CRI/A/75/36

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

JACOB
MONYAMANE Appellant

v

REX
Respondent

J U D G M
E N T

Delivered
by the Horn Mr. Justice B.K. Molai on the 16th day of May, 1987.

The
appellant and one Moteletsana Monyamane appeared before a Resident
Magistrate in Leribe charged with 'the crime of arson, it
being
alleged that on or about 4th January, 1986 and at or near Popopo in
the district of Leribe they both or either of them unlawfully
set on
fire and thereby damaged a certain house, being an immovable
property, of one 'Mamohanae Ramohanoe, with intent to injure
her in
her proper­ty. They both pleaded not guilty to the charge.

At the
end of the trial the appellant was found guilty as charged and
sentenced to two (2) years imprisonment. His co-accused was,
however,
acquitted and discharged at the close of the crown case .

The
appeal is against the appellant's conviction on the ground that it
was against the weight of evidence.

The
evidence heard by the trial court was that adduced by P.W.1, 13 years
old Phole Ramohanoe who told the court that on 4th January,
1986 he
and another child, called Nyaba Ramohanoe, were looking after their
parents's animals. In the afternoon of the same day
it rained and
they had to drive the animals home. They sat in one of P.W.1's
parental houses until 4 p.m. when it stopped raining
and they went
out to look for horses.

2

As they
got out, P.W.1 noticed that some flowers were broken behind the house
and something was moving amongst them (flowers). A
stone was then
thrown at them from the flowers. When he looked closely P.W.1 saw the
appellant coming out of the flowers and throwing
stones at him and
Nyaba Ramohanoe. P.W.1 ran to the lower side of his garden which was
'Mamohapi Ramahanoe's garden. It is not
clear from the evidence what
then happened to Nyaba Ramohanoe who did not even testify before the
court a quo .

After he
had run to the lower side of his garden P.W.1 noticed the appellant
going into one of his (P.W.1's) parental houses. When
the appellant
went out P.W.1 saw flames coming out of the house. The appellant then
entered into another of P.W.1 's parental houses.
When the appellant
left that house P.W.1 noticed smoke coming out. As he left, ,the
appellant was walking fast but not running.
When he crossed a nearby
stream, the appellant met P.W.1's father, one Marena-Ke.Mang, and
P.W.5, Setlabocha Mphasane. P.W.1 then
shouted the alarm and noticed
people already putting out the fire at his house. The appellant did
not, however, return to put out
the fire.

If he saw
the appellant actually setting fire on the houses, I must say I find
it rather strange that P.W.1 had to wait until the
appellant was at
the stream before raising the alarm. A natural reaction would have
been for P.W.1. 1 to raise the alarm the moment
he realised that the
appellant was setting the houses an fire.

The
evidence of P.W.1 that the houses of 'Mamohapi Ramahanoe were set on
fire on 4th January, 1986 was corrobo-rated by that of
Cosmus
Ramahanoe, 'Mamokiba Ramohanoe, Setlabach Mphasane, 'Mamohapi
Ramohanoe herself who testi­fied before the court a quo
as P.W.2,
if, 5, 6 and 3, respectively. They, however told the court that it
was around 7 p.m. and not 4.30 p.m. when the houses
were set on fire.

Although
they saw the appellant leaving the village around 7 p.m. on that day
they all did not see him actually

3

setting
the houses on P.W. 3,4 and 6 were at one of the houses in the village
where there was a feast for the removal of a mourning
cloth when they
heard the alarm that the houses were on fire. P.W.2 was sitting with
one Ts'iliso below the village when he heard
the alarm. P .W.5 was
arriv­ing home in the company of Morena-Ke-Mang when he also
heard the alarm. According to him P.W.5
only saw the appellant
walking in the village from the direction of P.W.1's parental home
which is also the direction from the
name of the appel­lant
himself.

The
appellant gave evidence on oath and denied that he was the one who
had set the houses on fire. Accor­ding to him at about
11 a.m. on
4th January, 1986, he was at in the company of Mateletsane Monyamane
who wanted to visit his father at the prison. They
were in the
company of Kemang Mabote and Mabote Mohale who were, however going
for a funeral at a place called Sebothoane or Ts'lfalimali.

From the
prison the appellant and Mateletsane returned straight to St.
Monica's, alias Popopo where they collected the appellant's
two
children and went back to Tsikoane village. At 3 p.m. on that day
they were at the home of 'Mamaria 'Mampane Monathi at Tsikoane
where
there was a feast.

According
to him the appellant was very busy at the feast. He slaughtered
altogether 4 sheep, chopped wood and served beer to people
who had
attended the feast. He never returned to Popopo on that day. The
following day the police came and arrested him at Tsikoane.
He could
not, therefore, have set the houses on fire at Popopo around 4.30
p.m. or 7 p.m. on 4th January, 1986.

The
evidence of the appellant that he and Moteletsane Monyamane went to
the Local Prison and from there to Popopo was confirmed
by D.W.3
Moteletsane Monyamane who told the court that they left Popopo for
Tsikoane at 2 p.m. He and the appellant slaughtered
the sheep at the
feat of 'Mamaria Monathi.

4

D.W.2
Mohale Masupha (presumably Mabote Masupha) con­firmed that on 4th
January, 1986 he was going for a funeral at Sebothoane
when he left
his home, Tsikoane, in the com­pany of the appellant and D.W.3
who were going to the local prison. They left home
at 12 noon and at
12.30 p.nr. he (D.W.2)was back at his home, Tsikoane.

I must
say if D.W.2's evidence on this point were to be believed the funeral
must have been an unusually brief one. Be that as it
may while the
appellant said he slaughtered 4 sheep at the feast D.W. 2 was
positive that only two and not four sheep were slaughered
by him and
not the appellant. In this regard, the evidence of D.W.2 was
corroborated by that of D.W.3 and D.W.4, 'Mamaria Monathi,
who told
the court that the two sheep arrived at her home between 5.30 p.m.
and 6.00 p.m. and were slaughtered not by D.W.2 and
D.W.3 but by the
appellant Mpopi Matela and one Maphalla.

In my
view the defence's evidence that at the time the houses were set on
fire the appellant was at D.W.4's feast at Tsikoane and
not at Popopo
is so conflicting that no court of law properly advising itself can
believe it. I find nothing unreasonable in the
trial court rejecting
it as false.

That is,
however, not the end of the story. The question still remains whether
or not it has been established beyond a reasonable
doubt that the
appellant is the person who set the houses on fire. As has been
pointed earlier, apart from P.W.I nobody saw the
appellant setting
those houses on fire. It must however, be borne in mind that P.W.I is
a small child of only 13 years old. Because
of the danger inherent in
the evidence of such children there was need for the trial court to
approach his evidence with utmost
caution if only the risk of a wrong
conviction were to be avoided.

There is
nothing in the written reasons for judgment to indicate that the
trial magistrate applied the cautionary ' rule in his
approach to the
evidence of P.W.1. The risk of

5

a wrong
conviction has not, therefore, been recuced. The possibility that in
the absence of their parents P.W.1 and his young companion,
Nyaba
Ramohanoe, could have played with fire which set the houses on fire
could,not, in my opinion be ruled out.

It was
contented in argument that the house of the complainant in this case
was never set on fire. It seems to me the contention
is based on the
defect in the charge viz. that instead of 'Mamohapi the charge sheet
averred that the complainant was 'Mamohanoe
Ramohanoe. It must be
ob­served, however, that S.158 of the Criminal Procedure and
Evidence Act, 1981 provides:

"158. Whenever a charge in respect of any offence, is defective
for want of the averment of any matter which is an essential

ingredient of the offence, the defect shall be cured by evidence at
the trial in respect of the offence proving the presence of
such
matter which should have been averred, unless the want of averment
was brought to court before judgement."

I agree
that it was important for the prosecution to give the correct name of
the complainant in this charge. Failure to do so rendered
the body of
the charge sheet defec­tive. The defect was, however, cured by
the evidence of the crown witnesses who made it
abundantly clear that
the houses that were set on fire belonged to 'Mamohapi and not
'Mamohanoe Ramohanoe. Consequently the contention
has no merit and is
accordingly rejected.

Be that
as it may, I do not consider that it was safe, in the circumstances
of this case, to convict the appellant on the evidence
of P.W.1, a
young child, in respect of whose evidence there is no indication that
the cautionary rule was applied.

In my
judgment the appellant should have been given the benefit of doubt in
this case. I would accordingly allow the appeal.

It is
ordered that the appeal deposit be refunded to appellant.

B.K.
MOLAI

JUDGE

18th May,
1987.

For
Appellant: Mr. Monaphathi

For Crown
: Mr., Seholoholo.