CRI/A/76/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

NOOE
THIBELLA Appellants

MOTANTSI
LIAU

V

REX
Respondent

JUDGMENT

Delivered
by Hon. Mr. Justice F.X. Rooney on the 1st day of November, 1982

Mr
Ramodibeli for the Appellants Mr. Peete for the Crown

At the
end of 1981 the appellants were charged before Mr, R. Nkuebe with the
crime of stock theft. It was alleged that on or about
the 1st
January, 1981 at or near Nene cattle post in the Quthing district,
they did steal 8 cattle the property or in the lawful
possession of
Zenzele Hesmane Xakekile Setlole and Semasele Qubu respectively.

On the
15th November 1981 they were convicted as charged and sentenced to 24
months imprisonment each. Three days later they were
released on
bail. I am informed that the second appellant, Motantsi Liau has
since died.

The three
complainants who kept their cattle at Nene cattle post lost between
them fifteen head in January, 1981.

On the
15th March, Trooper Fosa (PW.4) found 8 cattle at Tsatsanyane cattle
post grazing in the open veld. There were no herd boys
looking after
them. He told the court that all these beasts bore fresh earmarks and
brand marks. He drove them away to the pound
at Quthing. Later two of
the complainants identified and claimed the cattle as theirs.
Subsequently the appellant in this case
also claimed that 5 of the
cattle belonged to him. He denied that the animals bore fresh
earmarks. This witness did not identify
which of the five animals
were claimed by the appellant.

Headman,
Phatela Lebona (PW.5) inspected the cattle at the pound and confirmed
the existence of fresh ear-marks on 5 of them and
additional
ear-marks on others.

When the
pound master Katiso Ntho (PW.6) gave evidence, he referred to 7
cattle before the court which he said were the same as
those
impounded earlier in the year and which at that time bore fresh
ear-marks.

2

Nine of
the witnesses were asked to identify to the Court the cattle they
were speaking about This was an unsatisfactory feature
of the trial.
In many cases heard in the subordinate courts the unwarranted
assumption is made that witnesses ere referring to
exhibits although
they are seldom asked to identify them specifically

In his
defence, the appellant claimed that, of the seven cattle before the
Court, five were his own property He said that they all
bore his
ear-marks end four of them had his brand mark on the right hip. Again
he was not asked to identify the beasts about which
he was
testifying. He denied the allegation that Then the cattle were found
in the first instance they bore fresh ear-marks. He
called two
witnesses to support his claim to be the owner of the cattle, neither
of whom was asked to identify the animals during
their evidence They
did not assist the appellant to any degree.

Mr. Peete
who appeared for the Crown conceded that the evidence heard in the
Subordinate Court was insufficient to support the verdict
of stock
theft but, he submitted that the appellant should have been convicted
of an offence under section 16 of the Stock Theft
Proclamation

Mr. Peete
submitted that because the cattle bore the earmarks and brand marks
of the appellant when they were found they must be
deemed to have
been in his possession although they were wandering in the veld
unattended It was held by the Appellate Division
in the State v Wison
1962 (2) S.A 619 that it has not been universally accepted that in
order to be "found in possession"
within the meaning of the
Stock Theft Act of South Africa, it is imperative that the accused
should have been actually present
when the stolen stock is first
found, (per Ogilvie Thompson J A. at 623). However, it was held in R.
v. Tsotilsie 1953(1) S.A.
239 that the meaning of the word
"possession" cannot be extended to circumstances in which
the stock is not under the
direct control of the accused

Trooper
Fose did not tell the court a quo the reason why he brought the
cattle to the Outhing pound, although it can be inferred
that he did
so because he saw that they had fresh ear narks and trend marks Had
the Trooper reasonable ground for believing that
in the words of the
section

"that any person who is found in possession of stock or produce
has obtained the possession of such stock or produce un-lawfully"?

3

alternatively,
can it be said of the accused that he was proved to have been in
possession of the stock unlawfully? Either condition
must exist
before Section 16 can be applied and the person required to give en
explanation. ('Nete Tsoeunyane v Rex 1967-70 LLR
271). The reasoning
behind Jacobs C.J 's decision in the latter case was subjected to a
critical evaluation by Cotran C J in Suhlane
v Rex CRI/4/30/82,
unreported. But, in the present instance the arrest of the accused
took place not because the accused was found
in possession of the
stock, but on account of the fact that he laid claim to their
ownership after they were impounded by the police.

It seems
as if the accused may have abandoned the cattle after he had caused
them to be branded. He subsequently claimed them when
they were
already in the effective custody of the police. Such a possible
inference can be drawn from the evidence, and if it was
so, then an
intention to deprive the owners of the cattle permanently was not
shown to exist at the time of any possible contrectatio
and section
16 cannot be extended to convict the appellant as at the time the
stock were taken he was not suspected

This
appeal is allowed end the appeal fee returned to the appellant.

The case
against the deceased appellant was no better If the proceedings had
not lapsed with his death, his appeal would have suceeded.
The appeal
fee paid by him should likewise be refunded to his heir

F X
Rooney

JUDGE

1st
November, 1982.

Attorney
for the Respondent . The Lew Office.