IN THE HIGH COURT OF LESOTHO In the Appeal
MPOETSI NTHATI Appellant v
Delivered by the Hon. Chief Justice, Mr.Justice T.S.
Cotran on 12th February, 1981
Two young women, Mpoetsi Nthati and Mboshwazi Makwa,
aged 21 and 23 respectively, appeared before a Magistrate at
with theft. The particulars of the offence
stated as follows :
"That the accused arc charged with the crime of
theft. In that, whereas at all relevant times ' the said accused
by the Lesotho Government as clerks in the
Sub-Accountant Office stationed in Butha-Buthe, and they the said
accused were entrusted
with custody and care of the money belonging
to their employer, the Lesotho Government the money which came into
on account of their employment the said accused did
on or about the 4th day of January 1980, and at the Butha-Buthe
office in the district of Buthe Buthe the said
accused did both or one of them unlawfully and intentionally steal
the sum of money
thereby creating a general deficiency of R30.00, the
property or in the lawful possession of the said Lesotho Government".
Mr. Ramodibedi, who appeared for Mpoetsi, objected to
the charge on the ground of ambiguity. The upshot was that the
asked for the words from "money to deficiency"
to be deleted. This was allowed and Mr.Ramodibedi was apparently
The accused women pleaded not guilty and the trial
proceeded.1 They were both found guilty as charged and
each fined M60 or 4 months imprisonment in default of payment. The
fines have been paid.
/to as the
to as the appellant) now appeals "against her
conviction and sentence. The other girl did not appeal.
The grounds of appeal are as follows
"1. Exhibit "C" tendered in evidence by
the Crown clearly indicated that appellant's matter was merely one
and not theft as charged.
2. The Crown failed to prove intention to deprive
the owner permanently of his ownership particularly in
view of the admitted practice prevailing at the time at the
3. There was no proof beyond reasonable doubt thatthe
appellant was guilty as charged.
4. The learned magistrate erred in not having imposed a
lighter sentence in respect of appellant than the sentence imposed on
No.2 in view of the amounts involved in respect of each
The evidence was as follows :-
The appellant(and the other accused who did not appeal)
were employed as clerks in the Sub-Accountant's office at
of their duties consisted of the receipt of cash
Blank Receipt books are kept in a strong room and are
issued to members of the staff against their signatures. Two persons
keep the keys to this strong room, Daniel Rathaba(PWl) and
one Moremoholo who did not give evidence.
On the 19th January 1980, another clerk, Lipuo Khoabane
(PW2), was on duty when a tax-payer came to pay. He went to the
to get a receipt book and found one (Exhibit A) in the
cash box. He wanted to use it but noticed that five receipts were
issued all undated except one which bore a stamp of 4th
January 1980. Each tax-payer's receipt was for M6, making a total of
He testified that the cash "did not balance". I take
this to mean that there was no cash to support the receipt of the
M30. He reported this to his superior Mr. Rathaba. Mr. Rathaba
examined the receipt book and found that the serial numbers of the
receipts it contained were higher than those of other blank receipt
books in stock, i.e. that the book Exhibit A should not have
used when it was since other blank receipt books were still
available. No employee had signed for it. He concluded that the
(Exhibit A) was not taken "according to normal procedure".
He also noticed from the duplicates and triplicate copies
five issued receipts to tax-payers bore the signature of
the appellant which he became familiar with through
their association at the office.
At this stage there was evidence which, if unexplained,
prima facie indicated theft of M30 by the appellant only. For some
which I am unable to fathom the witness Rathaba(PWl) called
another girl (the accused who had not appealed) and questioned her.
testified that "she admitted and begged for pardon", The
appellant was not apparently on duty on that day (i.e. Monday
January 1980, not the 22nd as testified) but on the following day
(i.e. the 22nd) she was there and he called the two together
confronted them. He says that"both admitted and begged for
pardon". He did not accept their apology and informed
police, and also, vide a payment voucher Exhibit C, he notified his
Headquarters that there was a cash shortage of M30 and the
persons responsible for it. The appellant acknowledged and signed on
the form that she took M12 and the accused who did
acknowledged and signed she took M18. After the police and the Senior
Accountant at Maseru were notified the appellant
(and the other
accused) repaid M12 and M18 respectively. On the 29th January they
wrote a Joint letter to headquarters at Maseru
(Exhibit B) referring
to the "scandal" on January 4th and pleaded for "mercy"
to have their case dealt with "outside
Both the appellant and the other girl were legally
represented at the trial. The cross-examination was directed almost
the existence of irregularities in the sub-accountancy at
Butha-Buthe the essence of which, if true, was that Mr. Rathaba had
the past allowed the appellant and others including himself to
"borrow" money from the taxes paid into revenue, supporting
such "loans" by making out"payment vouchers"
similar to Exhibit C, as a sort of "internal arrangement".
When the employee repays the "loan" in due course the
voucher would be disposed of. It was also suggested that if he (Mr.
Rathaba) and Moremoholo had the keys to the strong room neither the
appellant (nor the other accused) could have got hold of the
book Exhibit A. I think they could have. It all depends on how alert
Mr.Rathaba and Mr. Moremoholo were. The purpose of
cross-examination, or so it seems to me, was to try to show the
magistrate that something rotten was going on at the top in the
sub-accountancy at Butha-Buthe. Mr. Rathaba denied the allegations
though he admitted he gave personal loans (of M20 and M10) to
appellant from his own pocket.
One thing however is certain, viz, that on this
particular occasion the M30 were taken de hors the rotten practice if
there was any.
In any event you cannot prove that X is not a thief
simply by attempting to prove that Y is a thief.
The appellant (and the other accused) elected to keep
silent. I think it is high time that legal practitioners appreciate
of this course. If you cast serious aspersions on
the character and veracity of a witness and try to implicate him with
of the offence and, then fail to call your accused
client to substantiate it on oath and be subjected to
cross-examination, or call
other evidence to substantiate it, it is
usually not only fatal to the accused client, but is also a
reflection on the professional
ability or even the integrity of his
In his heads of argument Mr. Ramodibedi says that the
word "money" occurs three times in the particulars but it
clear that the deleted words referred to "money"
when it occurred last. I am fortified in this view because Mr.
could not possibly have been satisfied with the
clarification if the prosecutor had meant to delete words
"from'money' to depreciation"
when used twice earlier.
Mr. Ramodibedi submitted that since only two persons
held the keys to the strong room and only one gave evidence the other
could have authorised the appellant to take the book,
Exhibit A. If in fact Moremoholo did authorise her (or the other
take the receipt book and even if he authorised them to
"borrow" that does not, as I have explained, exonerate the
I think I can take judicial notice of the fact that
monies paid into revenue belong to State Treasury immediately and no
however senior, can help himself to it or allow others to
do so. It should be noted that here the appellant paid back her
only when she was found out. Animus Furandi has been prima
facie proved (Rex v. Albertyn 1931 OPD 178 and see the Judgment of
J.A. in Rex v. Milne and Erleigh 195K 1) 79KA.D) at 865.
Mr. Ramodibedi referred me to a passage in my own
judgment in Makhetha v. R LLR 1974/75 p. 397 at 400. The facts there
different and bear no resemblance to this case.
Mr. Ramodibedi then attacked the sentence. We in these
courts have often said that thefts by public servants should be
severely dealt with. I normally impose a custodial
sentence unless there are very cogent reasons to do otherwise. The
gave the appellant the option of a fine. He obviously took
into consideration these mitigating factors:
That the appellant lost her job in the Government,
That she repaid the amount,
That she was young (21),
That she was a first offender,
That the amount stolen was small.
The sentence imposed by the magistrate, if anything, is
rather on the lenient side. It certainly is not excessive.
The appeal (against both conviction and sentence) is
CHIEF JUSTICE 12th February, 1981
For Appellant : Adv. Ramodibedi For Respondent: Adv.
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