CRI/S/10/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of

REX

v.

MOTHOBI
LENGOEHA

JUDGMENT.

Delivered
by the Hon. Mr Justice J.L Kheola on the 2nd September, 1985.

The
accused appeared before the second class magistrate at Butha-Buthe
charged with one count of housebreaking with intent to steal
and the
second count of malicious injury to property. After hearing the
evidence the learned magistrate found the accused guilty
as charged
in both counts and committed him for sentence by the High Court
because he has a long record of previous convictions
starting from
1978 to 1984.

The two
charges read as follows –

Count I

- "That the said accused is guilty of the crime

of Housebreaking with intent to steal and theft.

In that upon or about the 26th July, 1 984 and at or near Butha-Buthe
reserve in Butha-Buthe district the said accused did wrongfully,

unlawfully, and with intent to steal, break and enter the house there
situate of one Tlali Ramohapi and did unlawfully, steal 1.
2
travelling bags, 2 Potable Radio, 3. 15 Gassetes the property or in
the lawful possession of Tlali Ramohapi"

Count II
–

That the said accused is guilty of the crime of malicious injury to
property.

In that upon or about the 26th July, 1984 and at or near Butha-Buthe
Reserve in Butha-Buthe district the said accused did wrongfully,

unlawfully and with intent to injure one Tlali Ramohapi, in his
property, the said accused did unlawfully set on fire 1 4 shirts
2. 2
skeppers 3. 5 blankets 4 bed cloth 5. 3 mens

2

underwears 6 1 tracksuit 7. 1 pjama 8. 2 pairs of socks 9. Overall
10. 3 pairs of trousers 11. 1 scarf 12. curtain 13 Radio 14
Water
suply and sanitation book all the property or in the alwful
possession of one Tlall Ramohapi".

The first
issue that has to be disposed of is whether there was improper
splitting of charges The allegation is that the accused
broke into
complainant's house and committed two distinct offences, i.e theft
and malicious injury to property. I am aware that
at the time of
breaking into the house the accused may have intended to steal and
also to destroy complainant's property but the
Crown cannot be
expected to know what was in the mind of the accused. The facts are
that he stole some property and destroyed some
other property by
setting it on fire and it is not clear which was done first. I am of
the view that the Crown was justified in
treating the two offences

as
separate and there was no improper splitting.

in It is
not dispute that on the night of the 26th July, 1984 there was a
breaking into the house of the complainant and that some
of his
articles were stolen while others were set on fire. The only dispute
in the case is the identity of the culprit and with
regard to the
identity of the accused as the culprit we have the evidence of a
single witness, one Prison Officer Moorosi. His
evidence was that he
is the neighbour of the complainant and knows the accused very well
On the high in question he came out of
his house some time after 8 00
p m and noticed that the door of the complainant's house was open and
there was big fire in the
house He then saw accused coming out of the
house holding a bag and disappearing in the dark He returned after a
few minutes and
again entered into the house. He came out holding
something like a cardboard or a glass. The witness says that at this
juncture
he called and asked him, "Mothobi,what is happening
there ? Is anything burning there?" He went to the house but the
accused ran away. The witness claims

3

that
because of the bright light from the big flames from inside the house
he saw the accused very well when he was at the door
on the two
occasions when he was carrying some goods out of the house He was
about 15-20 paces from the accused when he asked him
what was
happening in the house

The
complainant told the court that during the evening he went to
Crocodile Inn Hall and met the accused there where they were watching

a film show While they were watching the show the accused told him
that he would come later but he never came back. The com­plainant

remained at the hall till 11.00 p m when he went to his house and
found that some of his articles were missing and others were
burnt-

The
accused gave evidence that on the evening in question he and
complainant attended a film show at the Crocodile Inn hall from
7.30
p m and that he remained with the complainant for about 1 ft hours
This means that when they parted it was at about 9-00 p.m
He denies
that the person seen by Prison Officer Moorosi at the home of the
complainant was him

Ratau
Ratau testified that he went to the bar at the Crocodile Inn and met
the accused there after 7 00 p.m. The accused told him
that he was
going to the hall where a film show was going on. However, in less
than half an hour the accused came back saying that
they should go
away apparently because he was feeling cold They went to their
respective homes and put on some clothes before going
to pholosas
night club and remained together until the club closed I must
instantly point out that there is a direct conflict in
the evidence
of the accused and his witness. The accused says that he remained
with the complainant in the hall for about 1½
hours while his
witness says that the accused was in the hall for less than half an
hour. One of them is obviously telling a lie.
In any case, Ratau does
not confirm the accused's alibi because he does not know that when
the accused left him saying he was going
to the hall, he (accused)
actually went there.

4

In terms
of section 233 (1 ) of the Criminal Procedure and Evidence Act 1981
the uncorroborated evidence of a single competent and
credible
witness is declared to be sufficient for a conviction provided that
such evidence is clear and satisfactory in every material
respect (R.
v Mokoena 1932 0 P.D. 79 at p. 80) In the instant case the evidence
of Prison Officer Moorosi appears to be credible
and satisfactory in
all material respects His evidence was criticised on the ground that
he does not seem to have taken any action
when he saw the accused
come out of the house for the first time 1 am of the view that as the
accused was a regular visitor at
the home of the complainant, the
witness could not have quickly noticed that there was something amiss
It was only after he noticed
the flames in the house that he asked
the accused what was actually happening there

Again the
evidence is criticised on the ground that because of the insufficient
light from the burning articles, the witness could
have made a
mistake and that he had only a casual and fleeting look at him The
evidence before the court shows that there was a
"big burning
light" which enabled the witness to clearly see the accused as
he emerged from the house on two occasions
when he was taking away
the articles. There was not only sufficient light from the burning
articles but there was also the fact
that the witness was only 15-20
paces from the accused. It means that he was near enough to recognize
the face of the accused as
a person he knew very well He also saw the
clothes he was wearing i.e. the skipper I have already stated that
the witness had a
reason to take a particular notice of the accused
because there was something amiss in the house and yet the accused
was seen going
in and out of the house.

For the
reasons stated above I formed the opinion that the Crown has proved
its case beyond a reasonable double and that the trial
court rightly
found the accused guilty as charged on both counts.

The
accused has seven previous convictions of housebreaking with intent
to steal and theft He is presently serving 15 months'

5

imprisonment
from the 14th December, 1984.

Sentence
Four (4) years' imprisonment to run concurrently with the sentence he
is presently serving Counts taken as one for purposes
of sentence

J.L
KHEOLA

JUDGE

2nd
September, 1985.

For Crown
Mr. Lenono

For
Defence Mr. Mofolo