CRI/A/24/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

LEBOHANG
MOSHOESHOE Appellant

V

REX Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 20th day of August,
1982.

The
appellant was charged in the subordinate court of Leribe with the
crime of theft it being alleged that he unlawfully and intentionally

stole a sum of R260.00 the property or in the lawful possession of
the complainant. He pleaded not guilty but was duly found guilty
and
sentenced to pay a fine of R100.00 and in default of payment, undergo
imprisonment for a period of five (5) months. It is only
against
conviction that he has appealed to this Court.

The facts
are briefly as follows :

Complainant
alighted near Dambha's supermarket and headed for a nigh club where
'Maseboka Koena (P.W.2) was employed. He carried
a travelling bag and
on his person, an amount of R260.00. He also had in addition a sealed
packet of 30 Mills cigarettes. Upon
his arrival at the said night
club, he ordered refreshments. He thereafter fell asleep on the
counter and was woken up later by
'Maseboka Koena who announced that
it was time to close. Complainant then noticed that all other people
who had been in the bar
earlier

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had left
only the accused remained. Complainant then bought some beers and
left. They met with the accused outside end began to
walk together.
Near a forest the accused stopped to help nature and so did the
complainant. The latter must have completed his
business later
because the next thing he knew, he was being attacked by the accused
from behind. The wallet containing R260 and
the packet of Mills
cigarettes were forceful taken away from him. He tried to chase after
the accused but the attempt was in vain.
He then took his travelling
bag and went to the night club. He received the information he needed
and then proceeded to the charge
office where he laid a complaint
against the appellant.

At the
trial of the appellant the Central issue was one of identity. It was
put neatly thus to the complainant in

cross-examination.

"Q. You then elected to implicate him?"

The answer, aptly answers the question and puts it beyond dispute.

"A. No, I identified him as my attacker. I saw him well in the
night club and I walked with him."

He was
then asked one question about the colour of clothing the appellant
wore. The complainant's answer was not disputed.

When the
appellant was searched a wallet, which complainant claimed was his
property and was forcefully taken away from him together
with its
contents, was found in his possession. Similar brand of cigarettes to
those forcefully removed from the complainant were
found on the
appellant. Only two cigarettes were missing. It was not suggested
that 'Maseboka Koena had a motive to implicate the
appellant. (cf.
Lenka v. R. 1967-70 LLR. 360 at 362; Koenyama Chakela v Rex. 1971-73
LLR.

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105). It
has, moreover, not been pointed out to this Court that the learned
magistrated had misdirected himself. From the record
of the case I am
satisfied that there is no possibility of mistaken identity.

In the
premises the appeal is dismissed.

JUDGE.

For the
Appellant : Mr. Ramodibeli

For the
Respondent : Mr. Peete.