IN THE HIGH COURT OF LESOTHO.
In the Appeal of :
REASONS FOR JUDGMENT
Delivered by Hon. Mr. Justice F.X. Rooney
on the 24th day of August, 1982.
Mr. Ramodibell for the Appellants
Mr. Khauoe for the Respondent.
On the 4th December, 1981, the first four appellants
were convicted of stock theft and the fifth appellant of
receiving stolen stock by Mr. G T. Jane sitting in the
Subordinate Court at Qacha's Nek. They filed appeals against
their convictions and the matter was brought to my attention
on the 8th January, 1982. The appellants wrote out their
grounds of appeal in Sesotho. As no steps had been taken
to translate these into English, I gave' directions accordingly.
Although the grounds of appeal were brief, I did not see
the file again until the 5th May. Having drawn the Register's
attention to the 4 months delay in translating the grounds
of appeal, I directed that the appeal should be enrolled.
Unfortunately, the case was not set down for hearing until
the 20th August, by which time the four appellants who had
been sentenced to twelve months imprisonment each had been
released from custody on completion of their sentences taking
into account remission for good behaviour.
It is not for me to apportion blame for the disgraceful
delays which have attended upon the prosecution of this
appeal. Although the appellants were not represented at the
trial, Mr. Ramolibeli appeared for them on appeal on the
2/ instructions of
instructions of Mr. A.P.S. Mda of Mafeteng. I do not know
when that attorney received his instructions and I cannot
therefore say if he can be held in anyway responsible for
the delay. It is impossible to avoid the conclusion that
the principal fault must lie within the court system itself.
The remarks I made in the case of Bofifi v. Rex 1980 (1)
LLR 1 do not appear to have had any effect.
All cases of stock theft present difficulties to
police investigators, public prosecutors and the magistrates
who have to try them. The main problem is the identification
of the animals alleged to be stolen. The system of ear-
marking employed by the Basotho is at best an imperfect
means of identification. This problem cannot be overcome
by the ready acceptance of an owner's identification without
proper inquiry. In the present case the Crown was obliged
to concede that the complainant's ear-marks, as described
by him, did not correspond to the ear-marks of the animals
traced to the some of the appellants and produced in court.
In his reasons for judgment the magistrate made no mention
of this discrepancy. This Court is entitled to conclude
that it was something which passed his notice or was not
considered at all in the evaluation of the testimony before
him. This threw considerable doubt upon the accuracy of
the identifications made by the complainant end the whole
basis of the prosecution case was thereby undermined.
The record contains a mass of irrelevant and other-
wise inadmissible evidence given by the police witnesses.
These include statements allegedly made by the appellants
after caution and statements said to have been made by
witnesses in the presence of the accused. The magistrate
permitted this evidence to be presented to him without
challenge although the accused were not represented and
could scarcely be expected to be well acquainted with the
law of evidence. The most conspicuous victim of this
type of evidence was the third appellant, Mariti, about
whom the magistrate stated :
"Accused 3, Mariti Mariti according to the
evidence of Lebona Soka (PW.3) and that of
the police, he is the one who helped accused 1
and 2 to take the animals from Takalatsa. He
3/ is complainant's
is complainant's neighbour. After he
was suspected he led complainant and the
police to where the animals were later detected."
The only real "evidence"against this appellant was
that of Leboka Soka who said :
"I also received information involving
Mariti who is my neighbour. I followed
the information. The man who gave the
information is not before the court."
"Mariti had explained that he gave the animals
to accused 1. Mariti told us all this in the
presence of accused 1. Ts'eliso (Accused 1)
agreed that the horse was from Accused 3.
Thai had also explained that they had
received the horse from Mariti. Mariti was
present when Thai said this. Mariti agreed.
Thai is that one accused 2."
The cross-examination of the complainant by
Accused No, 3 went as follows :
Did your cattle disappear at Takalatsa?
Did you know where they had gone to?
Who told you about them?
Q. What do you think caused me to volunteer
and tell you where your cattle were?
A. I was searching for them. I had received
information about you.
Q. Had you seen me doing something suspicious?
Q. Did you find some of them with me?
A. No, but I found them all according to your
Q. Where did I say your cattle were?
A. You said you had given them to the people of
Senqu, you even offered to show me where they
Q. To whom did I say they were?
A. To Tseliso and Thai.
Q. Did they also agree that I gave cattle to them?
A. They said so, you even chose them from other
cattle in the pound.
Q. Where were they when I pointed out the animals
in the pound?
A. Only Thai was there."
4/ None of the ....
None of the animals were traced to the third appellant.
He was convicted on the evidence of a suspicious neighbour.
This is hardly a good foundation for finding that he was
guilty of stock theft beyond all reasonable doubt.
The fourth appellant admitted that he sold a cow to
Matlatsi Rajele (PW.6). The ear-marks on this animal did
not correspond to the ear-marks of the complainant. The
beast was slaughtered by the purchaser who retained the skin.
The complainant purported to identify the skin as being
that of his lost beast by reference to its colour. The
magistrate was quite willing to accept this as proof beyond
all reasonable doubt that the fourth appellant was guilty.
I am not.
The fifth appellant (who was accused No.8 at the
trial) is the father of the first and fourth appellants.
He was convicted of receiving stolen animals. There were
some evidence that he looked after beasts brought to him
by the first appellant which were subsequently seized by
the police. There was no evidence at all that he knew or
even suspected that these animals had been stolen. It
appears that his conviction rested entirely upon his
relationship to persons whom, the magistrate believed were
guilty of stock theft.
In the case of the 1st and 2nd appellants, there
were some grounds for suspicion, as they sold certain animals
using bewys which were irregularly obtained if not forgeries.
However, this did not cure the deficiencies in prosecution
case which rested on an identification which was not established.
On the hearing of the appeal, I set aside the convictions
and sentences and ordered the fine of M120 to be refunded to
the 5th appellant. All the appellants are entitled to a
return of the deposits paid by them.
Attorney for the Appellants : Mr. A.R.S. Mda,
Attorney for the Crown : Law Office.
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