CRI/A/24/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

TOHLANO
LITELU Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 22nd day of February, 1983.

The
appellant was charged with the crime of stock theft before the
Subordinate Court of Thaba-Tseka, it being alleged that on or
about
20th July, 1982 and at or near Malibamatso in the district of Thaba
Tseka, he unlawfully and intentionally stole 3 cattle
the property or
in the lawful possession of Sesheme, He pleaded not guilty to the
charge but was, at the end of his trial, found
guilty as charged. A
sentence of 2 years imprisonment was imposed.

It is
against both the conviction and sentence that the appellant has
appealed to the High Court on the grounds that the conviction
was
against the weight of evidence and the sentence excessive.

The
evidence of P.V.1 Tsele Sesheme (which evidence was not really
challenged) was that prior to 20th July, 1982 he had in his
possession cattle belonging to him and two of his younger brotheis
namely, Masimong Sesheme and Makhele Sesheme. On the day in question,

20th July, 1982, three of the cattle went missing. They were a black
cow, white underbelly with a white brush belonging to P.W.1's
brother
Masimong Sesheme and was earmarked. R/E slit L/E winkelhaak

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in front;
a red cow, white underbelly belonging to P.W.1 himself. It was
earmarked R/E winkelhaak in front, a stump made by dogs.
L/E ½
moon behindt and a black cow, white underbelly with a white taxi
belonging to Makhele Seaheme. It was earmarked :
R/E stump, ½
moon behind. L/E stump, hanging slit behind. P.W.1 had not permitted
either the accused or any other person
to take away those cattle. He
started searching for the missing cattle.

In the
course of the search he came to the police pound at Thaba-Tseka where
he found and positively identified two of his missing
cattle. They
were the black cow belonging to Masimong Sesheme and the red cow
belonging to P.W.1 himself. He never recovered the
third cow
belonging to Makhele Sesheme.

At the
time he found and identified them, the two cows had their earmarks
tempered with. The slit on the R/E of the black cow was
partly
destroyed ±n that ½ of the slit had been cut off. A
swallowtail had. been superimposed on the stump made by
dogs on the
R/E of the red cow.

P.W.1
further testified that at the time they went missing, his cows were
well nourished but when he found them at the police pound
the two
cows had deteriorated considerably in conditions. After he had
identified them, the two cows were released to him for safekeeping
by
the police. The red cow died while in his custody and he could not
produce it in evidence at the trial. He, however, brought
with him to
court the black cow.

P.W.4,
Motimpana Mpitla testified that he lived in the same village with the
appellant whose animals were known to him. During October
1982, he
was "Chairman" in his village when he noticed that
appellant had in his possession a cow that was strange to
him
(P.W.4). It was a black cow which appeared to be in calf. The cow had
a winkelhaak although he no longer remembered on which
ear. He
reported appellant's possession of that strange cow to P.W.2, Bofihla
Motsoloane, the Chief of the area. Later on P.W.2
detailed him and
one Pali to accompany the police to appellant's cattle post where
they found the black cow and another red one
going about

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with
appellant's cattle. Nobody was looking after the cattle. The police
then took possession of the black and red cows.

P.W.2
confirmed that ho received a report about appellant's possession of
strange cows. According to him, it was in February, 1983
(not
October, 1982 as P.W.4 had testified when the report was made to him
and it was made by Motimpana Moloantoa. On the record
, there is no
certainty that Motimpana Moloantoa is the same person as P.V.4. They
may well be two different persons. In any event
P.W.2 testified that
following the report he had received, he summoned the appellant to
appear before him together with the alleged
strange cows and their
beweys. The appellant brought only one black cow and explained that
it had been mafisaed to him by Phehello
Sekali. It was with another
red cow which P.W.3 had already taken back. He further explained that
the beweys covering the two cows
were with P.W.3.

P.W.2
ordered the appellant to fetch the beweys and red cow from P.W.3 and
hand over the beweys together with the two cows. The
appellant left
but never returned. Later on, it was the appellant's wife who brought
to P.W.2 the black cow and a chit purportedly
covering it. On
examining the cow and the chit.P.W.2 found that the earmarks on the
cow were not as described on the chit. Although
he did not remember
how it was earmarked on either ears, the cow had a slit, punch,
winkelhaak and stump. He took possession of
the chit and sent it to
the police. The cow was, however, released to appel­lant's wife.

I must
say I find it rather strange that P.W.2 released the cow to
appellant's wife after he had found that it's ear­marks did
not
tally with the earmarks described in the chit which was supposed to
cover it. One would have expected him to have become suspecious
about
the legality of appellant's possession of that cow and, therefore,
sent it to the police together with the chit.

P.W.2's
description of the earmarks is also not very helpful as he does not
remember on which ear the earmarks were made. In any
event the cow
described by P.W.2 cannot be the one which P.W.1 brought to court.
That one had neither punch nor stump on its ears.

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Be that
as it may, P.W.2 went on to say he later detailed Motimpana Moloantoa
to accompany the police to appellant's cattle post.
On their return,
they told him that they had found and taken possession of two strange
cows at appellant's cattle post.

The
appellant who gave evidence on oath denied know­ledge of those
cows. He said he did not herd his cattle. He had herdboys
to do so.
If the cattle referred to by the crown witnesses did mix with his
cattle, his herdboys would know it and not himself.
He denied that
P.W.2 or the police had ever questioned him about the cows when he
made an exp­lanation about them. In particular
he denied to have
told P.W.2 or the police that P.W.3 had mafisaed the cows to him.

The
evidence of P.W.3 was that in September, 1982 he was looking for his
missing horse when he came to a place called Likamoreng
where he saw
three cattle on a mountain next to a cattle post belonging to one
Machabe. The des­criptions of those cattle answered
those given
by P.W.1. He could not easily forget those cattle for they were "very
beautiful with nice colours".

Sometime
in 1983 he was called by the police who showed him a red cow and a
black one. The latter was then going with a red and
white calf. He
immediately identified the cows as two of the three he had previously
seen on the mountain next to the cattle post
of Machabe. The police
then told him that he had mafisaed the cows to the appellant and
showed him a chit as proof thereof. According
to that chit : "a
black cow, white underbelly with a white brush earmarked : R/E slit.
L/E winkelhaak in front, was being
mafisaed by Sekali Sekali to
Tohlang Ramololi of Chief Lebabo Khomoealeburu". (my loose
translation of what is written in
Sesotho language on that chit). The
chit purported to have been issued by P.W.6 Teboho Komisi and
witnessed by P.W.5 Mafotha Jakobo.

Again it
is not clear whether Sekali Sekali is the same person as P.W.3. Nor
is it clear whether Tohlang Ramololi of Chief Lebabo
Khomoealeburu is
the same person as the appellant the subject of P.W.2 Chief Mohlalefi
Motsoloane. We may well be talking of different
people here,

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However,
P.W.3 denied to have mafisaed the cow to the appel­lant. P.W.6
and P.W.5 likewise denied to have issued and witnessed
the chit,
respectively.

The
police officer who investigated this case was also not called as a
witness. At page 8 of the typed record, it is written:

"P.P. says Sgt. Sekete (No.2563) is at his home, his child is
critically ill. He was to relate that he investigated the case,
he
found the cattle grazing with those of accused and collected them.
Accused explained that they were mafisaed to him by one Phehello

Sekali after the chit was denied by the witnesses, he charged accused
after caution­ing him. He would hand in the cattle as
Exh. 1
(call) chit Exhibit A, D. C. admits."

I am not
so sure whether by this it is meant that the evidence of the
investigating officer as related by the public prosecutor
was
admitted by the defence and it was, therefore, unnecessary to call
him as a witness.

In his
reasons for judgment, at p. 13 of the typed record, the learned trial
magistrate says that although the policeman who investigated
the case
was not before court, Mr. Tsotsi, who appeared on behalf of the
accused, and the public prosecutor consented that his
evidence could
be related to the court by the public prosecutor.

I am
still in the dark. In any way, if the trial magistrate meant the
evidence of the investigating officer as related by the public

prosecutor was admitted by the defe­nce counsel on behalf of the
appellant, Mr. Tsotsi, who defended the appellant in the court
a quo
and prosecuted the appeal on behalf of the appellant before this
court, argued that he never admitted the evidence of the

investigating officer as related by the public prosecutor and
dispensed with his being called as a witness. He says he could not

have done so in the light of his knowledge that his client was going
to deny to have ever explained to the police that the cows
were
mafisaed to him by P.W.3. What he admitted, says Mr, Tsotsi, was that
he had no objection to the cow and the chit being handed
in from the
bar as Exh. 1 and A, respecti vely. There is some substance in what
he says and the pro-

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babilities
are that perhaps the learned magistrate mis­understood him.

Now, from
his undesputed evidence, P.W.1 was deprived of his three cows without
his authority. They were for that reason taken away
unlawfully. When
he later found two of them at the police pound, the cows had their
earmarks altered. A clear indication that whoever
unlawfully deprived
him of those cows did so with intention to steal. On that evidence
alone, there could be no doubt that the
crime of Stock Theft had been
committed. The only question was whether the appellant was the person
who had stolen those cows.

In that
regard the trial court clearly relied on the evidence of P.W.2
supported by that of P.W.4 that after they had disappeared,
two of
P.W.1's cows were seen in the possession of the appellant. However,
in their own evidence the two witnesseses could not
positively
remember how the cows they saw in the possession of the appellant
were ear­marked. On the record they did not even
see the black
cow that P.W.1 had brought to court, not to mention the other two
which were not before the court. They were, therefore,
not in a
position to say whether or not the cow was the one they had
previously seen in the possession of the appellant. The cow
that
P.W.1 brought to court may well have been a different cow from the
one that P.W.2 and 4 had seen in the possession of the
appellant.
Where a person is charged with theft of specific animals he cannot,
in my view, be convicted of any other animals. It
was important that
the cow which P.W.1 had brought to court in this case should be
identified as one of those allegedly stolen
by the appellant. I am
not so sure that this has been done.

In the
premises, I take the view that even if the appellant were seen in
possession of some strange cows, there was no convincing
evidence
that they were positively identified as the ones with which he was
charged. His conviction cannot, therefore, stand.

The
appeal is allowed,

22nd
February, 1985.

For
Appellant : Dr. Tsotsi

For
Respondent : Mr. Seholoholo.