CRI/A/A3/82

IN THE
HIGH COURT OF LESOTHO.

In the
Appeal of

SHANKI
SOFE Appellant

v

REX Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice F.X. Rooney on the 16th day of September.
1982.

Mr.
Kolisang for the Appellant Mr. Khauoe for the Crown.

On the
6th January,1981, David Rendle (PW.1) a teacher at St. Paul's Mission
in the Butha-Buthe District went on a holiday to Swaziland
leaving
his house unoccupied. When he returned on the 23rd January, he found
that in his absence his house has been plundered by
thieves who had
removed furniture, clothing and household utensils. The appellant is
one of a number of persons who on two occasions
visited the house and
removed property therefrom. The appellant said that he was invited by
one Ts'okolo (PW.5) to assist in the
removal of the property and that
he went along in the mistaken and innocent belief that it all
belonged to Ts'okolo's father Khauda
Sebotsa (PW.3).

The
appellant was tried by Mr. M.M. Ramashamole and on the 10th
September, 1981, he was found guilty of housebreaking and theft
and
sentenced to two years imprisonment. He has appealled to this Court
against his conviction.

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Mr.
Kolisang for the appellant argued that having regard to the nature of
the evidence given by the prosecution witnesses the appellant's

version could reasonably be true and he was therefore entitled to the
benefit of the doubt.

It is a
principle of general application that when an accused person has
given an account of himself which is not in conflict with
the
evidence of the prosecution and that account is consistent with his
innocence he is entitled to an aquittal. However, different

considerations arise where there is a conflict of evidence. The trial
court is under a duty to resolve the conflict by an evaluation
of the
testmony placed before it. Unless it can be shown that the magistrate
misdirected himself in regard to the evidence or that
the verdict
cannot be supported by the evidence an appeal court will not interfer
with a finding of fact. (REX v. DHLUMAYO 1948
(2) S.A. 677).

Ts'okolo
Sebotsa (PW.5) was introduced to the Court below as an accomplice. He
said that the appellant asked him to fetch certain
goods at S. Paul's
Mission. A man named Sepetla was also present. Ts'okolo made use of a
vehicle belonging to his father Khauda
(PW.3). He said that he drove
the appellant and Sepetla to the house which they entered and came
out afterwords carrying furniture
and utensels which were loaded on
the vehicle. This occurred at about 7.00 p.m. The goods were taken to
the accomplice's home at
Kalo.

A few
days later the appellant went alone with this witness to the house
previously visited. They arrived at dusk and again they
took away
certain items of furniture which they brought to the accomplice's
house. Ts'okolo requested the appellant to look for
buyers for these
articles.

The
cross-examination of Ts'okolo revealed certain discrepancies in his
evidence and like many accomplices he endeavoured to minimize
his own
responsibility. He even

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went to
the extent of saying that he was unaware that the property which he
conveyed in his truck was being stolen from the house
at St. Paul's
Mission.

Other
evidence connecting the appellant with this crime included that of
Khauda (PW.3) who told the court that the appellant approached
him
and asked him if he was interested in buying certain items of
furniture. By arrangement with the appellant, he sent his son

Ts'okolo to bring the articles in question to him for inspection. He
lent his vehicle for this purpose. He said that he paid M120
to the
accused for certain items he bought he retained a refrigirator which
he intended to buy but did not have the cash to pay
for it.

Another
witness bought a stove from the appellant for M200 for which he paid
a deposit of one half of this amount. When he discovered
that the
stove was not new he disputed the price agreed upon. He also obtained
a gas cylinder from the appellant. Finally, Motheba
Koabola (PW.6)
said that in January 1981, the appellant and Ts'okolo came to him.
They had a wardrobe which Ts'okolo offered to
sell. The appellant
said that he was the owner and it was agreed to sell this article to
this witness for M18.00. Three months
later, the police came and took
the wardrobe away.

Although
the handling of the exhibits in the court below leaves much to be
desired, I am satisfied that the articles allegedly sold
by the
appellant were included in those which belonged to David Randle and
which had been stolen from his house.

The
appellant said that he had been invited by Ts'okolo to help him load
some goods. He went to St. Paul's Mission to a house outside
the
Mission yard. He claimed that when he asked Ts'okolo to whom the
goods belonged he was informed that they were Khauda's. Among
the
goods which were loaded into the van on the second occasion, was the
wardrobe which Sepetla had told the

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appellant
belonged to him. Ts'okolo met someone who wanted the wardrobe. The
appellant received M18 for it with the intention of
handing this over
to Sepetla. The appellant denied that he sold any articles to
Ts'okolo's father or to anyone else including Tseko
Kome (PW.4). In
other words he was an innocent victim of other people's wrongdoing.

The
magistrate did not accept the evidence of the appellant and he
concluded that the appellant was well aware of what was going
on and
that he actively participated in the housebreaking and theft.

Having
regard/the evidence adduced, I do not see why this Court should reach
a different conclusion.

This
appeal stands dismissed.

F.X.
ROONEY

JUDGE

16th
September, 1982,

Attorney
for the Appellant : Mr. Kolisang,

Attorney
for the Crown : The Law Office.