CRI/A/80/94

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

LITS'ITSO
MATSELA 1st Appellant

MPAKAPAKA
NTS'EKHE 2nd Appellant

v.

REX
Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice W.C.M. Maqutu. Acting Judge on the 17th day
of March. 1994.

This is
an appeal against the judgment of the Magistrate for the district of
Leribe. In that case the two appellants were charged
with
intentionally stealing the three oxen, the property or in the lawful
possession of Moeti Malieletse on the 22nd August, 1988.

Both
accused pleaded guilty. They were duly convicted and sentenced to 5
years imprisonment on the 29th August, 1988.

2

It has to
be noted that stock-theft was one of the crimes which was included
under Revision of Penalties Amendment Order No. 10
of 1988. This
order was repealed in 1991.

The
Appellant's trial took place with unusual speed having regard to
circumstances that prevailed at the time.

This
court has on several occasions warned Magistrates and Prosecutors
that people charged with serious offences should be advised
or even
encouraged to have the services of a legal practitioner. Such people
are not bound to do so, of course.

Akermann
J.A. in Phomolo Khutlisi v. Rex C. of A (CRI) No.5 of 189
(unreported) dealing with the accused that are charged with serious

offences said:

"I would emphasise , however, the importance, in the
administration of justice of the accused being informed at the
commencement
of the trial of his rights in regard to legal
representation, a matter which was referred to by Lehohla J in Lt.
Pulumo V. Rex
CRI/T/27/88 (unreported).

In S. v.
Mbonani 1988(1) SA ..... at 196G-J Goldstone J. dealing with the
question of legal representation noted the importance
of legal
representation:-

3

"Especially where the charge is a serious one which may merit a
sentence which could be materially prejudicial to the accused,
such
an accused should be informed of the seriousness of the charge and
the possible consequences of a conviction."

The
Appellants had initially appealed against sentence, but they had
indicated that in their notice of appeal that they reserved,
the
right to file further grounds of appeal when the record of appeal was
available.

Mr.
Ramodibeli, Counsel for Appellants in hie heads of argument submitted
that the outline of facts by the public prosecutor did
not disclose a
commission of an offence in that it did not disclose an intention to
steal. In as much as the cattle came into the
hands of appellants
covered by bewyses, the Crown was obliged to show that the Appellants
knew the cattle were stolen. Nothing
is said about he bewyses or how
the police came to the conclusion that a criminal action had been
committed by the accused,

I am
indebted to Mr. Ramodibeli for his Heads of Argument and the decided
cases quoted therein. They made the court's work pleasant
and easy in
preparing this judgment. His example if followed by all will improve
the quality of the work of this court.

4

The Crown
did not support conviction.

The court
went over the record and this is what it discloses which connects the
accused with the charge of theft as the police saw
it:-

"Both accused were driving the said animals for sale. On demand
both accused produced some bewys and some police were not
satisfied
arrested them and drove them to Maputsoe Charge Office, where
complainant identified them as hie missing cattle.

The
accused admitted the facts and were duly convicted and sentenced to 5
years imprisonment. There is no doubt that no crime of
theft or the
competent verdict of receiving stolen property knowing it to be
stolen has not been disclosed. Nor even unlawful possession
of stock
in terms of Section 16 of Stock Theft Proclamation of 1921 as amended
could have been a competent verdict. The reason
being that it is not
shown how the production of bewyses did not satisfy "some
policemen" at the time or any any time.
See Makeng Mpesi v. Rex
1967-70 LLR 112. Vital evidence (if the Crown had it at all) has been
with-held from the Court. In Mapota
Napo v. Rex 1971-73 LLR 5 details
of what went on in the arresting authority's mind, the nature of
suspicion raised by the circumstances
and the accused explanation
must be disclosed.

5

The case
of R. v. Majola 1977 LLR 1, the accused had pleaded guilty and had
been sentenced. That case was in many respects similar
to this one.
This Court per Cotran C.J.found itself compelled to quash conviction
and sentence and release accused on review because:-

"In this instance, it was impossible, either from the accused's
plea, much less from the outline of the case to infer that
th sheep
were stolen."

Cullinan
C.J. in R.v. Makotoko Khabo CRI/REV/130 and 180/90 (unreported) had
occassion to deal with a plea of guilty and an unsatisfactory

statement of facts by the Public Prosecutor and he had this to say:

"I have repeatedly said the court should not be astute in
drawing inferences from a statement of facts; the prosecution is

relieved by a plea of guilty from adducing evidence; it is not
relieved from the duty of stating facts, including every ingredient

of the offence in clear unequivoval language."

Undoubtedly
having regard to the aforegoing, there can be no doubt that what has
transpired in these proceedings has prejudiced
the Appellants.

6

The
conviction and sentence are, therefore, set-aside and the appellants
are acquitted. Their appeal deposits are to be refunded.

W.C.M.
MAQUTU

ACTING
JUDGE,

17th
March, 1994.

For
Appellant : Mr. Ramodibeli

For
Crown: Mr. Ramafole.