Customary Court of Appeal endorses mandatory stock-theft sentences

KOPANO OLESITSE
Correspondent | Wednesday February 16, 2011 00:00

The week-long hearing of appeal cases by the CCA also covered Mahalapye where it reviewed nine cases involving 15 convicts. 'In this case, only one appellant was released for insufficient evidence,' said Kgosi Christopher Masunga, the President of the Customary Court of Appeal.

'Apart from the stock-theft cases, we also had a number of civil cases. In most instances, we realised that civil matters involved fighting over inheritance (boswa). One such case involved a couple that had been married for 27 years, under the customary law. 'The husband was not satisfied by the decision of the lower court, but we ruled that the property they accumulated during marriage must be shared equally.'

Still in Mahalapye, the court overruled an appeal by a man who wanted to return his bride price (bogadi) after a marriage of eight years.

'According to customary law, the bride price cannot be returned after marriage. In this particular appeal, the couple did not accumulate anything while married,' Kgosi Masunga said.

'In another case in Mahalapye, a child challenged his mother over possession of a house that belonged to his late father. We also endorsed the ruling by the customary court because the mother was the rightful heir to the house since they were married when the husband died.'

 In most cases, appellants cited factors such as poor procedure by investigating officers and insufficient evidence linking them to crimes as grounds for appeal.

'Even though they may claim insufficient evidence, in most cases, appellants plead guilty to charges levelled against them. 'According to Section 3 of the Customary Court Act, the five years passed on convicted criminals for stock-theft is a mandatory sentence, meaning that it cannot be reduced.

'Also, no fine can be paid if the accused is found guilty of stock-theft. Stock-theft is one of the most serious crimes in this country.'

He explained that a serving prisoner could only be released under exceptional circumstances and where there were extenuating circumstances. 'Grounds for this are found under Section 27 subsection 4 of the Customary Court Act,' he said.

'For instance, if a convict is between 70 and 80 years of age, that in itself is an extenuation. Health is also an extenuating factor, especially if convicts suffer from serious ailments like tuberculosis (TB) and HIV/AIDS.'

The CCA President said he was generally satisfied with the work of the lower customary courts: 'We upheld their judgments because their cases were judged within the parameters of the penal code of customary law,' Kgosi Masunga said.

'It further shows that the workshops we held since last year with customary court chiefs are bearing fruit. This also means that the presiding officers of the lower courts do their work well. During training, we cover important aspects like procedure in dealing with cases.'

During the sitting of the Customary Court of Appeal, appellants were encouraged to read and understand the charges against them properly before forming grounds of appeal.

'They must not just succumb to pressure and plead guilty,' Kgosi Masunga said. 'Those charged also have the right to request more time to better prepare for their cases. Of importance, people must know that an appeal is valid for 30 days after judgment is passed.'