CRI\A\83\93

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

RAMORAKE
MATIASE Appellant

v

R E X
Respondent

J U D G M
E N T

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 12th_day of May, 1993

In this
matter there were originally two accused. The present appellant was
accused No.1 in the Court below; while the other accused
who didn't
appeal was accused No.2.

As I have
stated the only one who has appealed has done so on the following
grounds, namely, that the learned Magistrate misdirected
himself in
deciding that the facts narrated by the prosecutor disclosed the
commission of an offence in respect of this appellant.
The second one
which I didn't really go into except perhaps for academic reasons
only was that one and half

2

years'
imprisonment sentence imposed by the learned Magistrate was coo
severe, and that it induced a sense of shock.

I may
even at this stage express my disinclination to agree with that part
of the appeal,

the
appellant was convicted of the offence of receiving stolen property
having known it to have been stolen. The original charge
was that of
House Breaking with Intent to Steal and Theft.

It was
argued before me to the contrary, but later conceded that if in fact
this has been proved, the offence of which the appellant
was
convicted would be in order because section 190 of our Criminal
Procedure and Evidence Act 1981 says :

"Any person charged under Common law or any Statute with
breaking into any premises with intent to commit an offence specified

in the charge may be found guilty of House Breaking with Intent to
Commit some other offence than that specified or some offence
unknown
if an intent to commit the specified offence is not proved, but an
intent to commit such other offence or such unknown
offence is
sufficiently proved".

On this
basis it would appear that the conviction for receiving stolen
property knowing it to have been stolen would stand.

3

But the
difficulty in this case is that as far as relates to the present
appellant the only link that brings him near to the offence
committed
flows from the second paragraph of the facts which he accepted in the
outline by the public prosecutor. This paragraph
reads as follows :

"They found information relating to accused two(this is the one
who didn't appeal). He was arrested and interrogated by the
police in
connection with the said generator.

Accused two made an explanation which when followed led them to
accused No.1. They asked him about the generator. He gave them
an
explanation and took then to 'Masekhohola Ntsoele who said accused
No.1 came to her and to keep the generator for him (accused
one is
the present appellant). She handed it to accused who agrees that it
was the same generator from 'Malibetso's house".

While in
fact it is true that a statement or an outline of the facts of the
offence by the public prosecutor is a brief statement
presented
before the court that tries an accused person, however, the fact that
it is brief does not mean that factors which are
important to a case
should be ignored. In other words an outline by the public prosecutor
should disclose commission of an offence.

This
narration as it stands does not tell us that there was any intent, in
other words that this man in receiving this stolen property
knew that
it was stolen. There is absolutely nothing to support that view. So
all there could possibly be is that in