CRI/A/2/82
IN THE HIGH COURT OF LESOTHO.
In the Appeal of :
TS'ELISO MOHALE
THAI 'MATLI
MARITI MARITI Appellants
LESOLE MOHALE
MAKOKO MOHALE
V
REX Respondent
REASONS FOR JUDGMENT
Delivered by Hon. Mr. Justice F.X. Rooney on the 24th day of August, 1982.
Mr. Ramodibell for the Appellants Mr. Khauoe for the Respondent.
On the 4th December, 1981, the first four appellants were convicted of stock theft and the fifth appellant of receiving stolen stock by Mr. G T. Jane sitting in the Subordinate Court at Qacha's Nek. They filed appeals against their convictions and the matter was brought to my attention on the 8th January, 1982. The appellants wrote out their grounds of appeal in Sesotho. As no steps had been taken to translate these into English, I gave' directions accordingly. Although the grounds of appeal were brief, I did not see the file again until the 5th May. Having drawn the Register's attention to the 4 months delay in translating the grounds of appeal, I directed that the appeal should be enrolled. Unfortunately, the case was not set down for hearing until the 20th August, by which time the four appellants who had been sentenced to twelve months imprisonment each had been released from custody on completion of their sentences taking into account remission for good behaviour.
It is not for me to apportion blame for the disgraceful delays which have attended upon the prosecution of this appeal. Although the appellants were not represented at the trial, Mr. Ramolibeli appeared for them on appeal on the
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instructions of Mr. A.P.S. Mda of Mafeteng. I do not know when that attorney received his instructions and I cannot therefore say if he can be held in anyway responsible for the delay. It is impossible to avoid the conclusion that the principal fault must lie within the court system itself. The remarks I made in the case of Bofifi v. Rex 1980 (1) LLR 1 do not appear to have had any effect.
All cases of stock theft present difficulties to police investigators, public prosecutors and the magistrates who have to try them. The main problem is the identification of the animals alleged to be stolen. The system of earmarking employed by the Basotho is at best an imperfect means of identification. This problem cannot be overcome by the ready acceptance of an owner's identification without proper inquiry. In the present case the Crown was obliged to concede that the complainant's ear-marks, as described by him, did not correspond to the ear-marks of the animals traced to the some of the appellants and produced in court. In his reasons for judgment the magistrate made no mention of this discrepancy. This Court is entitled to conclude that it was something which passed his notice or was not considered at all in the evaluation of the testimony before him. This threw considerable doubt upon the accuracy of the identifications made by the complainant end the whole basis of the prosecution case was thereby undermined.
The record contains a mass of irrelevant and otherwise inadmissible evidence given by the police witnesses. These include statements
allegedly made by the appellants after caution and statements said to have been made by witnesses in the presence of the accused. The magistrate permitted this evidence to be presented to him without challenge although the accused were not represented and could
scarcely be expected to be well acquainted with the law of evidence. The most conspicuous victim of this type of evidence was the third appellant, Mariti, about whom the magistrate stated :
"Accused 3, Mariti Mariti according to the evidence of Lebona Soka (PW.3) and that of the police, he is the one who helped accused 1 and 2 to take the animals from Takalatsa. He
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is complainant's neighbour. After hewas suspected he led complainant and the
police to where the animals were later detected."
The only real "evidence"against this appellant was that of Leboka Soka who said :
"I also received information involving Mariti who is my neighbour. I followed the information. The man who gave the information is not before the court."
And
"Mariti had explained that he gave the animals to accused 1. Mariti told us all this in the presence of accused 1. Ts'eliso
(Accused 1) agreed that the horse was from Accused 3. Thai had also explained that they had received the horse from Mariti. Mariti was present when Thai said this. Mariti agreed. Thai is that one accused 2."
The cross-examination of the complainant by Accused No, 3 went as follows :
"Q. Did your cattle disappear at Takalatsa?
A. Yes.
Q. Did you know where they had gone to?
A. No.
Q. Who told you about them?
A. You.
Q. What do you think caused me to volunteer and tell you where your cattle were?
A. I was searching for them. I had received information about you.
Q. Had you seen me doing something suspicious?
Q. Did you find some of them with me?
A. No, but I found them all according to your explanation.
Q. Where did I say your cattle were?
A. You said you had given them to the people of Senqu, you even offered to show me where they were.
Q. To whom did I say they were?
A. To Tseliso and Thai.
Q. Did they also agree that I gave cattle to them?
A. They said so, you even chose them from other cattle in the pound.
Q. Where were they when I pointed out the animals in the pound?
A. Only Thai was there."
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None of the animals were traced to the third appellant. He was convicted on the evidence of a suspicious neighbour. This is hardly a good foundation for finding that he was guilty of stock theft beyond all reasonable doubt.
The fourth appellant admitted that he sold a cow to Matlatsi Rajele (PW.6). The ear-marks on this animal did not correspond to the
ear-marks of the complainant. The beast was slaughtered by the purchaser who retained the skin. The complainant purported to identify the skin as being that of his lost beast by reference to its colour. The magistrate was quite willing to accept this as proof beyond all reasonable doubt that the fourth appellant was guilty. I am not.
The fifth appellant (who was accused No.8 at the trial) is the father of the first and fourth appellants. He was convicted of receiving stolen animals. There were some evidence that he looked after beasts brought to him by the first appellant which were subsequently seized by the police. There was no evidence at all that he knew or even suspected that these animals had been stolen. It appears that his conviction rested entirely upon his relationship to persons whom, the magistrate believed were guilty of stock theft.
In the case of the 1st and 2nd appellants, there were some grounds for suspicion, as they sold certain animals using bewys which were irregularly obtained if not forgeries. However, this did not cure the deficiencies in prosecution case which rested on an identification which was not established.
On the hearing of the appeal, I set aside the convictions and sentences and ordered the fine of M120 to be refunded to the 5th appellant. All the appellants are entitled to a return of the deposits paid by them.
F.X. ROONEY
JUDGE.
Attorney for the Appellants : Mr. A.R.S. Mda,
Attorney for the Crown : Law Office.
