CRI/S/19/87

IN THE
HIGH COURT OF LESOTHO

In the
matter of :-

REX

v

TABATSAHAE
MAPHASA

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 3rd day of August,
1987.

The
accused appeared before a third class magistrate for the district of
Thaba-Tseka charged with the offence of contra­vening
section 16
(1) of the Stock Theft Proclamation No.80 of 1921 as amended. The
charge sheet alleged that upon or about the 25th April,
1987 and at
or near Ha Mohlapiso cattle-post in the district of Thaba-Tseka the
accused was found in possession of seven cattle
and one horse and
there were reasonable grounds for believing that he had obtained such
stock unlawfully and is unable to give
a satisfactory explanation of
such possession. The accused pleaded guilty to the charge and after
the public prosecutor had given
a summary of the facts disclosed by
the evidence, he was found guilty as charged and committed to the
High Court for sentence.

2

The facts
of the case were that on the 25th April, 1987 Chief Mathealira
Mohlapiso was returning from his cattle-post accompained
by other
people. When they were at Khubelu they met the accused driving seven
cattle and one horse. They became suspicious when
they saw such an
old man driving the stock and they asked him where he got the stock.
The accused was unable to give them any satisfactory
account of such
possession inasmuch as he said he stole the stock at Mohlapiso
cattle-post. Chief Mathealira arrested the accused
and handed Him
over to Thaba-Tseka police to Whom he repeated his explanation that
he had stolen the stock. Even before the trial
court and this Court
the accused accepted the facts of the case as outlined by the public
prosecutor.

I am
convinced that the accused is guilty of contravening section 16 (1)
of the Stock Theft Proclamation No.80 of 1921, as amended.

In
mitigation of sentence the accused pleaded that the Court be lenient
because when he saw the stock there was nobody tending them;
he was
tempted and decided to steal them. He has a family and some
livestock. Although his age was recorded as 85 years on the
charge
sheet my estimate was that he could be about 65 years old. He is a
first offender according to what the public prosecutor
told the trial
court. However I must warn judicial officers not to take the word of
the public prosecutor that an accused person
has no previous
convictions without producing any document especially where the
charge sheet clearly shows that the accused person's
fingerprints
were never taken. It is the duty of the public prosecutor to ensure
at the earliest stage when the accused is brought
to the court for
remand that the accused's fingerprints have been taken and sent to
the Fingerprints

3

Bureau
for comparison. I shall assume in favour of the present accused that
he has no previous convictions.

Having
taken into account all the circumstances of the case 1 am of the
opinion that a custodial sentence is appropriate. The accused
is
sentenced to Eighteen (18) months' imprisonment.

J.L.
KHEOLA

JUDGE.

25th
August, 1987.

For Crown
- Mr. Mokhobo

For
Accused - In person.