CRI/A/68/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MAKATA
PHOMANE Appellant

v

REX
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr. Justice F.X. Rooney on the 13th day of October, 1982.

Mr. G.N.
Mofolo for the Appellant Mr. Kabatsi for the Crown,

On the
3rd August, 1982, the appellant appeared before Mr. T.S. Motinyane,
charged with stealing a goat. He pleaded guilty and on
conviction was
sentenced to 3 months imprisonment. He appealed to this Court against
the severity of this sentence.

On the
30th September, 1982, I quashed the conviction and sentence.
According to the statement of facts presented to the court by
the
prosecutor, the complainant's goat went astray in July of this year.
On the 29th of that month, the complainant and the police
came to the
accused's home and inspected his flock. The statement goes on to say
:

"A goat with different ear-marks was found. It was identified by
complainant as his stray goat. Accused was asked to give
explanation
which he did furnish. He was arrested cautioned and charged."

The
prosecutor did not tell the court and the magistrate did not ask him
what the explanation was which the appellant gave to the
police. For
all I know, he may have explained the circumstances in which the goat
was found among his flock in a manner

2

inconsistent
with his guilt. It is not enough that an accused pleads guilty. The
statement of facts must disclose that he is guilty.
No adverse
inference can be drawn simply because the missing goat was found
among the appellant's flock.

I was
unable to accept Mr. Kabatsi's argument that the nature of the crime
of theft was so well known that the possibility of mistake
on the
part of the appellant could be disregarded. There is statutory
obligation on a Subordinate Court to hear and record the
facts
disclosed by the evidence in the prosecutor's possession (Sec. 240
(1)(b) Criminal Procedure and Evidence Act. It has been
held in
numerous cases that unless the facts establish the existence of an
offence, the accused must be acquitted (See Apell v.
Rex 1981 (1) LLR
49 and cases cited therein at 51, Rex v. Khalema & Another 1981
(1) LLR 97 and Rex v. Khama 1981 (1) LLR 128)

F.X.
ROONEY

JUDGE

13th
October, 1982.

Attorney
for the Crown : Law Office.