CRI/A/4/99
CR/284/98
IN THE HIGH COURT OF LESOTHO
In the matter between:
PUSELETSO TSIU lST APPELLANT
POULO MONAMOLI 2ND APPELLANT
MOHAU MOHATLANE 3RD APPELLANT
AND
REX RESPONDENT
JUDGMENT
Delivered by the Honourable Mr Justice S. N. PEETE on the 11th day of May 1999.
The three appellants appeared before the Leribe Resident Magistrate on the 13th March 1998 facing a charge of housebreaking with intent to steal and theft it being alleged in the charge that between the 1st February and the 28th February 1998 and at or near Lesotho Haps Factory at Maputsoe in the district of Leribe, the appellants did break and enter the said Factory and did steal the property itemised in the annexure "A". These items were:
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198 Skippers
8 pairs of trousers
8 sewing (threads)
3 pieces of cloth
2 pieces of curtains
3 pieces of cloths.
The appellants who were not legally represented then pleaded guilty to this charge. The Senior Public Prosecutor Mr Lebeta outlined the facts in his possession pursuant to section 240 of the Criminal Procedure and Evidence Act of 1981. This outline showed that the appellants were at the material times employed as M. M. Security Guards at the Lesotho Haps Maputsoe Factory, a clothing firm.
Sometime in January some unknown thieves broke into the factory and dug a hole on the roof; the management did not take steps to repair this damage; whereupon the appellants systematically stole the goods through the damaged as above mentioned. The Maputsoe police then got information which resulted in the arrest of the appellants who then fully cooperated with the police in pointing out the various goods which they had stolen.
The appellants admitted the facts as outlined and were found guilty as charged. The appellants had no previous convictions and each pleaded in mitigation. The learned Magistrate reasoning that the appellants had violated their trust as security guards sentenced each to six (6) years imprisonment without an option of a fine.
Under CRI/APN/366/98 the appellants lodged an application for the condonation of their late noting of appeals
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"Against the decision of the Leribe Magistrate's Court dated 13th March 1998 in a certain case number CR 284/98 within the periods prescribed by the Rules."
Granting applicants leave to note their said appeals within such time as this Honourable court deems fit."
This application was heard on motion by my brother Maqutu J. on the 13th July 1998 and the crown not objecting to the granting of leave, the court granted them leave to appeal against sentence. It is clear that nothing was said about leave to appeal against conviction. When the matter appeared before me, I was a bit anxious about the appeal being heard regarding conviction. However Mr Kotele, for the crown, candidly conceded that the facts as outlined by the prosecutor did not support the commission of the offence of house breaking with intent to steal and theft and correctly indicated that the outlined facts only supported commission of the crime theft. This court then substitutes the conviction for theft upon the record.
As regards sentence, Mr Teele correctly submitted that once the verdict of house breaking with intent to steal is substituted with that of theft, the court is at large to impose an appropriate sentence, and submitted that the sentence ought to be reduced proportionately on that ground R.vs Chinverere - 1980 (2) SA 576. He also argued, perhaps justifiably, that the learned magistrate misdirected herself in placing undue weight on the fact that the appellants had violated the trust placed upon them as security guards - namely they stole the property they were supposed to guard. This was an important but not the sole factor to be taken into account in sentencing the accused. The learned Magistrate gave a blind eye to the following facts (a) that the appellants had pleaded guilty thus showing remorse (b) that the
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appellants had been cooperative to the police thus assisting in the recovery of the stolen goods, (c) that the appellants were first offenders and were relatively young - R. vs Sehloho CRI/S/25/87; Mojela vs Rex 1977 LLR 321.
In the circumstances of this case and regard being had to what has been said above, I am of the view that the sentence of six years should be set aside and substituted with that of two years imprisonment or M1 000.00 half of which is suspended for three years during which period neither of the appellants is not found guilty a property offence for which he is sentenced to an imprisonment of over six months without an option of a fine.
JUDGE
For Appellants: Mr Teele
For Respondent: Mr Kotele
