IN THE HIGH COURT OF LESOTHO
In the Appeal of :
LEBOHANG MOKHUTSOANE Appellant
Delivered by the Hon. Mr. Justice F.X. Rooney on the 30th day of May, 1980
The appellant was charged as follows
"That the said accused is guilty of the Crime of Theft. In that whereas at all relevant times the said accused war employed as a Postal Clerk at Qacha's Nek Post Office, and as such was a servant of the Government of Lesotho and entrusted with the custody and care of money which came into his possession on account of his said employer, and whereas during the period July, 1977 to July, 1978 the said accused received into his possession from the said Post Office the sum of R1,565.98 being money orders and paying for overseas parcels which amount thereupon became the duty of the accused to pay over to various payees, yet the accused, not regarding his duty to pay over said sum of money to the payees, but on the contrary did, on some day or days between the dates aforesaid and at or near Qacha's Nek Post Office, in the district of Qacha's Nek unlawfully and intentionally steal appropriate and convert the same to his use.'
The inelegant phrasing of the charge should not have been accepted by the magistrate. He ought to have insisted that the
prosecutor state exactly what was alleged against the accused. The
golden rule is that created by Section 126(1) of the Criminal Procedure and Evidence Proclamation, i.e. the offence with which an accused is char-ged must be set forth in such a manner and with such particulars as may be reasonably sufficient to inform the accused of the nature of the charge. To accuse a man of stealing R1,565.98 "being money orders and paying for overseas parcels' does not conform with the requirements of the section referred to above.
The Crown had to prove that the appellant received monies
into his possession at the Post Office and converted the same to his
2/ own use .
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own use. The manner in which this was attempted demonstrates that the prosecutor had little idea of how to proceed with the matter. This was a case which should have been presented by Crown Counsel. The assumption that it was a simple and straightforward case was not correct.
The first witness for the prosecution was Lt. Majallo who investigated complaints against the appellant in July 1978. He seized a number of documents. In his evidence he listed seven (7) parcels by reference to contain numbers and listed charges for the said parcels amounting to R83-19.
He then went on to detail telegraph money orders totalling R820. He handed further documents to the court. These included letters from "payers " enquiring about money, records of telegraphic money orders said to have been despatched at various places by various people.
The witness went on to produce documents which he described as "reclamations in respect of registered envelopes amounting to R655.00". The documents again cane from places in South Africa and it appears that in the main they were records of claims made and compiled by Post Office clerks in the South African Postal Services. These documents may have been genuine. Their existence cannot be disputed, but, the accuracy of their contents was not established by any evidence. The appellant was not charged in the count below with any offence arising out of registered mail. All the evidence, such as it was, in regard to the alleged misappropriation of the contents of registered mail should have been disregarded at the trial.
An attempt was made to prove a shortage by the production of a cash book in which it was alleged that the appellant had not made certain entries. Lt. Majalle admitted in cross-examination that he did not know how to determine the shortage. He further admitted that no shortage was reflected in the cash book. He was unable to rule out the possibility that entries had been made in an incorrect column. The police officer was at a disadvantage as he was unfamiliar with the accounting procedures at the Post Office.
The second, and only other witness, for the prosecution was Lefoleri Samuel Mapeshoane, the postmaster at Qacha's Nek from the 10th March, 1978 until the 29th April, 1979. He said that when he was posted to Qacha's Nek he found that the appellant was working
3/ there as .......
— 3 —
there as a clerk. He was "receiving post and disposing of mail . From May 1978 the appellant was moved to a counter where his duties included the issue of money orders the payment of postal orders, the delivery of overseas and insured parcels including C.O.D. parcels. The postmaster described the duties of the appellant in some detail; including his accounting duties.
Mapeshoane received complaints from the owners of money transmitted by money orders. The Post Office records showed that monies had been paid to these people, none of whom were called before the court to give evidence on oath that they had not received the money. The accused was asked by the postmaster to explain how he had paid the claimants. The accused replies did not satisfy the postmaster who complained to the police. A great deal of this witness's evidence consisted of inadmissable hearsay, the record of which was prejudical to the appellant. Mapeshoane also testified about registered letters which, as I have already said, were not part of the charge. Another batch of documents was placed before the court and accepted as if the papers themselves were evidence of the truth of their contents.
At the trial, the appellant was represented by Mr. Jobodwana. He admitted on behalf of the appellant that the respective owners did not receive their respective parcels. In regard to the money orders,. he admitted that the claimants did not receive their monies. I think the magistrate read into these admissions far more than they contained. Mr. Jobodwana elicted in his cross-examination of the postmaster that the appellant was not the only clerk who issued telegraphic money orders.
The Crown failed to prove beyond all reasonable doubt that it was the appellant who took the missing money or parcels. The prosecution was not properly organized to establish the essential facts. I am unable to uphold this conviction and I set it aside together with the sentence of two years imprisonment.
After his conviction the appellant applied for bail pending
appeal. This was refused. The magistrate said "it is not in many words shown whether these are prospects of winning the case on appeal, a burden of course which lies with the applicant". He went on to rule against the appellant solely on the basis of his own opinion as to the merits of the appeal.
4/ I do not ....
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I do not propose to refer in this ruling to the considerable number of cases which have been decided recently in this court on the question of bail pending appeal. All I will say is that in the present case the appellant ought to have been given bail. If all magistrates were to assess the prospects of their own judgement being reversel on appeal and apply this as the sole test upon which bail pending appeal should be allowed, it would mean in practice that the right to bail pending appeal would disappear.
30th May, 1980
For Appellant : Mr. Moorosi For Crown : Mr. Peete
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law