CRI/A/81-82/83

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

THAKENG
KHOSI 1st Appellant

MABILIKOE
LEUTA 2nd Appellant

V

REX
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 14th day of
November, 1983

On 9th
November 1983 I allowed the appeal and intimated that I will file my
reasons later. These now follow.

The two
appellants were convicted of stock theft (12 sheep) on the 1st
September 1983 and were sentenced to 18 months imprisonment.
The
offence had allegedly taken place on 16th July 1980. The trial
therefore took place well over three years after the commission
of
the offence.

It was
contended by Mr. Pitso for the Crown and Mr. Tsotsi for the two
appellants that the convictions could not stand (and I agree)
but
whereas Mr. Pitso's submission was that a retrial should be ordered,
Mr. Tsotsi's submission was that it ought not.

What
happened was this :

1. Three
   accused persons, the two appellants and a third who was eventually
   acquitted, appeared before the magistrate on the 31st
   August 1983.

   
   

2. The
   second appellant had briefed an attorney, Mr. Kolisang, to appear on
   his behalf.

   
   

3. The
   two appellants (and the third accused) pleaded not

   
   

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guilty. The second appellant (Mabilikoe Leuta) said his attorney was
unable to attend and requested an adjournment. There was in
fact a
letter addressed by Mr. Kolisang to the magistrate requesting him to
adjourn the case to the 5th October 1983.when he would
be available
at Thaba Tseka.

4. The
   public prosecutor objected to an adjournment on the ground that the
   case has been pending for over three years, He apparently
   said that
   if the court feels disposed to grant the application he will seek
   separation of the trials, i.e. that the trial of
   appellant 1 and
   accused 3 who was acquitted would proceed forthwith and the trial of
   appellant 2 will take place presumably on
   5th October 1983 when his
   lawyer Mr. Kolisang would be available.

   
   

The
magistrate acceded to the application for separation and ordered
appellant 2 to stand down, which he did, but he remained in
the well
of the court when the case proceeded against appellant 1 and the
other accused who was acquitted.

Although
I would not myself have agreed to separate trials I see nothing wrong
in law with the magistrate acceding to the request
of the public
prosecutor. Separation is sometimes very inconvenient particularly if
the facts are interlocked and the witnesses
come from far away.
However this is what happened. The first Crown witness was the
complainant whose sheep were stolen. He did
not know appellant 1
(appellant 2 was out of the trial by then) though he knew the third
accused who was acquitted. His evidence
was extremely important
because he was the witness who claimed he identified his sheep marks
which he described as "red paint
mixed with letsoku that turn
black on mixing" especially" after getting some dust."

He was
cross examined by appellant 1 and the accused who was acquitted but
not of course by appellant 2 who was by then no longer
in the dock.

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On the
following day, 1st September 1983, when the trial resumed the two
appellants and the third accused appeared before the magistrate.

Appellant 2 then told the magistrate that his "lawyer wants to
waste time", that he did not need him anymore, and he
wants to
"join the others" i.e. appellant 1 and the accused who was
acquitted.

The
magistrate then noted that appellant 2 "steps in again" and
the trial of the three continued.

There is
in Lesotho an authority (R. v Phate and another 1980(2) LLR p.313 et
seq) for the proposition that once separation has
been ordered after
a plea has been taken, the magistrate is debarred from reversing or
recalling his order. It was a case on review
dealt with by Mofokeng J
and he heard no argument in open court. However he sought the views
of the Director of Public Prosecutions
who did "not support the
conviction". In South Africa (R. v Khataleki and another 1948(2)
SA 207) Gardner J had a somewhat
similar problem but he did not say
positively that joinder of an accused person after a trial starts was
unlawful. In that case,
which is distinguishable on the facts from
the review before Mofokeng J, there was no order of separation of the
trials made ab
initio. The facts appear from the following passage at
p 209 :

"Now it appears that at the trial three small boys were called
for the prosecution when the case opened against A and B. They
gave
certain incriminating evidence against A and B. At the conclusion of
their evidence C was arrested and put into the dock,
and then the
three boys were recalled. And on this occasion they gave no evidence
incriminating A and B, that is the present two
appellants. The
question arises whether the magistrate was entitled to rely upon the
evidence given by the small boys in the proceedings
that he heard
against A and B for the purpose of convicting in this case. To us it
appears that the proceedings against A and B
were entirely separate
and, when the case started against A, B and C, the proceedings had to
begin de novo".

Now I am
not prepared to go as far as my brother Mofokeng for I can visualise
some instances where reversing

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an order
for separation of trials will not result in any prejudice to an
accused e.g. if the order was made in circumstances of

misunderstanding by the magistrate or the prosecutor and rectified
immediately of if only a formal witness had been called and
is
available to be recalled to give evidence again and does so.

In this
case it is impossible to say there was no prejudice. When the
magistrate made an order for appellant 2 to "step in"
a
vital witness, the complainant, had been heard. Since appellant 2 had
left the dock he did not have the opportunity of cross
examining him.
Furthermore the magistrate did not recall the complainant after
appellant 2 was joined.

I am left
with no alternative but to allow the appeal and the only question
that remains is whether, as the Crown submits, I should
order a
retrial. Now a retrial should not be ordered simply to let the
prosecution have another bite the cherry. In addition there
is the
question of the inordinate delay in the initial prosecution which is
nowhere explained. I have perused the original record
to find out why
but in vain.It cannot be said that the appellants were responsible
for this delay and must accept it at their peril.

Lastly I
must consider the consequences of a retrial. Whoever tries the case
again, and it will have to be a different magistrate,
and this might
take months, will be faced with a formidable problem. Only one of the
stolen sheep was recovered alive. It was not
however produced before
the first trial magistrate for him to assess the value of the
identification marks detailed by the complainant,
and it cannot be
produced to the other magistrate who will conduct the new trial
because the live sheep was reportedly stolen from
the police pound by
a person called Sam Sam before the trial started. Nine skins were
reportedly recovered by the police from the
compound of appellant 1
and these had reportedly the same marks of the complainant but the
marks

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were of
the common type that many people use. The complainant then alleged
that he can recognise the sheep "from their faces".
Now he
did not actually see except one sheep "from the face". the
one recovered alive out of twelve. The skins of some
nine other sheep
could not have been recognised since I presume "their faces"
were gone. The trial magistrate could not
himself test the
complainant's veracity about the markings on the skins because the
skins (by the time the trial took place) had
also gone and reportedly
"eaten by mice" in a police exhibit store. It would follow
that the other magistrate who will
conduct the new trial will, like
the first magistrate before him, have nothing save the memory of the
complainant and the tainted
evidence of an accomplice with only
little to support him,

I have
gone at some length on this application for a retrial because it was
submitted that the ends of Justice demand that this
course be taken.
I have, I hope, demonstrated to the Crown that there are quite apart
from the fact that some four years would
have gone by when the trial
does take place eventually other circumstances that demand an end to
the ordeal of having a charge
hanging over the appellants heads which
will, in all probability, result in their acquittal after all.

Order for
a trial de novo refused and the appellants must now be freed.

I do not
order refund of their appeal fees. The appeal has been allowed on a
technicality which proved fatal and the matter must
be left at that.

CHIEF
JUSTICE

14th
November, 1983

For
Appellants : Mr. Tsotsi

For
Respondent : Adv. Pitso