CRI/APN/364/08

IN THE HIGH COURT OF LESOTHO

In the matter between:-

LEABUA RAMABELE APPLICANT

and

THE LEARNED MAGISTRATE

BUTHA-BUTHE MAGISTRATE COURT 1^ST RESPONDENT

DIRECTOR OF PBLIC PROSECUTIONS 2^ND RESPONDENT

THE CLERK OF COURT 3^RD RESPONDENT

JUDGMENT

Delivered by the Honourable Madam Justice N. Majara

on the 16^th February 2009

Applicant herein seeks this Court to review and set aside the judgment delivered by the 1^st respondent on the 17^th October 2007 for the reason that it is irregular and contrary to the law. Per his averments as they appear at paragraph 5 of his founding affidavit applicant argues that the 1^st respondent committed irregularities in the conduct of his trial.

It is applicant’s case that 1^st respondent erred and misdirected himself in convicting him having failed to apply his mind to the fact that applicant was not allowed to rear animals at Makhunoane but at Matsoku despite the fact that he produced the relevant documents relating to those cattle.

Secondly, that 1^st respondent committed an irregularity of sentencing him to a term of four (4) years imprisonment without an option of a fine without giving reasons for his judgment so that applicant is left in doubt whether the sentence is just and fair under the circumstances.

Further that the prison term without an option of a fine despite the fact that the cattle that were found in the applicant’s possession were not the subject matter of theft greatly prejudiced him, more especially because after his cattle were impounded, four of them died in police custody.

The application is opposed and in his answering affidavit the 1^st respondent avers that applicant never handed in any documents in relation to the stock he was charged with. That in addition, the earmarks that appear in the master stock register and applicant’s stock are similar but differ from those that appear on the stock.

1^st respondent added that the exercise book that applicant handed in to the Court and supposedly contains reports of damaged earmarks reveals that the report of the damage of applicant’s stock earmarks was made on a much earlier date than other entries made. He added as follows at paragraph 4 of his affidavit:-

“In a nutshell, applicant’s stock is subject of theft because he failed to produce relevant documents.

…failure on my part to give out reasons for sentence cannot set aside the whole proceedings aside (sic) especially when the proceedings from the beginning of the trial up to the stage of mitigation were proper.”

1^st respondents adds that when he sentenced applicant to four years in prison without an option of a fine he took into account the nature of the offence, the evidence led and the mitigating factors and in the circumstances, exercised his discretion judiciously and found that indeed the applicant deserved that sentence.

In his submissions Counsel for applicant, Mr. Molapo stated that although applicant was convicted for being in unlawful possession of the livestock, he was not actually found in possession thereof but that the police only went to him as a result of the explanation they were given by his co-accused. Further that applicant is the owner and not the possessor of the livestock in question. He argued that the charge of being in unlawful possession should not have stood under such circumstances.

He added that the court a quo is now functus officio in the matter and that what applicant is seeking from this Court is not that 1^st respondent should furnish his reasons at this stage but that that the whole proceedings be quashed for being irregular.

In turn Ms Makholela for respondents made the submission that 1^st respondent can be ordered to furnish his reasons for both the conviction and sentence at this stage and that this has been done before so that 1^st respondent will not be functus officio.

On the issue whether applicant was correctly convicted, counsel for respondents made the submission that applicant failed to produce the bewys which permit him to rear yet he produced the Stock Register. She added that applicant was arrested when he went to claim the stock at the police station where he failed to produce the relevant documents and that they failed to see the relevance of the book that was produced and handed in as an exhibit. That in addition, he ought to have had a movement permit even if he was allowed to rear stock at Matsoku so that he could do so at Makhunoane and in terms of the provisions of Section 8 (6) of the Stock Theft Act and Section 9 (5) of the Amendment.

Further that since the proceedings were regular up to the stage of conviction, failure to furnish reasons for judgment and sentence cannot in itself vitiate the entire proceedings.

In his reply, Mr. Molapo argued that bewys are used where stock are being sold or paying a debt and not in relation to the progeny of one’s livestock. He added that applicant’s explanation was with respect to ownership and not unlawful possession so that the latter is not what he should have been convicted for.

I now proceed to deal with the issue of whether or not applicant was correctly convicted for the offence with which he was charged. Section 13 (3) (d) of the Stock Theft (Amendment) Act of 2003 provides as follows:-

“A person who is in unlawful possession, without a satisfactory account of such possession of stock or produce or both, as the case may be, commits an offence.”

In terms of the evidence of the Crown as gleaned from the record of proceedings of the Court a quo, the police found the cattle listed in the charge sheet at accused No.1’s kraal and he failed to produce the relevant documents for possession thereof but however explained that the cattle belonged to applicant herein. Accused no.1 was then arrested. A few days later he arrived with applicant at the Qholaqhoe Police post and the latter claimed that the stock belonged to him. Upon being asked for bewys for the animals he failed to produce them and he was arrested.

I now proceed to deal with the issue whether as he alleges, applicant was improperly convicted by the Court a quo.

From the evidence contained in the attached record of proceedings, it is common cause that applicant went to the police station to lay a claim over the stock as his after same had been impounded whilst in A1’s possession. Given this scenario, the next question for determination therefore is whether applicant was correctly convicted for the offence of being in unlawful possession of the said stock.

Courts have generally interpreted “being found in unlawful possession” as having personal and direct control over a thing. Thus in the South African case of R v Tsotitsie and Another 1953 (1) SA 238 at 240 D-E wherein the accused were charged with contravening section 1 of the Stock Theft Act 26 of 1923 when defining the phrase ‘unlawful possession’ in the legal sense, De Villiers J stated as follows:-

“In my view although an accused need not have actual physical detention of the stock or produce found, he must be in such control of it at the time that it can be said that he was caught in possession. I do not think that for the purpose of the section an accused can be said to have been found in possession if the stock is found under the direct control of someone else, but it can be proved that the latter held it as an agent for the accused.” (My underline)

A similar interpretation was given in other cases including that of Rex v. Bergh, 1927 O.P.D. 177 wherein the Court stated that possession may include physical possession in:-

“the extended sense in which one may be said to possess a thing which is on one’s farm, or in one’s house or in the custody of one’s servant or agent”. (My emphasis)

Applying this interpretation to the facts in the present matter, whilst indeed applicant herein was not present at the time the police found the cattle in the possession of accused no.1, the latter explained that the stock belonged to the applicant and it is not disputed that applicant did go to the police and laid claim to same. Thus, it is my view that and in the light of the above quoted authorities, he was in possession of the stock in question.

I have already shown that the Crown’s evidence also revealed that the applicant failed to give a satisfactory explanation in the form of production of relevant documents. The evidence was further strengthened by the Chief who testified that he had no knowledge of the said stock nor had he ever seen any documents in their respect.

Even the notebook that the applicant handed in before the Court as proof that he was in lawful possession of the animals was not useful to his case for the reason that inter alia, he admitted under cross-examination that it records one Ramosa’s stock and not his i.e. applicant’s. Thus it was not of much assistance to the Court. As a result of his failure to produce satisfactory proof of such possession upon being asked to do so, I am of the view that such possession was indeed unlawful in terms of the provisions of Section 13 (3) (d) quoted above.

For these reasons, I am satisfied that the Court a quo’s finding that the applicant is guilty as charged was proper under the circumstances and I therefore cannot set it aside.

I now turn to deal with the issue of 1^st respondent’s failure to give reasons for his judgment and sentence on the basis of which applicant seeks this Court to set the proceedings aside as being irregular.

It is a well-established requirement for the proper administration of justice that a judicial officer should furnish reasons for his/her judgment and sentence so that an accused person is properly informed on what led the Court to such decision and sentence. Authorities in this regard abound. Judicial officers have been warned time and again of the importance of this requirement. This further finds support in the case of Qhobela & Another v BCP & Another LAC (2000-2004) 28 at 36 C-D, wherein the learned Leon JA (as he then was) had this to say:-

“A litigant has every right to know why a case has been won or lost. And a lower court is also obliged to furnish reasons so that a Court of Appeal will be properly informed as to what prompted the court a quo to arrive at its decision. In the present case no reasons are given by the learned judge a quo either for his order confirming the rule or his subsequent “ruling”. His conduct in this regard is to be deplored.”

Be that as it may, it is my view that while superior Courts frown upon failure by trial Courts to furnish reasons for judgment and/or sentence, nowhere in the decided cases have they unequivocally stated that such failure per se is enough to vitiate the entire proceedings unless there exist other compelling reasons. Even in the cases of R v Masike LAC (2000-2004) 557, Hlalele and Another v DPP and Another LAC (2000-2004) 233 and Mphasa v R LAC (2000-2004) 788 all quoted to this Court, the Court of Appeal only went as far as deprecating this type of practice without stating that proceedings should be set aside on that point alone.

Rather, emphasis is made on the need for the Courts to desist from bringing the justice system into disrepute, the unfair operation of such failure against the accused person and the State and the creation of an impression of arbitrariness on the part of the court a quo which should be avoided at all costs. In my opinion, the appeals quoted above were upheld as a result of a combination of several factors which in their entirety vitiated the proceedings of the courts a quo.

It is for these reasons that I dismiss the prayer that I should set aside the entire proceedings for the sole reason that the 1^st respondent failed to furnish his reasons for his decision. I however feel constrained to reiterate the sentiments of the Court of Appeal already alluded to above that, the 1^st respondent herein ought to have known better than to pass judgment and mete out punishment without giving his reasons for his decision more especially where the accused did not even plead guilty and the sentence imposed was rather severe. This kind of laxity is indeed deplorable and should be discouraged at all costs.

Lastly it is the very absence of such reasons that compel me to reach the conclusion that the sentence is indeed severe and does induce a sense of shock. For all the foregoing reasons and on the strength of the Court’s sentiments in the case of Selenkane Fatane and 2 Others Vs the Crown Constitutional Case N0.3/04 with respect to the prescribed sentences in the Stock Theft Act (as amended), and which I respectfully wish to adopt herein, I accordingly order that the sentence of the Court a quo should be altered to read as follows;

Accused is sentenced to pay a fine of M2, 000.00 or imprisonment for a period of two (2) years, in default of payment.

There is no order to costs.

N. MAJARA

JUDGE

For applicant : Mr. L. Molapo

For respondents : Ms L. Makholela