CRI/REV/601/88

IN THE HIGH COURT OF LESOTHO
In
the matter between:

REX

v

MAKOENEHELO MAINE NTHABELENG MOLOLO

Before the Honourable the Chief Justice Mr. Justice B.P.
Cullinan on the 12th day of May, 1989.

For the Crown : Mr. G.S. Mdhluli, Director of Public

Prosecutions

JUDGMENT

The two female accused persons were convicted of common
theft by the Subordinate Court for the Mafeteng District.

One witness gave evidence for the Crown, that is, the
complainant. She testified that she departed from her house, leaving
her 18-year-old
sister-in-law, the first accused, in the house, where
she (the complainant) had secreted M600, the whereabouts of which was
known
to the first accused. On her return she found that the first

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accused had left the house and the M600 had disappeared.
Subsequently she met the first accused. The latter made some
explanation
to her, and handed over M70 and a pair of shoes. The
first accused led the complainant, accompanied by the Chief,to the
house of
the second accused. The latter had apparently recently
purchased some household goods and clothing.

That was the only evidence against either accused, both
of whom remained silent in their defence. The Director of Public
Prosecutions
Mr. Mdhluli very properly submits that there was no case
whatever against the second accused. I entirely agree.

As to the first accused, mr. Mdhluli submits that an
inference of guilt could certainly be drawn, but that on the evidence
before
the Court that was not the only reasonable inference. I again
agree. As I see it, a prima facie case was not established by the
prosecution against either accused and they should not have been put
on their defence.

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In passing I observe that the learned trial Magistrate
imposed a sentence of four years' imprisonment on each accused. The
sentence
comes to me with a sense of shock as being manifestly
excessive. Both accused persons were first offenders. They were
aged but
18 and 20 years respectively. Further, the first accused
was recorded on the charge sheet as being aged "about" 18
years.
As I see it, the learned trial Magistrate should have been
put on enquiry as to the age of the first accused, particularly where
she contemplated imposing a sentence of imprisonment, as of course
under the provisions of section 26(1) of the Children's Protection
Act, 1980, no child may be punished by imprisonment.

I need not enquire into the validity of the

sentence imposed on the first accused in view of the

uncertainty as to her age. I say no more than that it
was in the circumstances encumbent upon the learned trial Magistrate
to conduct
an enquiry and make a determination as to such age.

In any event, for the reasons already stated,

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there being insufficient evidence against either
accused, the convictions and sentences imposed by the Court below are
set aside and
both accused persons are acquitted.

Delivered at Maseru on the 12th Day of May, 1989.

(B.P. CULLINAN) CHIEF JUSTICE