CRI/A/43/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

MONYANE,
HLAO Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice J.L. Kheola on the 16th day of
January, 1985

The
appellant and Motlalentoa Nts'alla were jointly charged with stock
theft, it being alleged that on or about the 31st day of
May, 1983
and at Likalaneng in the district of Maseru the said accused did each
or both unlawfully and intentionally steal 4 cattle,
the property or
in the law­ful possession of Ntapa Leboela and brought them to
Thaba-Tseka where this Court has jurisdiction.
To this charge the
accused pleaded not guilty. At the end of the trial, the appellant
was convicted of the theft of one cow and
sentenced to 12 months'
imprisonment. Motlalentoa was acquitted.

The
evidence is briefly as follows:

On the
31st May, 1983, the complainant noticed that four of his cattle were
missing; one of them was a red and white bull, it had
a white colour
that touched the left nostril, it had a small white line behind the
right ear. Earmarks were L/E yokeskei behind.
I shall say nothing
about the other cows because they were never found. The red and white
bull was found in the possession of one
Polao Khofu who explained
that he bought it from the appellant. At the time it was found, the
bull had the following additional
earmarks. R/E stump L/E swallow
tail. The appellant admitted that he sold it to Polao and contended
that the bull was the progeny
of his cow. The dispute in this matter
was whether

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the
alleged additional earmarks were fresh or old when the bull was
found. The complainant said the earmarks "were fresh clotting

with traces of blood." P.W.3 Trooper Mokhobatau said that "R/E
it had a fresh stump with traces of blood,L/E swallow
tail fresh with
blood traces." P.W.2 Mokomoreng Moeling who signed as a witness
when the appel­lant applied for a bewys
for the sale of the bull,
said that the bull was the appellant's property and he saw no blood
on the ears of the appellant's beast
and as far as he could see,
there was no difference between the ear­marks.

The
appellant denied that the earmarks were fresh and his co-accused,
Motlalentoa Nts'alla also denied that they were fresh. He
is the
headman of the appellant and issued a chit for him when he applied
for a bewys. Polao Khafu was not called as a witness
and yet he is
the person in whose possession the bull was found. I think he would
be in a good position to describe the condition
or age of the
ear­marks.

The chit
and the bewys are dated the 5th September, 1983. If it is true that
on the 24th October, 1983 when Trooper Mokhobatau found
the bull, the
earmarks still had traces of blood, that would mean that on the 9th
September when the chit and bewys were issued,
the earmarks must have
been so fresh that they were still bleeding. This would further mean
that not only the headman of the appellant
but also the bewys writer
were involved in the conspiracy because the writer of the bewys
examines the animal and makes sure that
its earmarks tally with the
chit. If the earmarks were still fresh and bleeding, he would have
made some inquiries. Unfortunately
the Crown did not call the bewys
writer to give evidence. I am of the opinion that if the earmarks
were fresh on the 9th September
the bewys writer would not have
issued the bewys unless a good explanation was given.

The trial
court seems to have heavily relied on the evidence of the complainant
and Trooper Mokhobatau and

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rejected
the evidence of P.W.2 on the ground that he said he did not see
whether the earmarks were fresh or not as he was standing
at some
distance from the beast. But under cross-examination, he said there
was no blood on the ears of the beast and as far as
he could see,
they were not different from each other. His evidence is confirmed by
the headman, Motlalentoa Nts'alla that the
earmarks were old. I am of
the view that the trial court ought to have been in doubt as to the
condition of the earmarks because
the evidence of the Crown
conflicted on this very important issue.

Mr.
Tsotsi for the appellant submitted that nowhere in the evidence as a
whole is the animal procuded in court described as bearing
the
identical colours of the animals lost by the complainant. I tend to
agree with him on this point because the complainant described
his
missing bull as red and white with a white colour that touched the
left nostril. He does not say the beast had a blaze but
Trooper
Mokhobatau says the beast had a white face (blaze) and does not say
anything about the small white line behind the right
ear. I am far
from being convinced that the two wit­nesses were describing the
same beast.

The last
point raised by Mr. Tsotsi was that the learned magistrate failed to
conduct the inspection-in-loco in the proper manner.
I entirely agree
with him. The record of the learned magistrate reads : "We see
the swallow tail and yokeskei on R/E, something
like clots on the
swallow tail, and nothing on the yokeskei, this is the observation of
the D.C. The stump has some scales, it
does not look like the
yokeskei. It has fresh "likoapa" scars on both sides of the
back". In CRI/A/57-58/84 Llane
Mafethe and Another v. Rex
(unreported), I described the procedure to be followed when a
magistrate decides to conduct an inspection-in-loco.
The basic
principle is that he goes there in order to see for himself and to
record his own observations. He does not go there
in order to record
what the defence counsel dictates to him. In the

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present
case the learned magistrate does not seem to have followed the right
procedure and apparently recorded what he was told
by the defence
counsel. He was supposed to recored his own observations and to have
communicated them to the parties to give them
an opportunity of
agreeing with them or challenging them (Kruger v. Ludick. 1947(3)
8.A.23). The inspection-ln-loco does not help
this Court in any way
because the learned magistrate made no findings of his own about the
colour of the beast and the condition
of the earmarks.

In his
reasons for judgment, the learned magistrate says : "I can add
that to my experience of fifteen years of presiding over
stock-theft
cases and to my experience as stock-farmer, there could be no doubt
that some earmarks were different from others."
With respect, he
was not entitled to make use of his personal knowledge especially
because he did not even intimate his observations
to the parties. He
does not even say in what way they differed from each other, R. v.
Manxobo. 1938 E.D.L. 358, R. v. Sombana.
1939 E.D.L. 71).

For the
reasons stated above, I allowed the appeal and made no order on the
disposal of the exhibit but left it to the parties to
take their
dispute over the ownership of the beast to a civil court. The appeal
fee to be refunded to the appellant.

J.L.
KHEOLA.

ACTING
JUDGE

16th
January, 1985.

For
Appellant : Mr. Tsotsi

For Crown
: Miss Nku.