IN THE HIGH COURT OF LESOTHO In the Appeal of :
POLELISO MOLUNGOA Appellant v
Delivered by the Hon. Mr. Justice M.P. Mofokeng on the
9th day of February, 1984.
This appeal is dealt with in terms of the provisions of
section 527 of the Criminal Procedure and Evidence Act 1981.
The appellant was charged in the Subordinate Court of
first class at Maseru with contravening section 16 of Stock Theft
80 of 1921 as amended. He pleaded not guilty but after a
very brief trial, he was found guilty and sentenced to serve a period
two (2) years' imprisonment.
The evidence is briefly to the effect that twelve (12)
sheep were found in possession of accused's herdboy by the chief. The
deposed that the accused had arrived with the twelve (12)
sheep which bore old different marks. He was seeing them for the
time. He and the accused looked after them for a week and then
the accused left them in the custody of him (the herdboy). When he
was on leave he again helped to look after then.
After a time he again left. The chief kept the twelve
sheep in his kraal and called the police. The herdboy
could hardly give any satisfactory explanation for his possession
say that they were the property of the accused. When the
accused was subsequently arrested after two months he gave an
which was unsatisfactory.
In Court accused announced to all and sundry that he had
trafficked in dagga in the Republic of South Africa. However, when
near Marquard they were chased by the police with one
David. They escaped and ran into Lesotho. On the way they decided to
the sheep before Court. This is an explanation of how he came
to be in possession of the sheep but it is not a satisfactory
As Jacobs, C.J. said in the case of Mpesi v Rex 1967-70
LLR. 112 at 115.
"Generally one would expect a person to give his
account in the first instance to the
person who finds him in possession but he may give it in
Court for the first time and it is always the Court which must judge
the account which has been given is a satisfactory one."
The appellant possessed the sheep through his herdboy
(Sellane v Rex. CRI/A/157/68). The learned magistrate found the
explanation unsatisfactory. I entirely agree.
The appellant appeals against the conviction on this
single ground :
"Section 16 of Stock Theft Proclamation 80 of 1921
was not followed in that there was no proof that
the appellant was found in possession of the disputed
stock nor was there proof that anyone believed that such possession
obtained unlawfully or that he had in his possession proof
that the appellant's possession was unlawful."
It has been clearly shown that the accused was in
possession through his herdboy. The herdboy could offer no
explanation for his possession
except to say he was herding for his
master, the accused. The accused has supplied the answer that the
sheep were stolen and therefore,
his possession could hardly be
described as being lawful.
In my view, therefore, the appeal ought to be summarily
dismissed and it is so ordered. His appeal deposit is forfeited to
The Registrar is requested to inform the appellant about
the fate of his outcome.
JUDGE 9th February, 1984.
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