CRI/A/3/89

IN THIS HIGH COURT OF LESOTHO
In the Appeal
of :

NAPO MOEKETSI NTSASA Appellant

V
REX Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
11th day of August. 1989.

The appellant was convicted on two counts out of three
by the Thaba-Tseka Magistrate's Court.

The first count dealt with theft of stock namely three
cattle belonging to one Mothinya Sekonyela.

The next count on which he was convicted was count 111
in the proceedings before the court below. It dealt with
contravention by the
appellant of section 3(2) (a) read with section
43 of Internal Security (Arms and Ammunition) Act No. 17 of 1966.

The accused had pleaded not guilty on all counts. The
trial became a long drawn out ordeal occasioned by lengthy
cross-examination
of a fishing nature directed at the Crown
witnesses.

The appeal is based on the grounds that

1. 
   The trial court failed to consider contra­
   dictions
   in the crown evidence.

   
   

2. 
   It also failed to consider the evidence of the
   defence.

   
   

/3.

-2-

3. The sentence on count 3 was not pronounced in court.

4. The sentence is harsh and shocking.

The simple perspective upon which the events
constituting this case are projected is that on count 111 the
appellant was in jail serving
term which police investigations
revealed that he was in unlawful posse­ssion of a fire arm.

The interrogation that followed led to the appellant
pointing out to them this gun hidden in the roof of a house occupied
by him before
being committed to jail.

Regard being had to the fact that he was in jail when
investigations were in progress it becomes strange how he was able to
lead the
police to the exact spot where he pointed out the hidden
fire arm if one were to take the view that it had been concealed
there by
someone else.

Nothing therefore substantiates the claim against the
learned magistrate's finding on this count. Hence the appeal is
dismissed on
this count.

On count 1 the argument raised was that the accomplice
evidence was to the effect that cattle covered in this count were two
whereas
complaints re­ferred to three cattle.

But evidence revealed that witnesses who testified knew
about this cattle. The appellant had sold them to other people from
whom
they were seized during the process of investigations.

While the accomplice evidence corroborates that of the
other crown witnesses to the extent that it does it should be pointed
out that
the accomplice evidence instead of being criticised should
be found plausible as being more favourable to the appellant than is
that
of the other Crown Witnesses who refer to more cattle than does
the accomplice.

/p.w.3

-3-

P.W.3 and P.W.4 testified that the appellant sold the
cattle to them. These witnesses know him very well. They said
because they
were surprised that the names appearing on the bewyses
were not the ones they knew to be the appellant's they questioned him
about
this novelty in his names.

His explanation was that the names they had hitherto
known him by were mere nick names. The ones appearing on the bewyses
were his
actual and proper names.

His claim therefore to the fact that he is illite­rate
becomes of no consequence because his attention was brought to the
new
wonder of his instant acquisition of new names concerning
which he gave an explanation to those who bought cattle from him.
Immediately after his explanation which amounted
to a false assurance
that nothing was suspect about the stock he was holding out for sale,
the transactions were proceeded with.

As submitted by Mr. Thetsane for the crown, I am
of the view that this is not a forum wherein to raise the question of
portions said to be missing from the record.

There is nothing in the claim that portions are missing
from the record to show that miscarriage of justice was incurred due
to such,
if any, irregularity.

The fact that on this count the accused was sentenced to
four years' imprisonment is a proper reflection of how stock theft is
frowned
upon as an ultimate scourge by stock owners and the
inhabitants of this country. It therefore does not evoke in me a
sense of shock.
The appellant may count himself lucky that the
offence was committed before the coming into operation of the 1988
revision of penalties
Order which prescribed a minimum penalty that
exceeds the

/prison

-4-

prison term imposed on him by the court below.

The appeal on this count is also dismissed.

JUDGE.
11th August, 1989.

For Appellant : Mr. Lesutu.
For Crown : Mr.
Qhomane.