CRI/A/23/81
IN THE HIGH COURT OF LESOTHO In the Appeal of
THABISO MABOTHILE Appellant
vREX Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K Molai on the 15th day of June, 1981.
The Appellant in this case was convicted by the Leribe. Magistrate's Court of theft by false pretences, it being alleged that on or about the 15th day of December, 1980 and at Leribe Sub-Accountancy in the district or Leribe he unlawfully and with intent to steal, misrepresented ana -introduced Malefane Kholu as Tsotlehe Maphokoane, the lawful owner of a sum of money amounting to M112.68 kept on suspense account at the Sub-Accountancy and did by means of the said
misrepresentation obtain from the Leribe Sub-Accountancy,
the said amount of money, the property of Tsohleho Maphokoane
then in the lawful possession of the Leribe Sub-Accountancy. A sentence of 12 months' imprisonment was imposed.
The appear is against both conviction and sentence on the grounds that P.W.1 was the most unsatisfactory witness, there was no proof beyond reasonable doubt that the Appellant was guilty as charged and the sentence of one year imprisonment without an option of a fine was too harsh in the circumstances of the case.
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At the commencement of the trial on 9th March, 1081 Mr. Ramolibeli who appeared for the Appellant made the following submissions. That the defence was not disputing that Tsotlehe Maphokoane was the lawful owner of the sum of money amounting to M112.68, that the money was kept on suspense account at the Leribe Sub-Accountancy, that Tsohleho Maphokoane did not withdraw the money from the Sub-accountancy, that neither accused had borrowed the money from Tsotleho Maphakoane nor did the latter authorise the accused to withdraw it from the Sub-Accountancy.
Broadly stated the evidence heard by the Court was that on 15th December, 1980 accused, a seargent in the prison department at Leribe, ordered P.W. 1, one of the prisoners serving sentence at Leribe prison, to leave other prisoners working under the supervision of P W 2 and go with him to the Leribe Sub-Accountancy On the way to the Sub-Accountancy, accused told P.W 1 that he (accused) had borrowed money from one of the prisoners but he had failed to go with that prisoner to the Sub-Accountancy. When they arrived at the Sub-Accountancy, P.V.1 should, therefore, call himself Tsotleho Maphokoane and say he was unable to write so that he could make his signature by affixing his thumb print for the release of the money to him (P.W.1). On arrival, at the Sub-Accountancy, P.W 1 accordingly called himself Tsotleho Maphokoane, used his thumb print for signature and the Sub-Accountancy paid out the money which the accused took possession of Accused and P.W.1 then left the Sub-Accountancy, but on their wry back to the prison they called in one of the shops from whore accused bought an umbrella. P.W.1 later reported what had happened to P.W.2 and P.W. 3. The evidence that P.W.1 went missing from other prisoners with whom he was working on the day in question
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was corroborated by P.W.2 who was in charge of the gangThe evidence that on 15th December, 1980 accused was at theSub-Accountancy with a prisoner, who used his thumb printfor signature on the payment voucher for the release of an amount of M112.68 kept on suspense account on the name of Tsotleho Maphokoane, was corroborated by two of the Sub-Accountancystaff, P.W.4 and P.W.6. The evidence that accused lateron that day arrived with P.W.1 at the prison department wascorroborated by P.W.2 and P.W.3, other prison wardens at theLeribe prison department. The evidence that the amount ofM112.68 belonging to one of the prison inmates by the nameof Tsotleho Maphokoane and kept in the suspense accounthad been withdrawn was corroborated by P.W.3 who initiatedinvestigations and checked on the prison records on the sameday The matter was reported to the police when P.W.7, in thecourse of his investigations, was taken by the accused to his(accused's) home whore the accused handed over an amount ofM13.54 and an umbrella. Following accused's explanation P.W.7went to accused's wife in Mohale's Hoek where accused's wifehanded an amount of M19 to him. P.W.7 subsequently cautionedand charged the accused.
In his evidence accused denied all the evidence given by the prosecution witnesses except that he admitted going for shopping with P.W.1 on the day in question and that he only bought the umbrella after he had failed to buy flour due to the fact that it was raining on that day.
The learned magistrate considered the evidence and accepted the Crown evidence as the truth while rejecting that of the defence as false I hold the view that the Crown evidence was simply overwhelming against that of the defence and the conclusion arrived at by the magistrate was the only reasonable.
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one in the circumstances. Having thus accepted the Crown evidence the magistrate found accused guilty as charged.
It has been argued before this Court that P.W.1 was most unsatisfactory as a witness because his evidence amounted to denying his participation as an accomplice and the Court w?s referred to certain extracts from his evidence under cross-examination in support of this contention. It is an elementary principle of logic that general conclusions are deduced from general propositions. To arrive at a general conclusion that P.W.1 was unsatisfactory as a witness his evidence as a whole and not certain extracts in isolation must be considered The above argument, however, isolate certain extracts from the evidence of P.W.1's evidence and try to deduce therefrom a general conclusion that he was most unsatisfactory as a witness. If the extracts referred to this Court were considered in the context of P.W.1's evidence as a whole it will not be so difficult to see that he did not deny participation in the commission of the offence. Indeed to the Question.
"How are you then called an accomplice?" His reply was.
"Because I took the money by false name
I have mentioned. I was ordered by the accused."
That is not a denial of his participation
It was further argued that the magistrate relied on the uncorroborated evidence of P.W.1 who was an accomplice in this case The Court was referred to lines 24 - 26 at page 18 of the record whore the magistrate had this to say
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"P.W.1 who appeared as an accomplice was so unshaken in the box that one could rely upon his evidence ....."
This is again an ivitation that a portion of the magistrate's judgment should be considered in isolation and deduce therefrom a general conclusion that he relied on the uncorroborated evidence of P.W.1. But the preceeding lines of the magistrate's reasons for judgment clearly shew that the evidence of other witnesses was considered and found to be corroborative. Viewed in the context of the magistrate's reasoning as a whole one is left with no doubt that the magistrate did not rely on the uncorroborated evidence of P.W.1. All that the magistrate is saying in these lines is that P.W.1 impressed him as a truthful witness in the witness box. This did not however mislead the magistrate into losing sight of the requirement of the cautionary rule applicable on consideration of evidence of this nature for at line 24 on page 18 the magistrate was quick to indicate, correctly in my view, that the Court approached the evidence of P.W.1 with caution. The magistrate was placed under attack for his indication that he approached the evidence of P.W.1, with caution and accused of paying lip service to the cautionary requirement of the law as he did not point "to some factors which can properly be regarded as reducing the risk of convicting an innocent person." The Court was referred to a passage in Hoffman. South African Law of Evidence at p. 413 whore the learned author had this to say.
"The Court should warn itself of the danger of convicting upon the evidence of an accomplice and shew that it has heeded the warning by pointing to some factor which can properly be regarded as reducing the risk of convicting an innocent prison,"
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The record however, shews that on page 18 lines 10 - 18 the magistrate considered the defence evidence as a whole and compared it with that of the prosecution when he came to the conclusion that the accused was not a truthful witness while the Crown witnesses were the opposite. This is a factor which can properly be regarded as reducing the risks referred to in the above quoted passage. It is trite law that corroboration is the most satisfactory factor which can properly be regarded as reducing the danger of convicting the wrong person on the single evidence of an accomplice. The magistrate found that P.W.1's evidence was corroborated by that of P.W.2, 3 and 4 The contention that the magistrate did not shew that he had heeded the warning by pointing to some factors which can properly be regarded as reducing the risk of convicting an innocent person cannot be supported by the magistrate's reasons for judgment and the evidence accepted by the trial Court.
P.W 1 testified before the trial magistrate that accused was the person who committed the offence with which he was charged The magistrate approached his evidence with proper caution and found that it had been sufficiently corroborated by that of P.W.4 and 6 on the issue The magistrate as the person who observed the witnesses as they testified before him is in a better position to say whether or not they were truthful witnesses. They have impressed him as witnesses of the truth. I find no good ground on which to disturb his finding on this point. The argument that there was no proof beyond reasonable doubt that the Appellant was the person who committed the offence and therefore guilty as charged has not convinced me
It has been argued that the sentence of one year imprisonment without an option of a fine is too harsh in
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the circumstances of this case. I am not convinced. In recent years there are simply too many cases of abuse of positions of trust on authority. The Courts of law have a duty to protect not only the victims of this abuse, but also the public as a whole. If this objective is to be achieved, there is need for sentences that are really deterrent In taking into account mitigating factors for the benefit of the accused the Courts should not close their eyes to the seriousness of the offence with which the accused has been convicted
Accused was placed in a position of authority over prisoners. He has abused his position by taking an unfair advantage over a helpless prisoner. If people of his mind are to be deterred from this sort of a thing, I do not share the view that the sentence of 12 months' imprisonment can be regarded as too harsh. I will therefore not interfere with it.
In the circumstances, I have no alternative, but to dismiss the appeal against conviction and sentence.
ACTING JUDGE
15th day of June, 1981 .
For Appellant - Mr. Moorosi For Crown - Miss Surtie.