CRI/A/13/80

IN THE HIGH COURT OF LESOTHO In the matter of:

V

REX

Delivered by the Hon. Mr. Justice M. P. Mofokeng on the 30th day of May, 1980

The appellants wore convicted, by the magistrate of Qacha's Nek, of the theft of one drum (capacity 210 litres) full of oil, the lawful property of the Lesotho Government. They were each sentenced to undergo imprisonment for a period of ten (10) months. However, half of the said sentence was suspended for a. period of three years upon certain con­ditions. They have appealed to this Court against both such conviction and sentence.

The facts are briefly as follows.

On the 30th September, 1978, both appellants arrived at a camp used by the Roads Departnent. They took a drum full of oil. On being asked by a watchwoman, who was apparently an overseer, why they were taking the drum of oil, they replied that they were

"taking it to a certain machine at Qacha's Nek camp" She then requested then to consult one Majara, but they replied that she was

"waisting their time. They were going to service the machine at Qacha's Nek."

They loaded the drum of oil and left. At about 3 p.m. the same day they returned to the same camp and said they wanted oil again. It is not clear whether they were given any oil as requested.

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However, they left for White Hill. They never returned the drum full of oil nor an empty drum although they had promised to do so.

At the White Hill they found one Moeketsi Mosenye (P.W.4) who was a watchman at that camp. He says that the appellants carried no oil with then He saw then remove a 'Jack' but did not service the machine. When he was subsequently transferred to another camp, he left the said machine still at the camp. One Charlie Thamsaqa (P.W. 5), an officer in the Roads Department, deposed that there wore two machines - one in Qacha's Nek and the other at White Hill. None of those machines was serviced during the month of September, 1978. Moreover, there was no drum of oil at White Hill. He finally deposed that the drum of oil taken by the appellants has simply vanished.

Subsequent to the taking of oil, one Selebalo Majara, who was referred to by the watchwoman, met appellant No. 1 at a beerhall. He asked him about the oil. Appellant No. 1 gave him one rand and told him to "stop talking about the drum of oil." This evidence is corroborated by that of Chopho Mohapi (P.W. 3).

Each of the appellants gave evidence on their behalf denying what the Crown witnesses had deposed to.

The learned magistrate found that each of the appellants had lied to him. Their evidence was bristled with contradictions and inconsis­tencies. Ho believed the evidence as deposed to by the Crown Witnesses. He saw and observed then. He rejected the evidence of the appellants.

It had been proved that the two appellants were employees of the Lesotho Government, that no machine was serviced at White Hill nor was any empty drum of oil left at the said camp where the work was alleged, by the appellants, to have been performed and where they said they had left it. The appellants gave no acceptable information about about its whereabouts. There was overwhelming evidence that the appellants took government property and converted it to their own use and thus did commit the crime of theft.

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I am not persuaded that the learned magistrate erred in so finding.

The appeal against conviction of each of the appellants ought

to be dismissed and it is accordingly so ordered.

As regards the appeal against sentence, Counsel for the appellants stressed the deterrence aspect. I had particularly warned him to address me on the question why, in the event of the appeal against con­viction being dismissed, the sentence should not be enhanced as being inadequate. I was not persuaded by his fine address on the question of the deterrence aspect of the sentence imposed.

I an of the opinion that the crime the appellants have committed is a very grave one indeed. The theft of Government's property is rampant. This Court has had an occassion to warn people who steal government's property about the serious view in which this Court regards such conduct. That was in the case of Monkhi v. Rex. GRI/A/34/77, (unreported) at p. 12. That warning has, apparently, gone unheeded. It is the primary duty of every court in this land to mark their determination to discourage any idea that Government Property can be stolen with impunity. The courts in this country are determined to do all they can to discourage it. The courts are therefore determined to punish severely any one who steals Government's property. Lesotho is a poor country and has, of neces-sity to borrow money from donors. If the little help we receive is not used for the purpose for which it was meant but finds its way into the pockets of individual officers, then very soon this country will find it increasingly difficult to ruse any loans. This is how serious the crime which the appellants hove committed. It is, therefore, the duty of the courts to put to a stop to this menace before it brings about the serious consequences just alluded to.

I have not lost sight of the fact that the appellants stand to lose their benefits as civil servants. This, in itself, is a heavy punishment. However, this shameless stealing of Government's property as though it belongs to, nobody must come to an end.

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That property belong to 11 the tax-payers of this country but held in trust by the Government. That is why it is simply referred to as the Government's property. Whatever the position, and for the moment it does not matter, those who steal must be made to realise that there is truth in the saying that a man shall live by the sweat of his brow. Those who chose not to do so, but steal, will be severely punished.

The appeal agaisnt sentance is hereby dismissed.

The sentence of 10 (ten) months imprisonment, half of which was suspended for a period of 3 (three) years imposed by the learned magistrate, on each of the appellants, is set aside and it is substituted by the following.

"Each of the appellants is sentenced to undergo imprisonment for a period of 2 (two) years."

For the appellants Mr. Modisane

For the Crown Mr. Muguluma

JUDGE