CRI/A/54-56/82

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

MALUKE
MOKOALO 1st Appellant

MORAPELI
MOKOALO 2nd Appellant

TSOTANG
MOKOALO 3rd Appellant

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 29th day of November;
1982.

The three
appellants, together with another accused, appeared before the Leribe
Subordinate Court charged on two counts under the
Stock Theft
Proclamation. On the first count it was alleged that they had stolen
a number of small stock belonging to various persons
but under the
guard of Molise Maleta. This occurred on the 3rd of October 1980 at
Levy's Nek. On the second count it was alleged
that during the month
of March 1979, at Sehlabeng, they stole thirty (30) sheep, the
property or in the lawful possession of Thesele
Mafoso. They pleaded
not guilty but were all found guilty and sentenced as follows :

"Accused 1 . R50 or 2 months' imprisonment suspended for two
years" (on certain conditions). He has not appealed.

Accused 2, 3 & 4 to serve a sentence of "9 months,

12 months and 12 months respectively no option of a fine."

"Exhibits to owner." These accused have all appealed to
this Court against their conviction and sentence."

2

They were
allowed bail of R50.00 cash.In this judgment accused 1 will be so
referred but accused2, 3 and 4 will be appellants 1,
2 and 3
respectively.

During
the night of the 3rd October 1980 some seven (7) sheep and two goats
disappeared from the kraal of one Molise Maleta (PW.2)
deposed that
his search led him to a place called Sekhutlong - Mohobollo where he
identified some of his stolen sheep amongst a
flock being loaded by
the men he then did not know. It was in the afternoon. The following
day he went, with others who had been
with him all the time, to find
their whereabouts. They found them at the cave of Janefeke (The cave
of Janefeke). They returned
to call the police.

They
arrived very early at sunrise. He, a policeman and a chief's
messenger surrounded "the area of the cave." They found
a
dead goat being eaten by the vultures. They also found some goats on
the cliffs. The policeman and the chief's messenger went
into the
cave,

Sgt.
Maleke (PW.10) deposed that he found accused 1inside the cave. They
took out skins which were in the hut. Accused 1, claimed
the skins as
those of his goats. Smith (PW.5) identified two skins amongst those
taken out. Accused 1 had a head of goat next to
the fire with one
side already burnt. It was that of a young goat. Smith identified it
as one of his missing goats. The earmarks,
on it were fresh. Accused
was asked to prevent the sheep on one side from scattering so that
they could be inspected. He ran away
The whole flock wag driven away
by them. They found goats and sheep hidden in crevices on the cliffs.
Phatoli and Molise identified
the animals as their missing
"property".

In the
cliffs they found thirty goats and four sheep.

3

All the
animals were driven to the police station at Pitseng. All the accused
were summoned. They came except appellant 3. All the
sheep found on
the cliffs bore earmarks of his family i.e. appellant 2's children,
was his explanation but his brother Lehasa (PW.8)
denied flatly what
his brother had said. When appellant 2's flock was examined, he said
two sheep were Lehasa's property. When
the latter was asked he
"denied knowledge of them." Accused 1 had said he used the
skins found in the hut in the cave
for bedding but on examination by
an experienced Stock Theft Police Officer and much knowledgeable
about such conditions he was
of the opinion that those skins were
about two days old i.e. after skinning.

Pule
(PW.3) is the pound master. He impounded thirty-two (32) goats
brought by Phatoli. He remembers slightly, though, their colours
and
earmarks. Then (appellant 3) arrived and paid the fees. He said he
had been looking for them. It was a few days after their

disappearance from various places. They were released to him. Phatoli
corroborates this evidence. Later, the same month, he was
called and
saw the same animals but they now bore different ear-marks. They were
fresh. Other animals, very distinctive in colour,
were conspicuous by
their absence. Instead, he was showed their skins

It is
clear from the actions of the accused that they acted in concert.
Their actions at first were supposed to be sophisticated
but turned
out to be so clumsy that even a child could see for what they really
were. At last they were caught. What does their
chief (PW.9) say
about these animals before Court? He was called with appellant 1 his
subject. The latter said some of the animals
belonged to appellant's
children. He, the chief knew their ear-marks.

4

They were
different. But of significance is that all the animals with fresh
ear-marks the chief had never seen before. They should
have been
shown to him and he therefore would have entered them in his book.
The fact that the chief and other fellow villagers
had never seen
these animals in the possession of the appellants is a telling factor
coupled with the fact that only a relatively
brief period (in fact
days) had expired since their disappearance and discovery. (C/F
Mojaki v Rex. 1971-73 LLR. 53 at 55C). That
they had recently been
stolen admits of no doubt.

This
appeal, on conviction, has no merit. It is therefore dismissed.

However,
there was an element of wanton destruction in this case. Animals were
killed or left dying, some as food for the vultures.
When a judicial
officer sentences a stock thief he must always remember the
significant part an animal plays in the life of a mosotho
- from
birth to death. It is not something of which he ought easily to be
unlawfully deprived of and when it happens and the perpetrator
is
arrested and tried in a Court of law, the later ought to be punished
and not let off as it were, to go scot free. We must be
very careful
lest we encourage the principle of self-help and hence defeat the
whole object of our exercise in punishing the guilty.
The sentences
that have been passed

in this
instant case are, to say the least, terribly inadequate. They are
shockingly too lenient for this type of an offence and
renders the
relentless war being waged against it useless. This particular case,
obviously called for a heavy sentence.

The
sentences imposed by the trial Court are hereby set aside and instead
the following passed.

5

"3
years' imprisonment each."

JUDGE

23rd
November, 1982.

For the
Appellants : In Person

For the
Respondent : Adv. S. Peete