CRI/A/67/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

NTHOFEELA
KHUBETSOANA Appellant

v

REX
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 8th day of
November 1982

On the
1st November 1982 I allowed the appeal and ordered a retrial before
another magistrate. I said I will file my reasons later
and these now
follow.

On the
3rd August 1982 the appellant was charged with stock theft. The
particulars of the charge stated that he stole goats. It
did not
specify how many. The offence is alleged to have taken place on 5th
October 1981.

The
magistrate noted that the appellant pleaded guilty to receiving
stolen property knowing it to be stolen. That of course was
not what
he was charged with although it is a competent verdict on a charge of
theft. The appellant had taken the oath before me
in the High Court
and said he denied that he stole the goats (which is clear though the
magistrate did not record it) but when
the magistrate asked if they
were found in his possession he said they were. He did not tell him
he knew either at the time of
receipt or later that they were stolen.
This assertion I believe because it is clear from what the appellant
told the magistrate
in mitigation that his explanation was that the
goats were given to him by a certain Seabata. The appellant was
unrepresented and
one assumes he does not appreciate the niceties of
the crime of receiving stolen goods.

Ten
months had elapsed between the theft and the finding in possession.
The prosecutor's outline of the facts did not indicate what
evidence
he had to prove guilty knowledge by the appellant. The possession was
not recent.

All
magistrates should be extremely careful in cases of this nature. The
exact words of the accused person ought to be reproduced.
From my
many years of experience as a magistrate

2

unrepresented
accused often say "if they (the goods - in this instance the
stock) were found in my possession and they were
stolen, if the law
says I am guilty then I am guilty" but this does not tantamount
to a plea of guilty at all.

In short
I am not satisfied that the plea was not unequivocal in the
circumstances of this case.

The
conviction and sentence are set aside. The appellant should be tried
before another magistrate, a plea of not guilty should
be entered,and
the trial should proceed in the normal way.

In the
meantime the amount of cash bail paid pending appeal would remain
deposited as well as appellant's passport in the Clerk
of Court's
office in the Leribe Subordinate Court until the retrial is
finalised.

CHIEF
JUSTICE

8th
November, 1982

For
Appellant: Adv. G.N.Mofolo

For
Respondent: Mr. Peete

cc: The
Magistrate, Leribe

O/C
Police, "

O/C
Prison, "

O/C
Maseru Central Prison

D.P.P.

Director
of Prisons All Magistrates & PPs

Public
Prosecutor, Leribe