CRI/A/20/81 IN THE HIGH COURT OF LESOTHO
In the Appeal of :
MONYANE MOHALE Appellant
vREX Respondent
JUDGMENT
Delivered by the hen. Justice F.X. Rooney on the 9th day of September, 1981.
For the Appellant : Mr. Moorosi
For the Crown: Mr. Lenono
The appellant appeared before Mr. B.G. Mapesheane on the 3rd October, 1980 with an other person charged with the theft of 12 cattle and I horse in Natal which it was alleged had been brought into Lesotho by the two accused persons. There was another charge sheet included in the record of the proceedings in the court below relating to an offence in respect of the same stock which is rather confusingly rendered as
"Con. Sec.16(1) Proc. No.80 of 1921 as amended by Sec.14(c) Act No.33 of 1967 unlawful possession of stock."
I would be surprised if either of the accused persons
understood the references. I do not know what happened to this charge and there is no indication anywhere that it was ever put to the accused persons in any form. The magistrate duly recorded a verdict of guilty as charged and I have assumed for the purpose of this appeal that he had in mind the charge of stock theft only.
Much of the record is undated but I have been able to ascertain that the conviction was recorded against the appellant on the 3rd November, 1980. The other accused was acquitted and discharged.
2/ The appellant ....
- 2 -
The appellant was sentenced to two years imprisonment. He lodged his appeal against both conviction and sentence on the 13th November. Although the typed record does not exceed 25 pages and this was a case which was subject to automatic review by this Court, no action was taken to transmit the record to the High Court for either appeal or review until the 14th April this year. I can only describe this as a shocking state of affairs as the appellant was serving his sentence and he has a right to have his appeal heard with reasonable despatch. But there is worse to follow.
On the 22nd April, my brother Mofokeng J. gave directions that this appeal was to be placed on the Court roll for hearing. I do not know why no action was taken by the Registrar of this Court to act on that direction before the matter was set down on the 14th August nearly 4 months later. It would appear that the remarks I made in the case of befifi v Rex 1980(1) L.L.R.i have gone entirely unheeded and there is an insensitivity to the rights of convicted persons to have their appeals heard within a reasonable time prevelent at both subordinate and High Court staff levels. This is not something that the Department of Justice need be proud. If matters were better organised the average criminal appeal should be heard and disposed of within one month of a conviction.
It was alleged that the 12 cattle and 1 horse were stolen on or about the 16th August, 1980, and they were seized by the police sometime towards the end of September... There appears to be no provision made for the feeding of stock after their seizure by the police in the course of criminal investigations. The result is that the animals frequently starve to death to the detriment of their owners and the economy as a whole. It is not my responsibility to suggest hew these losses should be avoided. It ought to engage the concern not only of the police but of the Department of Agriculture.
It was probably in an effort to prevent the deterioration of the cattle that the magistrate on the application of the public prosecutor inspected the stock on the 23rd October, 1980 in the presence of the appellant and his co-accused.
3/ No pleas
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No pleas had been taken at that time and the trial did not in fact commence until the 30th October. The inspection of the stock and the recording of their description by the magistrate was therefore not part of the trial, and inasmuch as it was intended to exhibit the animals in question to the Court it was irregular. At the end of the inspection, the appellant who was not represented said that he had no objection to the stock being released to the complainants provided that they were brought back when the trial commenced. however, the two complainants said they would not be able to return the cattle as they were in poor condition. The prosecutor suggested that some arrangement might be made with the South African police. The idea of trekking cattle to and fro over the Drakensberg whatever their condition appals me.
In the result therefore when the trial proceeded and reference was made by various witnesses to the cattle alleged to have been stolen, they could only describe the beasts but they could not identify them. This gave the appellant the opportunity to advance the case that the cattle were his and not stolen in Natal. The witness July Matsumunyane (PW.5) who said he was a member of a "Private Society for the Search of Stolen Stock" said that on the 24th October, 1980, he met the appellant and told him to go to the chief's place as he was a suspect. The magistrate's note of the evidence goes on "
"He said he was going to the police, we then went with them to the police, then accused 1 (the appellant) said they are his stock altogether he did not explain hew he acquired their possession but at Masaleng said he has stolen at Mashahlane in the Republic of South Africa we released the rest but seized 12 cattle and a horse and handed them to the police."
The manner in which this evidence is recorded is to say the least of it ambiguous. Neither the appellant nor the magistrate asked any questions of this witness which might have established what precisely the appellant said and in what circumstances.
The witness 'Mantsabeng Mohale (PW.4) said that the appellant is her brother-in-law's son. She said that the appellant did not possess any cattle. She went on to say
4/ that before ....
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that before the previous winter the appellant had four head of cattle one of which was sold, two were taken by a Court in execution and the last one died. She said that the only-stock which the appellant possessed was a brown mare and some donkeys. This evidence was challenged by the appellant.
A perusal of the whole record leaves me in no doubt that the charge could have been brought home to the appellant without much difficulty if the animals had been produced in court and properly identified by their owners. But, as things stand the irregularity I have mentioned made this impossible and the appellant was denied the opportunity of challenging the evidence of the prosecution witnesses on the most important aspect of his defence. While it is more than probable that he would have failed in his efforts to throw doubt upon their ownership, justice requires that he should be given the benefit of the doubt.
This appeal is allowed and the conviction and sentence
are set aside.
F.X. ROONEY JUDGE
9th September,1981.
Attorney for the Appellant : Legal Aide Division Attorney for the Crown : D.P.P.