IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

v

MOKETE
THOBI

MAHLAKAJOE
NTALA TSOBOKO KHOTSO TSOBOKO

Review
Case No. 24/2004 CR. 191/2001

Review
Order No. 3/2004 In Maseru District

REVIEW
ORDER

Delivered
by Mr. Justice W.C.M. Maqutu on the 3rd March, 2004.

1. This
   review is before me in terms of Section 66 (b) of the Subordinate
   Court Act of 1988. The accused were not represented by
   any legal
   practitioner at their trial.

   
   

CHARGE:

2. The
   accused are charged with the offence of Stock. Theft. In that upon
   (or about) the 19th day of January, 2001 and at or near
   Setleketseng
   in the Maseru district one or both accused did wrongfully and
   unlawfully and intentionally steal 10 cattle the property
   or in the
   lawful possession of Mosaefane Mahao.

   
   

3. Plea
   - Both accused pleaded not guilty. CONVICTION AND SENTENCE

   
   

4. Both
   accused were found guilty as charged were sentenced to pay M4,000.00
   or 4 years imprisonment.

   
   

SEPARATION
OF TRIALS

5. The
   Charge Sheet disclosed that initially there were three accused,
   namely:

   
   

Mokete Thobi - Accused Number 1

Mohlakajoe Ntala Tsoboko - Accused Number 2

Khotso Tsoboko - Accused Number 3

6. On
   the 19th August, 2003 when the trial commenced, .Accused Number 1 -
   Mokete Thobi was not before Court. Consequently the Prosecutor

   applied for a separation of trials because Accused Number 1 "cannot
   be easily apprehended." The Magistrate granted
   the application
   of separation of trials.

   
   

7. The
   Magistrate recorded the plea of Mohlakajoe Ntala Tsoboko and styled
   him Accused Number 1. In the plea of Khotso Tsoboko, he
   is called
   Accused Number 2. All this was in order because there was

   
   

2

now a
separate trial in which Mokete Thobi who used to be Accused Number 1
did not feature.

8. The
   problem in these proceedings is that (during the trial), the two
   remaining accused, time and again are referred to as Accused
   Number
   2 and 3. This has created confusion. For example, PW2 Trooper
   Yongane No. 4541 said "On arrival we got to one Mokete
   Thobi (A
   1) and A2." PW2 then continued his evidence and said the cattle
   were found in "Al's kraal." Mokete Thobi
   ought not to have
   still been referred to as Accused Number 1 after separation of
   trials.

   
   

9. At
   page 12 of the handwritten record, the Magistrate at the end of the
   cross-examination of PW2 has recorded "End XXXXX by
   A2" at
   the end of the cross-examination of Mahlakajoe Tsoboko who had
   become Accused Number 1. At page 14 the Magistrate
   still refers to
   the two accused before court as Accused Numbers 2 and 3. When PW3
   and PW4 give evidence the two accused before
   court are still
   referred to as Accused Numbers 2 and 3 - no more as Accused Numbers
   1 and 2 as they ought to be called in the
   separate trial in
   progress. When PW1 gave evidence it seems both accused before court
   are correctly referred to as Accused Numbers
   1 and 2.

   
   

10. This
    confusion of identities taken with other factors can be a serious
    irregularity. It is however, sometimes possible to hold
    that the
    mistake is so minor that it caused the accused no real prejudice.

    
    

3

POSSESSION

11. In
    the record of proceedings it appears as if the two accused have been
    convicted merely because the Crown's view of the evidence
    is that
    they shared a common kraal for their cattle. At page 3 of the
    handwritten record PW1 said: "The policeman, who found
    the
    cattle showed me Al and told me my cattle were found from him. The
    officer is Yongwane." Consequently, PW1 cannot be
    of assistance
    in respect of possession because his evidence is hearsay.

    
    

12. At
    places PW1 says Accused Number 1 confessed to stealing the cattle
    although this is not clear because of the problem of identity
    of who
    Accused Number 1 is in the proceedings. If the Crown wanted to lead
    the evidence of a confession then it should have lead
    through that
    witness it was also necessary to put on record the fact that this
    confession was made freely and voluntarily. This
    was important
    because the accused were not represented.

    
    

13. PW2
    Trooper Yongwane the investigator of the case at page 8 of the
    handwritten record says 9 cattle whose possession was not supported

    by documents were found among several cattle in Al's kraal. Al is
    described by PW2 as Mokete Thobi and not any of the accused.
    Among
    these 9 cattle, four cattle were with fresh earmarks. PW2 continued
    "The explanations were demanded from the two accused
    before
    Court. The cattle were in accused's possession including
    Mahlakajoe." By Mahlakajoe I understand this to refer to

    Mahlakajoe Ntala Tsoboko who is referred to Accused Number 2, but
    should have been Accused Number 1 after the separation of trials.

    
    

4

14. In
    cross-examination PW2 answering Mahlakajoe Tsoboko's question said:

    
    

"I found them from your communal kraal with Mokete."

PW2 had
earlier said in cross-examination, that he found no cattle in
accused's home. Through questions, this accused had also challenged

PW2 to prove that he kraals his cattle with Mokete Thobi. In
cross-examination, PW2 could not clearly specify why he associated

Khotso Tsoboko (Accused 3 or 2) with the cattle that were reputedly
found in the kraal shared by Mokete Thobi and Mahlakajoe Thobi
- all
he could say was that Khotso Tsoboko (Accused Number 2 or 3) was
involved.

15. PW3
    who did not remember when the cattle were taken by the police, was
    semi - blind. PW3 said cattle were taken in the "kraal
    from his
    place." He had not seen the cattle taken as he was sick and
    indoors. He knew nothing about the cattle in question,
    yet he could
    testify that they were taken from the kraal used by Accused Number 2
    and 3. PW4 the Chiefs messenger gave evidence
    that five cattle were
    found in PW3's kraal. This becomes confusing because PW2 says the
    nine cattle with which the two accused
    are charged, were found in
    Mokete Thobi's (Accused Number l's) kraal which he shares with
    Mahlakajoe Tsoboko -Accused 1 or 2
    according to the Charge Sheet.

    
    

16. As
    all the cattle were among other cattle, some of which were released
    because they had documents, the issue of possession becomes
    not
    clear. Theft could not be clear, what is clear is definitely
    possession.

    
    

5

In Makeng
Mpesi V Rex 1967 - 70 LLR 112 it was said in such cases before, the
accused are charged with unlawful possession in terms
of Section 16
(!) of the Stock Theft Proclamation of 1921 as amended, the accused
must give an explanation their possession of
the cattle or fail to do
so. It is only after such an explanation that their possession can be
found ''unsatisfactory" - that
they can be charged of being
found in possession of animals and being unable to give a
satisfactory account of their possession.

17. PW2
    did not seek the accused's explanation. This was all more necessary
    because according to PW2 they shared the kraal with Mokete
    Thobi.
    PW4 in his evidence says he does not know what explanation the
    accused gave in respect of cattle found at Mokete Thobi's
    home and
    those from PW3's place.

    
    

18. The
    fact that there is evidence that the cattle were stolen from PW1 is
    evidence of theft. But the theft must be connected with
    the accused.
    The finding of the cattle in accused's possession is one of the main
    facts from which inference of theft can be
    drawn, but it is not the
    only one.

    
    

19. The
    problem that we have in this case is that the Magistrate says facts
    of the finding of possession are common cause, when in
    fact they are
    not. According to PW2, the 9 cattle were found in Mokete Thobi's
    kraal (formerly Accused Number 1) which he shares
    with Mahlakajoe
    Tsoboko formerly Accused Number 2 (now Accused Number 1). The other
    version of PW2 the Chiefs messenger is that
    two cattle were found in
    Mokete Thobi's home and five cattle were found in PW3's

    
    

6

kraal
used by Mahlakajoe Tsoboko now Accused Number 1 and Khotso Tsoboko
now Accused Number 2 who was formerly Accused Number 3.
PW4 the
Chiefs messenger states in no uncertain terms that both accused do
not share a kraal with - Mokete Thobi, formerly Accused
Number 1. The
Crown's version of possession and the finding of the cattle is
contradictory. This fact the accused in cross-examination
exposed.
This contradiction appears (on page 16 of the record) but the
Magistrate failed to take this fact into account when he
concluded
that the facts were common cause.

20. PW4
    clearly states in cross-examination that when the cattle were found
    at PW3's kraal, he was only with PW2 - none of the accused
    were
    there. Indeed PW4 says they did not even look for Khotso Tsoboko -
    Accused Number 3. The reason for this was that they got
    information
    from PW3 the person in whose kraal the cattle were found. (See page
    19 of the handwritten record.) The evidence of
    PW2 investigator that
    any cattle were found in the presence of any of the accused is
    contradicted and not supported. There were
    no grounds for rejecting
    the accused evidence that they were not there when the cattle were
    found.

    
    

ONUS ON
THE CROWN

21. Before
    the accused can be called upon to defend themselves, the Crown which
    has the onus of proof must make a prima facie case.
    The accused have
    no onus to prove their innocence. It is clear from the evidence of
    PW4 as clarified by cross-examination that
    PW2 and PW4 went to the
    kraal of Mokete Thobi (formerly Accused Number

    
    

7

1) and
the kraal of PW3 in the absence of the two accused and seized the
cattle, which are the subject of this charge.

22. This
    is a reviewing court, which must not got out of its way look for
    mistakes for no judgment is perfect. It must satisfy itself
    that the
    proceedings are in accordance with real and substantial justice. But
    where there is a misdirection of fact and some
    facts and
    probabilities have been overlooked, then this court may interfere.
    This court may even disregard the findings of fact
    and credibility
    of trial court. See Rex v Dhlumayo & another 1948 (2) SA 677 at
    706. This happens where it comes to the conclusion
    that these affect
    the method the trial was conducted.

    
    

23. I am
    left with a certainty that the whole truth has not been told. If
    Mokete Thobi - formerly Accused Number 1 is the real culprit
    as PW2
    says, how did these two accused come to be charged? If the Chiefs
    messenger PW4 says they do not kraal their cattle with
    Mokete Thobi,
    where did PW2 get that information? If PW4 says five cattle were
    found at PW3's kraal, why does PW2 not mention
    this? All these
    crucial issues were not explored by the trial court. In my view the
    Magistrate's wrong approach and failure to
    take into account
    evidence on record as a whole, had an adverse effect on his
    evaluation of evidence to the prejudice of the
    accused.

    
    

CONCLUSION

24. There
    has in the light of the afore-going, miscarriage of justice and the
    Magistrate inadvertently put the onus of proof on the
    accused in the

    
    

8

evaluation
of evidence, thereby also overlooking facts favourable to the
accused.

ORDER:

The
convictions and sentences against the two accused namely Mahlakajoe
Ntala Tsoboko and Khotso Tsoboko (formerly Accused Numbers
2 and 3
and now Accused Numbers 1 and 2) are set aside.

W.C.M.
MAQUTU

JUDGE OF
THE HIGH COURT

Copy:
Chief Magistrate

The Magistrate - Maseru

Director of Public Prosecutions

O/C Police - Maseru

O/C Prisons – Maseru

9