IN THE HIGH COURT OF LESOTHO
In the Appeal of :
JOHN MONYATSI Appellant
REASONS FOR JUDGMENT
Filed by the hen. Chief Justice, Mr. Justice T.S. Cotran on the 2nd day of September,1981
The appellant, a public servant employed as senior Clerk of Court at Quthing, was convicted of theft of State funds amounting to approximately M11,487 committed over a period from 2nd March 1978 to 12th February 1979. He was sentenced to three years imprisonment. He appealed to this Court against his conviction and sentence.
On the 26th August 1981 I dismissed the appeal in toto and I said reasons will be given at a later date. These now follow :
Following upon the appellant's transfer from Quthing to Mafeteng in February 1979 it was necessary for him to hand over his duties which, inter alia, consisted of surrendering the cash in his safe, viz, fines, deposits, fees, etc. collected by him, to his successor. He disappeared from view for a few days. This resulted in a report to the Ministry of Justice who sent an accountant, accompanied by police and security officers in possession of the only duplicate key of the Quthing safe, kept at the Treasury headquarters in Maseru and sealed in an envelope, to open the safe. By that time the appellant had been apprehended. when opened the safe contained 65 cents and unbanked stale cheques to the value of M38. His books were examined and these revealed :-
1. That the appellant had not made any payments to the sub-accountant's office of revenue received for a period of approximately a year. His duty was to pay monies collected regularly, at least once a month, and as a matter of judicial administrative practice, more often.
That according to the books he ought to have had
in his safe M11,487.73 not 65 cents, and stale
cheques to the value of M38.
That amongst the papers found in his safe or
drawers (it does not matter which) were
I.O.U. slips signed by the magistrate in charge of the district at the time (Mr.Ntsoele) for a total of M108.
The appellant admitted he had not made any payments into Revenue for the period in question. He says he did not bank because he was always short of the amount of M108 which the magistrate had borrowed from the safe. That, however, was a very small proportion of the total deficiency. With regard to this large remaining balance the appellant explained that the cash (except for the magistrate's I.O.U's) was all in the safe when he left Quthing on transfer (with the safe key in his pocket) to take his wife and children to Mafeteng. He says he had agreed with his successor to hand over the books and cash a few days later after he got his family settled. He returned to Quthing by bus for this purpose but on getting there he discovered that he had lost the key. He made a frantic search for it in vain. He implied that someone else found the key and stole the cash from the safe. There was no evidence of forcible breaking in of the premises of the magistrate's Court or the safe.
The magistrate held, rightly in my view, that "lending" M108 from State funds to the magistrate constituted theft. He cited R. v. Berliner 1966(4) S.A. 535 in support. In Nthati v. R. CRI/A/54 of 1980 unreported delivered on 12th February 1981 I had occasion to say this in a similar case to the present :
"I think I can take judicial notice of the fact that monies paid into revenue belong to the State treasury immediately and no official, however senior, can help himself to it, or allow others to do so".
In R. v. Albertyn 1931 O.P.D. 178 a civil servant borrowed £15 from his cash safe on Saturday intending to repay it on Monday. On the Monday there was a "spot check" before he was able to replace it. He then and there produced £15. His conviction for theft was confirmed on appeal. (See also R. v. Weiss 1934(AD) p.41; Jones v. R. 1934 N.P.D. 45 and Hunt South African Criminal Law and Procedure Vol. II p. 594 et seq and cases cited). Perhaps the passage in Schreiner J.A. '
Judgment in R. v. Milne and Erleigh 1951(1) S.A. 791 at 865 summarises the legal position appositely :-
"I shall assume in the appellant's favour that for theft there must be an intention to "terminate and not merely to suspend the enjoyment by the owner of his rights of ownership". (Rex. v. Laforte, 1922 C.P.D. 487 at p. 497). I shall assume also that the Crown has to prove the intention to deprive permanently. It seems to me, however, that in the case of things consumed by use the view taken in Rex. v. Albertyn, 1931 O.P.D. 178 and Rex v. Jones, 1934 N.P.D. 45 is correct, and that the intention to deprive permanently is proved when it is shewn that the taker meant to consume what he took even if he intended later to return other money or similar goods. The distinction is not only technically valid, the taker having no intention to return what he plans to consume; it is also a sensible one for the consumption increases the risk that the taken even if he intends to replace, may not be able to do so, and the difficulty of proving what has happened to consumables that have been taken makes it harder than in the case of other goods to test any statement by the accused that he intended to replace. whore, therefore, a person takes another's money without authority to do so and intending to consume it (actual consumption is, I think only important as evidence of intention) he commits theft, even if he intends to return other money, if it is proved that he did not, when he took it, believe that he had the right to take it or that the owner, had he been consulted, would have consented to the taking. Where the consent that the taker might have relied on is that of an agent of the owner it must be such as the agent, acting honestly in the interests of his principal and with knowledge of the facts, might have been expected to give".
Although the magistrate who "borrowed" the money from the appellant (he appeared as a witness) was exonerated by the trial magistrate from any complicity with his Clerk of Court, I do not, with respect, find his reasons very convincing, and in any event (the magistrate was not on trial) he should have refrained from making any remarks on this point since it made no difference to the guilt or otherwise of the appellant. That passage in the Judgment is no more than abiter dicta. I think there was prima facie evidence available to the Crown to put the magistrate himself on trial and the trial magistrate should not have pre-empted future action. I shall recommend to the Director of Public Prosecutions the initiation of fresh criminal investigations, and further action if warranted, and in any event, the Public Service Commission should be informed in order to consider whether or not disciplinary proceedings
The learned trial magistrate found the explanation of the lost key given by the appellant for the disappearance of over M11,400 from his safe as false beyond reasonable doubt. His reasons appear at pp 9 - 13 of the typed record of his Judgment. I need not detail these, suffice it if I say that it was a cock and bull story which no reasonable Court could believe. I agree entirely with the magistrate that no one could have stolen the money except the appellant.
The appeal against conviction and sentence (the latter perhaps errs on the side of leniency) was dismissed as intimated earlier in this Judgment.
Will the Registrar see to it that a copy of this Judgment is forwarded to the Solicitor-General the Director of Public Prosecutions and the Chairman of the Public Service Commission and also to Mr. Ntsoele.
2nd September 1981
For Appellant : In Person
For Respondents Adv. Khauoe
Women Air Jordan style
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