CRI/A/75/36 IN THE HIGH COURT OF LESOTHO
In the Appeal of :
JACOB MONYAMANE Appellant
J U D G M E N T
Delivered by the Horn Mr. Justice B.K. Molai on the
16th day of May, 1987.
The appellant and one Moteletsana Monyamane appeared
before a Resident Magistrate in Leribe charged with 'the crime of
arson, it being
alleged that on or about 4th January, 1986 and at or
near Popopo in the district of Leribe they both or either of them
set on fire and thereby damaged a certain house, being an
immovable property, of one 'Mamohanae Ramohanoe, with intent to
her in her property. They both pleaded not guilty to the
At the end of the trial the appellant was found
guilty as charged and sentenced to two (2) years
imprisonment. His co-accused was, however, acquitted and discharged
at the close
of the crown case .
The appeal is against the appellant's conviction on the
ground that it was against the weight of evidence.
The evidence heard by the trial court was that adduced
by P.W.1, 13 years old Phole Ramohanoe who told the court that on 4th
1986 he and another child, called Nyaba Ramohanoe, were
looking after their parents's animals. In the afternoon of the same
rained and they had to drive the animals home. They sat in
one of P.W.1's parental houses until 4 p.m. when it stopped raining
they went out to look for horses.
2/ As they
As they got out, P.W.1 noticed that some flowers were
broken behind the house and something was moving amongst them
stone was then thrown at them from the flowers. When
he looked closely P.W.1 saw the appellant coming out of the flowers
stones at him and Nyaba Ramohanoe. P.W.1 ran to the
lower side of his garden which was 'Mamohapi Ramahanoe's garden. It
clear from the evidence what then happened to Nyaba Ramohanoe
who did not even testify before the court a quo .
After he had run to the lower side of his garden P.W.1
noticed the appellant going into one of his (P.W.1's) parental
the appellant went out P.W.1 saw flames coming out of
the house. The appellant then entered into another of P.W.1 's
When the appellant left that house P.W.1 noticed
smoke coming out. As he left, ,the appellant was walking fast but
When he crossed a nearby stream, the appellant met
P.W.1's father, one Marena-Ke.Mang, and P.W.5, Setlabocha Mphasane.
shouted the alarm and noticed people already putting out
the fire at his house. The appellant did not, however, return to put
If he saw the appellant actually setting fire on the
houses, I must say I find it rather strange that P.W.1 had to wait
appellant was at the stream before raising the alarm. A
natural reaction would have been for P.W.1. 1 to raise the alarm the
he realised that the appellant was setting the houses an fire.
The evidence of P.W.1 that the houses of 'Mamohapi
Ramahanoe were set on fire on 4th January, 1986 was corrobo-rated by
that of Cosmus
Ramahanoe, 'Mamokiba Ramohanoe, Setlabach Mphasane,
'Mamohapi Ramohanoe herself who testified before the court a quo
if, 5, 6 and 3, respectively. They, however told the court
that it was around 7 p.m. and not 4.30 p.m. when the houses were set
Although they saw the appellant leaving the village
around 7 p.m. on that day they all did not see him actually
3/ setting the ..........
setting the houses on P.W. 3,4 and 6 were at one of
the houses in the village where there was a feast for the removal of
cloth when they heard the alarm that the houses were on
fire. P.W.2 was sitting with one Ts'iliso below the village when he
the alarm. P .W.5 was arriving home in the company of
Morena-Ke-Mang when he also heard the alarm. According to him P.W.5
only saw the appellant walking in the village from the direction of
P.W.1's parental home which is also the direction from the name
the appellant himself.
The appellant gave evidence on oath and denied that he
was the one who had set the houses on fire. According to him at
11 a.m. on 4th January, 1986, he was at in the company of
Mateletsane Monyamane who wanted to visit his father at the prison.
were in the company of Kemang Mabote and Mabote Mohale who were,
however going for a funeral at a place called Sebothoane or
From the prison the appellant and Mateletsane returned
straight to St. Monica's, alias Popopo where they collected the
two children and went back to Tsikoane village. At 3 p.m.
on that day they were at the home of 'Mamaria 'Mampane Monathi at
where there was a feast.
According to him the appellant was very busy at the
feast. He slaughtered altogether 4 sheep, chopped wood and served
beer to people
who had attended the feast. He never returned to
Popopo on that day. The following day the police came and arrested
him at Tsikoane.
He could not, therefore, have set the houses on
fire at Popopo around 4.30 p.m. or 7 p.m. on 4th January, 1986.
The evidence of the appellant that he and Moteletsane
Monyamane went to the Local Prison and from there to Popopo was
D.W.3 Moteletsane Monyamane who told the court that they
left Popopo for Tsikoane at 2 p.m. He and the appellant slaughtered
sheep at the feat of 'Mamaria Monathi.
D.W.2 Mohale Masupha (presumably Mabote Masupha)
confirmed that on 4th January, 1986 he was going for a funeral
at Sebothoane when he left his home, Tsikoane, in the
company of the appellant and D.W.3 who were going to the local
They left home at 12 noon and at 12.30 p.nr. he (D.W.2)was
back at his home, Tsikoane.
I must say if D.W.2's evidence on this point were to be
believed the funeral must have been an unusually brief one. Be that
may while the appellant said he slaughtered 4 sheep at the
feast D.W. 2 was positive that only two and not four sheep were
by him and not the appellant. In this regard, the
evidence of D.W.2 was corroborated by that of D.W.3 and D.W.4,
who told the court that the two sheep arrived at
her home between 5.30 p.m. and 6.00 p.m. and were slaughtered not by
D.W.2 and D.W.3
but by the appellant Mpopi Matela and one Maphalla.
In my view the defence's evidence that at the time the
houses were set on fire the appellant was at D.W.4's feast at
not at Popopo is so conflicting that no court of law
properly advising itself can believe it. I find nothing unreasonable
trial court rejecting it as false.
That is, however, not the end of the story. The question
still remains whether or not it has been established beyond a
doubt that the appellant is the person who set the houses
on fire. As has been pointed earlier, apart from P.W.I nobody saw the
setting those houses on fire. It must however, be borne in
mind that P.W.I is a small child of only 13 years old. Because of the
danger inherent in the evidence of such children there was need for
the trial court to approach his evidence with utmost caution
the risk of a wrong conviction were to be avoided.
There is nothing in the written reasons for judgment to
indicate that the trial magistrate applied the cautionary ' rule in
to the evidence of P.W.1. The risk of
5/ a wrong
a wrong conviction has not, therefore, been recuced. The
possibility that in the absence of their parents P.W.1 and his young
Nyaba Ramohanoe, could have played with fire which set the
houses on fire could,not, in my opinion be ruled out.
It was contented in argument that the house of the
complainant in this case was never set on fire. It seems to me the
is based on the defect in the charge viz. that instead of
'Mamohapi the charge sheet averred that the complainant was
Ramohanoe. It must be observed, however, that S.158
of the Criminal Procedure and Evidence Act, 1981 provides:
"158. Whenever a charge in respect of any offence,
is defective for want of the averment of any matter which is an
ingredient of the offence, the defect shall be cured by
evidence at the trial in respect of the offence proving the presence
matter which should have been averred, unless the want of
averment was brought to court before judgement."
I agree that it was important for the prosecution to
give the correct name of the complainant in this charge. Failure to
do so rendered
the body of the charge sheet defective. The
defect was, however, cured by the evidence of the crown witnesses who
made it abundantly
clear that the houses that were set on fire
belonged to 'Mamohapi and not 'Mamohanoe Ramohanoe. Consequently the
contention has no
merit and is accordingly rejected.
Be that as it may, I do not consider that it was safe,
in the circumstances of this case, to convict the appellant on the
of P.W.1, a young child, in respect of whose evidence there
is no indication that the cautionary rule was applied.
In my judgment the appellant should have been given the
benefit of doubt in this case. I would accordingly allow the appeal.
It is ordered that the appeal deposit be refunded to
B.K. MOLAI JUDGE
For Appellant: Mr. Monaphathi 18th May, 1987. For
Crown : Mr., Seholoholo.
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