HIGH COURT OF LESOTHO.
Appeal of :
by Hon. Mr. Justice F.X. Rooney on the 24th day of August, 1982.
Ramodibell for the Appellants Mr. Khauoe for the Respondent.
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
were not represented at the trial, Mr. Ramolibeli appeared for them
on appeal on the
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.
of stock theft present difficulties to police investigators, public
prosecutors and the magistrates who have to try them.
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
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.
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.
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
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
1 and 2 to take the animals from Takalatsa. He
is complainant's neighbour. After hewas suspected he led complainant
police to where the animals were later detected."
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
is not before the court."
"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
present when Thai said this. Mariti agreed. Thai is that one accused
cross-examination of the complainant by Accused No, 3 went as follows
"Q. Did your cattle disappear at Takalatsa?
Q. Did you know where they had gone to?
Q. Who told you about them?
Q. What do you think caused me to volunteer and tell you where your
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."
the animals were traced to the third appellant. He was convicted on
the evidence of a suspicious neighbour. This is hardly
foundation for finding that he was guilty of stock theft beyond all
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
the skin as being that of his lost beast by reference to its
colour. The magistrate was quite willing to accept this as proof
all reasonable doubt that the fourth appellant was guilty. I
appellant (who was accused No.8 at the trial) is the father of the
first and fourth appellants. He was convicted of receiving
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.
case of the 1st and 2nd appellants, there were some grounds for
suspicion, as they sold certain animals using bewys which
irregularly obtained if not forgeries. However, this did not cure the
deficiencies in prosecution case which rested on an
which was not established.
hearing of the appeal, I set aside the convictions and sentences and
ordered the fine of M120 to be refunded to the 5th appellant.
appellants are entitled to a return of the deposits paid by them.
for the Appellants : Mr. A.R.S. Mda,
for the Crown : Law Office.
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