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