IN THE HIGH COURT OF LESOTHO In the Appeal of :
STEPHEN MOTLOUNG 1st Appellant
JACOB DINGAAN MAKOAE 2nd AppellantMAKOTOKO
PHUMO 3rd Appellant
REASONS FOR JUDGMENT.
Filed by the Hon. Mr. Justice M.P. Mofokeng on the
19th day of March, 1981.
I have already dismissed this appeal and confirmed both
the conviction and sentences imposed by the Court aquo upon
each of the appellants, What follow now are the reasons thereof.
The three appellants were charged with the crime of
theft it being alleged that each or one or all of them intentionally
stole an amount of money from one Mpaki Mokoane. All
three appellants pleaded not guilty but were found guilty as charged.
appellant was sentenced to undergo imprisonment for a
period of 18 months while appellants two and three were each
sentenced to undergo
imprisonment for a period of 15 months. They
appealled to this Court against such conviction and sentences.
In this judgment, for convenience, the three appellants
will be referred to as accused No.1, 2 and 3 respectively.
The complainant had accompanied soccer players who had
come to play at Hlotse. He conveyed them in his public transport.
soccer match was over, people began to move towards the
exit-gate. They pressed against each other and hence moved slowly.
during this process when the
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complainant felt a hand inside the back pocket of his
trousers. He quickly turned back only to see accused No.1 holding
in his hand. He says he had already touched his hip
pocket (back pocket) and felt it was empty although a few moments it
a large sum of paper money. He caught hold of accused
No.1 and demanded for his money. Accused No 1 could not go backwards
were pressing forward. Then accused No.3 arrived, having
forced his way towards them. He angrily asked the complainant to
accused No.1 alone and as he said so he snatched some of the
paper money out of the hand of accused No.1. The complainant caught
hold of him as well. As accused No.1 and 2 were struggling to free
themselves from the complainant's grip, accused No.2 approached.
snatched some of the paper money out of the hand of accused No.3. He
left to stand a little distance away. Then he began to
speak to the
complainant. He said he should leave accused No.1 and 3 alone.
But the former refused. This conversation continued until a
policeman arrived on the scene. Accused No.1 and 3 were arrested.
However, accused No.2 was not arrested until later due to the
policeman not hearing complainant's instructions properly.
The evidence reveals that there was a common purpose
among the accused. They were never far from each other. The events
when there was plenty light and the complainant had a good
look at accused No.2 who stood quite close to him and tried to
detract his attention so that he would loosen his grip on his
would then escape. There was therefore, no question of
mistaken identity as far as his arrest was concerned. His
his possession of a large sum of paper money which he
had been seen hiding between his buttocks and was found there when
searched, is laughable. The learned magistrate, in his
able judgment, has
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not in my opinion, misdirected himself on any point.
The appellants were, in my view, correctly found guilty as charged.
It has been said over and over that the question of
sentence is pre-eminently that of the trial court. Unless there has
or the sentence is unreasonable or produces a
sense of shock, the list is not exhaustive, the appellate tribunal is
to alter it merely because it disagrees with such a
sentence or it would have passed a different one. That is not the
the present case no reason whatever, has been advanced why
it was felt that the sentences imposed were harsh. On the contrary,
my view they were very light considering that the learned
magistrate says that the type of theft committed by the accused is
and "calls for the measures I have taken in sentencing
the accuser "
There w?s therefore no merit in this appeal
For Appellants : Mr. G.N. Mofolo For Respondents:
Miss F.L. Surtie.
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