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

2

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

3

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,

4

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.

5

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)

6

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

7

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

8

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

9

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