CRI/A/23/81

IN THE HIGH COURT OF LESOTHO
In the Appeal
of

THABISO MABOTHILE Appellant

v
REX 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
gang
The evidence that on 15th December, 1980 accused was at
the
Sub-Accountancy with a prisoner, who used his thumb print

for 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-Accountancy
staff, P.W.4 and P.W.6. The evidence that
accused later
on that day arrived with P.W.1 at the prison
department was
corroborated by P.W.2 and P.W.3, other prison
wardens at the
Leribe prison department. The evidence that the
amount of
M112.68 belonging to one of the prison inmates by the
name
of Tsotleho Maphokoane and kept in the suspense account
had
been withdrawn was corroborated by P.W.3 who initiated
investigations
and checked on the prison records on the same
day The matter was
reported to the police when P.W.7, in the
course of his
investigations, was taken by the accused to his
(accused's) home
whore the accused handed over an amount of
M13.54 and an umbrella.
Following accused's explanation P.W.7
went to accused's wife in
Mohale's Hoek where accused's wife
handed an amount of M19 to him.
P.W.7 subsequently cautioned
and 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.