IN THE HIGH COURT OF LESOTHO
In the Appeal of :
MBUYISELO FANI Appellantv
Reasons For Judgment
Filed by the Hon. Judge Mr. Justice M.P.
Mofokeng on the 10th day of April, 1980.
The appeal has already been dismissed for
reasons which follow.
The appellant and another (who has not
appealed) were charged before the Qacha's Nek Subor-
dinate Court with having contravened the provisions
of section I6(I) of the Stock Theft Proclamation, as
amended, in that on or about the 1st July, 1979
and at Mpiko's they were found in possession of 25
sheep in regard to which there were reasonable grounds
that their acquisition had been unlawful and that the
accused were unable to give satisfactory explanation
of their possession. To this charge they pleaded notguilty but were found guilty and they were sentenced
to 12 and II months imprisonment respectively.
The Crown led evidence to the effect that on
the 1st day of July, 1979, L/Sgt. Ntsane who was on a
stock theft drive, and in the company of other witnesses,
on information, went to inspect the flock of sheep at
the cattle-post of the appellant. These witnesses all
say that on that day the appellant selected amongst
other sheep about 24 sheep. He explained, on being
questioned, that he and his co-accused with whom he
herded, had found the sheep straying at a place called
Qolo-Qolo and had then divided the sheep between themselves.
Appellant took nine sheep and earmarked eight for his
mother and the ninth for himself. The earmarks of
the appellant are as follows :
Right ear : Winkelhaak (front)
: two ½ moons (behind)
Left ear : Stump
: Snip (behind)
His mother's earmarks are similar save that the snip
on the left ear is on the front. These are the ear-
marks that the Court found on inspecting the nine
sheep. The Court also observed that the other ½
moons on the right ear were fresh and the old one was
square as if it had been made with a clip-machine.
The appellant's explanation is that he used a knife
to make the square ½ moons. A Crown witness who
has actually effected such square ½ moons on his
sheep was quite adamant that it could not have been
made by a knife but a clip-machine.
Appellant in giving evidence stated that
the animals with which he was charged belonged to his
mother and that he only gave the explanation he did
because L/Sgt. Ntsane assaulted him. He further
explained that he earmarked his sheep at intervals.
It is quite evident from the evidence that
the earmarks (especially the i moons) on the sheep the
subject of the charge, were not similar to the ½ moons
on the sheep left behind at the cattle-post of the
appellant. His explanation as to why they were not
similar (all sheep being his or his mother's) is far
from being satisfactory. (Mokotla Mojaki v. Rex.
1971-73 L.L.E. 53; Makeng Mpesi v. Rex. 1967-70 L.L.R.
112; Mapota Napo v. Rex, 1971-73 L.L.R. 5).
The trial Court, having found that appellant's
explanation was untrue and therefore, in the circumstances;
unsatisfactory, returned a verdict of guilty of contra-
vening section 16(I) of the Stock Theft Proclamation (as
/amended ) .....
amended). I am unable to hold to the contrary.
There is a notice for hearing attached to the
record of appeal addressed to the appellant. It reads:
" NOTICE OF HEARING
TAKE NOTICE that your appeal to this
Court (i.e. High Court) against your
conviction and/or sentence in criminal
trial No, 29479 held at Q/Nek in the
QACHA'S NEK district for the offence
of STOCK THEFT shall be heard before
the High Court at MASERU on the 4th day
of April 1960 at 9.30 a.m.
It was served on the appellant, at the Central Prison
on the 21st February, I98O. Meanwhile, according to
the Roll of cases for hearing the same matter was to
be heard on the 2nd day of April 1980. The appellant
was not aware of this latter date. Since the appeal
had been originally setdown for hearing on the 4th
day of April I98O which day was a public holiday, then
in terms of section 49(I)(b) of the Interpretation
Act No.19 of 1977 it was heard on the 8th day of April
1980 which was the next following day which was not a
Sunday or public holiday.JUDGE.
10th day of April, 1960.
For the Appellant : Mr Jobodwane
For the Respondent : Mr Peete.
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