
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