CRI/S/6/88

IN THE
HIGH COURT OF- LESOTHO

In the
matter of :

REX

V

MONERI
MAANELA

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M. Lehohla on the 13th day of
September, 1988.

The
accused in this matter is aged about 28 years and is a subject of
headman Teboho Motale who is under the chief of Ha Rantsimane
i.e.
chief Ntaote K. Ntaote in the Thaba-Tseka district.

Accused
was charged with theft of eleven cattle alleged to have been stolen
on 30th April 1987 from a cattle post at Matsoana in
the Thaba-Tseka
district. The cattle were before and at the time of the alleged theft
in the care and custody of Khabele Mafa and
Khabo Khaoli who are also
owners of part of the live stock that got stolen on the night in
question. The rest of the cattle belonged
to one Seeiso Khaoli.

The
charge was put to the accused by the court below. An explanation of
the charge was made to him and the magistrate noted on the
record at
page 1 the words "He understands the charge."

Initially
accused had stated that he has an attorney Mr. C.D. Molapo whom he
had briefed to appear for him in the court below. It
turned out that
accused's attorney would in no way appear for him because accused had
not kept part of his bargain with Mr. Molapo.
This was

2

made
plain in terms of a letter addressed to the public prosecutor by Mr.
Molapo. This letter was produced in that court and marked
"A".
Later accused stated that he had instructed Mr. Lesuthu to appear for
him. However this too proved untenable in
view of the fact that in
terms of evidence led by Mr. Lesuthu's clerk accused had not provided
the necessary sinews of his brief.
This was borne out in the record
where the clerk said in answer to the question put to her by accused
"I have just asked Mr.
Lesuthu by phone he said you have not
paid." Accordingly the court took the view that no good reasons
were advanced by accused
for a postponement. Consequently the case
was proceeded with and accused pleaded not guilty to the charge.

At the
end of the day he was convicted as charged and committed for sentence
by this Court. It appears that being not happy with
the conviction
even before sentence could be imposed accused lodged an appeal
against the conviction and sought Mr. Lesuthu's services
for purposes
of prosecuting the appeal. Hence the latter's appearance before me
today.

In these
grounds of appeal it was contended for accused that he did not
understand the charge. But my reading of the record shows
that he
indeed understood it and consequently pleaded not guilty and
conducted his defence in a manner that is not in conflict
with his
plea.

The
second ground of appeal was that accused was denied legal
representation. But it appears to me that the court went to great

lengths finding from offices of practitioners if indeed those
practitioners held the brief for him. It turned out that they did

not. It thus cannot avail an accused person to think that his mere
wish to be represented by a certain practitioner entitles him
to
representation even though the essential part of obligating such a
practitioner to appear for him had not been met. It is no
mere
platitude that money

3

makes the
mare go.

As
clearly set but in CRI/A/48/86 Mothakathi vs Rex (unreported) at page
7.

"Section 162(1) of our C.P. & E. provides that where
provisions of, section 159 of the Act have not been invoked accused

shall either plead to the charge or except to it on the ground that
it does not disclose any offence cognisable by the Court
..............

Subsection
2 provides that if he (accused) pleads he may plead

1. that
   he is guilty of the offence charged ....... or

   
   

2. that
   he is not guilty; or

   
   

3. that
   he has already been convicted or acquitted of the offence with which
   he is charged; or

   
   

4. that
   he has received the Royal pardon for the offence charged; or

   
   

5. that
   the court has no jurisdiction to try him for the offence; or

   
   

6. that
   the prosecutor has no title to prosecute."

   
   

If any of
the alternatives from (a) to (f) was breached accused was even at
this stage at liberty to point that out as constituting
a failure of
justice as envisaged by provisions of our High Court Act and C.P. &
E. above.

At page 8
of Mothakathi above I said I cannot underrate the importance of
accused person's right to legal representation. Welsh
J.A. in case
No. 46/84 Swaziland. Appeal Court Decision, Caiphas Dlamini vs Rex
(unreported) at 11 said

".............. in S. vs Baloyi 1978(3) S.A. 290 (T) at 293
Margo J. referred to a number of cases dealing with (the right
of an
accused to legal representation where he wishes it) and holding that
(the mere fact of being denied legal repre­sentation
can by
itself be fatal to the validity of the trial)."

Welsh
J.A. quotes with approval the words of Margo J. that

4

"However, where he (the accused) does not seek it, and where no
irregularity occurs by which he is deprived of it, there is
no
principle or rule of practice of which I am aware which vitiates the
proceedings ........"

Dealing
with a corresponding provision in the South African Act of 1917
Tindall J.A. in Rex vs Patel. 1946 A.D. at 908 said :

"Whatever form of language is used to enunciate the principle on
which an appeal court acts , under the proviso ...... the
point of
importance is that the appeal court does not attempt to. divine what
the particular trial court would have decided had
the irregularities
not been committed, but concerns itself with finding out what a
reasonable trial court properly directed and
unaffected by any
irregularity would have decided."

It is in
this respect that I am of the view that reading through the record I
have not come across any irregularity that warranted
my interference
with the procedure adopted by the court below. Even if there can be
said to have been some it does not go any close
to vitiating the
proceedings in that court as none of the provisions of our C.P. &
E from (a) to (f) above has been violated.

It was
contended on behalf of the accused that there was no proof that he
took or received stolen property knowing it to be stolen.

But
evidence in this case reveals that P.W.1 and P.W.2 while at the
cattle post were pelted with stones by a group of about five
people
who took advantage of cover of darkness against being identified or
recognised on the evening of 30th April 1987. When P.W.1
and 2 fled
the group of five helped themselves to eleven cattle which were in
the care of these witnesses. This was at Thaba-Tseka.
Hardly two days
after this occurrence accused was seen trying to sell two of the
cattle in question more than hundred kilometres
away in Butha-Buthe.
He was trying to sell them to P.W.11 Seeiso Moqa who was suspicious
of the bewyses which partly tallied with

5

the oxen
in question; in that only the colours grey and red were reflected
whereas these oxen had additional colours. Further that
there
appeared to be cancellation which rendered the writing on the bewyses
undecipherable. Moreover the appearance of the papers
was as if they
had been dipped in water. This witness challenged the accused to say
why it seemed he had washed the bewyses to
which accused said the
bewyses got soaked when he tried to cross the river Malibamatso which
was in full spade.

Needless
to say accused though hearing in the Court below that he had given
his names as Thabo Shoaepane to P.W.11 he nonetheless
let this
evidence go unchallenged though he maintains that those are not his
names. It is not difficult therefore that he is the
sort of man who
prefers to survive in disguise. By all means a questionable attitude.

Further
accused said his home was at Mapholaneng but finding that he was
confronted by a policeman who knew that place well he was
hard put to
it to say where exactly his home was in that place. Needless to say
the charge sheet shows that his home is at Ha Rantsimane
in the Thaba
Tseka district and not Mapholaneng which is at Mokhotlong. Surely the
crown could not have learned of his Thaba Tseka
home from anybody
other than the accused. If he has lied so much on as innocent factors
as his name, home and people he says he
bought the oxen from how much
more is he to lie about factors connecting him with theft of eleven
cattle which disappeared from
the cattle post at 'Matsoane in
Thaba-Tseka?

One
cannot be impressed with the usual stock in trade answer of stock
thieves that they don't know the names or identities of people
from
whom they purport to have acquired live stock lawfully. Surely a man
who acquires property from a stranger expects that stranger
to
guarantee him against eviction by third parties. If

6

he
positively deprives himself of the benefit that should fall to his
lot in the event of being evicted from his hard-earned property
at
whose door other than his own is he to put the blame?

If
accused's story was to be believed that he acquired the two oxen
found in his possession so soon after their disappearance from

'Matsoana cattle post and amazingly so far away from that place
trying to sell them even, one would have expected the bewyses to
bear
the dates 1. 5. 87 or 2. 5. 87. Instead the bewyses bore dates that
showed he could not have lawfully been having those oxen
on 7. 3. 87
for at that date the oxen belonged to P.W.1, 2 and 3 and were in the
custody of these first two witnesses.

The
evidence of Soai Ntabe P.W.9 becomes of relevance here when he said
the bewys with which he covered a sheep sold to another
man remained
among accused's papers for some days but had disappeared when he
tried to retrieve it.

Further
the bewyses he was carrying differed from their duplicates kept at
Thaba-Tseka.

He said
he had received these bewyses from someone he did not know but from
whom he bought the two oxen. As shown above these bewyses
are smudged
and relate to a red ox and a grey one yet corresponding duplicates
thereof i.e. E No. 620413 and F No 222296 relate
to a black goat and
a black sheep respectively. Date stamp impressions relate to 17. 1.
86 and 13.4.87. Yet superimposed on the
faint date stamp impressions
on the originals are in handwriting the dates 7. 3. 1987 and 7. 3.
1987 respectively. Furthermore
it appears an attempt was made in
bewys F No 222296 to trace in hand­writing the original dates but
someone thought better
of the effort and consequently failed to erase
completely the figures 13 - 1987 appearing thereon.

I have
already indicated that the bewyses themselves

7

grounded
enough suspicion that the cattle in the possession of the accused
were not lawfully held. This coupled with the fact that
the owners of
these oxen were able to identify them later at the trial and further
that the purported sale was being negotiated
as early as 8.00 a.m. on
2. 5. 87 more than 100 kilometres away when the cattle had
disappeared on the night of 30. 4. 87 it is
not difficult to see that
accused was trying to be rid of those cattle as quickly as possible
regard being had to the fact that
the speed with which at normal rate
it would take the cattle to travel from Thaba-Tseka to Butha-Buthe a
minimum of 4 days; and
that the cattle were either driven hard or
conveyed by some fast means.

It is
therefore not a baseless inference to say accused must have known the
circumstances in which these cattle were driven from
Thaba-Tseka and
that at the lowest associated himself with the acts that enabled the
despoilers to dispossess P.W.1 and 2 of the
cattle under their care.

The
question of superimposition of scribblings on bewyses meant to cover
the two oxen has been established. One of the duplicates
shows that
what was being covered originally was a sheep. It is not difficult to
infer that this was the sheep sold by P.W.9 Soai
to someone. This
bewys was among accused's papers and he does not deny this fact. But
it disappeared. I therefore infer that he
further tried to knowingly
use it later in the foiled transaction he was negotiating with Moqa.
The conclusion reached by the learned
Magistrate in the Court below
that even before the theft accused already had these bewyses in his
possession is not without foundation.
This further puts a lie in
accused's throat that he got them from strangers who sold him the
oxen.

Accused
failed to explain what procedure he was

8

trying to
follow using the same bewyses he acquired from strangers to cover
oxen intended to be sold to Moqa. I called upon Mr.
Lesuthu to at
least throw some light on this but he too Was at a quandary to make
sense out of it.

It is for
the above reasons that I felt I could not readily accede to the
gratuitous offer made on behalf of the accused that if
convicted it
should be in respect of the two oxen only, for it clearly occurred to
me that this was a ruse or a mere ploy to shield
accused's companions
in crime. There was a determined effort by all despoilers to dispose
of their spoils as quickly as possible.
This they managed perhaps
under cover of darkness but it was accused's wretched fortune that
when lights were on he was found with
a ball in his hands. Hence the
adage theft is slavish only innocence is free.

Consequently
I find that accused was properly convicted as charged. The fact that
the other group of men who helped remove these
cattle from
Thaba-Tseka cattle post failed to be detected and brought to book
cannot avail the accused saying he had only two oxen
in his
possession and therefore cannot account for the remaining nine. The
fact that his colleagues in crime were not arrested
is as far as
their worldly luck goes. The inference is that accused was found out
trying to get rid of the last two cattle out
of eleven, nine of which
got disposed off during the preceding 36 hours. This manifests
clearly the doctrine of recent possession.

Theft
being a continuous offence clearly puts accused to account for the
other nine cattle stolen along with the two which were
later found in
his possession while trying to hurriedly dispose of them thirty six
hours later at a place more than an incredible
100 kilometres from
the source where they had all gone missing.

9

Accused
said he decided to sell two oxen at Butha-Buthe because they had
become lame. It is not difficult to infer that they became
lame as a
result of a hard drive covering more than a hundred kilometres from
Thaba-Tseka to Butha-Buthe in less than two days.
The minimum
sentence I propose to impose is of (8) eight years' imprisonment.

ACTING
JUDGE.

13th
September, 1988.

For the
Crown : Miss Nku

For the
Defence: Mr. Lesuthu