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

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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

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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

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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

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(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

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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.