HIGH COURT OF LESOTHO
LESITHA 1st APPLICANT
LETSIKA 2nd APPLICANT
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
by the Honourable Mr Justice K.J. Guni on the 7th day of August,
matter came before me on appeal from the Subordinate Court - sitting
in Botha-Bothe. There, the three accused, including these two
appellants, were charged with contravention of section 10 (1) MOTOR
VEHICLE THEFT ACT NO. 13 OF 2000. It was alleged that each or all of
the accused broke into a motor vehicle of one TSEPANG THEKO without
his consent and did unlawfully steal a car radio, fire extinguisher,
a cell phone, a jack and a driver's licence, the property of the said
10 of the said Act deals specifically with offences which relates to
breaking into motor vehicle. It reads as follows:-
"10. (1) A person who breaks into a motor vehicle without the
consent of the owner or a person in lawful possession thereof, shall,
unless the contrary is proved, be presumed to have broken into it
with the intention of stealing, whether of the vehicle or of articles
in the vehicle, and is guilty of an offence and on conviction is
liable to imprisonment for a period not less than 3 years or to a
fine not less than M6.000 or to both.
(2) A conviction and sentence imposed in terms of subsection (1) is
in addition to any conviction and sentence imposed in respect of the
theft of the vehicle concerned or of the theft of anything in the
accused appeared before the trial court in person. Now on appeal by
the two of them, they are legal represented. There is nothing on
record which indicates that the three accused were informed of their
right to legal representation. This has been raised as one of the
grounds for this appeal. I shall deal with it at the time I consider
the grounds of this appeal. The accused pleaded guilty to the charge.
Their plea was accepted by the public prosecutor who thereafter
proceeded to outline the facts of the case. The accused admitted the
facts as outlined by the public prosecutor.
shall make a brief summary of that statement of agreed facts. The
complaint, one TSEPANG THEKO was driving his motor vehicle along the
road-travelling from Botha-Bothe to MOKHOTLONG. He was involved in an
automobile accident, in the course of which his motor vehicle
overturned. The accused arrived at the scene of accident in the
company of one THABANG.
they were travelling with THABANG in a motor vehicle driven by him.
They must have stopped to see what has happened and perhaps to render
assistance. It would appear that a decision was made for the
complainant to go to the hospital in the company of THABANG -
presumably in THABANG's motor vehicle. The three accused were left
behind with the instructions to take care of the complainant's car in
complainant and THABANG were gone to the hospital, the accused took
and hid in the veld away from the scene of the accident, the items of
property listed in this charge. The total value of the stolen
property was estimated at M2,000,00. The complainant had not
permitted the accused or anyone to take away that property.
and the complainant returned from the hospital. Nothing is said about
the complainant's injuries. May be he had sustained no injuries. He
was not detained by the hospital. The accused were still present at
the complainant's overturned motor vehicle when the owner and THABANG
returned. The complainant noticed that the property listed in the
charge was missing from his motor vehicle. The complainant together
with THABANG confronted the accused about the missing property. The
accused denied any knowledge of the missing
and the accused boarded their motor vehicle and continued with their
journey. They travelled a short distance from the scene of the
accident where they left the complainant in his motor vehicle.
vehicle in which the accused and THABANG were travelling was stopped
just a short distance from where the complainant was left and still
within his sight. Complainant must have seen the accused go out of
that motor vehicle. They entered into the grass from hence they
retrieved the items of property which the complainant had found
missing from his motor vehicle. Having noticed what was happening,
the complainant approached the accused and THABANG. On his arrival
there, he recognised and identified the property in their possession
as his property which he found missing from his motor vehicle when he
and THABANG returned from the hospital.
report was made to the police. The accused gave their explanations to
the police who thereafter cautioned and charged them. Nearly all the
items of the missing property were recovered except for the driver's
licence and a cell phone. At the trial the accused were found guilty
as pleaded. They were sentenced, as
from the reasons for sentence of the learned magistrate, in terms of
the statute under which they were charged. In addition, the learned
magistrate had other considerations such as the prevalence of that
type of offence in that jurisdiction.
the accused appealed against both the conviction and sentence on the
facts outlined by the public prosecutor did not disclose an offence.
sentence imposed by the learned magistrate is harsh and induces
sense of shock.
were not informed of their right to legal representation.
accused were convicted and sentenced on the 26th January 2001. The
notice of appeal together with an application for condonation for
late filing of that notice of appeal were filed on 26th March 2001.
In that application for condonation for late filing of the notice of
appeal the appellants are seeking the leave of this court to appeal
out of time.
considering this application for condonation for late filing of the
there are two most important factors of which the court must be
the appeal must have clear prospects of success. Secondly, the
appellants must show good cause why they failed to appeal timeously.
with which the accused were charged has three most important
elements. Firstly, there must be the breaking into the motor vehicle
without the consent of the owner. Secondly, there must be an unlawful
entry made into the said motor vehicle without the consent of the
owner. Thirdly, once the entry is effected, there must be the taking
and the removal of the property in question. In this case, there are
no facts indicating the condition, be it that of the car itself or
its contents or both.
ground of appeal is that the facts outlined by the public prosecutor
do not disclose the offence. The facts must establish the essential
elements of the offence charged. Forere v Rex 1967 - 70 LLR per
JACOBS C.J. as he then was. The conviction for assault with intent to
cause Grievous Bodily Harm was set aside and a verdict of guilty for
common assault substituted in this case. There was no evidence in
that case to show the court that the complainant sustained a wound.
Without the physical injury and the degree of its seriousness, the
conviction on a charge of Assault with intent to cause Grievous
Bodily Harm could not be
present case, there are no facts, which show the court that the motor
vehicle in question was properly secured before it was left in the
care of the accused by the owner. Were the accused left inside or
outside the motor vehicle? When the owner returned, did he observe
how the entry was effected by the accused if they were left outside
the motor vehicle? Bearing in mind that this motor vehicle was
involved in an accident, were its doors and windows still intact?
Where was this property after the rollover of the said motor vehicle?
Could it have been still inside the motor vehicle? Where? The answers
to these questions cannot be found in that statement of agreed facts.
must be facts which establish beyond doubt that an unauthorised entry
or access was gained by the accused into the said motor vehicle. The
access or entry was gained by removing or defeating an obstruction
barring their an unauthorised entry therein. These sentiments were
succinctly expressed by the learned author SNYMAN, in his Book
CRIMINAL LAW, Third Edition at page 510. "Breaking in" has
been divided into two separate components, namely (a) breaking into
the structure and (b) entering therein :Breaking into" consists
of removal or displacement of any obstacle which bars entry into the
structure and which forms part of the structure itself. MOSOSA 1931
CPD 348 at 352.
facts outlined by the public prosecutor in this case, do not show the
court that there was any breaking into the said motor vehicle.
Therefore it was not proper to find the accused guilty as charged
without any prove that they did break into that motor vehicle. S.V.
RUDMAN 1989 (3) SA 368 at 385. The facts outlined by the public
prosecutor establish that the accused committed a crime of theft.
Accordingly the conviction is set aside. The verdict of guilty of
Theft is substituted.
ground of appeal is that the sentence imposed by the learned
magistrate is harsh and induces a sense of shock. The reasons for
sentence clearly show that the learned magistrate was not entirely
using her discretionary powers. It is spelled out in no uncertain
terms that the sentence passed was prescribed by the statute under
which the accused were charged and convicted. Having set aside the
conviction this court on appeal may interfere with the sentence.
Otherwise the sentencing was primarily the matter in the discretion
of the trial court. MOREKE LEBITSA AND ANOTHER v REX 1980 (2) LLR.
found that the facts outlined by the public prosecutor only disclose
the commission of the crime of theft which is less serious than the
offence with which the accused were originally charged, they are on
appeal entitled to a consideration
lesser punishment than the one meted out by the trial court. I shall
accordingly reduce the sentence.
ground of appeal is that the accused were not informed of their right
to legal representation. SV. RUDMAN 1989 (3) SA 368. There is a duty
placed upon the judicial office to inform the accused of his or her
right to legal representation. S. V. MAUNATLALA 1982 (1)SA 877. The
failure to inform the accused of this right does not per se result in
the miscarriage of Justice. There must be clear grounds which show
that the accused suffered some prejudice because of the complexity of
the offence charged. Further the court must be satisfied that the
accused needed special skills to deal with his defence and the lawyer
was readily available for that purpose had the accused been
accordingly advised of his or her right. Our present case was a
simple case. No special skills were needed by the accused in order to
defend themselves. The accused could not afford to engage a legal
representative at the time. They sought and found one to handle this
appeal but out of time because they had no money at the time of their
trial. In their circumstances of indigence, wealth of knowledge of
their right to legal representation was of little or no use at all.
There is no merit in this ground of appeal especially because there
is no legal aid in this kingdom to help accused persons charged with
brings me to the consideration of their application for condonation
of late noting of the appeal. The grounds on which they seek
condonation are:-Their ignorance as regards the prescribed time limit
within which to appeal. Coupled with that is their plea of indigence.
Even if they knew that they must file their notice to appeal against
the judgment of the magistrate within a certain period, they could
not do so because at the time they had no money. They enlisted the
assistance of their relatives in order to raise the necessary funds
to engage the lawyer to file this appeal. This is good enough a cause
to entitle the court to grant them leave to appeal more especially
because there are clear prospects of success of their appeal.
question of imposing a sentence after setting aside the conviction, I
have . to bear in mind those other considerations which influenced
the learned magistrate in sentencing the accused. Apart from the
considerations of the provisions of MOTOR VEHICLE THEFT ACT 2000, the
learned magistrate bore in mind, and properly so, the prevalence of
the crime of Theft of motor vehicle and theft from motor vehicle.
accused presented themselves to the complainant, as good Samaritans.
They stopped or discontinued their own journey temporarily in order
to render the
assistance. They accepted to take care of the complainant's motor
vehicle while he went to seek medical treatment. They used an
opportunity to be left with his motor vehicle and his absence, to
steal from him. They gained the complainant's confidence when they
appeared like they want to help him. They in fact manipulated him
into believing that they are helping him when they had planned to
help themselves to his property.
sentence is altered to M4,000.00 or 2 years imprisonment.
Applicants : Mr Mathafeng
Respondent : Ms Makoko
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law