IN THE HIGH COURT OF LESOTHO
In the Appeal of:
ALBERT NTESO 1st Appellant
SELLO MOFOKENG 2nd Appellant
Delivered by the Hon. Mr. Justice M.P. Mofokeng on the 20th day of December, 1984
The two appellants appeared before the Court of the Resident Magistrate at Leribe on a charge of robbery, it being alleged that on the 3rd December 1981 and at or near Maputsoe in Leribe district they each or the other and by using force and violence induce submission and did take an amount of money amounting to R6,752.19 the property of K. Nolan in the possession of one Ntsane Mofelehetsi. They pleaded not guilty but were eventually found guilty and sentenced to serve a term of three (3) years and six (6) months' imprisonment each. The two appellants will be referred to simply as accused 1 and 2 respectively. The facts are briefly as follows:
On the 3rd December 1981, long before dusk, Ntsane Mofelehetsi (hereinafter referred to as P.W.1) was proceeding home. He was driving a vehicle. As he approached a stream, he noticed that there was a vehicle coming from the opposite side. He waited for this other vehicle to pass. As he was thus waiting he saw accused 1 (Ntseso) emerge from a place where bricks were heaped. Accused 1 was a man well-known to him and there is no dispute about this.
When accused 1 got to him he told P.W.1 that he wanted money. P.W.1 thought that accused 1 was making a huge joke. He soon realised that he was serious. At this stage he was joined by another man who had alighted from the vehicle which approached from the opposite side. A bullet was fired. P.W.1 was placed inside the boot of the vehicle in which the stranger had alighted. It was driven off.
On arrival at the premises of K. Nolan, accused 1 and the other man were now joined by a third one. Nightwatchmen were called. The premises were eventually forced open and money was removed from the safe.
Accused 1 was identified by P.W.1 who had known him for a long time. When he first saw him there was still plenty daylight. There is no dispute that the two men know each other. In such a situation it serves very little purpose to hold an identification parade. (See Hoffman: S.A. Law of Evidence 2nd Ed. p. 437; Rex v Dladla, 1962(1) S.A. 307 at 310)). P.W.1 gave his evidence well and the Court a quo believed him. He was found to be a truthful person. For an example, he was honest about his inability to identify accused 2. In my view the evidence is overwhelming against accused 1. His appeal against conviction is therefore dismissed.
Accused 2 was known to P.W.3. He is the only person who identified him. However, his evidence ought to have been approached with great caution by the learned Resident Magistrate. He stood with accused 2 from 4.00 p.m. until the arrival of the vehicle in which accused 1 and another alighted. No reason is advanced for this waiting and the sudden departure of accused 2 without a word. But what is of importance is that P.W.3 made it plainly clear that their dispute with accused 2 had not been resolved. Moreover, he had previously been arrested by the
police in connection with same robbery of which accused 2 now stands charged. Accused 2 was arrested after the release of P.W.3 despite all these factors, it does not appear from the reading of the record that the learned Resident Magistrate took them into consideration. He does not show that he approached the evidence of this witness with the necessary caution. It was dangerous for the learned Resident Magistrate to have relied on the evidence of such a doubtful character who unashamedly professed in Court that he lived on the proceeds of dagga which he sells. Counsel for the Crown has correctly conceded that the Crown has not proved its case beyond a reasonable doubt in his case. His appeal is consequently allowed.
As regards sentence imposed on accused 1, the learned Resident Magistrate took into consideration the fact that accused 1 was a first offender. He no doubt took into consideration the amount involved. However, his aim was to pass a deterrent sentence. The sentence he has imposed does not shock this Court. This Court is, therefore, unable to disagree with it. The appeal against sentence is consequently dismissed.
In conclusion I wish to comment briefly on the state of the record in the present case. The reading of the record was very painful indeed. It is written in a strange language resembling English. One might be excused if he described it as Sesothoaesed English. A sort of hybride language between English and Sesotho. For the greater part, the language is unintelligible. This is a serious matter if it is remembered that an appeal is based on the four corners of the record.
Sesotho is an official language. (See Rex v Mabote Kharuru, Review Order 5/77 (unreported) p.11 in which section 2(2) of Act 21 of 1966 is quoted in full). However, section 7(1) of the Subordinate Courts Proclamation 58 of 1938 reads,
" 7(1).......................................... the
record of proceedings in .......... Criminal cases shall be in the English language.
Provided that the Chief Justice may by rules made under section eighty-two direct that
..................... proceedings of the Court may be in the Sesotho language,"
It would be of immense value if such rules could be speedily made in order that justice may appear to be done. Reading some of the Criminal records that come to this Court from Subordinate Courts, it becomes doubtful whether all that was said in the Court a quo has been placed on the record. It seems that the English language is becoming increasingly difficult.
20th December, 1984
For the Appellants : Dr. W. M. Tsotsi
For the Respondent : Mrs M. Bosiu