CRI/A/57-58/84

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

1. LLANG
MAFETHE 1st Appellant

2.
LESAOANA MATOKOA 2nd Appellant

v

REX Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice J.L. KHEOLA on the 5th day of
February, 1985,

The
appellants were charged before the Subordinate Court at Mohale's Hoek
with two counts of theft of stock. The counts read as
follows :-

Count 1.

That the
said accused, each or both of them did wrongfully and intentionally
steal 30 sheep the property or in the lawful possession
of

(1)
Sekoati Ramahetlana

(2)
Molefi Thipe

(3)
Monyake Mabitle

4 Mofo
Pitso

5
Sethabathaba Phangoa

6
Makhabane Phangoa.

All of
Taung in the district of Mohale's Hoek on the 2nd April, 1978

COUNT 2.

That the
said accused each or both did wrongfully and intentionally steal 31
sheep and 1 goat the property or in the lawful possession
of the
above complainants on the 20th day of February, 1980

A quick
look at the two charges reveals that they have not only been
inelegantly drafted but have also left out an important or
essential
element of theft, namely, unlawfulness, (See Hunt : South African
Criminal Law and Procedure, Vol. II p.567). They have
also left out
the places where the alleged offences took place. Another strange
thing is that although the appellants were charged

2

with two
counts of theft, at the end of the trial the first appellant was
convicted of theft of a cow in counts 3. I checked the
original
manuscript and I am convinced that there was no such charge In fact,
during the trial the first appellant challenged the
public prosecutor
that he had never been charged with the theft of a cow which formed
the subject matter of count 3 The learned
magistrate and the public
prosecutor took very little notice of the objection raised by the
first appellants Now the record before
me shows that there is no such
count The conviction and sentence on the alleged count 3 are set
aside and the appellant is found
not guilty. I shall say no more
about this count.

In her
judgment, the learned magistrate says in count 1, the appellants are
charged with the theft of 77 sheep the property or in
the lawful
possession of Makhabane Phangoa, Sechaba Thaba Phangoa and Mofo Pitso
and she says the theft took place on the 15th
April, 1978. In count
2, she says the appellants are charged with the theft of 69 sheep the
property or in the lawful possession
of Makhabane Phangoa, Sechaba
Phangoa, Mofo Pitso, Monyake Makitle, Molefi Thipe and Sekoati
Ramahetlana. She alleges that the
theft was committed on 4th day of
February, 1980. The charges produced by the learned magistrate at the
beginning of her judgment
differ very substantially from the charges
I have reproduced above. I do not know where she got these charges
from because no amendment
of the charges was made during the trial
She refers to 77 sheep in count 1 and 69 sheep in count 2.

In order
to decide how many sheep were involved in counts 1 and 2,, one must
look at the evidence of the two herdboys in whose possession
the
sheep were found and the evidence of the policeman who accompanied
Makhabane Phangoa and Sekoati Ramahetlana to the cattle
posts of the
appellants. Thabang Motokoa testified that he was employed by the
second appellant as a herdboy. In February 1980,
the first appellant
brought some sheep to the cattle post. As he is illiterate he did not
know how many sheep the first

3

appellant
brought, but he (1st appellant) instructed him to look after the
sheep. The sheep remained at the cattle post till the
arrival of
Sekoati and a policeman. They were driven away together with seven
sheep which belonged to the second appellant and
bore his earmarks,
i.e. R/E hanging slit, L/E Stump He also accompanied the police to
Mohale's Hoek When he was re-examined by
the public prosecutor, this
witness said the sheep were not brought to the cattle post by the
first appellant, they were moving
about around his cattle post but he
saw no person who brought them there. He said he implicated the
appellants because the police
handcuffed him tightly and forced him
to implicate them.

Ralinkeng
Monkhe's evidence was substantially similar to that of Thabang. He
was the herdboy of the one Khethang and the second
appellant. He said
that one day in February, 1980, the first appellant brought 24 sheep
to the cattle post. They had earmarks different
from those of the
first appellant. Before the appellant left for home he slaughtered
one of the sheep he brought to the cattle
post. The police came and
drove away the sheep brought by the first appellant together with
some other sheep three of which belonged
to the first appellant.

Makhabane
Phangoa deposed that from the cattle posts of the appellants, he
identified 31 of his missing sheep. But under cross-examination
he
admitted that they drove away 49 sheep from both cattle posts.

Sekoati
Ramahetlana identified six of his missing sheep at the cattle post of
the first appellant and 13 sheep from the cattle post
of the second
appellant. On their way to Mohale's Hoek he identified his missing
ram for which the first appellant had applied
for a bewys from his
chief.

The
confusion as to the number of the sheep found at the cattle posts of
the appellants was brought about by the fact that the policeman
who
found these animals did not give evidence. The normal procedure is
that

4

when a
policeman finds animals suspected of having been stolen, he records
in his notebook each animal and its earmarkss he also
records them in
an exhibit book when they arrive at the police station. No such
evidence was adduced in the present case. From
the evidence of
Makhabane and Sekoati my calculation is that 50 sheep were found at
the cattle posta of the two appellants, 31
of them belonged to
Makhabane and 19 belonged to Sekoati.

Several
other complainants gave evidence and identified their sheep at the
police pound. There is no evidence that these sheep were
found in the
possession of the appellant. Of the 50 sheep that were found at their
cattle posts, the appellants claimed only a
few and said they knew
nothing about the others. The first appellant denied that he brought
24 sheep to the cattle post. The learned
magistrate who saw the
witnesses rejected the story of the first appellant and believed the
two boys who said the first appellant
brought the sheep. It is true
that one of the boys later said he had been forced to implicate the
appellants but the learned magistrate
rejected that part of his
evidence. She pointed out that at the time the witness alleges that
he was forced to implicate the appellants
some of the Crown witnesses
were present and denied that the witness was tightly handcuffed by
the policeman. I think the learned
magistrate was right in rejecting
the story of the appellants.

With
regard to the earmarks on the sheep claimed by the appellants, the
learned magistrate said

"The two accused have claimed eleven sheep as theirs. It is
noteworthy that the earmarks of nine of these sheep have been

damaged. The two are lambs of some of these sheep and they bear the
accused 2's earmarks. Their marks have not been tampered with.
The
Crown witnesses have also claimed these sheep as theirs together with
their lambs.The earmarks of these sheep are not the earmarks
of
either the accused or the Crown witnesses. The Crown witnesses
indicated at the time they identified these sheep what their
original
marks were and the new marks that have been superimposed.

5

The accused have tried to justify how these damaged earmarks came
about. They explained that some of them were damaged by dogs,
he-goat
and one person called Fothine Kokotha at the time he was shearing.
Their explanations are so strange that nobody can believe.
It is not
possible that a man can cut two or three sheep a similar mark
acci­dentally. Even these dogs which are also claimed
to have
bitten them could not have bitten the ears in the same way. I totally
reject the stories of the accused on this point,"

I
entirely agree with the learned magistrate on this point. She also
points out when the damages are removed the earmarks which
remain
bear similarities with those of the complainants.

The
judgment of the trial court is attacked on the ground that on the
26th May, 1980, the learned magistrate irregularly conducted
an
inspection-in-loco. She failed to keep an accurate record of her
observations at the inspection-in-loco, and marely took over
in their
entirety the recor­dings made by the public prosecutor. She also
failed to read over in open court the results of
her observations
and/or her findings during the inspection-in-loco. I do not think
that this is a fair criticism of the learned
magistrate because
according to the record it was the witness himself who pointed out
the sheep to the court and not the prosecutor.
In any case Mr. Mda
for the appellants was present and it was his duty to point out the
irregularity on the spot. In Kruger v.
Ludick, 1947 (3) S.A, 23
(A.D.) at p. 31, the practice in these matters was described by
Harthorn, A.J.A. thus;

"It is important, when an inspection-in-loco is made, that the
record should disclose the nature of the observations of the
court.
That may be done by means of a statement framed by the court and
intimated to the parties who should be given an opportunity
of
agreeing with it or challenging it, and, if they wish, of leading
evidence to correct it. Another method, which is sometimes

convenient, is for the court to obtain the necessary statement from a
witness, who is called, or recalled, after the inspection
has been
made. In such a case, the parties should be allowed to examine the
witness in the usual way."

6

It is
true that the learned magistrate did not follow the first method of
framing a statement of her own

observations
and intimating them to the parties in open court. But she allowed the
defence counsel to cross-examine the witness
after he had pointed out
the animals and their earmarks. I am of the opinion that she followed
the second method described above.
In any case, the defence counsel
never challenged the witness under cross-examination that his
observation of the earmarks was
incorrect and not a single question
was directed at showing that the earmarks described or observed by
the witness or dictated
by the prosecutor to the court were wrong. I
come to the con­clusion that even if there was an irregularity,
it did not prejudice
the appellants in their defence.

It was
also argued before the trial Court that the two herdboys in whose
possession the sheep were found were accomplices. In her
judgment,
the learned magistrate rejected this contention for the simple reason
that the herdboys were not liable to be charged
with either the same
offence as that with which the appellants were charged, or as
accessories to such offence (See S. v. Kellner,
1963 (2) S.A. 435
(A.D.) at pp. 446 and 447). I entirely agree with the trial court
that if one believes the story of the herdboys
that their master
brought the sheep and instructed them to look after them, they can
neither be charged with the same offence as
that with which their
master was charged nor with receiving' stolen property knowing it to
have been stolen. There is no evidence
that they knew that the sheep
were stolen. They pointed out the sheep to the policeman without any
hesitation. The earmarks of
the sheep had not been tampered with when
they were handed over to them. If they had been tampered with, one
would have expected
the herdboys to have noticed that there was
something wrong with the sheep and to have made some inquiries about
where they came
from.

It was
also argued that the appellants were not found in actual possession
of the sheep because they were absent when the sheep
were found at
their cattle posts.

7

A person
can be in possession of stock through his herdboy (See Mapota Napo v.
Rex, (1971-1973) L.L.R. 5 at p.6).

The case
was conducted in such a bad and haphazard manner that at the end of
the trial,the learned magistrate appears to have been
slightly
confused and unable to say which sheep fell under count 1 and which
fell under count 2. She decided to ignore the counts
and returned a
rather strange verdict: "guilty of the sheep that were found at
their respective stockposts. Accused 1 is found
guilty of the theft
of the ram that was found at the chief's place and also of the cow.
Accused 2 is found guilty of the theft
of the sheep which is covered
by "Exh C" and which has the folliwing earmarks : R/E
W/haak behind L/E two half moons
infront and "/haak behind."

As I have
already stated above, I have decided to ignore the evidence of many
complainants who identified their sheep at the police
pound because
it is not clear where they were found. I have taken into account only
the evidence of Sekoati Ramahetlana and Makhabane
Phangoa. According
to the evidence of Makhabane only, one sheep missed in 1978 was found
at the cattle post of the first appellant
and ten sheep missed in
1978 were found at the cattle post of the second appellant.

With
regard to the sheep lost in 1980, Makhabane found 15 sheep at the
cattle post of the 1st appellant and 5 sheep at the cattle
post of
the 2nd appellant. Sekoati found 6 sheep at the cattle post of the
1st appellant and 13 at that of the 2nd appellant.

In the
result the convictions by the trial court are varied and amended as
follows

Count 1

The 1st
appellant is found guilty of the theft of one sheep.

The 2nd
appellant is guilty of the theft of ten sheep.

8

Count 2

The 1st
appellant is guilty of theft of twenty-one sheep.

The 2nd
appellant is guilty of theft of eighteen sheep.

SENTENCE.

I have
decided to reduce the sentences imposed by the trial court on two
grounds. The first is that I have now found the appellants
guilty of
the theft of fewer animals than the trial court. Secondly, it has
been pointed out that justice delayed is justice denied.
The case
started before the subordinate court on the 14th March, 1980 and
after numerous postponements, the case was completed
on the 17th
December, 1981. The appellants noted their appeal on the same day. As
if the delay of almost two years had not been
enough, the clerk of
court only forwarded the record to the High Court on the 11th April,
1984. I find it hard to believe that
it took the clerk of court 21/3
years to prepare the record for the High Court. This case has been
hanging over the heads of the
appellants for well over five years for
no fault on their part.

Count 1

1st
appellant R50-00 or 2 months' imprisonment. 2nd appellant : R100-00
or 3 months' imprisonment.

Count 2

R150-00
or 9 months' imprisonment each.

J.L.
KHEOLA.

ACTING
JUDGE.

5th
February, 1985

For
Appellants : Mr. Pheko,

For
Respondent : Miss Moruthane.