IN THE HIGH COURT OF LESOTHO In
the Appeal of :
KOTE RASEKONE Appellant
VR E X Respondent
Delivered by the Hon. Acting Mr. Justice M. Lehohla .on
the 31st day of August, 1987.
The appellant was set free on appeal against conviction
and sentence in two counts of stock theft.
The crown stated that it did not support the conviction
on the grounds that evidence on both counts did not support
that the earmarks and colours of three oxen in count 1
did not tally with those referred to by crown witnesses nor did they
with bewyses produced by the crown in support of its case.
With regard to count 11 there was not a scintilla of
evidence to show that the appellant was in any way connected with the
alleged to have been stolen by him in that count.
Furthermore, apart from the fact that the court a quo
failed to examine the animals in both counts because it was
alledged they had disappeared from the police pound before the trial
the magistrate did not give any reasons for judgment nor
did he reply to appellant's grounds of appeal. Needless to say not
the hide of the ox that was slaughtered by.P.W.2 was produced in
evidence despite that within a short time after its slaughter
arose regarding its companions which could not be sold
because one of them was identified as stolen just before the sale
place. Apparently the magistrate's retirement from the
judicial office came before he could
attend to these matters. But this is not to say that
conviction would not stand because of these
considerations even if clear grounds for supporting it existed.
The appellant, sporting not less than seven previous
convictions for stock theft spanning the period September 1972 and
at the end of which period he was convicted on 8 counts
of stock theft (running consecutively) and sentenced to one year on
count thus suggesting that at the alleged commission in 1986
January of the offences in the instant appeal he had barely spent a
few months out of prison, was sentenced to four years oh each of the
two counts (to run consecutively),thus subjecting him to prospects
a further eight years' imprisonment after a brief spell of freedom
from jail. His co-accused Thabang Molise, with only one previous
conviction of housebreaking with intent to steal and theft had been
sentenced in February 1983 to a term of six months' imprisonment,
condemned to the same length of imprisonment as the appellant in the
instant proceedings before the court a quo.
Naturally the length of jail term in respect of the
co-accused evoked in me a sense of shock. There does'nt seem to me to
be any earthly
reason why accused persons with such vastly disparate
numbers and forms of previous convictions should be given similar
Nothing in the record suggests that their previous
sentences are remotely identical. It is untenable that they should be
as if they had been cast in the same mould or painted with
the same brush vis a vis their previous convictions.
Evidence relating to the charges in both counts does not
sustain conviction in that theft has not been proved against accused
My investigations revealed that at the end of the trial
before the court a quo proceedings were not delivered to the
High Court as they should have been for purposes of review. While it
is not necessary to send
proceedings to the High Court for review in
a case consisting of a single accused who appeals after conviction
even though his matter
would have been reviewable, the position is
however different where the trial consists of more than one accused
one or some appeal but not all of them do so. It is
wrong to treat the co-accused who has not appealed as if the
safeguard of review
is lost in his case or is subsumed in the case
affecting the accused who has appealed.
I am aware that in the Court of Appeal in Lehloenya
vs Rex 1980(1) LLR. 30, where several accused had not
appealed except Lehloenya the rest of the accused were invited to
note their appeals
as a mere formality so that their matter resulting
in their acquittal could be dealt with by that Court.
I find it unnecessary to adopt a similar procedure in
the instant matter because it is clear to me that even at this stage
Court's revisionary powers are not curtailed. Therefore they
are still effective and operative. Hence any irregularity is still
to review even at this stage. The procedure adopted by the
Court of Appeal in Lehloenya's case would be followed in the
instant if the co-accused's matter had been brought on review at the
appropriate time assuming the
proceedings therein had been confirmed
by the reviewing judge.
Section 7(1) of the 1978 High Court Act spells out the
High Court powers as follows :-
"The High Court shall have full power, jurisdiction
and authority to review the proceedings of all subordinate courts of
within Lesotho, if necessary to set aside
or correct the same". (My underlining).
Subsection (2) gives one the discretion to determine in
what forms the powers in section 7(1) may be exercised.
I have endeavoured to show that in respect of the
co-accused in the instant case section 69(1) of the subordinate court
58 of 1938 has not been observed. In recognition of this
irregularity and having examined the evidence as revealed in the
I find it necessary to treat accused 2's matters under
provisions of section 69(2) which stipulates that if it appears to
judge that proceedings from a Subordinate Court are not
in accordance with justice or that doubt exist whether they are he
the conviction or reduce the sentence of the court which
imposed the punishment.
I have come to the conclusion that the co-accused
Thabang Molise was wrongly convicted for inadequacy of evidence
against him in both
counts. Conviction and sentence are set aside in
his case as in that of the appellant Kote Rasekone. A release warrant
served on the Prison office where Molise is in detention
and he must be released forthwith. Will the Registrar ensure that
order is put into effect immediately.
The typed script should be sent back to the Director of
the Public Prosecutions' office from where it was borrowed after the
without trace of that belonging to the High Court.
31st August, 1987.
For Applicant : Hiss Ramafole For Respondent : Mr.
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