HIGH. COURT OF LESOTHO
Application of :
by Hon. Acting Mr, Justice M. Lehohla on the 27th day of April, 1988.
did not oppose an application moved by Dr. Tsotsi wherein applicant
sought an order
time within which to note en appeal,in the Criminal Case No. 84/87
tried in the Thaba Tseka Subordinate Court on 19th
such further and/or alternative relief as the High Court may deem
argued that (b) above did not exclude adoption of a procedure whereby
this matter can be resolved by way of review. The crown
to this proposition.
Thetsane for the crown went further to draw to my attention the fact
that perusal of the record reveals that the prosecution
Subordinate Court did not prove its case beyond reasonable doubt.
charge sheet alleges that applicant had stolen 45 pieces of
scaffolding, 2 planks, 2 poles and one sand-sieve belonging to
appears that applicant was spotted in the yard of Basotho Pony where
the above items were kept. Applicant admitted that the vehicle
was spotted in that area was his and driven by him. It appears
was in fact in the evening when his vehicle was seen there. Applicant
explained that he drove off when he saw Trooper Seeiso
approach him because he feared that he had been tresspassing in the
Basotho Pony yard.
warned that should there be discovered that anything went missing
where he had been trespassing he admitted that he would be
my view is what constituted the crux of the matter in the Subordinate
Court, where the prosecution went no further than
aspect of the matter as the peg on which the Crown's sermon was to
hang. It seems to me that when thus confronted
and admitted that it is a matter of common sense that if anything
went missing in that yard his careless
act of tresspass would qualify
him as a prime suspect.
evidence proved that he had tempered with any of the property
appearing in the charge sheet. No search was mounted in his premises
and house. The police contended themselves exclusively with what
applicant told Trooper Seeiso, The crown in turn grasped it as
of guilt The trace from where he had been spotted near the Basotho
Pony dam to his place was a matter of minutes such that
he would not
have had an opportunity to dispose of the property alleged to have
been stolen moreover the property, itself was of
such bulky nature
that even if an attempt to dispose of it by throwing it alongside the
way it would not have been concealed.
that some of the property mentioned above happened to have gone
missing from the shed does not make applicant the thief..
amounted to making him a suspect. The fact that he admitted that it
is common sense that he would be a suspect does not
prove that he had
stolen that property.
satisfied that the crown failed to prove beyond reasonable doubt that
the property referred to in the charge sheet was stolen
to me that the learned magistrate erred in receiving the evidence of
P.W.3 No. 5693 Trooper Seeiso to the effect that applicant
certain admissions, to him because those admissions in any event
would amount to a confession of the offence to a policeman;
thus would be inadmissible. Short of these so called admissions made
by the applicant no evidence pointed to his guilt.
therefore the order for conviction and sentence imposed by the
learned magistrate is set aside. The fine paid by applicant
accordingly be refunded to him by the office of the court that
convicted and sentenced him.
Applicant: Dr. Tsotsi.
: Mr, Thetsane.
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