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.

2

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

3

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

4

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

5

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.

6

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

7

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

8

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

9

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

10

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.

11

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

12

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

13

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

14

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

15

For
Appellant : Mr. Mathafeng

For
Respondent: