IN THE HIGH COURT OF LESOTHO
In the Appeal of :
THAKENG KHOSI 1st Appellant MABILIKOE LEUTA
REASONS FOR JUDGMENT
Filed by the Hon. Chief Justice, Mr. Justice T.S. Cotran
on the 14th day of November, 1983
On 9th November 1983 I allowed the appeal and intimated
that I will file my reasons later. These now follow.
The two appellants were convicted of stock theft (12
sheep) on the 1st September 1983 and were sentenced to 18 months
The offence had allegedly taken place on 16th July
1980. The trial therefore took place well over three years after the
of the offence.
It was contended by Mr. Pitso for the Crown and Mr.
Tsotsi for the two appellants that the convictions could not stand
(and I agree)
but whereas Mr. Pitso's submission was that a retrial
should be ordered, Mr. Tsotsi's submission was that it ought not.
What happened was this :
Three accused persons, the two appellants and a
thirdwho was eventually acquitted, appeared before
themagistrate on the 31st August 1983.
The second appellant had briefed an attorney,Mr.
Kolisang, to appear on his behalf.
The two appellants (and the third accused) pleaded not
guilty. The second appellant (Mabilikoe Leuta) said his
attorney was unable to attend and requested an adjournment. There was
a letter addressed by Mr. Kolisang to the magistrate
requesting him to adjourn the case to the 5th October 1983.when he
available at Thaba Tseka.
4. The public prosecutor objected to an adjournment on
the ground that the case has been pending for over three years, He
said that if the court feels disposed to grant the
application he will seek separation of the trials, i.e. that the
trial of appellant
1 and accused 3 who was acquitted would proceed
forthwith and the trial of appellant 2 will take place presumably on
1983 when his lawyer Mr. Kolisang would be available.
The magistrate acceded to the application for separation
and ordered appellant 2 to stand down, which he did, but he remained
well of the court when the case proceeded against appellant 1
and the other accused who was acquitted.
Although I would not myself have agreed to separate
trials I see nothing wrong in law with the magistrate acceding to the
of the public prosecutor. Separation is sometimes very
inconvenient particularly if the facts are interlocked and the
come from far away. However this is what happened. The
first Crown witness was the complainant whose sheep were stolen. He
not know appellant 1 (appellant 2 was out of the trial by then)
though he knew the third accused who was acquitted. His evidence
extremely important because he was the witness who claimed he
his sheep marks which he described as "red paint
letsoku that turn black on mixing" especially"
after getting some
He was cross examined by appellant 1 and the accused who
was acquitted but not of course by appellant 2 who was by then no
in the dock.
On the following day, 1st September 1983, when the trial
resumed the two appellants and the third accused appeared before the
Appellant 2 then told the magistrate that his "lawyer
wants to waste time", that he did not need him anymore, and he
to "join the others" i.e. appellant 1 and the accused
who was acquitted.
The magistrate then noted that appellant 2 "steps
in again" and the trial of the three continued.
There is in Lesotho an authority (R. v Phate and another
1980(2) LLR p.313 et seq) for the proposition that once separation
ordered after a plea has been taken, the magistrate is
debarred from reversing or recalling his order. It was a case on
with by Mofokeng J and he heard no argument in open
court. However he sought the views of the Director of Public
did "not support the conviction". In
South Africa (R. v Khataleki and another 1948(2) SA 207) Gardner J
had a somewhat
similar problem but he did not say positively that
joinder of an accused person after a trial starts was unlawful. In
which is distinguishable on the facts from the review
before Mofokeng J, there was no order of separation of the trials
made ab initio.
The facts appear from the following passage at p 209
"Now it appears that at the trial three small boys
were called for the prosecution when the case opened against A and B.
gave certain incriminating evidence against A and B. At the
conclusion of their evidence C was arrested and put into the dock,
then the three boys were recalled. And on this occasion they
gave no evidence incriminating A and B, that is the present two
The question arises whether the magistrate was entitled
to rely upon the evidence given by the small boys in the proceedings
he heard against A and B for the purpose of convicting in this
case. To us it appears that the proceedings against A and B were
entirely separate and, when the case started against A, B and C, the
proceedings had to begin de novo".
Now I am not prepared to go as far as my brother
Mofokeng for I can visualise some instances where reversing
an order for separation of trials will not result in any
prejudice to an accused e.g. if the order was made in circumstances
by the magistrate or the prosecutor and rectified
immediately of if only a formal witness had been called and is
available to be
recalled to give evidence again and does so.
In this case it is impossible to say there was no
prejudice. When the magistrate made an order for appellant 2 to
a vital witness, the complainant, had been heard.
Since appellant 2 had left the dock he did not have the opportunity
of cross examining
him. Furthermore the magistrate did not recall
the complainant after appellant 2 was joined.
I am left with no alternative but to allow the appeal
and the only question that remains is whether, as the Crown submits,
order a retrial. Now a retrial should not be ordered simply
to let the prosecution have another bite the cherry. In addition
is the question of the inordinate delay in the initial
prosecution which is nowhere explained. I have perused the original
to find out why but in vain.It cannot be said that the
appellants were responsible for this delay and must accept it at
Lastly I must consider the consequences of a retrial.
Whoever tries the case again, and it will have to be a different
and this might take months, will be faced with a
formidable problem. Only one of the stolen sheep was recovered
alive. It was not
however produced before the first trial magistrate
for him to assess the value of the identification marks detailed by
and it cannot be produced to the other magistrate
who will conduct the new trial because the live sheep was reportedly
the police pound by a person called Sam Sam before the
trial started. Nine skins were reportedly recovered by the police
compound of appellant 1 and these had reportedly the same
marks of the complainant but the marks
were of the common type that many people use. The
complainant then alleged that he can recognise the sheep "from
Now he did not actually see except one sheep "from
the face". the one recovered alive out of twelve. The skins of
nine other sheep could not have been recognised since I presume
"their faces" were gone. The trial magistrate could not
himself test the complainant's veracity about the markings on the
skins because the skins (by the time the trial took place) had
gone and reportedly "eaten by mice" in a police exhibit
store. It would follow that the other magistrate who will
the new trial will, like the first magistrate before him, have
nothing save the memory of the complainant and the tainted
of an accomplice with only little to support him,
I have gone at some length on this application for a
retrial because it was submitted that the ends of Justice demand that
be taken. I have, I hope, demonstrated to the Crown that
there are quite apart from the fact that some four years would have
by when the trial does take place eventually other circumstances
that demand an end to the ordeal of having a charge hanging over
appellants heads which will, in all probability, result in their
acquittal after all.
Order for a trial de novo refused and the appellants
must now be freed.
I do not order refund of their appeal fees. The appeal
has been allowed on a technicality which proved fatal and the matter
left at that.
CHIEF JUSTICE 14th November, 1983
For Appellants : Mr. Tsotsi For Respondent : Adv. Pitso
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law