CRI/A/28/85

IN THE HIGH COURT OF LESOTHO
In the
Appeal of

MIKIA SHALE Appellant

v.

REX

JUDGMENT

Delivered by the Hon. Mr. Justice J.L. Kheola on the
11th day of February, 1986

The appellant (accused No.2 at the trial) was jointly
charged with one Koko Mokhochane with the offence of theft of stock,
it being
alleged that between the 1st and the 30th October, 1984 and
in Ladybrand the said accused did wrongfully and unlawfully and
intentionally
steal three (3) head of cattle all red cows in colour,
the property of Petrus J.M Deport which were in the lawful possession
of Issac
Motsoabi which were then brought in Marabeng within the
jurisdiction of this court. The accused pleaded not guilty but at the
end
of the trial the appellant was found guilty as charged and
sentenced to two (2) years' imprisonment. He is now appealing to this
Court against the conviction and sentence.

It is not in dispute that the cows mentioned in the
charge sheet are the property of Deport and that they were stolen
from his farm
in October, 1984 and brought into Lesotho. On the 11th
October, 1984 they were found in the possession of Koko Mokhochane
(accused
No.1 at the trial). He explained to the policeman who found
them in his possession that on the previous day he had attended a
"pitso"
at Maqhaka. When he arrived home late that evening
he found the three cows amongst his cattle. His herdboy Teboho
Mokhochane (P.W.3)
explained that the cows were brought to him by

/the appellant's......

-2-

the appellant's herdboy, Charles Moshoati (P.W.4) who
had explained that the appellant would come on the following day to
Fetch the
cows. On the following day the appellant did not come and
Koko Mokhochane went to appellant's home to make some inquiries about
the
cows. Unfortunately the appellant was not at home. He left a
message with his (appellant's) wife that he must urgently come to his
home to explain the presence of the cows. In the meantime the
presence of the cows in the village had not been reported to the
chief
by Koko. The police arrived at Koko's place and arrested him
before the appellant could come This is the explanation given by
Koko.
The police arrested him and charged him with theft.

Teboho Mokhochane (P.W.3) is the son of Koko. One day
appellant's herdboy brought four (4) cattle to him and explained that
the appellant
had said that three of the cattle should be left with
ntate Koko and that he (appellant) would come and fetch them.
Appellant's herdboy
drove back the fourth cow and left three cattle.
This witness said that although he did not know the name of
appellant's herdboy
he could point him out He eventually pointed out
Charles Mashoai (P.W4).

P.W.4 confirmed that he handed over the three cows to
P.W.3. His version is that he was driving five and not four cattle
when he came
to P.W.3. He did not even know to whom he was to deliver
the three cattle because the appellant had merely instructed him to
drive
them to Marabeng and wait there until some person came to
collect them. He drove the cattle to Marabeng and stopped at the top
of
a hill. P.W.3 came to him and told him that he had been instructed
that P.W.4 should leave the three cattle with him. P.W.4 said
that
the cattle had been brought to the appellant by two men who were
strangers to him.

I have earlier in this judgment given a summary of the
explanation of Koko Mokhochane to the police. The learned magistrate
came to
the

/conclusion.....

-3-

conclusion that it was a satisfactory account of his
possession of

the stolen stock and found him not guilty

The appellant testified that on the 4th October, 1984 he
went to his cattlepost at Jordane where he remained for two weeks On
one
Thursday Lebohang Sehloho came to him at the cattlepost and
reported that Koko Mokhochane and one Napo Majara had been arrested
for
stock theft and that they implicated him (appellant) He
immediately came home and reported himself at the charge office P W 2
told
him that he had also arrested P W 4 but had released him on the
previous day He told P W 2 that he knew nothing about the cattle

The appellant said that he told the police that "he arrived at
ha Thamae with Peter and Nkaka Tsotso looking for a beast. These
cattle before court were brought to him by Peter. Police knew these
and I was at the cattle post". Although Peter denied any
knowledge of the three cows, other cattle which were lost at the same
time as the three cattle were found in his possession, Peter
had told
the police that one man gave the cattle to him and asked to pass them
to him (appellant). P W 4 falsely implicated him because
his mother
had broken into appellant's cafe and stolen some property

In his well reasoned judgment the learned trial
magistrate rejected the appellant's alibi on the ground that
it was disclosed too late and gave the Crown no chance to rebut it.
It was never disclosed to the police during
the investigation nor was
it put to the witnesses during cross-examination. I am not so sure
that during the investigations the appellant
did not tell the police
that he was at the cattlepost when the cattle were brought to his
place On page 11 line 2 of the record
the appellant said that "the
police knew these and I was at the cattle post". He had earlier
said that the cattle were
brought to him by Peter. If the appellant
alleges that the police knew that he was at the cattlepost

/when.. ..

-4-

when Peter brought the cattle to his place, he must have
told them that he was at the cattle post at the relevant time. If his
statement
was ambiguous it was the duty of the court to ask him to
clarity the statement by asking him why he says the police knew that
he
was at the cattle post. It is true that in cross-examination the
appellant never indicated that his defence was an alibi
However, that is not the end of the matter. The Crown still had to
prove its case beyond reasonable doubt by showing that the alibi
is false.

The Crown relied on the evidence of a single witness to
try to prove that the alibi was false. Charles Mashoai (P W 4)
is the only witness who testified that the appellant was present and
received the three cows from
two strangers. Section 238 of our
Criminal Proce­dure and evidence Act 1981 allows a court to
convict on the single evidence
of a competent and credible witness
except in a case of perjury and treason The effect of a similar
section in the Republic of South
Africa was considered in R. v.
Mokoena, 1932 O.P D. 79 where it was said,

"This section should only be relied upon where the
evidence of the single witness is clear and satisfactory in
every material respect. .1 and ought not to be invoked where, for
instance, the witness has an interest or bias adverse to the
accused, where he has made a previous inconsistent
statement, where he contradicts himself in the witness-box, and where
he has not had proper
opportunities for observation, etc" (My
underlining).

I do not agree with the learned magistrate that P.W.4's
evidence is clear and satisfactory in every material respect. How can
it be
so when it conflicts with the evidence of P.W.3 in some
material respects? P.W.3 said that P W 4 brought four (4) to him but
P.W.4
denies this and says that he brought five (5) cattle. This may
not be material to the issue but it does show that, at least, one
of
the witnesses is not a very observant person

P W.3 says that when P W.4 came to him with the cattle
he said that the appellant had instructed him to bring the cattle to
ntate
Koko and that he

/(appellant) .. .

-5-

(appellant) would fetch them. P.W 4 denies this and says
that when the appellant instructed him to drive the cattle to
Marabeng he
did not tell him to whom he was supposed to deliver them
When he arrived at Marabeng he stopped on the top of a hill. P W.3
arrived
and said that he had been instructed that those cattle should
be left with him. I think this conflict in the evidence of the Crown
witnesses ought to have created a doubt in the mind of the court. The
trial court made a number of speculations as to what might
have
happened behind the scenes in an attempt to justify the conflict. It
seems to me that where there is evidence on record the
court is not
entitled to speculate. P W 4 stated in unambiguous terms that the
appellant did not tell him to whom he had to deliver
the cattle. P
W.3 came and demanded that the cattle be handed over to him. While
the story of P W.3 is that when P W 4 came to him
he said the cattle
came from the appellant. The court a quo believed the story of
P.W.4 and rejected that of P W.3. The evidence in the record does not
seem to support the finding that P.W 3
was totally unworthy of
credit. To me the evidence of P W.4 that he was asked to drive the
cattle to Marabeng to an unspecified person
seems to be a he.

The appellant showed that P W.4 has bias against him
because his mother had stolen from his cafe. It is true that this
fact was not
put to P.W.4 in cross-examination but it must be borne
in mind that the appellant is a layman not familiar with court
procedures.
His evidence still had to be weighed very carefully and
not be rejected on technical grounds. The theft of his property by
P.W.4's
mother had to be properly investigated through
cross-examination and it had to be found out whether or not any legal
action was taken
It must also be remembered that where the Crown has
been completely taken by surprise, it may make an applica­tion to
be allowed
to call evidence in rebuttal. Such an application may be
allowed where the Crown could not have forseen such an issue

/arising

-6-

arising. I am not at all suggesting that an accused
person who is not represented by a trained lawyer, should not follow
proper court
procedures but some of our public prosecutors have been
so legalistic that sometimes they fail to make a proper
cross-exami­nation
on the main issue before the court Their
entire cross-examination is restricted to the fact that the accused
never put his defence
to the Crown witnesses Even if that has been
the case the court must properly weigh accused's evidence (Phaloane
v Rex, 1981 (2) L.L R 246 at p. 253).

The court a quo came to the conclusion that
because the appellant said that the cattle were brought to him by
Peter that shows that he was present
and not at the cattlepost as he
alleges. With respect, the statement does not seem to mean that the
appellant was present when Peter
brought the cattle to his place, he
could have got this informa­tion from P.W 4 who admits that he
handed these cattle to P W
3.

For the treasons stated above the appeal is allowed and
the con­viction and sentence by the court a quo are set aside
The appeal
fee must be refunded to the appellant.

J.L. KHEOLA JUDGE.

14th April, 1986

For Appellant - Mr Nthethe For Crown - Miss Nku.