CRI/APN/291/99
IN THE HIGH COURT OF LESOTHO
In the matter between:-
NOEBEJARA MOLAHLEHI APPELLANT
and
REX RESPONDENT
JUDGMENT
Delivered by the Honourable Mrs Justice K.J. Guni on the 2nd day June 1999
This is an application for condonation for late noting of an appeal and appeal. The appellant in this case was charged and convicted of an offence of contravening section 14(1) Road Traffic Act No. 8 of 1981, at the magistrate court - sitting in Maseru. He was sentenced on 3rd of February 1999 to pay an amount of (2,000-00) two thousand maloti and to a term of imprisonment for a period of two years. In addition, the motor vehicle subject matter of the offence charged, was ordered to be forfeited to the state if it is not claimed within the period of three months.
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This appeal is made against the conviction, sentence and that order of forfeiture. On the 5th May 1999 the appellant filed with this court an application for condonation of late noting of this appeal. I must first of all deal with that application for leave to appeal out of time. This application for leave to appeal out of time is not opposed. Nevertheless I must deal with it first and remove it out of the way before I proceed to deal with the appeal. In his Founding Affidavit in support of this application for condonation for late noting of his appeal, this appellant mentions a number of reasons which caused him to fail to note this appeal timeously. The first reason is that he is in custody because he was sentenced to undergo a period of two years imprisonment. I accept that being in prison this appellant cannot possibly run around to raise the money in order to engage the legal practitioner who could competently handle this appeal. Raising funds, is a business that needs time and energy the two commodities which this appellant cannot personally direct towards that eventuality because he is confined in prison. He had to rely on someone who can have the spare time and extra energy to run around, and look for money for him. This was done, although late, it was not hopelessly out of the stipulated period of time. UNITED PLANT HIRE(PTY) LTD V HILLS AND OTHERS 1976 (1) SA 717(A)
Although the appellant might have had some terminal benefits when he was
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retrenched, it would appear that he used a large sum of money to purchase that motor vehicle which he was trying to register when he was arrested, charged and convicted of this offence. His sources of income seem to have completely dried up.
The appellant appeared in person at his trial. The reading of the evidence,
of the expert witnesses called to testify on behalf of the crown, shows that this case is too technical. The appellant also needed an expert of some kind, to assist him to conduct his defence which appear to have not been sufficiently canvassed at the trial. The most important reason which weighed heavily for the granting of leave to appeal out of time, is the prospects of success of that appeal. Appellant has reasonable prospects of success in his appeal. The reasons for coming to that conclusion will be apparent as 1 deal with the actual appeal. These factors were considered by this court in coming to the conclusion of granting leave to appeal out of time to this appellant. S. LEON 1995 (2) SA CR 594 (C). At this stage it is enough merely to indicate that the application for condonation for late noting of an appeal is granted.
APPEAL
In order to deal properly with this appeal, there is need to examine carefully the
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terms of the statute under which this appellant was convicted and sentenced. The appellant was charged, convicted and sentenced in terms of section 14(1) ROAD TRAFFIC ACT No. 8 of 1981. The relevant portion thereof reads as follows:-
14(1) A person who, for the purpose of obtaining registration and licensing of a motor vehicle or trailer, makes use of or produces any document which is false or furnishes any false information, is guilty of an offence and liable to M2,000-00 and two years imprisonment. (My underlining to highlight the essential requirements)
The court a cquo properly found that the appellant is a person who for the purpose of obtaining registration of his motor vehicle produced a document which was false.
The falsehood of the document which this appellant produced for the purpose of obtaining the registration of his motor vehicle is not in dispute. The appellant accepted before the trial court that if it is the finding of the court that this document is false he does not dispute that. Therefore the liability to the penalties provided by the said statute naturally follow. The appellant has a problem with the extent or degree of such liability. The court a cquo sentenced the appellant to the maximum penalties provided for under the said statute. This problem is brought about by the
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fact that no reasons for judgment and sentence were given by the trial court. This problem recurs regularly despite the concerted effort made by the High Court on numerous occasions to draw to the attention of the magistrates the importance of giving reasons for judgment and sentence ............
KHUNONYANE V REX CRI/A/53/76
R V KALAKE 1977 LLR 224
MATHABO MOJELA V REX 1977 LLR 321 of 324
I appreciate the dilemma which this appellant found himself face to face with when the trial court omitted to tell him the reason why he was being treated in that fashion. The court is not justified to sentence an accused without giving the reasons because there are different considerations that now come in to play and those must be carefully weight as affecting the person of the accused and the society. The judicial officer presiding over any case, is required to become alive to all factors which are put before him or her. There must be an indication made in the reasons for sentence which factors were considered and which were rejected together with the adequate explanation for acceptance or rejection of the same. The argument by the appellant's counsel is to the effect that without giving any reasons, that court was not entitled to sentence the appellant to the maximum penalties provided for by the said statute. The court must have been influenced by something which made it treat this appellant in the manner it did.
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without expressing those reasons which made it consider that this appellant deserves the maximum penalties provided under the statute this court is unable to appreciate exactly what occurred in that court. The court still has discretion which must be exercised judiciously in the application of the statutory provisions which are mainly a guide, that is to lead to the decision to be reached by the court. In any case the question of sentence will become relevant after conviction. Since this appeal is against conviction, sentence and order of forfeiture I must deal with conviction first following the order of the grounds of appeal as they appear on the appellant's papers.
These are the grounds of appeal.
"1.
The learned magistrate erred in law in finding that the prosecution proved that the element of mens rea was present.
2.
The learned magistrate erred in law in ordering that the forfeiture ofthe vehicle was competent when registration had not been effected.
3.
The learned magistrate misdirected himself in ordering the
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forfeiture of the vehicle to the state regard being to the circumstances of the case.
4.
The sentence imposed by the magistrate is harsh induces a sense of shock
The appellant's case as gathered from the facts contained in the trial record from the court a cquo seems to be as follows:- The appellant is a Mosotho male adult of (59) fifty-nine years of age. He was a miner who has been recently retrenched. He is the father of eight children. He claims to have bought the motor vehicle in question from one Khumalo of Pretoria for an amount of (30,000-00) thirty thousand rands. He bought the said motor vehicle for the purpose of using it to earn his living and to support his extraordinarily big family. The motor vehicle clearance document (EXHIBIT 'A') which this appellant presented to the member of Criminal Investigation Department at Maseru, for the purpose of obtaining registration or licence for the said motor vehicle, was left with one of his children, the eight years old Pulane. This appellant was informed by Pulane that this-document was left by a certain man. The appellant is illiterate though there is no indication of the extent of his illiteracy.
The crown case against this appellant was made up from the evidence of the two
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police experts witnesses who specialise in the clearing and registration of newly acquired motor vehicles. This evidence of Trooper Nooe of Royal Lesotho Mounted Police shows that he is full-time employed in that office where his duty i s to clear the motor vehicles. The appellant produced the documents among them this Exhibit 'A' - clearance certificate. This witness perused the documents. He noticed that (EXHIBIT 'A') - clearance certificate is issued by the South African Police at their Ladybrand motor vehicle clearance Unit. According to him, he doubted the authenticity of the said motor vehicle clearance certificate. It would seem that this particular document struck this witness - Trooper Nooe of Royal Lesotho Mounted Police as being unusual and peculiar. It is Trooper Nooe's evidence that he deals with motor vehicle clearance certificate all the time but he has never seen one clearance certificate like this one before, issued by that particular office - Ladybrand motor vehicle clearance Unit. Presumably he is very familiar with those motor vehicle clearance certificates issued by this particular office. He told the court that this document (EXHIBIT 'A') is different from those documents which he had seen previously issued out of that same office. The reason for this witness's questioning of the authenticity of this document is based on the colours of the figures in the serial number of the said document. According to him the figures making up the serial number of this particular document are red unlike the figures on the serial numbers he had seen on the
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documents he probably handled previously. Another feature by which this document was different from the others which this police officer has seen before is the two first figures at the beginning of the serial number. The letter 'F' is followed by 29. The motor vehicle clearance certificate seen by Trooper Nooe commenced with figure 14 immediately after the letter F' There is no reason given why the number cannot increase beyond 14. Inspector Weiseis of South African Police Services stationed at Ladybrand motor vehicle clearance Unit denies that the document is issued by his office despite its appearance. He denies the colours of the figures in the serial number and the signature. He does not allege forgery. This document appears normal. This witness goes on to venture farther into the field of expert evidence. He says that the Chassis number is also wrong because according to him all motor vehicles registered in 1997 must have seventeen digits. Although he says why the number is wrong he does not say whether or not the number is wrong as recorded in this document (EXHIBIT'A') or as he observed it physically on the engine of the said motor vehicle. This is important because the number (Chassis numbe r or registration number) as appears on this document does not consists of the number of digits indicated by this witness. All numbers on this document (EXHIBIT 'A') consists of less than ten digits. The witness claims that the number he alleges to be wrong has sixteen (16) digits. There is not even one number on this EXHIBIT which has that number of digits. The most
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extraordinary features is with regard to the colours of the figures making up the serial number in question. It is the colour of the figures which forms the back borne of the crown case. But strangely enough that EXHIBIT'A'is a photostat copy. AH figures and letters on it are black. There is nowhere the red colour which these witnesses refer to can be found on this document. Could the trial court have changed the original exhibit or could it be assumed that this was the original exhibit? Where are those colours on this black photostat copy? This is improper. Both removal and exchanging of exhibits and/or accepting the claims of colours made by the witness on a document which has no such colours.
ne thing that has become very clear to me when reading the evidence of these two crown witnesses and at the same time examining the document to which they refer, the two do not go together. There is no relationship between the document (EXHIBIT 'A') and the evidence of the two policemen. This being the only evidence on which the crown relied, there was no case against this appellant. Even although the appeal must succeed on this ground alone, I feel I must still consider those grounds of appeal filed by appellant especially because they touch on an important aspect of our law; the interpretation of the statutes.
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The statute under which this appellant was convicted does not in so many words specify the requirement of mens rea as essential in order to prove the offence created by the said statute. It is the argument of the counsel for the appellant that this court must find that at the time the appellant produced the said document in order to obtain registration of his motor vehicle he knew of the falsehood of the said document. This seems to have been the finding of the trial court. It is this finding which is now being challenged before this court as wrong for the reason that the appellant had no such knowledge of the falsehood of the document he produced for the purpose of obtaining the registration of his motor vehicle. This flies straight in the face of a well known principle of our law that "Ignorance of the law or mistake of the law is no defence". This principle has been consistently applied within this jurisdiction. But there is no rule of law which has no exceptions depending on the circumstances of each case. LAWRENCE MATIME V REX 197173 LLR 49, S v ARENSTEIN 1964 (1) SA 361. In both these cases, the statute was interpreted with the presumption that the legislature does not intend that which is HARSH, UNJUST, or UNREASONABLE. This presumption is applied to the interpretation of statutes as suggested by J.R.L. Milton 1969 Annual Survey 434 "on the basis that every legal system strives to achieve standards of reasonableness, justice, and fairness and the law-making organ of the system must be thus presumed to enact with this aim before it". The main
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object of the ROAD TRAFFIC ACT No. 8 If 1981 was to control registration and licensing of motor vehicles and issuing of driving licences. The criterion which this court must adopt should be to examine very carefully the nature and extent of the mischief which section 14( 1) seeks to prohibit or prevent in the light the main object of the Act as a whole. S v G.D. HAULAGE (PTY) LTD (RAD.) 1977 (2) SA 255 at 257. It can perhaps be presumed that this section is intended to prevent those people who have not obtained their motor vehicles lawfully from registering such unlawful acquisitions. The two crown witness in our case are employed in the police offices which clear motor vehicles before registration or change of registration, that the said motor vehicles have been lawfully acquired. This appellant claimed to have bought the motor vehicle from one Khumalo of Pretoria. The document which he produced for the purpose of obtaining registration of that motor vehicle was left at his house in his absence, to a child of eight years of age. The appellant is illiterate. Could the statute in this circumstances be interpreted as imposing "strict liability
upon a person such as this appellant"? More especially when on the face of the said document, there is nothing to indicate that there is something wrong. The colour of the letters and figures making the serial number is too fine a distinguishing character which requires comparison of the document with previously known other documents which is possible for and available only to those people working with such
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documents. The legislator could not in those circumstances have decided to impose strict liability to make even innocent contraventions
culpable.
Judicial activism is now an established practice of our courts. In the absence of clear and convincing indications that the statute imposes strict liability, the courts, even in South Africa during the era of apartheid, when interpreting racial and draconian legislation, read into the statute the requirement of mens rea as an essential. S v ARENSTEIN supra, S v MDHLULI 1968 SA 710.
As in the case of S v MDHLULI 1968 (2) SA 710 mens rea is an element in the contravention of section 14(1) ROAD TRAFFIC ACT No.8 of 1981, but since the section contains a specific prohibition it is not for the prosecution to prove unlawful intention to contravene it, but for the accused - appellant to demonstrate to the court on the balance of probabilities that the breach of this provision had been committed innocently. In Mdhluli's case it was established that twice he applied for and obtained South African passport. Each time he declared in his application that he was a South African citizen. Now that he was found to be travelling in and out of South Africa without a valid passport or travel document, but holding a Swazi document which was not a passport or travel document in terms of the present law in South Africa, he could not be
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heard by the court to claim that he was a British protected citizen of Swaziland.
He was found to be a South African citizen and was travelling without a passport in contravention of that statute under which he was charged. His knowledge was material to establishing that he had the requisite mens rea which was not expressly written out in so many words as in our present statute under consideration.
There is no evidence in our present case that the appellant had any knowledge as regards the colours of the letters and figures in the serial number of the South African motor vehicle clearance certificates issued out by motor vehicle clearance Unit at Ladybrand. He could not therefore be expected to know that the certificate issued out of that office in any other colour of the first figure after the letter "F" if not black, is false.
This appeal for those reasons must succeed. The conviction is quashed. The sentence and the order of forfeiture are set aside.
K.J. GUNI
JUDGE
2nd June 1999
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For Appellant : Mr. Mathafeng
For Respondent: