IN THE HIGH COURT OF LESOTHO
In the Appeal of :
HOPOLANG MOJARANE Appellant
R E X Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice B.K. Molai on the 28th day of January, 1988 .
This appeal has already been disposed of on the following, reasons.
The appellant appeared before the Subordinate Court of Butha Buthe and pleaded not guilty to two counts of Stock Theft. In count 1 the charge sheet alleged that on a date unknown to the public prosecutor but between the 1st and the 31st October 1981 at or near Daljosefot -Bethlehem, in the Republic of South Africa the appellant unlawfully and intentionally stole 14 sheep the property or in the lawful possession of one Jan Harm Steenkamp and thereafter brought them to 'Moteng -Lesotho within the jurisdiction of the court. In count 11 the allegations were that upon or about 27th November 1981 and at or near 'Moteng in the district of Butha-Butho the appellant was found in possession of 10 sheep and there being reasonable grounds for believing that the possession had been obtained unlawfully he was unable to give a satisfactory explanation of such possession
At the end of the trial the appellant was found guilty as charged in respect of 10 sheep on count 1. He was also found guilty as charged in respect of 9 sheep on count 11. He was sentenced to 12 months' imprisonment
and 6 months' imprisonment on counts 1 and 11, respectively. The appellant appealed to the High Court on a long list of grounds which could, however, be summed up in that the convictions were against the weight of evidence.
It was not seriously disputed that P.W.1, Jan Harm Steenkamp, owned a farm at Daljosefot in the Republic of South Africa where he kept merino sheep. One day in October 1981 he was on his way to the farm to inspect the sheep when he noticed one of the sheep on the side of the road. It had a string tied on its neck and leg. When he came to the sheep kraal P.W.1 counted all his sheep and found that 14 were missing. He had not authorised anybody to take away the sheep and so he reported the loss to the police. He also started searching for the missing sheep and in the course of the search three (3) of them were found on a nearby mountain slope. They also had strings tied on their necks.
The evidence of P.W.1 was corroborated in material respect by that of P.W.2, Molai Mokoena, who told the court that he was the foreman on P.W.1's farm. I shall return to the evidence of P.W.1 and P.W.2 in a moment.
P.W.3, Tpr. Morumoli, testified that on 27th November, 1981 he was on stock theft drive when he found the appellant at his cattle post at 'Malefiloane in the area of 'Moteng. In his presence, he inspected the appellant's flock of sheep and noticed 11 sheep which were clearly distinct from the rest of the flock. They were latter than the other sheep and their wool was cleaner than that of the rest of the flock. He also noticed that the 11 sheep had fresh earmarks superimposed on the old ones. There were nine (9) other sheep whose ear marks did not correspond with the earmark used by the appellant on the rest of the flock.
According to P.W.3 despite all those descrepencies on their earmarks the appellant told him that the sheep were the progeny of his sheep and, therefore, his own property. He became suspicious that the sheep had been stolen and the appellant was in their unlawful possession
He seized the sheep and brought them before P.W.5, chieftainess 'Mamohato Qhobela, together with the appellant. That was confirmed by P.W.5 who told the court that the appellant was her subject and she kept a stock register for the animals of all her subjects. According to the register the appellant neither owned animals nor was he allocated an ear mark for use on his animals. P.W.5 further confirmed the evidence of P.W.3 that 11 of the sheep brought before her together with the appellant had fresh earmarks superimposed on the old ones.
P.W.4, Monaheng Phali, told the court that he was a livestock officer in the district of Butha-Buthe and in December 1981 the 11 sheep were brought before him for a animation which revealed that they all had fresh earmarks.
Although in his evidence on oath the appellant denied that when they were found in his possession the 11 sheep had fresh earmarks superimposed on the old ones the trial court rejected it as false and accepted as the truth the Crown evidence that they had. In my view the evidence was simply overwhelming against the appellant and I was not prepared bo quarrel with the conclusion arrived at by the trial court on that point.
Now, coming back to their evidence P.W.1 and P.W.2 testified that in April 1982 they came to Butha-Buthe police station when they were shown a flock of sheep. They immediately identified 10 of them as part of the 14 sheep that had been stolen from their farm in October 1981. P.W.1 and P.W.2 were able to identify the sheep by their distinct features. They were marino sheep clearly bigger than the rest of the flock; although foreign earmarks had been superimposed on the original earmarkings, portions of the old earmarkings were still visible on the ears of some of the sheep and unlike the rest of the flock the tails of all the 10 sheep were closely cut.
There was one other sheep which was also a marine similar to the 10 sheep identified by P.W.1 and P.W.2. Although it also had earmarks superimposed on other
earmarks it did not have its tail as closely cut as the tails of the other 10 sheep identified by P.W.1 and P.W.2 They did not identify it as one of their 14 sheep which had been stolen in October 1981 Although in his evidence the appellant told the court that in his flock there were some cheep whose tails he too had cut very closely, the trial magistrate took the trouble of going to his cattle post at Malefiloane and inspected the tails of all the appellant's flock of sheep None of them had its tail cut as closely as the 10 sheep identified by P.W.1 and P.W.2.
The trial court found that P.W.1 and P.W.2 had satisfactorily identified the 10 sheep as part of their 14 sheep that had been stolen in October 1981. It accordingly rejected as false the appellant's story that the sheep were the progeny of his own sheep.
Considering the evidence as a whole there was, in my opinion, nothing unreasonable in the finding of the trial court that P.W.1 and P.W.2 had positively identified the 10 sheep as part of their 14 sheep that had been stolen in October 1981. I was satisfied, therefore that there was ample evidence indicating that 14 of P.W.1's sheep were, in October 1981, stolen from his farm at Dalfosefat in the Republic of South Africa. 10 of the sheep were, on 27th November 1981 found by P.W.3 in the possession of the appellant in Lesotho and positively identified by P.W.1 and P.W.2 on April 1982. That being so, there was no doubt in my mind that the appellant was found within the jurisdiction of the trial court, in possession of 10 sheep that were part of the 14 sheep that had recently been stolen from P.W.1's farm. On the well known doctrine of possession of recently stolon property the appellant was presumed to have stolen the 10 sheep found in his possession. He was, therefore, convicted of stock theft in count 1, and rightly so in my opinion.
As regard count 11 the appellant was admittedly found in possession of 9 sheep bearing earmarks that were different from the rest of the flock. He was also found in possession of the marine sheep that was not,
identified by P.W.1 and P.W.2. The fact that the 9 sheep found in his possession had earmarks different from the rest of the flock and the other sheep not identified by P.W.1 and P.W.2 had fresh earmarks superimposed on the old ones was, in my view, reasonable ground justifying P.W.3's suspicion or belief that possession of the sheep had been unlawfully obtained. The only question for the determination of the court was whether or not the appellant was unable to give a reasonable explanation for his possession of the sheep.
It is worth mentioning at this stage that, according to P.W.3, one of the 9 sheep bearing different earmarks from the rest of the flock found in his possession was claimed by one of the appellant's relatives to whom it was released by the police before the start of the trial.
In his evidence in court the appellant explained that he came to be in possession of the sheep the subject matter of count 11 after they or their mothers had been paid to him by a certain Mohlaoli Khaile alias Koteng for whom he had been herding animals. That in my view was a reasonable explanation. However no attempt was made to call Mohlaoli Khaile as a witness to rebut the appellant's evidence or explanation. That being so, the appellant could not be said to have failed to give a reasonable explanation for his possession of the sheep forming the subject matter of count 11.
In the premises, I took the view that the appeal ought to be dismissed in respect of count 1 but allowed in respect of count 11. It was accordingly ordered.
J U D G E.
28th January, 1988.
For the Appellant : Mr. Mofolo
For the Crown : Mr. Kalamanathan.
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