Ramabanta v Director of Public Prosecutions (CRI/A 122 of 93) [1994] LSCA 107 (15 June 1994)

-1- C R I / A / 1 2 2 / 93 IN T HE HIGH C O U RT OF L E S O T HO In the A p p e al of ; M O S H AO R A M A B A N TA A p p e l l a nt v D I R E C T OR OF P U B L IC P R O S E C U T I O NS R e s p o n d e nt J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. J u s t i ce T. M o n a p a t hi on the 15th day of J u n e. 1994 This is a appeal from the m a g i s t r a te court of M a s e r u, in its j u d g m e nt of the 27th July 1 9 9 3. The A p p e l l a nt was s e n t e n c ed to a term of i m p r i s o n m e nt of Four (4) y e a rs w i t h o ut an o p t i on of a f i n e. "The A c c u s ed had admitted guilt to the f o l l o w i ng c h a r g e, n a m e l y; c o n t r a v e n t i on of s e c t i on 16 of P r o c l a m a t i on 80 of 1921 of Stock Theft in that upon ( or a b o u t) the 13th day of J u l y, 1993 and at or near Ha M a k e r e, T h a b a - T s e ka in the said d i s t r i c t, the said A c c u s ed did w r o n g f u l ly and u n l a w f u l ly and i n t e n t i o n a l ly steal 9 s h e e p, the property or in the lawful of Potlaki M a j a l l e ". I have made an a c c u r a te d e p i c t i on of the charge as shown in the charge s h e e t ." -2- I should, p e r h a p s, find it useful to state the Public P r o s e c u t o r 's outline to highlight some of the q u e r i es that Mr. K h a s i pe for the A p p e l l a n t, raised: " The Crown evidence would show that on the 15th July, 1993 the c o m p l a i n a nt Potlaki Majalle noticed that his nine sheep are m i s s i n g. He reported the matter to the chief and the chief issued out m e s s e n g e rs to look for the sheep. Whilst they were still searching one Pholo Ntaote a r r i v e d. On arrival he said at chief Toka M o j e l a 's place there seemed to be same sheep with fresh e a r - m a r k s. The party did go there and they found 7 sheep and the Accused before court (accused) had been arrested together with his c o m p a n i o n. Before these sheep could go missing the c o m p l a i n a n t 's marks were R/E M o t a b o lo L/E T l h o m o l a, The sheep which were found at chief Mojela's place had fresh ear marks w h i ch were R/E slit L/E fresh winkel hark behind. -3- They asked for explanation about these sheep from the chief and the chief said they were brought by the Anti-stock- theft people. An explanation was asked for from the Accused who said he slaughtered one sheep and he and friend had eaten it. They said the other one had been eaten by a jackal: The Accused was brought to the Police with the 7 sheep where the accused was warned cautioned and a charge of stock theft preferred against him. These sheep are before court and I wish to hand them in as an exhibit in this Case. Court: All the 7 sheep are temporarily marked Exhibit I. The complainant would show that he had not allowed anyone to take his sheep, That is all. Accused: I accept the outline of facts as outlined of facts as outlined by the P. P. Court: You are found guilty as charged." (my underlining) -4- Indeed it is not clear as to how the Appellant got into contact with the animals, and when they were found in relation to the Appellant. No where does it seem that they were found in his possession, The Appellant's grounds of appeal were: (a) that there had been insufficient evidence to warrant conviction and (b) that the sentence was too harsh and heavy such as to induce a sense of shock. Mr. Khasipe filed heads of argument which 1 found very useful. Mr. Khasipe submitted that if the Accused was charged with section 16 of the Stock Theft Proclamation the Charge Sheet had to allege two most important elements namely: (a) That the animals or stock was found in possession the Accused, (b) That the Accused was unable to give a satisfactory explanation of such possession, Mr. Khasipe went on to submit that not only did the charge fail to state that the stock belonged to the said POTLAKI MAJALLE but it did not specifically say so. But this appears to have -5- been cured in my view by the disclosure in the Public Prosecutor's outline that the said POTLAKI MAJALLE was complainant and that he noticed his 9 sheep to be missing. I would consider this information to have cured the defect in the charge sheet in terms of section 158 of the Criminal Procedure and Evidence Act 1981, that is assuming the charge is not itself defective, Mr. Khasipe went further than that. He submitted that since the charge purported to charge the accused in terms of section 16 of the Stock Theft Proclamation No. 80 of 1921 all the elements of the charge had to be shown in the charge itself, failure of which would render the charge defective and liable to be quashed, I do not accept the Appellant's submission that the effect of section 4 of Stock Theft Proclamation is to stipulate that there shall no longer be any charge of stock theft under the . common law, That can be a charge under common law and an alternative or additional charge as provided for under section 4(2) of the Stock Theft Proclamation as amended is envisaged. This is to be observed in the eminent case of MAPOTA NAPO vs REX LLR 1 9 7 1 - 7 3. and REX v BOIKETLO - MPHALLO & ANO. LLR 1974-75 at -6- It is correct that a new offence has been created by section 1 6 ( 1) of the Stock Theft Proclamation namely the Offence of inability to give a satisfactory e x p l a n a t i on of p o s s e s s i o n. The accepted i n t e r p r e t a t i on of the South African Provision similar to our Section 16(1) of the Stock Theft Proclamation is that given by de VILL1ERS J (as he then w a s) in the case of R v MAY 1924 OPD 274 where he stated as f o l l o w s: "(1) An Accused person must actually be found in possession of stock or p r o d u c e, (2) Suspicion founded on reasonable grounds then appearing must exist in the mind of the finder (or possible some class of p e r s o n s) that the stock or produce has been stolen and (3) the r e a s o n a b le suspicion must come into existence in the mind of either at the time of the finding in p o s s e s s i on whether it be the first finding in possession or a subsequent finding or possibly at anytime during the Accused's p o s s e s s i o n, but not after the Accused has ceased to be in p o s s e s s i o n. (See MAPOTA NAPO (above cited)) -7- This Court is faced with the following problems namely: (a) Whether it would have been competent to convict for contravention of section 16 of the Stock Theft Proclamation. (b) Whether a charge under section 16(1) can be implied. This depends on whether or not the Accused may not have been fully aware of the fact or element of suspicion being an issue (see R v BALITANE 1956(3) SA 634 EDL, R v ZULU 1951(3) 44 NPD. It is clear that the charge under section 16(1) would not be sustainable by reason of the absence of the elements elucidated above and that the ownership of the stock seems to have been placed with the said POTLAKI MAJALLE. Indeed it would seem that despite the admission made by the Accused, the evidence seeking to establish his possession of the stock was confused and unsatisfactory. This is so when one observes there were unclear explanations concerning the other sheep and the ones of which the A c c u s ed was c o n v i c t e d. I will not c o n c e rn m y s e lf with the A p p e l l a n t 's C o u n s e l 's s u b m i s s i on that the e x p l a n a t i on a m o u n ts to n o t h i n g, but i n a d m i s s i b le c o n f e s s i o n, w h i ch ought not to have b e en a l l o w e d. That having been so e r r o n e o u s ly allowed the c o n f e s s i on should be expunged from the r e c o r d. -8- 1 am p e r s u a d ed that the A p p e l l a n t 's Counsel is correct in asking this p e r t i n e nt q u e s t i on w h i ch seemed very d i f f i c u lt to a n s w e r, What was the A p p e l l a nt charged with and what was he c o n v i c t ed of? All this p r o b l e ms seem to e m a n a te from the n a t u re of the charge i t s e l f. T h e re is no c h a r ge in our law of s e c t i on 16 of P r o c l a m a t i on 80 of 1921 of Stock T h e f t. This A c c u s ed was an i l l i t e r a te u n r e p r e s e n t ed m a n. As quoted in R v T U M E LO S E S I N YI & 10 O T H E R S. C R I / T / 2 0 / 80 Rooney J, ( 5 / 0 3 / 8 0) ( U n r e p o r t e d) H o w i r tz J said in R v S E P T E M B ER 1954 (1) SA 574 at 5 7 5. "A c h a r ge should be framed with r e a s o n a b le clarity and c e r t a i n ty b e f o re an accused person is called on to plead t h e r e t o. Where as h e r e, the charge is not only u n c e r t a i n, but m e a n i n g l e ss the p o s s i b i l i ty and even p r o b a b i l i ty of p r e j u d i ce to an A c c u s ed cannot be ruled o u t ," What was the A c c u s ed Pleading guilty to? It is the duty of a judicial officer to e n s u re that a c h a r ge in a proper form is put to an Accused (see cases cited in R v T U M E LO SESINYI & 10 O T H E R S ). -9- In the result I would allow the appeal and quash the conviction. T. MONAPATHI JUDGE 15th June 1994 For the Appellant For the Crown : : Mr. Khasipe Miss N. Nku