CRI/A/24/84 IN THE HIGH COURT OF LESOTHO
In the Appeal of
TOHLANO LITELU Appellant
Delivered by the Hon. Mr. Justice B.K. Molaion
the 22nd day of February, 1983.
The appellant was charged with the crime of stock theft
before the Subordinate Court of Thaba-Tseka, it being alleged that on
20th July, 1982 and at or near Malibamatso in the district
of Thaba Tseka, he unlawfully and intentionally stole 3 cattle the
or in the lawful possession of Sesheme, He pleaded not
guilty to the charge but was, at the end of his trial, found guilty
A sentence of 2 years imprisonment was imposed.
It is against both the conviction and sentence that the
appellant has appealed to the High Court on the grounds that the
was against the weight of evidence and the sentence
The evidence of P.V.1 Tsele Sesheme (which evidence was
not really challenged) was that prior to 20th July, 1982 he had in
cattle belonging to him and two of his younger
brotheis namely, Masimong Sesheme and Makhele Sesheme. On the day in
July, 1982, three of the cattle went missing. They
were a black cow, white underbelly with a white brush belonging to
Masimong Sesheme and was earmarked. R/E slit L/E
2/ in front;
in front; a red cow, white underbelly belonging to P.W.1
himself. It was earmarked R/E winkelhaak in front, a stump made by
L/E ½ moon behindt and a black cow, white
underbelly with a white taxi belonging to Makhele Seaheme. It
was earmarked : R/E stump, ½ moon behind.
L/E stump, hanging slit
behind. P.W.1 had not permitted either the accused or any other
person to take away those cattle. He started
searching for the
In the course of the search he came to the police pound
at Thaba-Tseka where he found and positively identified two of his
cattle. They were the black cow belonging to Masimong
Sesheme and the red cow belonging to P.W.1 himself. He never
third cow belonging to Makhele Sesheme.
At the time he found and identified them, the two cows
had their earmarks tempered with. The slit on the R/E of the black
partly destroyed ±n that ½ of the slit had been cut off. A
swallowtail had. been superimposed on the stump made by dogs on the
R/E of the red cow.
P.W.1 further testified that at the time they went
missing, his cows were well nourished but when he found them at the
the two cows had deteriorated considerably in
conditions. After he had identified them, the two cows were released
to him for safekeeping
by the police. The red cow died while in his
custody and he could not produce it in evidence at the trial. He,
with him to court the black cow.
P.W.4, Motimpana Mpitla testified that he lived in the
same village with the appellant whose animals were known to him.
1982, he was "Chairman" in his village when
he noticed that appellant had in his possession a cow that was
strange to him
(P.W.4). It was a black cow which appeared to be in
calf. The cow had a winkelhaak although he no longer remembered on
He reported appellant's possession of that strange cow
to P.W.2, Bofihla Motsoloane, the Chief of the area. Later on P.W.2
him and one Pali to accompany the police to appellant's
cattle post where they found the black cow and another red one going
3/ with appellant's cattle.
with appellant's cattle. Nobody was looking after the
cattle. The police then took possession of the black and red cows.
P.W.2 confirmed that ho received a report about
appellant's possession of strange cows. According to him, it was in
(not October, 1982 as P.W.4 had testified when the
report was made to him and it was made by Motimpana Moloantoa. On
, there is no certainty that Motimpana Moloantoa is the
same person as P.V.4. They may well be two different persons. In
P.W.2 testified that following the report he had received,
he summoned the appellant to appear before him together with the
strange cows and their beweys. The appellant brought only
one black cow and explained that it had been mafisaed to him by
Sekali. It was with another red cow which P.W.3 had already
taken back. He further explained that the beweys covering the two
were with P.W.3.
P.W.2 ordered the appellant to fetch the beweys and red
cow from P.W.3 and hand over the beweys together with the two cows.
left but never returned. Later on, it was the
appellant's wife who brought to P.W.2 the black cow and a chit
it. On examining the cow and the chit.P.W.2
found that the earmarks on the cow were not as described on the chit.
Although he did
not remember how it was earmarked on either ears,
the cow had a slit, punch, winkelhaak and stump. He took possession
of the chit
and sent it to the police. The cow was, however,
released to appellant's wife.
I must say I find it rather strange that P.W.2 released
the cow to appellant's wife after he had found that it's earmarks
not tally with the earmarks described in the chit which was
supposed to cover it. One would have expected him to have become
about the legality of appellant's possession of that cow
and, therefore, sent it to the police together with the chit.
P.W.2's description of the earmarks is also not very
helpful as he does not remember on which ear the earmarks were made.
event the cow described by P.W.2 cannot be the one which P.W.1
brought to court. That one had neither punch nor stump on its ears.
4/ Be that as it
Be that as it may, P.W.2 went on to say he later
detailed Motimpana Moloantoa to accompany the police to appellant's
cattle post. On their return, they told him that
they had found and
taken possession of two strange cows at appellant's cattle post.
The appellant who gave evidence on oath denied
knowledge of those cows. He said he did not herd his cattle. He
had herdboys to
do so. If the cattle referred to by the crown
witnesses did mix with his cattle, his herdboys would know it and not
denied that P.W.2 or the police had ever questioned him
about the cows when he made an explanation about them. In
he denied to have told P.W.2 or the police that P.W.3 had
mafisaed the cows to
The evidence of P.W.3 was that in September, 1982 he was
looking for his missing horse when he came to a place called
he saw three cattle on a mountain next to a cattle
post belonging to one Machabe. The descriptions of those cattle
those given by P.W.1. He could not easily forget those
cattle for they were "very beautiful with nice colours".
Sometime in 1983 he was called by the police who showed
him a red cow and a black one. The latter was then going with a red
calf. He immediately identified the cows as two of the
three he had previously seen on the mountain next to the cattle post
The police then told him that he had mafisaed the cows
to the appellant and showed him a chit as proof thereof. According to
chit : "a black cow, white underbelly with a white brush
earmarked : R/E slit. L/E winkelhaak in front, was being mafisaed
Sekali Sekali to Tohlang Ramololi of Chief Lebabo Khomoealeburu".
(my loose translation of what is written in Sesotho language
chit). The chit purported to have been issued by P.W.6 Teboho Komisi
and witnessed by P.W.5 Mafotha Jakobo.
Again it is not clear whether Sekali Sekali is the same
person as P.W.3. Nor is it clear whether Tohlang Ramololi of Chief
Khomoealeburu is the same person as the appellant the subject
of P.W.2 Chief Mohlalefi Motsoloane. We may well be talking of
5/ However, P.W.3
However, P.W.3 denied to have mafisaed the cow to the
appellant. P.W.6 and P.W.5 likewise denied to have issued and
the chit, respectively.
The police officer who investigated this case was also
not called as a witness. At page 8 of the typed record, it is
"P.P. says Sgt. Sekete (No.2563) is at his home,
his child is critically ill. He was to relate that he investigated
he found the cattle grazing with those of accused and
collected them. Accused explained that they were mafisaed to him by
Sekali after the chit was denied by the witnesses, he
charged accused after cautioning him. He would hand in the
cattle as Exh.
1 (call) chit Exhibit A, D. C. admits."
I am not so sure whether by this it is meant that the
evidence of the investigating officer as related by the public
admitted by the defence and it was, therefore,
unnecessary to call him as a witness.
In his reasons for judgment, at p. 13 of the typed
record, the learned trial magistrate says that although the policeman
the case was not before court, Mr. Tsotsi, who
appeared on behalf of the accused, and the public prosecutor
consented that his evidence
could be related to the court by the
I am still in the dark. In any way, if the trial
magistrate meant the evidence of the investigating officer as related
by the public
prosecutor was admitted by the defence counsel on
behalf of the appellant, Mr. Tsotsi, who defended the appellant in
a quo and prosecuted the appeal on behalf of the
appellant before this court, argued that he never admitted the
evidence of the investigating
officer as related by the public
prosecutor and dispensed with his being called as a witness. He says
he could not have done so in
the light of his knowledge that his
client was going to deny to have ever explained to the police that
the cows were mafisaed to
him by P.W.3. What he admitted, says Mr,
Tsotsi, was that he had no objection to the cow and the chit being
handed in from the bar
as Exh. 1 and A, respecti vely. There is some
substance in what he says and the pro-
6/ babilities are ....
babilities are that perhaps the learned magistrate
Now, from his undesputed evidence, P.W.1 was deprived of
his three cows without his authority. They were for that reason
unlawfully. When he later found two of them at the police
pound, the cows had their earmarks altered. A clear indication that
unlawfully deprived him of those cows did so with intention
to steal. On that evidence alone, there could be no doubt that the
of Stock Theft had been committed. The only question was
whether the appellant was the person who had stolen those cows.
In that regard the trial court clearly relied on the
evidence of P.W.2 supported by that of P.W.4 that after they had
two of P.W.1's cows were seen in the possession of the
appellant. However, in their own evidence the two witnesseses could
remember how the cows they saw in the possession of
the appellant were earmarked. On the record they did not even
see the black
cow that P.W.1 had brought to court, not to mention the
other two which were not before the court. They were, therefore, not
position to say whether or not the cow was the one they had
previously seen in the possession of the appellant. The cow that
brought to court may well have been a different cow from the
one that P.W.2 and 4 had seen in the possession of the appellant.
a person is charged with theft of specific animals he cannot,
in my view, be convicted of any other animals. It was important that
the cow which P.W.1 had brought to court in this case should be
identified as one of those allegedly stolen by the appellant. I
not so sure that this has been done.
In the premises, I take the view that even if the
appellant were seen in possession of some strange cows, there was no
evidence that they were positively identified as the ones
with which he was charged. His conviction cannot, therefore, stand.
The appeal is allowed,
22nd February, 1985.
Appellant : Dr. Tsotsi
Respondent : Mr. Seholoholo.
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