IN THE HIGH COURT OP LESOTHO In the Appeal of
'MANKULUBA MOHLAKOLANE Appellant
VR E X Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Acting Mr. Justice M. Lehohle on
the 5th day of January, 1987.
This appeal was argued before me on 24th November 1986.
The sentence and conviction were set aside for reasons set out in the
of this judgment.
The appellant was charged before the Resident Magistrate
at Berea with malicious injury to property. It appears that he
pig gravid with a litter of nine belonging to one 'Mathabiso
Mohlakolane P.W.1 who testified that she is related to the appellant
but their relations were not.of a cordial nature. The source of this
was a feud over the fields. This feud was worsened by her pig
tresspassing on appellant's field and more than once destroying
appellant's mealie crops.
On the day in question during May 1983 P.W.1 sow
appellant escorting (sic) a pig the subject matter of this charge.
The pig was escorted
(sic) from the direction of appellant's field.
In the same instant P.W.1 saw appellant hit this pig with stones and
simultaneously sicking his dogs on it. The pig began
running towards P.W.1's home. P.W.1 then ran towards the appellant
with him not to kill the pig and offered to pay for the
damage caused by it. However appellant hardened his heart and did not
to P.W.1's supplications with the result that the pig valued
at M100 died from the beating.
Under cross-examination P.W.1 conceded that the
appellant chased the pig because it had been eating his maize and
that she. and appellant
had had two previous quarrels. She further
testified that she did not have a pig-sty wherein to keep her pig
because she didn't have
It was put to P.W.1 by appellant's counsel in the Court
a quo that appellant had not intended killing the pig
but was only scaring it away when the unfortunate incident of his
dogs killing it
occurred. Appellant sought to amplify this
proposition in his own defence by saying "I set dogs at it and
they chased it. When
it was in the middle of the field I intervened
by hitting the dogs with a stick. They let it alone. It ran outside
the field. Before
it got out of the field the dogs caught it again
and killed it."
It is apparent from the above quotation that appellant
sought to show that although his initial intention to intervene for
had not been abandoned he failed to come to the pig's
assistance in time because of the distance between him and dogs which
killing it. Thus he would have us believe that the dogs beat him
Despite appellant's protestations it is clear that he
killed the pig and did not stop his dogs attacking it
even when so asked by P.W.1 who was offering to pay for the damage.
is amply supported by P,W.2's evidence that appellant asked
her whose the pig was and she said it belonged to P.W.1 whereupon he
set his dogs at it and beat it with stones and stick. P.W.2 further
stated under cross examination that the owner of the pig arrived
the scene at the time the pig was squealing and said to appellant
"allow me to pay for the damage caused by my pig,"
However P.W.2's evidence differs sharply with P.W.1's on
the precise moment the pig died in relation to P.W.1's arrival. For
to the question "was the pig alive or dead at the time
the owner arrived - ? she replied "It was already dead."
to the same question put differently to P.W.1 as follows :
"Accused says he did not intend to kill it.?" she P.W.1
"He intended to kill it because he would have stopped
beating it at the time I asked him to stop." In maintaining, as
borne out in their heads of argument, that the appellant by killing
the pig took the law into his own hands the Crown must have had
mind provisions of section 21(1) which imposes a duty upon
pig-owners to keep their pigs in pig-stys as failure to do so rings
in criminal liability in terms of section 21(2). Consequently moved
by the appellant's failure to await the results of criminal
presupposed by the penalty section i.e. 2(2) they
considered that appellant was properly convicted by the Court a
quo. This makes a neat and logical argument unfortunately based
on wrong premises.
I must however point out that the Crown's observation
that the grounds of appeal and most of appellant's heads
-4-of argument are irrelevant is correct.
In his grounds of appeal appellant raised a point which
amounts to abandonment of his defence in the Court a quo. In
the appellate court he indicated that death of the pig was as a
result of defending his property. This point was further developed
in his counsel's heads of argument wherein it was submitted on
appellant's behalf that in terms of Government Notice No. 88 of 1968
read together with Government Notice No. 24 of 1963 section 21(1)
"the owner or person in charge of a pig shall keep it in a
21(3) "All pigs found tresspassing in any garden
or enclosure or on cultivated land in which any crop is growing may
be destroyed while and when tresspassing by the occupier of
the property or any person acting upon his authority."
It thus becomes clear that at this late stage appellant
at the risk of riding on two horses decided to base his appeal on
principle of claim of right.
However in answer to this argument the crown submitted
that the pig was killed some good distance away from appellant's
land. This is indeed common cause. So the Crown argued
that appellant's act was not within the meaning of 21(3) supra
which entitled destruction to be executed, while and when
tresspassing. But regard being had to the fact that 21(3) supra
spells it out in no uncertain terms that a tresspassing pig may
lawfully be destroyed, it remains to ponder on the type of means
available to the occupier of the property to effect the destruction.
Indeed the protection of the occupier's property would best
effected if the occupier had instant means of destroying a
tresspassing pig while and when
tresspassing. A gun would serve that purpose very well.
But since in its wisdom the legislature did not bother to define or
the sort of means required to effect the destruction
envisaged and authorised by 21(3), it is untenable to argue that once
pig has moved out of the occupier's property then the
occupier is barred from destroying it. He may have failed to destroy
and when tresspassing because means do not enable him to,
though he had commenced the act. Thus failure of means to bring about
destruction cannot in my judgment oust the right of hot
pursuit. Otherwise the form of protection intended by 21(3) for
of property would be limpy, staggered and unequal i.e. good
and effective to those possessed of instant means of destruction, but
frustrating and useless for those possessed of slow and chronic means
of destruction. This would be very unfair in principle and
in consequence, end therefore cannot be said to have been the
intention of the legislature. It would run counter to the
objective of section 21(3) that having found a pig wreaking havoc in
the centre of my land bearing crops and have pursued
it with the aim
of destroying it I should stop dead im my traces once it has reached
a place beyond the headland, of my field.
The appellant may have manifested an unneighbourly and
uncivil attitude when earnestly asked to refrain from killing
pig but by application of the means he had; namely
dogs, stones and sticks he progressively started the destruction of
the pig while and when tresspassing and
hotly pursued it still applying those means until it
succumbed some distance away from his land. Surely any
statute approves what it ordains. If it decrees
destruction of a tresspassing pig; by necessary implication it
In destroying the pig he was acting within his rights in
terms of the law and therefore his appeal was upheld.
ACTING JUDGE. 5th January, 1987.
For the Appellant : Mr. Monaphathi For the
Respondent : Mr. Thetsane.
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