CRI/A/22/81 IN THE HIGH COURT OF LESOTHO In the Appeal of : KHABELE RAMOETANE Appellant v REX Respondent REASONS FOR JUDGMENT. Filed by the Hon. Mr. Justice B.K. Molai . on the 14th day of July, 1981. On 3rd July 1981 I allowed the appeal in this case and promised to file my reasons later. These now follow. The appellant was on 18th February 1981 convicted of Arson by the Magistrate's Court of Butha-Buthe, it being alleged that on or about 5th July 1980 and at or near Boribeng in the district of Leribe but within 2 miles from the boundary of Butha-Buthe district and therefore within the jurisdiction of the Court he unlawfully and intentionally set on fire a certain house, the property of 'Manthabiseng Thamae, with intent to injure her in her property. A sentence of 9 months' imprisonment was imposed. The appeal is against both conviction and sentence. Broadly stated the Crown evidence was that appellant and complainant were lovers until 1978 when their love affair was terminated. On 5th July 1980 complainant was holding a party (stock fell) at her home. During the course of the party complainant noticed that appellant was in the house /2.
-2- together with other guests who had attended the party. Due to their previous quarrels when appellant had stolen her spade and sickle complainant told appellant to go and drink his beer outside the house. Appellant complied with her order. Later on complainant found appellant drinking in another of her houses together with her visitors. She wanted to order him out of the house but the visitors pleaded with complainant not to do so and promised to see to it that appellant would not steal anything. Shortly after, one of the visitors remarked that appellant had stolen something. Complainant found that appellant had taken her panty and told him to bring it back. Appellant complied. There was a quarrel between appellant and complainant when the latter ordered him to leave her place. As he left appellant was carrying a bundle of jerseys which he had been offering for sale during the day and he threatened to set the house on fire. According to the evidence of P.W.2 the time was then about 8 p.m. Shortly after appellant had left P.W.2 and another person who did not testify before the Court went out of the house. That other person went round the rectangular house and on his return was shouting: "Here is a man burning a house." P.W.2 then went round the house and with the aid of the flames from a burning portion of the house saw the appellant setting fire to another portion of the house. Appellant then ran away and was chased by P.W.2 and other people who did not testify before the Court. They were however, called back to put out the fire and could not get hold of the appellant. P.K.3 told the Court that on the evening in question she heard the alarm that complainant's house was on fire. She ran to complainant's place and on the way met a person whom she /3.
-3- likened to the appellant running in the opposite direction and people later said he was the one. P.W.3 further told the Court that she had noticed a bundle of jerseys falling from the person she had met running in the opposite direction. She picked up the jerseys and later handed them over to the chief who was, however, not called as a witness. P.W.4,a police officer, testified that he did not know how certain jerseys which were released to the appellant had come to the custody of the police. The jerseys were released to the appellant after they had been in the police custody for a long time. As regards the identity of the appellant complainant told the Court that although she had not seen him actually setting fire on the house she had seen appellant running away and identified him by the clothes he had been wearing at the time, namely, yellow shoes, maroon pair of trousers, a skipper shirt with multiple colours, a Likoefa blanket and a wollen cap called "Tlo-Bone Mofu" with brown and white colours. But according to the evidence of P.W.2 the person he had seen running away was wearing a scotch jacket, an English hat and a pair of trousers whose colours he could not notice. On the other hand P.W.3 told the Court that when she met him running in the opposite direction the appellant was wearing a jacket and a grass or wollen hat. Appellant accepted the evidence of P.W.4 but denied that of the complainant, P.W.2 and P.W.3. He, however, admitted to have attended the party at complainant's place until 6.30 p.m. when he left for his residence. He had left the jerseys in the possession of complainant for safe keeping and she could have taken them to the police after her /4.
-4- house had been set on fire in order to incriminate him falsely in this case. Appellant categorically denied responsibility for setting complainant's house on fire. The magistrate considered the evidence as a whole and accepted the Crown's story while rejecting that of the defence in as much as it was in conflict with the Crown evidence. The grounds on which the appeal was based were that the Crown did not make it clear as to the extent to which complainant's house was burned; that the Crown witnesses did not positively identify the appellant as the person who had set fire to and burned complainant's house; that complainant had motive in implicating appellant; that it was impossible to see the appellant as it was then dark and Crown Witness differed as to what appellant was wearing; and that the Crown did not prove that complainant's house was a fixed and permanent structure. Now, there was an undisputed evidence accepted by the trial Court that a portion of complainant's house was set on fire and actually seen ablaze. It is not necessary that the whole house should have burned down. If a portion of the house was admittedly set on fire and actually burned, it must be accepted that damage (no matter how slight) was caused by that burning and that is enough to constitute the crime. The crucial point is, however, whether the appellant was positively identified as the person who had set complainant's house on fire. According to the evidence accepted by the trial Court appellant had left complainant's place at dusk, at about 8 p.m. and it was already dark. Shortly after appellant had left, P.W.2 and another person went out of the house. Although at page one, line 21, of his /5.
-5- judgment the magistrate said P.W.2 had testified that on his return from the back of the house that other person raised the alarm that the accused (appellant) was burning the house, a careful reading of the record of proceedings would show that the alarm did not say the appellant was positively the person burning the house. The actual words used by P.W.2 (page 3, line 32 of the typed record) were: "This man went around the square house when he returned he shouted and said here is a man burning a house " (My underlining). This does not, in my view, necessarily mean that the person who was seen burning the house was positively identified as the appellant. In any-event, even if it were true that the person who raised the alarm had said he had identified the appellant as the person who was setting complainant's house on fire he was not called as a witness. His statement purporting to prove that appellant had committed the offence charged against him is a hearsay and therefore inadmissible evidence. The Court was not entitled to rely on inadmissible evidence to convict the appellant. One would have expected, as a natural reaction, that whoever was setting the house on fire should have started running away and disappeared into the darkness of the night the moment the alarm was raised. According to the evidence of P.W.2, however, while the alarm was being raised and a section of the house was already in flames he ran round the house and found the appellant still setting fire on another portion of the house. This sounds incredible. According to P.W.2, he then had no difficulty in identifying the /6.
— 6 — appellant by a scotch jacket, and English hat and a pair of trousers which he was wearing. If the appellant's attire was correctly described by P.W.2 then the person whom the complainant sew running away was not the appellant for according to her description that person was wearing a Likoefa blanket and a wollen cap. Nor could the appellant he the person subsequently seen by P.W.3 according to whose evidence the person she had met running in the opposite direction was wearing a jacket and a grass or wollen hat. In my view the evidence on the description of the attire by which the person who had set fire to complainant's house was so conflicting that the trial Court, properly advising itself, could not have reasonably concluded from it that that person was positively the appellant. That being so, it could not be said the appellant was on the evidence connected with the commission of the offence beyond a reasonable doubt. On the question that on her way to complainant's place P.W.3 met a person whom she likened to the appellant running in the opposite direction and a bundle of jerseys dropped from that person, P.W .3 told the Court that she had picked up the jerseys and later handed them over to the chief. This was disputed by the appellant who testified that the jerseys had been left in complainant's possession for safe keeping and they could have been given to the police by the complainant after her house had been set on fire in order to connect him falsely with this crime. The trial Court accepted the Crown evidence that there had been in fact a quarrel between the appellant and the complainant. The possibility that complainant could have had a motive to implicate appellant falsely in this charge could not therefore he totally ruled out. It was necessary that the chief should /7.
-7- have been called to testify that he and not the complainant had handed the jerseys to the police. In that way the danger that the complainant could have handed the jerseys to the police in order to incriminate the appellant falsely in this charge would have been reduced. The Crown, however, failed to call the chief as a witness and by that failure the danger has not been reduced. It was argued before this Court that the conviction in this case could not be sustained for the reason that the Crown had failed to establish that complainant's house was an immovable structure. In his reply to the grounds of appeal the trial magistrate held the view that: "a house is what we ordinarily understand to be a house, fixed and permanent structure." There may be a point in the view taken by the learned magistrate. It is, however, not unheard of that certain movable structures are often referred to as houses. But only a house which is an immovable structure Qualifies for the offence of arson in our law-see Hunt. South African Criminal Law and Procedure, Vol. 11 p. 768. It is for this reason that the learned authour at page 773 concluded: ".... it is best to enlarge the description of the burned property with an allegation that it is an immovable." I am of the opinion that the point was well taken but it is all academic now as I have, for reasons stated earlier, come to the conclusion that the appellant was not positively identified as the person who had set complainant's house on fire. For these reasons the appeal was allowed. It is ordered that the appeal deposit be refunded to the appellant. ACTING JUDGE. 14th day of July, 1981. For Appellant : Mr. G.N. Mofolo For Crown : Miss F.L. Surtie