R v Thobi (Rev. Case No. 24/2004 CR. 191/2001 Rev. Order No. 3/2004 )

Media Neutral Citation: 
[2004] LSHC 40
Judgment Date: 
3 March, 2004

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IN THE HIGH COURT OF LESOTHO


In the matter of:


REX

v

MOKETE THOBI

MAHLAKAJOE NTALA TSOBOKO KHOTSO TSOBOKO


Review Case No. 24/2004 CR. 191/2001

Review Order No. 3/2004 In Maseru District


REVIEW ORDER


Delivered by Mr. Justice W.C.M. Maqutu on the 3rd March, 2004.


  1. This review is before me in terms of Section 66 (b) of the Subordinate Court Act of 1988. The accused were not represented by any legal practitioner at their trial.


CHARGE:


  1. The accused are charged with the offence of Stock. Theft. In that upon (or about) the 19th day of January, 2001 and at or near Setleketseng in the Maseru district one or both accused did wrongfully and unlawfully and intentionally steal 10 cattle the property or in the lawful possession of Mosaefane Mahao.

  2. Plea - Both accused pleaded not guilty. CONVICTION AND SENTENCE

  3. Both accused were found guilty as charged were sentenced to pay M4,000.00 or 4 years imprisonment.


SEPARATION OF TRIALS


  1. The Charge Sheet disclosed that initially there were three accused, namely:


Mokete Thobi - Accused Number 1

Mohlakajoe Ntala Tsoboko - Accused Number 2

Khotso Tsoboko - Accused Number 3


  1. On the 19th August, 2003 when the trial commenced, .Accused Number 1 - Mokete Thobi was not before Court. Consequently the Prosecutor applied for a separation of trials because Accused Number 1 "cannot be easily apprehended." The Magistrate granted the application of separation of trials.

  2. The Magistrate recorded the plea of Mohlakajoe Ntala Tsoboko and styled him Accused Number 1. In the plea of Khotso Tsoboko, he is called Accused Number 2. All this was in order because there was


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now a separate trial in which Mokete Thobi who used to be Accused Number 1 did not feature.


  1. The problem in these proceedings is that (during the trial), the two remaining accused, time and again are referred to as Accused Number 2 and 3. This has created confusion. For example, PW2 Trooper Yongane No. 4541 said "On arrival we got to one Mokete Thobi (A 1) and A2." PW2 then continued his evidence and said the cattle were found in "Al's kraal." Mokete Thobi ought not to have still been referred to as Accused Number 1 after separation of trials.

  2. At page 12 of the handwritten record, the Magistrate at the end of the cross-examination of PW2 has recorded "End XXXXX by A2" at the end of the cross-examination of Mahlakajoe Tsoboko who had become Accused Number 1. At page 14 the Magistrate still refers to the two accused before court as Accused Numbers 2 and 3. When PW3 and PW4 give evidence the two accused before court are still referred to as Accused Numbers 2 and 3 - no more as Accused Numbers 1 and 2 as they ought to be called in the separate trial in progress. When PW1 gave evidence it seems both accused before court are correctly referred to as Accused Numbers 1 and 2.

  3. This confusion of identities taken with other factors can be a serious irregularity. It is however, sometimes possible to hold that the mistake is so minor that it caused the accused no real prejudice.


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POSSESSION


  1. In the record of proceedings it appears as if the two accused have been convicted merely because the Crown's view of the evidence is that they shared a common kraal for their cattle. At page 3 of the handwritten record PW1 said: "The policeman, who found the cattle showed me Al and told me my cattle were found from him. The officer is Yongwane." Consequently, PW1 cannot be of assistance in respect of possession because his evidence is hearsay.

  2. At places PW1 says Accused Number 1 confessed to stealing the cattle although this is not clear because of the problem of identity of who Accused Number 1 is in the proceedings. If the Crown wanted to lead the evidence of a confession then it should have lead through that witness it was also necessary to put on record the fact that this confession was made freely and voluntarily. This was important because the accused were not represented.

  3. PW2 Trooper Yongwane the investigator of the case at page 8 of the handwritten record says 9 cattle whose possession was not supported by documents were found among several cattle in Al's kraal. Al is described by PW2 as Mokete Thobi and not any of the accused. Among these 9 cattle, four cattle were with fresh earmarks. PW2 continued "The explanations were demanded from the two accused before Court. The cattle were in accused's possession including Mahlakajoe." By Mahlakajoe I understand this to refer to Mahlakajoe Ntala Tsoboko who is referred to Accused Number 2, but should have been Accused Number 1 after the separation of trials.


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  1. In cross-examination PW2 answering Mahlakajoe Tsoboko's question said:


"I found them from your communal kraal with Mokete."


PW2 had earlier said in cross-examination, that he found no cattle in accused's home. Through questions, this accused had also challenged PW2 to prove that he kraals his cattle with Mokete Thobi. In cross-examination, PW2 could not clearly specify why he associated Khotso Tsoboko (Accused 3 or 2) with the cattle that were reputedly found in the kraal shared by Mokete Thobi and Mahlakajoe Thobi - all he could say was that Khotso Tsoboko (Accused Number 2 or 3) was involved.


  1. PW3 who did not remember when the cattle were taken by the police, was semi - blind. PW3 said cattle were taken in the "kraal from his place." He had not seen the cattle taken as he was sick and indoors. He knew nothing about the cattle in question, yet he could testify that they were taken from the kraal used by Accused Number 2 and 3. PW4 the Chiefs messenger gave evidence that five cattle were found in PW3's kraal. This becomes confusing because PW2 says the nine cattle with which the two accused are charged, were found in Mokete Thobi's (Accused Number l's) kraal which he shares with Mahlakajoe Tsoboko -Accused 1 or 2 according to the Charge Sheet.

  2. As all the cattle were among other cattle, some of which were released because they had documents, the issue of possession becomes not clear. Theft could not be clear, what is clear is definitely possession.


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In Makeng Mpesi V Rex 1967 - 70 LLR 112 it was said in such cases before, the accused are charged with unlawful possession in terms of Section 16 (!) of the Stock Theft Proclamation of 1921 as amended, the accused must give an explanation their possession of the cattle or fail to do so. It is only after such an explanation that their possession can be found ''unsatisfactory" - that they can be charged of being found in possession of animals and being unable to give a satisfactory account of their possession.


  1. PW2 did not seek the accused's explanation. This was all more necessary because according to PW2 they shared the kraal with Mokete Thobi. PW4 in his evidence says he does not know what explanation the accused gave in respect of cattle found at Mokete Thobi's home and those from PW3's place.

  2. The fact that there is evidence that the cattle were stolen from PW1 is evidence of theft. But the theft must be connected with the accused. The finding of the cattle in accused's possession is one of the main facts from which inference of theft can be drawn, but it is not the only one.

  3. The problem that we have in this case is that the Magistrate says facts of the finding of possession are common cause, when in fact they are not. According to PW2, the 9 cattle were found in Mokete Thobi's kraal (formerly Accused Number 1) which he shares with Mahlakajoe Tsoboko formerly Accused Number 2 (now Accused Number 1). The other version of PW2 the Chiefs messenger is that two cattle were found in Mokete Thobi's home and five cattle were found in PW3's

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kraal used by Mahlakajoe Tsoboko now Accused Number 1 and Khotso Tsoboko now Accused Number 2 who was formerly Accused Number 3. PW4 the Chiefs messenger states in no uncertain terms that both accused do not share a kraal with - Mokete Thobi, formerly Accused Number 1. The Crown's version of possession and the finding of the cattle is contradictory. This fact the accused in cross-examination exposed. This contradiction appears (on page 16 of the record) but the Magistrate failed to take this fact into account when he concluded that the facts were common cause.


  1. PW4 clearly states in cross-examination that when the cattle were found at PW3's kraal, he was only with PW2 - none of the accused were there. Indeed PW4 says they did not even look for Khotso Tsoboko - Accused Number 3. The reason for this was that they got information from PW3 the person in whose kraal the cattle were found. (See page 19 of the handwritten record.) The evidence of PW2 investigator that any cattle were found in the presence of any of the accused is contradicted and not supported. There were no grounds for rejecting the accused evidence that they were not there when the cattle were found.


ONUS ON THE CROWN


  1. Before the accused can be called upon to defend themselves, the Crown which has the onus of proof must make a prima facie case. The accused have no onus to prove their innocence. It is clear from the evidence of PW4 as clarified by cross-examination that PW2 and PW4 went to the kraal of Mokete Thobi (formerly Accused Number


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1) and the kraal of PW3 in the absence of the two accused and seized the cattle, which are the subject of this charge.


  1. This is a reviewing court, which must not got out of its way look for mistakes for no judgment is perfect. It must satisfy itself that the proceedings are in accordance with real and substantial justice. But where there is a misdirection of fact and some facts and probabilities have been overlooked, then this court may interfere. This court may even disregard the findings of fact and credibility of trial court. See Rex v Dhlumayo & another 1948 (2) SA 677 at 706. This happens where it comes to the conclusion that these affect the method the trial was conducted.


  1. I am left with a certainty that the whole truth has not been told. If Mokete Thobi - formerly Accused Number 1 is the real culprit as PW2 says, how did these two accused come to be charged? If the Chiefs messenger PW4 says they do not kraal their cattle with Mokete Thobi, where did PW2 get that information? If PW4 says five cattle were found at PW3's kraal, why does PW2 not mention this? All these crucial issues were not explored by the trial court. In my view the Magistrate's wrong approach and failure to take into account evidence on record as a whole, had an adverse effect on his evaluation of evidence to the prejudice of the accused.


CONCLUSION


  1. There has in the light of the afore-going, miscarriage of justice and the Magistrate inadvertently put the onus of proof on the accused in the


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evaluation of evidence, thereby also overlooking facts favourable to the accused.


ORDER:


The convictions and sentences against the two accused namely Mahlakajoe Ntala Tsoboko and Khotso Tsoboko (formerly Accused Numbers 2 and 3 and now Accused Numbers 1 and 2) are set aside.


W.C.M. MAQUTU

JUDGE OF THE HIGH COURT


Copy: Chief Magistrate

The Magistrate - Maseru

Director of Public Prosecutions

O/C Police - Maseru

O/C Prisons – Maseru


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