IN THE HIGH COURT OF LESOTHO
In the Appeal of :
TSITSO MOKAPI Appellant
Delivered by the Hon. Mr. Justice F.X. Rooney on the 12th day of May,
The appellant was charged with the theft of a motor vehicle before the Subordinate Court at Maseru. He was not convicted as charged as the trial Magistrate accepted the possibility that the appellant bought the vehicle from one Madonzela. He was convicted of the offence of receiving the vehicle without having reasonable cause for believing
that it was the property of Madonzela contrary to Section 338(1) of the Criminal Procedure and Evidence Proclamation.
At the hearing of the appeal the Crown did not support the conviction under the section. The appellant had not been charged with
the statutory offence in the alternative nor was he warned at any time of the possibility of a conviction of that offence. The Crown
conceded this position on the authority of Johannes Makhasane v. Rex (CRI A. 61/79 unreported) in which Cotran J.C. followed R.v. Iupay 1960(4) S.A. 556 and R.v.Dayi 1961 (3) S.A.8. Further examples of the application of this rule of practice may be found in R.v.Prinsloo 1958(1) S.A.77 and R.v. Mtimukulu 1959(4) S.A. 597.
However, the Crown submitted that on the evidence disclosed
at the trial this Court would be justified in bringing in a verdict of receiving stolen property under the common law. The appellant on the other hand contended that the evidence given in the court a quo was insufficient to justify a conviction for any offence.
2/ There can ......
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There can be no doubt that on the 22nd September 1978 a V.W. Kombi the property of Silas Seiphemo (P.W.1) was stolen at Johannesburg. This vehicle was found in the possession of the appellant at Masianokeng on the 29th March, 1979. It was found that the engine number had been altered from SFAS 229656 to SPAS 229666. The original number plates T.J. 85779 had been replaced by L.A. 6963.
Detective Sergeant Lerotholi (P.W.3) found in the possession of the appellant a Registration Book (Exhibit A) in respect of L.A. 6963. This had in the first instance, been issued to T. Moroahae (P.W.5) for a 1975 V.W. Kombi engine Number SFAS1R094399 under registration L.A. 116. Under the new Number L.A. 6963 the vehicle was transferred to Raymond Madonzola on the 9th May, 1973. This was not the stolen vehicle and it had been transferred to Madonsela before the theft. Moroahae explained that he sold a Kombi to Madonzela and had retained the original registered number for his own purposes.
The appellant told the court that he bought the stolen vehicle from Madonzela at the end of 1978. The agreed price was R1,200. The appellant paid Madonzela R1,000 and he took possession of the vehicle and the Registration Book (EX A). Madonzela did not sign the usual change of ownership form at the time and when the appellant gave the forms to Madonzels's wife he heard that her husband had been sent to prison in the Republic of South Africa.
The appellant said that he made no check on the details of the vehicle he received from Madonzela or compared the engine number with the one entered in the Registration Book. He claimed that as he had seen Madonsela driving the vehicle he had no reason to suspect that it was stolen. Madonzela did not give the appellant a receipt for the R1,000. He said that the Registration Book was evidence of the fact that he had bought the vehicle from Madonzela. He took no stops to have the Kombi transferred to his name after he had heard of Madonzela's imprisonment. He said that he paid the licence fees and third party insurance in the name of Madonzela.
In the course of her evidence, Mrs. Elizabeth Madonzela (P.W.6) confirmed the sale by Moroahea of a Flectline Kombi to her husband. When the latter was gaoled she sold this vehicle for scrap to one Chaltin. She said she gave Chaltin the Registration Book at the same time. She knew nothing about the stolen Kombi before the court.
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This Chaltin gave evidence under the name of Moeketsi Ts'asanyane (P.W.7). He denied having bought any vehicle from Mrs. Madonzela. However, he said that when Madonzela offered a Kombi for sale he suggested to the appellant that he should go and inspect it. Which vehicle was offered for sale by Madonzela was not directly established, but, this witness said that the appellant had told him it was the one he bought from
Madonzela. In view of the appellant's evidence it must be accepted that he bought the stolen Kombi from Madonzela and the question to be resolved is, does the evidence justify the inference that the appellant received it knowing that it had been stolen.
The appellant obtained the vehicle shortly after it was stolen. He paid R1,000 without asking for a receipt for the money paid. He did not obtain a change of ownership form from the seller and made no attempt to have the vehicle registered in his name. He had in his possession a Registration Book in respect of a vehicle of the same type but with a different engine number. The engine number had been altered in a manner which might have impeded identification.
In Johannes Makhasane v. Rex (Supra) Cotran C.J. followed S.v Rama 1966 (2) S.A. 395 in which the following statement of Malan J.A. in R.v. Mlambo 1957(4) S.A. 727 at 738 was confirmed.
A. 'In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilty of the accused.
An accused's claim to the benefit of a doubt B when it may be said to exist must not be derived 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.'
The appellant's explanation must be considered in the light of all the circumstances. As a motor mechanic he must be deemed to have special knowledge of engine numbers and their significance. He said
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nothing in his evidence as to any enquiries he made concerning the origin of the vehicle. If he had contacted Moroahae, whose name and
address appeared on the Registration Book, he could not have failed to have realised the true position. To refrain to make enquiries will not avail the receiver of stolen property (R.v. Marhins 1959 (3) S.A. 508).
I am satisfied on the evidence that although the appellant was charged with theft, he was in Tact guilty of receiving stolen property. This is a competent verdict under Section 188 of the Criminal Procedure and Evidence Proclamation (as amended). If the magistrate had convicted the appellant of that offence, I would have dismissed this appeal.
In the result therefore, I set aside the conviction of the appellant in the court below and I find the accused guilty of receiving stolen property. The sentence of a fine imposed by the magistrate for the lesser offence is not adequate and I set this aside. In normal circumstances I would remmit the case back to the Subordinate Court for sentence, but, as I understand that the
magistrate who tried the case is not presently available I shall pass sentence in this Court. The appellent will be given an
opportunity to make representation before sentence is passed upon him.
12th May, 1980.
For Appellant: Mr. C.M. Masoabi
For Respondent Mr. Muguluma.
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