CIV/A/9/77
IN THE HIGH COURT OF LESOTHO
In the Appeal of
BOSHOANE KONYANA Appellant
v
THABO TSEBO      Respondent
JUDGMENT
Delivered by the Hon. Acting Chief Justice,
Mr. Justice M.P. Mofokeng on 1st June 1981
This is an appeal from the Judicial Commissioner's
Court upon a certificate granted in terms of section 28(3)(b)
of the Central and Local Courts Proclamation in which the
appeal by the present respondent against the present appellant
and another was partially successful. It was successful against
the present appellant but wholly unsuccessful against the other
co-respondent.
The claim against the appellant and three others was
"10 head of cattle, 2 donkeys and J5 sheep" which they are
alleged to have taken from the respondent.
Briefly, these are the facts:
While the respondent was in custody at Rome, he
complained that his stock might get stolen. He therefore
requested to be released. Sgt. Matlakeng, one of the defendant
in this case, refused the request. Later, he was instructed
to post a policeman at the home of the respondent. He saw
no necessity for doing so there being a state of emergency
in existence in the country. A few days later a message was
received to the effect that five of respondent's cattle had
been stolen. He was released to enable him to search for them.
His firearm was also released to him. A few days later the
three defendants, viz, Boshoane Konyana(appellant) Sedhoe
Matsitla and Jonas Rasyhloho were, on the words of the
respondent, "voluntarily agreeing to compensate" him for the
theft of his five cattle (some of which were recovered). The
/respondent

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respondent provides the reason for the generous compensation
agreed to by these defendants. He says, in his own words :
"They decided to pay this compensation so that I may not take
them to court...." Accordingly, each one of them agreed, for
the stated reason, to pay him five (5) head of cattle. He
therefore stood to gain ten (10) head of cattle over and above
the number that had been stolen of which only one died. The
respondent says that although the appellant did not personally
steal his cattle yet he did so through his younger brother, one
Pirima Konyana. He was paid five head of cattle by the
appellant and the equivalent of five head of cattle by the
father of defendant Seqhoe consisting of three head of cattle
and ten small stock.
When Sgt. Matlakeng heard that respondent was receiving
rewards in order to suppress the fact that a crime had been
committed, he immediately felt that a crime was being committed
by the respondent. He arrested him. Sgt. Matlakeng then
returned the beasts to the people from whom they had been taken
for safe keeping. A criminal charge was levelled against the
respondent, but strangely he was acquitted but the beasts never
ordered to be returned to him. These are the beasts which form
the subject matter of this appeal.
It must also be stated that the respondent wielded his
firearm openly. The defendants were beaten up. The boy,
Pirima, had been locked up and badly illtreated and five head
of cattle demanded from the appellant before he could be
released. These were promptly paid as the appellant was
concerned with the well-being of the boy. He says he never
paid the five head of cattle as compensation because the boy
had stolen any cattle. He, himself, was subjected to severe
form of treatment as a result of which he was admitted at a
hospital. It is under these circumstances that the respondent
says that the defendants voluntarily agreed to compensate him.
Let us assume that the respondent was correct that the
defendants said they would compensate him. Did they honestly
volunteer such statements? There is evidence, from the
respondent's witnesses, that he was in possession of a firearm.
He carried it openly and in a threatening manner. The
defendants were variously assaulted and severe assaults they
turned out to be. The victims were incapacitated. Indeed,
/one of the

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one of the defendants, Jonas, won his appeal before the learned
Judicial Commissioner because he had not been afforded an
opportunity to be heard. If there was any agreement at all, it
was obvious from the reading of the record that it was reached
not with the consent of the defendants, certainly not that of
the appellant.
The type of this so-called agreement is best described
in the words of the respondent "If they had not paid me I was
to take them to the police, so that they might be charged for
theft". That was the basis of the contract. In Sesotho
Customary law the commission of the crime of theft of any kind
is never counternanced. It is never suppressed. It is a very
bad, extremely bad thing to harbour thieves. He who harbours
a thief is himself a thief. A person, therefore, who instead
of exposing a thief, harbours him, does a dispicable act. So
serious was the crime of theft looked upon that in certain
circumstances one could kill a thief without any punishment
being inflicted e.g. where the thief was incorrigible or was
caught in the act of stealing at night, he could be shot
because the saying is that a "thief is a dog which must pay
with its head". That was the law relating to the crime of
theft. Today, the harshness of that law has been watered down.
Today if a thief is caught he must be brought to trial where
the law makes provision for compensation to the person whose
property was stolen. The actions of the respondent were therefore
contrary to the customary law and it offends against the principle of the
present day morality. His actions add further doubt as to
whether the defendants were willing parties to this sordid
affair. The respondent was now engaged in something foreign
to the Sesotho Customary law, namely, making a living out of
crime. The trial Court ought not to have given effect to this
type of an agreement. It goes against the grain of the
customary law of the Basotho. The respondent would have been
entitled to compensation in terms of the Laws of Lerotholi if
the culprits had been taken to a lawfully constituted court and
not his type of a court. (See Palmer: The Roman-Dutch and
Sesotho Law of Delict pp 124-126).
The trial Court misdirected itself in going into the
details as if the issue before it was whether theft had been
committed whereas the crisp issue for decision was whether the
so-called agreement could be enforced or not. With respect,
that was the issue which the learned Judicial Commissioner
/ought

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ought to have decided.
In the result the trial Court ought to have held that
the agreement or contract was unenforceable and have dismissed
the respondent's claim with costs. It is accordingly ordered
that the order of the trial Court should read :
"Plaintiff's claim is hereby dismissed with costs".
The learned Judicial Commissioner ought to have upheld
that order and it is accordingly so ordered.
Respondent is ordered to pay the costs in all the
courts.
ACTING CHIEF JUSTICE
1st June, 1981
For Appellant : Mr. Sello
For Respondent: Adv. Ramodibedi