CRI/A/7/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MALEFANE
LOKO

v

REX

JUDGMENT

Delivered
by Hon. Mr. Justice F.X. Rooney on the 28th day of June, 1982.

Mr. T.
Mda for the Appellant Mr. Kabatsi for the Crown,

The
appellant appeared before a Subordinate Court for the 2nd Class (G.T.
Jane, Esq.) on the 15th December, 1981 charged with the
offence of
stealing M3,967.14 the property of one 'Matlalane Lesoli. He pleaded
not guilty and he was not represented at the trial.

The case
against him was that on the 14th March, 1981, he received from
Johannes Ramarou (PW.1) a bag of a particular description
which
Remarou said contained the amount mentioned in the charge. Both
Ramarou and the appellant are employed by 'Matlalane Lesoli
(PW.6) a
trader in the area who has a number of shops. It was the duty of the
appellant to take the bag to Mr. Lesoli's headquarters
at Sekake. It
was said that he did not do this. Several witnesses gave evidence as
to seeing the distinctive bag in the possession
of the appellant on
the day in question, either at the shop managed by Ramarou or while
the appellant was on his way to Sekake.

In his
defence the appellant denied receiving the bag from Ramarou. He had
not signed for it or had its contents counted in his
presence. He is
therefore the victim

2

of a
consipracy of lies engineered by Remarou (PW.1) to conceal his own
crime. The magistrate rejected the appellant's explanation
and was
satisfied that the evidence against the appellant was ample and
convincing.

It is not
clear from the record as to when the accused was arrested. Detective
Trooper Silmane (PW.8) said that on the 23rd March,
1981, he
investigated the matter and as he was not satisfied with the
explanation given to him by the appellant, he cautioned and
charged
him. I note that the appellant was admitted to bail on the 1st May,
The trial did not take place until the following December.
There was
thus ample opportunity for the police to make a thorough
investigation into the case. They either did not do so or their

investigations were inconclusive.

Ramarou
produced in evidence a deposit book (Exhibit A) in which he records
moneys transmitted from his store to head office. These
transfers are
made every week or so and the manager records in the book the amount
of bank notes, the numbers and amounts of cheques
and numbers and
amounts of postal orders dispatched. On the 14th March last year the
deposit book reveals that KM,400 in bank notes,M1647
in postal orders
and M920.14 in cheques were counted. No evidence was led as to
whether any of the cheques or postal orders were
presented for
payment by anyone between the 14th March, 1981 and the date of the
trial.

It seems
to me that such evidence ought to have been led from officials in the
post office and the banks upon which the cheques
were drawn. There
are only two possibilities, either none of these documents ever came
to light again (from which an inference
may be drawn that they were
disposed of otherwise by the thief) or some of the cheques or postal
orders were subsequently cashed
(and in those circumstances if it
could not be shown that the appellant was responsible then an
irresistable conclusion that he
was the thief would not arise). On
the evidence

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led in
the subordinate court, neither the bag nor the money nor the cheques
nor the postal orders were* subsequently found in the
possession of
the appellant.

I
consider that it is in the interest of justice that the subordinate
court should be supplied with the missing evidence. By the

application of Section 69(2)(b)(ii) as read with Section 74(4) of the
Subordinate Courts Proclamation, I make the following order
in this
matter.

1. The
   conviction of the appellant is set aside and he is released on bail
   forthwith on the same terms and conditions as attached
   to the bail
   granted to him on 1st May, 1981.

   
   

2. The
   case is remitted to the Court a quo

   
   

3. The
   magistrate is instructed to afford the prosecutor an opportunity to
   bring before him (within a reasonable time) such evidence
   as may be
   available in regard to the cheques and postal orders listed in
   Exhibit A on the 14th March, 1981.

   
   

4. The
   accused must be given an opportunity to cross examine such witness
   and at the conclusion of the additional evidence for the
   Crown, he
   must be given an opportunity to give evidence in his own defence and
   to cell witnesses.

   
   

5. Having
   heard such additional evidence the magistrate is directed to bring
   in a verdict and in the event of a conviction he is
   to give his
   reasons in writing.

   
   

6. Immediately
   upon the conclusion of the proceedings, the magistrate is required
   to remit back the record to this Court for further
   consideration.

   
   

This
Order is made without prejudice to the powers vested in the Director
of Public Prosecutions by the Criminal Procedure and Evidence
Act
1981.

F.X.
ROONEY

JUDGE

28th
June, 1982

Attorney
for the Appellant :

Attorney
for the Crown : Law Office.