CRI/A/26/87

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

ERNEST
MOELI Appellant

VS

REX
Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M.L. Lehohla on the 29th day of June,
1987.

The above
appeal was argued before me on 26th May 1987.

The
appellant was charged in the court a quo with housebreaking with
intent to steal and theft of a Television set the property
of or in
the lawful possession of one Rev. Mahlatsi. The appellant pleaded not
guilty but was convicted as charged and sentenced
to a fine of
M150.00 or a term of nine months' imprisonment. He appealed to this
Court on conviction only.

The
events leading to appellant's conviction appear in the record of
proceedings in the court a quo wherein evidence led by the
crown
disclosed that P.W.1 Rev. Mahlatsi a priest at St. Monica Mission
left his station for Maseru at 7.00 p.m. on 14th March
1986. Before
he left he had properly closed and locked the house where he stays
alone. Three and half hours later when he arrived
at his house he saw
a hole in the window. He could see the curtain flying outside and
took fright about what might have happened
in his absence from the
house and therefore instead of entering it he hooted his vehicle.
After some

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some time
he went to the Seminary to ask some boys to come with him to the
house because he suspected and feared that there might
still be some
people in that house.

At page
one of the record in his evidence in chief the complainant states
that on coming into the house after unlocking the door
he noticed
that the book chest which had been placed against the window had been
moved and books thrown about in the sitting room.
Thereupon he
quickly noticed that the white T.V. set was missing from the position
where he had placed it above the radio gram.
It is note worthy that
in describing it to the Court a quo as shown in page one he said and
I quote

"Its serial number is 58114. There is a big (sic) at the
beginning and 2 at end it is big A/58114/2 I wrote these numbers
on
my manual so that I could be able to report if I am in difficulties.
It is written behind the television."

It is
common cause that complainant's house was broken into and that means
of gaining access into the room from which the T.V set
was removed
was through the broken window.

When
reporting the loss to the police it appears P.W.1 referred to a line
or scratch on the T.V. which he mentioned as not "easily

recognisable." He also explained to the police that part of the
aerial and cream coloured length of electric cord which he
had
sharpened with a knife had also gone missing along with the T.V. set.

Three or
four months after he reported the loss he was once more asked by some
police officer to whom he had made an explanation
of his loss
previously. The police officer left P.W.1 and told him he was going
to fetch the T.V. set

3

and
further that P.W.1 should have its papers ready.

In
evidence before the court a quo he is recorded on page 2 as having
referred to the line he had earlier referred to. Furthermore
it is
significant that while at St Monica where he had gone with the police
this line could not be noticed until the top of the
T.V set had been
dusted He also pointed out before court the now shortened part of the
cord together with which the T V set had
been stolen The portion of
the cord which he had sharpened was missing.

Under
cross examination it was revealed that there were four licences
covering the years 1983, 1984, 1985 and1986 but the payment
was
effected on one day. This according to P.W.1 was because he was in
arrears with his payments of the licence fees.

it was
also revealed under cross-examination end conceded to by the witness
that in the remarks column only 58114 appeared and no
A and 2
appeared, The witness was referred to another scratch on the T.V
regarding which he was asked if it was included in his
description.
His answer was

"How could I mention this other scratch I did not know."
The court recorded the following remark "The attorney shows

another line to court which is not clearly visible it is seen from
only one angle."

P W 1
indicated that as he had bought this T.V. set way back in 1980 he
didn't know where he had placed the invoice papers.

The Court
further inquired as follows :

4

"Did
you see A here clearly - I thought that was A",

The main
thrust of the appeal is that the learned magistrate in the court a
quo erred in convicting the appellant in the face of
the fact that
the identification of the T.V. set was not positively made out as
complainant's property. Indeed appellant's counsel
took much stock in
this aspect of the matter.

At page 4
of his heads of arguments Mr. Mdhluli for the crown submitted that

(h) "the
complainant identified the T.V. set by reference to the serial number
which he described as 58114, page 1 of the judgment,
and he further
produced licences issued by the post office reflecting that he had
paid the required licence fees on 24th February,
1986. See page 3 of
the judgment.

(i) that
the licences issued to the complainant bore the number 58114 under
the remarks column on the licence,

(j) that
the complainant further identified the T V set by means of a scratch
mark thereon,

(k) that
only one T.V. set can have a particular serial number."

It is not
without significance that while the theft occurred on or about 14th
March 1986 the licences bearing the number 58114 were
issued on 24th
February 1986 thus ruling out any possibility that they were not
genuine documents or that they were fraudulently
obtained for
purposes of strengthening complainant's claim to the T.V. set.

Mr.
Mdhluli properly conceded that there were minor discrepancies in the
crown evidence but was quick to submit that they were not
material
for the serial number tallied with the actual serial number observed
on the

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T V set
when it was opened up for inspection. Although I hold that the
discrepancies were not minor yet their significance paled
in the face
of the relevation produced by opening up the T.V. set for inspection.

The T V
set in question was recovered by the police at a shop owned by one
Mojaki Ramakhule who in turn stated that he obtained
it from the
appellant to whose house the police were led. Appellant admitted that
this TV set was his as he had bought it from
Ficksburg in the
Republic of South Africa.

It was
submitted on behalf of the crown that the complainant was not
confronted with any evidence in cross examination as to who
the owner
of the TV set was in line with the challenge levelled against
complainant's ownership of the T.V set. Further that failure
to cross
examine the complainant in this regard served to strengthen in the
mind of the Court below that complainant was the rightful
owner of
the T.V set. Indeed it is trite that there is no obligation on the
part of an accused person to give evidence if he chooses
not to. But
if at the end of the crown case it appears that there has been
established against him a prima facie case then in certain

circumstances it becomes conclusive if the accused declines to give
evidence. The burden of proof resting throughout on the prosecution

to establish the guilt of the accused beyond reasonable doubt.

I find
that the summary made by the Crown in relation to the fact that there
was no acceptable evidence before the court below that
the T.V. set
belonged to appellant's or Ms Makhele or Mrs Makhele or even Mr.
Makhele was

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properly
founded as it seems to me that these titles preceding Makhele's name
merely serve as a red herring across the trail,

As
indicated earlier the crown case is not without discrepancies. The
High Court Act 5 of 1978 in section 8(2) provides that

"when considering a criminal appeal and not­withstanding
that a point raised might be decided in favour of the accused,
no
conviction ...... shall be set aside . by reason of any irregularity
. unless it appears to the High Court that a failure of
justice has
in fact resulted therefrom."

In
keeping with the wording of the above section Miller vs Minister of
Pensions 1947(2) E.R. at.373 states that

"The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice."

It would
be idle therefore in the face of evidence placed before Court to
speculate on what possible factors would entitle the appellant
to
acquittal or even benefit of doubt for as stated in R vs Mlambo
1957(4) SA at 738,

"An accused's claim to the benefit of doubt when it may be said
to exist must not derive from speculation but must rest upon
a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not in conflict
with
or outweighed by, the proved facts of the case."

In
keeping with what the record revealed at page one the learned
magistrate indicated at page two (b) of his reply to appellant's

grounds of appeal that

"P.W.1 first gave the serial number of his T.V. as 58114 only
afterwards did mention there was a capital A before that number
and 2
after that number both of which did not form part of the serial
number."

It is
clear from what the trial magistrate who was the

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man on
the spot end who had an opportunity to actually observe the exhibit
that, to use his words,

" ..... It is not only P W 1 who could make a mistake on these
hidden numbers."

There can
hardly be found any fault with the conclusion reached by the Court
below in the absence of an explanation from the appellant
as to how
he came to be in possession of the T.V. set that an inference would
follow that the appellant was the person who broke
into the house of
the complainant and stole his T.V. set on 14th March 1986.

I am
disinclined to interfere with the verdict reached by the court below.
The appeal is dismissed.

ACTING
JUDGE

29th
June, 1987.

For the
Appellant : Mr. Seotsanyana

For the
Crown : Mr. Mdhluli.