IN THE HIGH COURT OF LESOTHOIn the Appeal of
MONYANE, HLAO Appellant
Delivered by the Hon. Acting Mr.
Justice J.L. Kheola on the 16th day of January, 1985
The appellant and Motlalentoa
Nts'alla were jointly charged with stock theft, it being alleged that
on or about the 31st day of May,
1983 and at Likalaneng in the
district of Maseru the said accused did each or both unlawfully and
intentionally steal 4 cattle, the
property or in the lawful
possession of Ntapa Leboela and brought them to Thaba-Tseka where
this Court has jurisdiction. To
this charge the accused pleaded not
guilty. At the end of the trial, the appellant was convicted of the
theft of one cow and sentenced
to 12 months' imprisonment.
Motlalentoa was acquitted.
The evidence is briefly as
On the 31st May, 1983, the
complainant noticed that four of his cattle were missing; one of
them was a red and white bull, it had
a white colour that touched the
left nostril, it had a small white line behind the right ear.
Earmarks were L/E yokeskei behind.
I shall say nothing about the
other cows because they were never found. The red and white bull was
found in the possession of one
Polao Khofu who explained that he
bought it from the appellant. At the time it was found, the bull had
the following additional earmarks.
R/E stump L/E swallow tail. The
appellant admitted that he sold it to Polao and contended that the
bull was the progeny of his cow.
The dispute in this matter was
2/ the alleged
the alleged additional earmarks
were fresh or old when the bull was found. The complainant said the
earmarks "were fresh clotting with traces of blood."
P.W.3 Trooper Mokhobatau said that "R/E it had a fresh stump
with traces of blood,L/E swallow tail fresh with blood traces."
P.W.2 Mokomoreng Moeling who signed as a witness when the appellant
applied for a bewys for the sale of the bull, said
that the bull was
the appellant's property and he saw no blood on the ears of the
appellant's beast and as far as he could see, there
was no difference
between the earmarks.
The appellant denied that the
earmarks were fresh and his co-accused, Motlalentoa Nts'alla also
denied that they were fresh. He is
the headman of the appellant and
issued a chit for him when he applied for a bewys. Polao Khafu was
not called as a witness and yet
he is the person in whose possession
the bull was found. I think he would be in a good position to
describe the condition or age
of the earmarks.
The chit and the bewys are dated
the 5th September, 1983. If it is true that on the 24th October,
1983 when Trooper Mokhobatau found
the bull, the earmarks still had
traces of blood, that would mean that on the 9th September when the
chit and bewys were issued,
the earmarks must have been so fresh that
they were still bleeding. This would further mean that not only the
headman of the appellant
but also the bewys writer were involved in
the conspiracy because the writer of the bewys examines the animal
and makes sure that
its earmarks tally with the chit. If the
earmarks were still fresh and bleeding, he would have made some
the Crown did not call the bewys writer to
give evidence. I am of the opinion that if the earmarks were fresh
on the 9th September
the bewys writer would not have issued the bewys
unless a good explanation was given.
The trial court seems to have
heavily relied on the evidence of the complainant and Trooper
3/ rejected the
rejected the evidence of P.W.2
on the ground that he said he did not see whether the earmarks were
fresh or not as he was standing
at some distance from the beast. But
under cross-examination, he said there was no blood on the ears of
the beast and as far as he
could see, they were not different from
each other. His evidence is confirmed by the headman, Motlalentoa
Nts'alla that the earmarks
were old. I am of the view that the trial
court ought to have been in doubt as to the condition of the earmarks
because the evidence
of the Crown conflicted on this very important
Mr. Tsotsi for the
appellant submitted that nowhere in the evidence as a whole is the
animal procuded in court described as bearing the identical
of the animals lost by the complainant. I tend to agree with him on
this point because the complainant described his missing
bull as red
and white with a white colour that touched the left nostril. He does
not say the beast had a blaze but Trooper Mokhobatau says the
beast had a white face (blaze) and does not say anything about the
small white line behind the right
ear. I am far from being convinced
that the two witnesses were describing the same beast.
The last point raised by Mr.
Tsotsi was that the learned magistrate failed to conduct theinspection-in-loco in the proper manner. I entirely agree
with him. The record of the learned magistrate reads : "We see
the swallow tail and
yokeskei on R/E, something like clots on the
swallow tail, and nothing on the yokeskei, this is the observation of
the D.C. The stump
has some scales, it does not look like the
yokeskei. It has fresh "likoapa" scars on both sides of
the back". In
CRI/A/57-58/84 Llane Mafethe and Another v.
Rex (unreported), I described the procedure to be followed when a
magistrate decides to conduct an inspection-in-loco. The
basic principle is that he goes there in order to see for himself and
to record his own observations. He does not go there
in order to
record what the defence counsel dictates to him. In the
4/ present case
- 4 -
present case the learned
magistrate does not seem to have followed the right procedure and
apparently recorded what he was told by
the defence counsel. He was
supposed to recored his own observations and to have communicated
them to the parties to give them an
opportunity of agreeing with them
or challenging them (Kruger v. Ludick. 1947(3) 8.A.23). Theinspection-ln-loco does not help this Court in any way because
the learned magistrate made no findings of his own about the colour
of the beast and
the condition of the earmarks.
In his reasons for judgment, the
learned magistrate says : "I can add that to my experience of
fifteen years of presiding over
stock-theft cases and to my
experience as stock-farmer, there could be no doubt that some
earmarks were different from others."
With respect, he was not
entitled to make use of his personal knowledge especially because he
did not even intimate his observations
to the parties. He does not
even say in what way they differed from each other, R. v. Manxobo.
1938 E.D.L. 358, R. v. Sombana. 1939 E.D.L. 71).
For the reasons stated above, I
allowed the appeal
and made no order on the
disposal of the exhibit but left it to the parties to take their
dispute over the ownership of the beast
to a civil court. The appeal
fee to be refunded to the appellant.
J.L. KHEOLA. ACTING
16th January, 1985.
For Appellant : Mr. Tsotsi For
Crown : Miss Nku.
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