CRI/A/103/83

IN THE HIGH COURT OF LESOTHO

In the Appeal of

MOSOATSI DLAMINI Appellant

V

R E X Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the 12th day of June, 1985.

The Appellant appeared before the Subordinate Court of Maseru on charges of (i) receiving stolen property knowing it to have been stolen, (11) contravening S. 50A(1) of the Road and Transport Order 1970 as amended by S 6 of Act No 26 of the Road Traffic and Transport Act of 1978, (111) contravening S 44A(1) of the Road Traffic and Transport Act No. 26 of 1978 and (iv) Theft Common, it being alleged

"Count I

- In that whereas on or about the 9th day of November, 1981, and at or near Collard Drive in the Durban Area in the Republic of South Africa, Dennis Dondola, did steal the red BMW car No CA 342196, the property or in the lawful possession of Melyn Reynolds, thereafter between the 9th day of November and 15th day of February, 1982 at or near Maseru Urban Area, in the Maseru district the said accused did unlawfully and intentionally receive the said BMW car, into his possession knowing the same to have been stolen.

Count 2

In that upon or about the 15th day of February, 1982, and at or near Maseru Urban Area in Maseru district, the said accused was found in possession of a motor vehicle a red BMW car the chassis number and the engine number of which had been tampered with otherwise than by Registering Authority under section 50 of the said Act

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Count 3

In that upon or about the 15th day of February, 1982 and at or near Maseru Urban Area in the Maseru district the said accused was found in possession of a motor vehicle a red BMW car, bearing registration number plates No 80688 which have not been issued by a registration authority in respect of the said vehicle.

Count 4

In that upon or about the period between the 1st day of January, 1982 and the 15th day of February, 1982 and at or near Maseru Urban area in Maseru District the said ac­cused did unlawfully and intentionally steal a car disc the property of the Lesotho Government issued to Lesotho Paramilitary Force in respect of motor vehicle X9176."

The appellant pleaded not guilty to all the four (4) counts. He was convicted of contravening 5. 344 of the Criminal Procedure and Evidence Act 1981 on count 1. On Count II, he was acquitted and discharged. He was found guilty as charged on both Counts III and Iv. A global sentence of 2 years imprisonment was imposed in respect of Count 1, III and IV. The appellant has appealed to the High Court against his convictions on the ground that they were against evidence and the weight of evidence.

Briefly the evidence of P.W.3, Major Sephula or the Lesotho Paramilitary Force (L.P.F.), was that on several occasions during November/December 1981, he noticed the appellant driving about in a red BMW car bearing regis­tration number plate of the Republic of South Africa. On 15th February, 1982, he, major Letsie and the appellant himself were instructed by the L.P.F. authorities to bring the car to L.P.F. headquarters. The three officers accor­dingly proceeded to appellant's house at Makoanyane barracks where they found the car parked outside his house. It was then bearing registration number plates B0688. In the company of P W 3 and major Letsie, the appellant drove the car to the L.P.F. headquarters as instructed. Before driving it to the headquarters, the witness saw the appel­lant displaying a disc on the car

P.W.1, D/Lt.II Letsunyane of the C I.D , testified that on 15th February, 1982, following certain information

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received from the L.P.F. authorities, he and two other members of the C.I D proceeded to the L P F. headquarters where they found the appellant and the red BMW car Interrogated about the car. the appellant told P.W.1 and his party that he had obtained it from a certain Teboho Dlamini with whom he had exchanged his car for the red BMW. The appellant had, however, no documents covering the car Teboho Dlamini was also not called as a witness.

When it was inspected in the presence of the Appel­lant, the car was found to have the following particulars Registration number plates B0688, Engine number 7875905 -the number 8 on the engine number appeared to have been superimposed on another number - chassis number 8319111 the last one (1) on the chassis number appeared to be shorter than the other numbers, and a token of insurance 06995 Before the word "Registration" on the token of insurance, there was written 9176. There appeared to have been a letter which had, however, been erased just before the numbers 9176 The car had another disc which bore the numbers 12286.

The appellant explained that the disc bearing numbers 12286 belonged to his vehicle B0688. He had displayed the disc on the red BMW car because he obtained the car towards the close of the year 1981. The appellant could not, however, explain the abnormalities on the engine number, chassis number and token of insurance Because of the abnormalities in the particulars of the car P W.1 had a suspicion that it had been stolen and ordered the appellant to drive it to the police charge office where it had since been kept in the police custody No expert evidence was, however, adduced to prove that the engine and the chassis numbers had in fact been tampered with According to P.W 1 on 17th February, 1982 a man from the Republic of South Africa appeared before him and identified the BMW car as his property which had been stolen. That man was, however, not called as a witness to testify in that regard. Whatever he said to P.W.1 was,

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therefore, inadmissible as hearsay evidence on which the trial court could not base the conclusion that the car had been stolen.

P.W.4, Malefane Molapo, testified that he was the Assistant Transport Officer at the Government garage in Maseru. As such he was in charge of all records of Government vehicles and responsible for the distribution of their tokens of insurance discs On 30th December, 1981 he handed to the appellant the discs for all Government vehicles used by the L.P.F. The discs included number 06995 which was in respect of the vehicle Registration Number X 9176.

The evidence of P.W.2, Mapeete Tokho, was that she was employed at the sub-accountancy in Butha-Buthe district Her responsibilities included registration of vehicles in that district. According to the records in her possession, the vehicle with registration number plates B0688 was first registered in the name of the appellant on 22nd March, 1979. It was still registered in his name and had never been transferred to any other person It was a Datsun engine No. 5L265-018179A, chassis No. 010106.

The appellant who is a captain in the L.P F testified on oath and confirmed that towards the end of November,1981, he and Teboho Dlamini agreed to exchange cars He gave his cheverolette car with its registration number plates to Teboho Dlamini who in turn gave him the red BMW car registration number FRJ51T. Although the appellant handed to him the documents covering his car, Teboho Dlamini did not give him the documents covering the red BMW car Teboho's explanation was that the documents covering the car were still with the original owner, one Jacob Mofekani who had promissed to bring them at a later date After taking delivery of the BMW car,the appellant used it until the end of December, 1981 when he parked it at his home In the course of his evidence, the appellant handed in as exhibits certain documents which he said covered the BMW car and were brought to him by Teboho Dlamini only in March, 1982. The documents were, however, found to be in respect of a vehicle with a different engine number from the BMW car.

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According to the appellant, his father Sefuba Dlamini used to own a car with registration numbers B0688 When he sold that car his father retained the registration number plates. Some time in February, 1981, his father came to his house at Makoanyane barracks and in the absence of the appellant displayed the registration number plates B0688 on the BMW car The appellant was aware of this fact for about 8 days prior to the day on which he drove the car to the L P.P. headquarters.

As indicated earlier the evidence of P.W.2 was that the car B0688 belonged to the appellant and was still registered in his name Her evidence was in a way corroborated by D.W. 2 Sefuba Dlamini himself according to whom he was, in fact a paternal uncle and not the father of the appellant D.W.2 testified on oath that the car with registration numbers B0688 once belonged to the appellant It was sold to a certain Possa who later returned its number plates (B0688) D W 2 then took the number plates to the appellant's home at Makoanyane barracks. On finding the appellant not in, he (D.W.2) displayed the number plates on the BMW car which was parked outside the house.

The appellant conceded that on 15th February, 1982 he, P W 3 and Major Letsie were instructed by the L.P.F. authorities to fetch the BMW car from his home and bring it to the L P.F headquarters He further conceded that before driving the car to the headquarters he displayed on it the token of insurance 06995 issued in respect of one of the Government vehicles X 9176 which was at the time sent to the garage for repairs. His reason for dis­playing the token of insurance on the BMW car was merely to avoid arrest by the traffic police officers along the road between the barracks and L.P.F. headquarters and had, therefore, no intention to steal it.

According to the appellant, he told his deputy LT. Mohlaba, the reason why he had to display the token of insurance 06995 on the BMW car. Lt. Mohlaba was, however, called as a witness by the trial court and he denied knowledge that the appellant had used the token of insurance 06995 on the BMW car nor did he (appellant)

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give him any explanation as to why he had to do so.

The appellant conceded that on arrival with the BMW car at the L.P.F. headquarters he was interrogated by P.W 1 and his party about how he had acquired possession of the car. He explained as he did before the trial court. The car was, however, seized by P.W.1 who subsequently charged him as aforesaid

As has been indicated earlier, the person who allegedly appeared before P.W.1 and claimed that the BMW car was his property and had been stolen never testi­fied as a witness before the trial court Whatever that person might have said to P.W.1 remained an inadmissable hearsay evidence. That being so, there was no conclusive evidence that the BMW car had, in fact, been stolen. It could not logically be said in receiving the BMW car, the appellant was guilty of receiving stolen property let alone knowing that it had been stolen Wherefore the trial court did not, and rightly so in my opinion, convict the appellant as charged under count 1. The appellant was, however, convicted of contravening S. 344(1) of the Criminal Procedure and Evidence Act 1981. That section reads

"344(1) Any person who in any manner, otherwise than at a public sale, ac­quires or receives into his possession, from any person stolen goods other than stock or produce as defined in the Stock Theft Proclamation 1921 without having reasonable cause proof of which shall be on him, for believing at the time of the acquisition or receipt that the goods are the property of the person from whom he receives them, or that person has been duly authorised by the owner thereof to deal with or dispose of them, is quilty of an offence and liable to the penalties which may be imposed on a conviction of re­ceiving stolen property knowing it to have been stolen."

(my underlining)

The words 1 have underlined in the above cited section clearly indicate that for an offence to be committed, the property acquired or received into the possession of the

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accused person must be ''stolen goods". I have already found that there was no conclusive evidence that the BMW car, the subject matter of the present charge, had been stolen. It necessarily follows, therefore, that in receiving or acquiring it into his possession the ap­pellant could not have committed an offence under the provisions of S.344(1) of the Criminal Procedure and Evi­dence Act, supra. I take the view, therefore, that the verdict of "guilty of contravening S 344(1) of the Criminal Procedure and Evidence Act 1981" returned by the trial court in count 1 ought to be set aside and sub­stituted, therefore, the verdict of "not guilty" and it is accordingly ordered.

Notwithstanding the evidence of P.W.1, no expert witness was called to prove that the engine and the chassis numbers of the BMW car had, in fact, been tampered with. For that reason, the appellant was acquitted and discharged on count II. I am unable to find anything unreasonable in the decision of the trial magistrate.

The appellant did not dispute the evidence that before he drove it to the L P.F. headquarters, the BMW had been parked at his home at Makoanyane barracks. It was,therefore, in his possession He further conceded that for about 8 days or so before he drove it to the L.P.F headquarters, the BMW car had the registration number plates B0688 displayed on it by D.W.2. He was aware of that fact but took no steps to remove the number plates If the appellant did not intend to have the registration number plates on the BMW car he would in my opinion, have removed them as soon as he became aware that they were displayed on the car. He did not do so An irresistable inference is, therefore, that the appellant had the requisite intention to possess the number plates on the car.

It was argued that when he took the BMW car to the L.P F. headquarters on the instructions of his superiors, the appellant was dispossessed of the car, so that when P.W.1 and the other C.I.D. officers found him at the head­quarters with the car which was admittedly bearing false

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registration number plates B0688 he was no longer in its possession. The appellant was, therefore, not found in possession for purposes of committing an offence under the provisions of S.44A(1) of the Road Traffic and Transport Order (as amended) No 15 of 1970.

1 think it is clear from the evidence that the appellant was required to bring the BMW car to the L P.F headquarters merely to confront him with the C 1 D. officers about the car. Indeed, when P W.1 and the other C I D officers subsequently met him at the headquarters, the appellant was still waiting with the car which he himself had been driving from his home at Makoanyane barracks to the headquarters. On the evidence, the authorities at the L.P F. headquarters had not done anything to suggest that they were dispossessing the appellant of the car. It seems to me, therefore, that when P.W 1 and his party came to him at the L.P.F. headquarters, the appellant was still in possession of the BMW car which was admittedly bearing the false registration number plates B0688.

I come to the conclusion, therefore, that the argument cannot be sustained for want of merit and the appellant was correctly convicted on count 111.

It was common cause that at all material times, the token of insurance disc No 06995 issued in respect of the Government vehicle X9176 was in the custody of the appellant. While the vehicle was at the garage for repairs, the appellant decided to display that disc on "his"BMW car before driving it to the L P.F. headquarters. The salient question was whether or not at the time he so decided to display it on the BMW car, the appellant committed theft of the disc

The appellant's contention that he displayed the disc on the BMW car merely to avoid the arrest by the traffic police - a suggestion that what he committed was unlawful borrowing and not theft - was unconvincing The undisputed evidence was that when the disc was found displayed on the BMW car the letter "X" proceeding the registration numbers 9176 had already been erased. That

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being so, I do not see how it could be argued that the disc would be returned and again used on the Government vehicle X9176 The intention was clearly to take the disc for good and thus permanently deprive its owner. Having said that much, it is obvious that I take the view that the answer to the question whether or not at the time he decided to display it on the BMW car, the appellant committed theft of the disc is in the affirma­tive and the trial court correctly convicted him on count IV.

No appeal has been noted against the sentence But as has been pointed out earlier, the trial magistrate passed a global sentence of 2 years imprisonment on the appellant The trial magistrate should have considered what sentence was appropriate in each of the charges/ counts on which the appellant was convicted. A global sentence was a misdirection on the part of the trial magistrate. For that reason this court is at large as regard sentence

It has been suggested in argument that a proper course to follow in the circumstances would be to remit the proceedings to the trial magistrate with instructions that the appellant should be sentenced afresh I am not going to follow that course for the simple reason that the trial magistrate has since left the judiciary on retirement Instead I propose the following sentences to be appropriate and accordingly sentence the appellant Count III -9 months imprisonment. Count IV - M30 or 30 days imprison­ment.

In the premises, the appeal is allowed on count I but dismissed on counts III and IV. As the appeal has succeeded in part, it is ordered that the appellant be refunded his appeal deposit

B K MOLAI

JUDGE

12th June, 1985.

For Appellant Mr Pheko

For Respondent Miss Nku