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Kasian Yanda v. R. (PC) Crim. App. 193-D-69; 4/5/70; Hamlyn, J.



Kasian Yanda v. R. (PC) Crim. App. 193-D-69; 4/5/70; Hamlyn, J.

The appellant was convicted of stealing a goat, contrary to sections 265 and 268 of the Penal Code, and sentenced to three years imprisonment and to receive twenty-four strokes of corporal punishment in terms of the Minimum Sentences Act. The appellant, who had been entrusted with a goat belonging to another, claims that he was suddenly the object of a demand for the payment immediately of his local Tax; having no means of raising this amount of money demanded by the authorities, he sold the goat and paid off his debt.

            Held: (1) “In reaching a decision to convict the accused of the offence charged, the trial magistrate ……. Found that the appellant had no authority from the complainant to dispose of the animal. That is perfectly true and section 258 of the Penal Code appears to cover the circumstances of the case. But I do not think that a decision of that point alone can determine the whole matter, for the trial magistrate should have gone on the decide the question of “claim of right”. That phrase does not merely signify that the accused must have believed that the property which he took was his own; it must further include a claim of the accuse person to deal with the property in the way which he did. There is no doubt in the present case that the accused at no stage believed that the goat with which he was entrusted was his; he has never claimed this. His real defence was that, while he disposed of the goat without the direct authority of the complainant, he did so under the assumption that the complainant would sanction such act had he known it. Now if this really is the case (and neither of the magistrates in the Courts below considered the facts in this light) then here can certainly be said to have been a claim of right made in good faith. In support of this aspect of the matter put forward by the appellant, there is the uncontested fact that these persons are close relatives. The case would be quite different if such relationship had not existed and substantial evidence would then have to be adduced to prove the existence of such claim on the part of the accused”. (2) “In the event therefore this appeal will have to be allowed for I am not satisfied that the accused’s defence was considered in any way in the Courts below. I consequently allow the appeal …….”

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