CRI/A/38/87

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

KOTE
RASEKONE Appellant

V

R E X
Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M. Lehohla .on the 31st day of August,
1987.

The
appellant was set free on appeal against conviction and sentence in
two counts of stock theft.

The crown
stated that it did not support the conviction on the grounds that
evidence on both counts did not support conviction in
that the
earmarks and colours of three oxen in count 1 did not tally with
those referred to by crown witnesses nor did they tally
with bewyses
produced by the crown in support of its case.

With
regard to count 11 there was not a scintilla of evidence to show that
the appellant was in any way connected with the two oxen
alleged to
have been stolen by him in that count.

Furthermore,
apart from the fact that the court a quo failed to examine the
animals in both counts because it was alledged they
had disappeared
from the police pound before the trial commenced the magistrate did
not give any reasons for judgment nor did he
reply to appellant's
grounds of appeal. Needless to say not even the hide of the ox that
was slaughtered by.P.W.2 was produced
in evidence despite that within
a short time after its slaughter suspicion arose regarding its
companions which could not be sold
because one of them was identified
as stolen just before the sale could take place. Apparently the
magistrate's retirement from
the judicial office came before he could

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attend to
these matters. But this is not to say that conviction would not stand
because of these considerations even if clear grounds
for supporting
it existed.

The
appellant, sporting not less than seven previous convictions for
stock theft spanning the period September 1972 and October
1979 at
the end of which period he was convicted on 8 counts of stock theft
(running consecutively) and sentenced to one year on
each count thus
suggesting that at the alleged commission in 1986 January of the
offences in the instant appeal he had barely spent
a few months out
of prison, was sentenced to four years oh each of the two counts (to
run consecutively),thus subjecting him to
prospects of a further
eight years' imprisonment after a brief spell of freedom from jail.
His co-accused Thabang Molise, with
only one previous conviction of
housebreaking with intent to steal and theft had been sentenced in
February 1983 to a term of six
months' imprisonment, was condemned to
the same length of imprisonment as the appellant in the instant
proceedings before the court
a quo.

Naturally
the length of jail term in respect of the co-accused evoked in me a
sense of shock. There does'nt seem to me to be any
earthly reason why
accused persons with such vastly disparate numbers and forms of
previous convictions should be given similar
sentences. Nothing in
the record suggests that their previous sentences are remotely
identical. It is untenable that they should
be treated as if they had
been cast in the same mould or painted with the same brush vis a vis
their previous convictions.

Evidence
relating to the charges in both counts does not sustain conviction in
that theft has not been proved against accused 2.

My
investigations revealed that at the end of the trial before the court
a quo proceedings were not delivered to the High Court
as they should
have been for purposes of review. While it is not necessary to send
proceedings to the High Court for review in
a case consisting of a
single accused who appeals after conviction even though his matter
would have been reviewable, the position
is however different where
the trial consists of more than one accused and only

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one or
some appeal but not all of them do so. It is wrong to treat the
co-accused who has not appealed as if the safeguard of review
is lost
in his case or is subsumed in the case affecting the accused who has
appealed.

I am
aware that in the Court of Appeal in Lehloenya vs Rex 1980(1) LLR.
30, where several accused had not appealed except Lehloenya
the rest
of the accused were invited to note their appeals as a mere formality
so that their matter resulting in their acquittal
could be dealt with
by that Court.

I find it
unnecessary to adopt a similar procedure in the instant matter
because it is clear to me that even at this stage the High
Court's
revisionary powers are not curtailed. Therefore they are still
effective and operative. Hence any irregularity is still
subject to
review even at this stage. The procedure adopted by the Court of
Appeal in Lehloenya's case would be followed in the
instant if the
co-accused's matter had been brought on review at the appropriate
time assuming the proceedings therein had been
confirmed by the
reviewing judge.

Section
7(1) of the 1978 High Court Act spells out the High Court powers as
follows :-

"The High Court shall have full power, jurisdiction and
authority to review the proceedings of all subordinate courts of
justice within Lesotho, if necessary to set aside or correct the
same". (My underlining).

Subsection
(2) gives one the discretion to determine in what forms the powers in
section 7(1) may be exercised.

I have
endeavoured to show that in respect of the co-accused in the instant
case section 69(1) of the subordinate court proclamation
58 of 1938
has not been observed. In recognition of this irregularity and having
examined the evidence as revealed in the record
I find it necessary
to treat accused 2's matters under provisions of section 69(2) which
stipulates that if it appears to the reviewing
judge that proceedings
from a Subordinate Court are not in accordance with justice or that
doubt exist whether they are he may
reverse the conviction or reduce
the sentence of the court which imposed the punishment.

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I have
come to the conclusion that the co-accused Thabang Molise was wrongly
convicted for inadequacy of evidence against him in
both counts.
Conviction and sentence are set aside in his case as in that of the
appellant Kote Rasekone. A release warrant should
be served on the
Prison office where Molise is in detention and he must be released
forthwith. Will the Registrar ensure that this
order is put into
effect immediately.

The typed
script should be sent back to the Director of the Public
Prosecutions' office from where it was borrowed after the
disappearance
without trace of that belonging to the High Court.

ACTING
JUDGE.

31st
August, 1987.

For
Applicant : Hiss Ramafole

For
Respondent : Mr. Seholoholo.