CRI/A/20/81 IN THE HIGH COURT OF LESOTHO

In the Appeal of :

MONYANE MOHALE Appellant

v
REX 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

- 3 -

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 ....

- 4 -

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.