R v Nazo (CRI/APN/126/03 )

Case No: 
CRI/APN/126/03
Media Neutral Citation: 
[2003] LSHC 72
Judgment Date: 
26 June, 2003

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CRI/APN/126/03

IN THE HIGH COURT OF LESOTHO


In the matter between:-

MANDLAKAPHELE NAZO APPLICANT

and

REX RESPONDENT


JUDGMENT


CORAM : HON. MR JUSTICE S.N. PEETE

DATE : 26™ JUNE, 2003


Headnote


Stock Theft - Charge of theft of sheep preferred under common law and not under Stock Theft Act 2000. Accused pleading guilty -Prosecutor outlining facts under section 240 of the Criminal Procedure and Evidence Act 1981 as if the charge under Stock Theft Act 2000. Outline not disclosing offence of theft under common law.


The applicant faced three counts of theft of some eight sheep under three counts to which he pleaded guilty. The outline of the facts by the prosecutor did not however disclose the commission of theft, only alleging the missing of the sheep and the applicant being found in their possession. Time period after the loss was not stated.


2


Held: The fact that animals go missing is per se insufficient to establish that unlawful taking has occurred. Unless the accused is found in recent possession and is unable to give a satisfactory account of such possession, the court cannot infer that the accused stole the animals. Where the charge is preferred under common law, the onus is on the crown to establish all elements of the offence of theft, especially the unlawful taking by the accused.


Held: Where after conviction and sentence, an unrepresented accused actually serving his sentence of imprisonment has no visitors of kin, fails to note his appeal timeously and the court had failed to advise him of his right to appeal within 14 days as required by law, the court will be inclined to condone his late noting of appeal if the lapse of time is not unreasonably long.


This matter came before me as an application for condonation for late noting of appeal and the appeal was heard soon after the application for condonation was granted. It appears from the record that (a) the applicant who was facing three charges of stock theft (common law) was not represented by a lawyer and (b) was not advised of his right to appeal, if he so desired, within 14 days after conviction and sentence on 11/11/02. In his affidavit for condonation he explains that since he comes from Semonkong he was unable to communicate so as to arrange services of a lawyer.


It appears that the accused pleaded guilty to the three counts of stock theft which charge seems to have been founded upon the common law theft and not under the Stock Theft Act 2000.


3


The outline of the facts by the prosecutor however was made as if the charge was under section 3 of the Stock Theft 2000. This was irregular. In my view, if the prosecutor prefers a charge under common law theft he cannot base his evidence or outline upon the statutory provisions. This can prejudice the accused.


The ambit of sections 192, 343 and 434 of the Criminal Procedure and Evidence Act 1981 excludes theft of stock. The facts outlined by the prosecutor must support the charge preferred - and not any other charge -unless the competent statutory verdicts are supported by those facts.


In this case the elements of theft under common law were not proven i.e. contrectatio fradulosa (unlawful taking - actus reus). All the outline states is that the sheep of the complainants went missing round about 23rd June 2000 - the outline does not state when the sheep were ultimately found in the possession of the applicant. In our Law recent possession can raise an inference that the possessor stole the goods if he fails to give a satisfactory explanation about his possession - Hoffman & Zeffertt - The South African Law of Evidence (Fourth Ed) 1998 - page 605-9. In view of the scanty and cryptic outline of the facts, it cannot be inferred that the applicant stole the sheep in question. The fact that the sheep went missing on the 23rd June 2000 is not in itself indicative of theft - it could also be that they went astray and strayed into the applicant's herd or flock. In Rex v Motaung - 1949 (2) SA 414 it was held that the fact that animals go missing is per se not sufficient to establish the commission of theft, neither fact that applicant could have confessed or pleaded guilty to the charge.


4


Section 240 (2) of the Criminal Procedure and Evidence Act in fact reads:


"(2) Any court may convict a person of any offence alleged again to him in the charge by reason of any confession of that offence proved to have been made by him, although the confession is not confirmed by any other evidence, provided the offence has, by competent evidence other than the confession, been proved to have been actually committed. " (My underline)


In this case, besides the plea of guilty, there is no evidence that a crime a theft was committed by the applicant. A "satisfactory explanation" is required not under common law but under section 3 of the Stock Theft Act and, as already pointed out, the applicant was not charged under that Act but under the common law. Even then outline does not state in what way the explanation was not satisfactory.


Ms Ntene candidly did not support the convictions which are hereby set aside along with the sentences.


I lastly should advise that, depending upon the facts at his disposal, the prosecutor should always carefully draft his charges under the new Stock Theft Act 2000 and not under the common law; and where the accused pleads guilty to the charge, the prosecutor must be always careful to outline his facts so as to support the charge preferred and above all, those facts must disclose commission of an offence. The outline of the facts needs to be carefully prepared by the prosecutor and just glibly narrated because the accused is pleading guilty.


5


In a case similar to the present, Rooney J in Phomane v Rex 1982-84 LLR 69 quashed conviction and sentence where the complainant's goat had gone astray and was found later amongst the appellant's flock. He had pleaded guilty. In acquitting him Rooney J. said:-


"For all I know, he may have explained the circumstances in which the goat was found among his flock in a manner inconsistent with his guilt. It is not enough that accused pleads guilty"


.... The prosecutor did not tell the court and the magistrate did not ask him what explanation was which the applicant gave to the police.


"The statements of facts must disclose that he is guilty. No adverse inference can be drawn simply because the missing goat was found among appellants flock "


See also Apell v Rex 198 (1) LLR 97 Rex v Khama 1981 LLR 128.


Mr Fosa informed the court that his client, the applicant, is not at all claiming the sheep as his. I therefore order that the Semonkong Police to retain the sheep - the subject matter of the counts- and to forthwith call upon the three complaints to prove or establish satisfactorily their respective entitlement to the same animals failing which the said sheep should be forfeited to the Crown.


6


S.N. PEETE

JUDGE


For Applicant : Mr Fosa

For Respondent : Ms Ntene