HIGH COURT OF LESOTHO
HON. MR JUSTICE S.N. PEETE
DATE : 26™ JUNE, 2003
Stock Theft - Charge of theft of sheep preferred under common law and
not under Stock Theft Act 2000. Accused pleading guilty -Prosecutor
outlining facts under section 240 of the Criminal Procedure and
Evidence Act 1981 as if the charge under Stock Theft Act 2000.
Outline not disclosing offence of theft under common law.
The applicant faced three counts of theft of some eight sheep under
three counts to which he pleaded guilty. The outline of the
the prosecutor did not however disclose the commission of theft, only
alleging the missing of the sheep and the applicant
being found in
their possession. Time period after the loss was not stated.
Held: The fact that animals go missing is per se insufficient to
establish that unlawful taking has occurred. Unless the accused
found in recent possession and is unable to give a satisfactory
account of such possession, the court cannot infer that the
stole the animals. Where the charge is preferred under common law,
the onus is on the crown to establish all elements of
the offence of
theft, especially the unlawful taking by the accused.
Held: Where after conviction and sentence, an unrepresented accused
actually serving his sentence of imprisonment has no visitors
fails to note his appeal timeously and the court had failed to advise
him of his right to appeal within 14 days as required
by law, the
court will be inclined to condone his late noting of appeal if the
lapse of time is not unreasonably long.
matter came before me as an application for condonation for late
noting of appeal and the appeal was heard soon after the application
for condonation was granted. It appears from the record that (a) the
applicant who was facing three charges of stock theft (common
was not represented by a lawyer and (b) was not advised of his right
to appeal, if he so desired, within 14 days after conviction
sentence on 11/11/02. In his affidavit for condonation he explains
that since he comes from Semonkong he was unable to communicate
to arrange services of a lawyer.
appears that the accused pleaded guilty to the three counts of stock
theft which charge seems to have been founded upon the common
theft and not under the Stock Theft Act 2000.
outline of the facts by the prosecutor however was made as if the
charge was under section 3 of the Stock Theft 2000. This was
irregular. In my view, if the prosecutor prefers a charge under
common law theft he cannot base his evidence or outline upon the
statutory provisions. This can prejudice the accused.
of sections 192, 343 and 434 of the Criminal Procedure and Evidence
Act 1981 excludes theft of stock. The facts outlined
prosecutor must support the charge preferred - and not any other
charge -unless the competent statutory verdicts are supported
case the elements of theft under common law were not proven i.e.
contrectatio fradulosa (unlawful taking - actus reus).
outline states is that the sheep of the complainants went missing
round about 23rd June 2000 - the outline does not state
sheep were ultimately found in the possession of the applicant. In
our Law recent possession can raise an inference that
stole the goods if he fails to give a satisfactory explanation about
his possession - Hoffman & Zeffertt - The
South African Law of
Evidence (Fourth Ed) 1998 - page 605-9. In view of the scanty and
cryptic outline of the facts, it cannot
be inferred that the
applicant stole the sheep in question. The fact that the sheep went
missing on the 23rd June 2000 is not in
itself indicative of theft -
it could also be that they went astray and strayed into the
applicant's herd or flock. In Rex v Motaung
- 1949 (2) SA 414 it was
held that the fact that animals go missing is per se not sufficient
to establish the commission of theft,
neither fact that applicant
could have confessed or pleaded guilty to the charge.
240 (2) of the Criminal Procedure and Evidence Act in fact reads:
"(2) Any court may convict a person of any offence alleged again
to him in the charge by reason of any confession of that
proved to have been made by him, although the confession is not
confirmed by any other evidence, provided the offence has,
competent evidence other than the confession, been proved to have
been actually committed. " (My underline)
case, besides the plea of guilty, there is no evidence that a crime a
theft was committed by the applicant. A "satisfactory
explanation" is required not under common law but under section
3 of the Stock Theft Act and, as already pointed out, the
was not charged under that Act but under the common law. Even then
outline does not state in what way the explanation
candidly did not support the convictions which are hereby set aside
along with the sentences.
should advise that, depending upon the facts at his disposal, the
prosecutor should always carefully draft his charges
under the new
Stock Theft Act 2000 and not under the common law; and where the
accused pleads guilty to the charge, the prosecutor
must be always
careful to outline his facts so as to support the charge preferred
and above all, those facts must disclose commission
of an offence.
The outline of the facts needs to be carefully prepared by the
prosecutor and just glibly narrated because the accused
In a case
similar to the present, Rooney J in Phomane v Rex 1982-84 LLR 69
quashed conviction and sentence where the complainant's
goat had gone
astray and was found later amongst the appellant's flock. He had
pleaded guilty. In acquitting him Rooney J. said:-
"For all I know, he may have explained the circumstances in
which the goat was found among his flock in a manner inconsistent
with his guilt. It is not enough that accused pleads guilty"
prosecutor did not tell the court and the magistrate did not ask him
what explanation was which the applicant gave to the
"The statements of facts must disclose that he is guilty. No
adverse inference can be drawn simply because the missing goat
found among appellants flock "
Apell v Rex 198 (1) LLR 97 Rex v Khama 1981 LLR 128.
informed the court that his client, the applicant, is not at all
claiming the sheep as his. I therefore order that the Semonkong
Police to retain the sheep - the subject matter of the counts- and to
forthwith call upon the three complaints to prove or establish
satisfactorily their respective entitlement to the same animals
failing which the said sheep should be forfeited to the Crown.
Applicant : Mr Fosa
Respondent : Ms Ntene
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