CIV/A/66/87

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of:-

MONA FEKA
Appellant

vs

REX

JUDGMENT

Delivered.by
the Honourable Mr. Justice J.L. Kbeola on the 6th day of June, 1988

The
appellant was charged before the Roving, Central Court at Mokhotlong
with the theft of two cattle the property of Noebejara
Tikiso. He
pleaded not guilty to the charge but was found guilty as charged and
sentenced to twelve (12) months' imprisonment or
to a fine of
M500-00. An application was made to the magistrate for review of the
proceedings in terms of section 26 of the Central
and Local Court
Proclamation No.62 of 1938, as amended.

The
magistrate came to the conclusion that there was no irregularity and
confirmed the conviction and sentence. The complaint was
that at the
end of the Crown case the President explained that the appellant was
entitled to:

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1. give
   a sworn statement; or

   
   

2. give
   an unsworn statement in which case he would not be cross-examined,
   but that an unsworn statement shall not be given the same
   weight as
   a sworn statement; or

   
   

3. remain
   silent.

   
   

Mr.
Lesuthu, for the appellant, was under the impression that in terms of
section 217 (3) of the Criminal Procedure and Evidence
Act 1981 the
appellant could not be allowed to give an unsworn statement. Mr.
Lesuthu was unaware that the procedure in the Roving
Central Court is
governed by Government Notice No. 21 of 1961 and not by the Criminal
Procedure and Evidence Act 1981. . Section
89 (e) of Government
Notice No. 21 of 1961 makes it quite clear that an accused person is
still entitled to give an unsworn statement
in his defence.

The
evidence of the Crown is to the effect that the cattle in question
went missing in May or June 1986 and that about two months
after
their disappearance they were found in the possession of the
appellant. (See page 2 of the record of the proceedings). It
is
alleged by all the Crown witnesses that when the cattle in question
were found they had been recently earmarked and had those
fresh
earmarks superimposed on the old marks.

It seems
to me that P.W.2 must be mistaken when he says that the cattle were
found two months after their disappearance because
according to
P.W.4, P.W.5, who is a policeman the cattle were found in the
possession of the appellant in November, 1986

3

and had
fresh earmarks. It is not clear what the witnesses mean when they say
the earmarks were fresh. Do they mean that they were
still bleeding;
or that clots had already formed; or that they were not as old as
those claimed by the complainant as his earmarks?

The Crown
ought to have made it quite clear what they meant by saying that the
earmarks were fresh. As soon as he was arrested the
appellant denied
that the two cattle had any fresh earmarks and claimed them to be his
property. As a result of the appellant's
argument and denial that the
cattle bore any fresh earmarks, the police decided to seek the
assistance of a neutral person who
had nothing to do with the
investigations. It was decided that they should be taken to a
veterinary officer who was asked to make
a written report of his
findings.

It is
common cause that the veterinary officer found that the cattle had no
fresh earmarks. At the trial the Crown did not call
the veterinary
officer and decided to rely on the evidence of untrained people. It
seems to me that the evidence of a veterinary
officer is like that of
a medical doctor in a criminal case. Both are experts in their own
fields and their evidence cannot be
lightly discarded by the court.
The police went to the veterinary officer because they regarded him
as an expert. However, when
he gave a report adverse to their case,
they not only decided not to call him as a witness but also concealed
his report. The public
prosecutor is an officer of the court and as
such should never conceal any evidence from the court. It is his duty
to make sure
that the court comes to a just decision. A conviction of
the accused person when some evidence has been concealed from the
court
is not a just

4

decision.
The report of the veterinary officer ought to have been given to the
defence.

Fortunately
the appellant knew about the report and called the veterinary officer
as a witness. As I have already stated above
his evidence was that
there were no fresh earmarks on the two cattle. His evidence confirms
what the accused had been saying throughout
the investigations and as
well as at the trial. The case for the Crown heavily depended on the
allegation that although the cattle
in question were no longer
calves, they had fresh earmarks superimposed on old ones.. Normally
cattle are earmarked while they
are still young and it is unusual to
find old animals bearing fresh earmarks.

The Court
President did not give any reasons for his judgment and I do not know
why he did not believe the appellant and the veterinary
officer that
the cattle had no fresh earmarks in November 1986 when they were
found in the possession of the appellant. A judicial
officer must
always give his or her reasons for judgment so that the appellate
court may know why he or she came to that decision.
Sometimes he
comes to a certain decision because of the demeanour of the witnesses
but that must be stated in the reasons for judgment.

Looking
at the evidence as it stands in the record it cannot be said that the
Crown proved beyond a reasonable doubt that the cattle
had fresh
earmarks when they were found in the possession of the appellant. He
ought to have been given the benefit of that doubt.

5

In the
result the appeal is allowed and the conviction and sentence imposed
by the Roving Central Court are set aside. I make no
order as to the
release of the cattle because there is a very serious dispute over
ownership, and it seems to me that such a dispute
may conveniently be
settled in civil proceedings.

J.L.
KHEOLA

JUDGE

6th June,
1988.

For the
Appellant Mr. Lesuthu

For the
Crown - Miss Moruthoane.