CRI/A/118/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

THABO
LETUTLA Appellant

REX Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice 3. Peete on the 21st day of June,
1985.

The
accused was originally charged with the common law theft of a horse
belonging to one Geremane Sebusi Mofihli on or about the
2nd day of
September, 1983 at Thabana-Morena in the district of Mafeteng. The
appellant pleaded not guilty but was convicted as
charged and
sentenced to six months' imprisonment. He appeals against both
conviction and sentence.

According
to the complainant the appellant who professed himself to be a
traditional or witchdoctor, arrived at his home and promised
to
"cure" his family and the charge was set at M140.00. During
this conversation the complainant produced a bewys and
told the
appellant that if he could "cure" his family, he would sell
his horse and pay him with the proceeds. As they
were talking, the
complainant says that his chief called for him and he left the
appellant still holding the bewys. (Though handed
in as "EX.A"
at the trial, this bewys is not attached to the record). He further
states that upon his return he found
that the appellant had left

2

taking
with him the bewys. He also states that he had paid the appellant a
sum of M120.00 and that the appellant promised to come
and "work
at night" but instead his horse disappeared. According to the
charge sheet the horse disappeared on the 2nd
September 1983.

The loss
of seme horse was only reported to the police on the 28th March 1984,
that is about a full six months later, and the horse
was found by the
Stock Theft Unit Police in the possession of the appellant; after
certain investigations, the horse was taken
to Mafeteng Charge Office
on the 22nd May 1984. On the 4^th June 1984 the appellant
produced the bewys No. E 88300 (already referred to above) and made
certain explanations.

There are
disturbing features in the Crown evidence. Firstly , it is rather
puzzling why, if at all the complainant paid the M120.00
to the
appellant, the latter

came to
steal the horse and the complainant takes about six months before
reporting the loss to the police; Secondly, the Crown
evidence
regarding the bewys exhibited is not clear at all. These bewys are
alleged to have been issued by one Tsekana Senone -
who was however
not called. It is furthermore strange that the complainant should
state that he gave the appellant a sum of M120
yet at the same time
say that he was still going to sell the horse in order to pay the
appellant. All in all, I am not satisfied
that the crime of theft has
been proven beyond reasonable doubt - and the conviction and sentence
are hereby set aside. This is
with prejudice to any civil remedies
the complainant may resort regarding the horse.

For the
Appellant : Mr. Kambule

For the
Crown : Miss Nku.