IN THE HIGH COURT OF LESOTHO In the Appeal
MPHO RAMONO 1st Appellant
RAPHUTHING 2nd Appellant
R E X Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Acting Mr. Justice M. Lehohla on
the 28th day of August, 1986.
On 4th August 1986 I made an order upholding the above
appeals and stated that reasons would follow.
These do now follow. The appellants were charged with
the crime of theft set out in the charge sheet in the following form:
the accused are charged with the offence of theft of motor
vehicle in that on or about 23rd day of May 1985 and at or near
urban area in the Mafeteng district, the said accused did
wrongfully, unlawfully and intentionally steal the motor vehicle E.20
No. H.0216 the property or in the lawful possession of
They pleaded not guilty and were convicted and sentenced
to twelve months' imprisonment each. It is against such conviction
that they are appealing. The facts adduced in evidence
disclosed that both accused were employees of complainant.
failed to pay their monthly salaries for periods of
four months in respect of appellant 1 and five months
in respect of appellant 2 antecedent to the crime
Each was earning M150 salary per month.
Having been annoyed with their employer's failure to
effect payment of their salaries despite several approaches to him
coupled with entreaties that he pay, they decided to
take their employers motor vehicle; the type popularly known as the
drive it away without his knowledge and permission in order
to make enough money through using it for purposes of satisfying
claims against their employer.
They drove it from Mafeteng to Butha-Buthe where they
gave a lift to P.W.1 one Paseka Makoa who had known them from
Butha-Buthe they were bound for Mokhotlong where
P.W.1 had some relatives whom he wanted to see. The three of them
did a spell of
driving the vehicle until they reached Butha-Buthe.
The following day while busy conveying passengers and having
at a fare-stage were they rudely surprised when
accused 1 was dealt a thumping blow with a quart bottle on the head
by the complainant,
P.W.1 ran away.
From the facts disclosed it seems to me that the
offence committed, if any, by appellants is that of
In Regina v. Lesenveho Motlatsi 1961-62
H.C.T.L.R. quoting with approval R. v. Sibiya 1955(4) SA. at
247 by Schreiner A.C.J., Watkin Williams C.J. re-iterated". I
have come to the conclusion that the law requires
for the crime of
theft, not only that the thing should have been
taken without belief that the owner (where it is the
owner whose rights have been invaded) had consented or would have
the taking but also that the taker should have intended
to terminate the owner's
enjoyment of his rights or, in other words, to deprive
him of the whole benefit of his ownership. The intention
may be inferred from evidence of various kinds and in
particular from abandonment of the thing in circumstances
showing recklessness as to what becomes of it."
In R. v Pier, 3 E.D.C. 436 Smith J. dealing with
a case where the accused had been convicted of stealing two boats,
which he had used for the
purpose of crossing the Kowie River said at
p. 438, (this appears in Schreiner A.J.C's judgment in S. v Sibiya
supra) at 251),.
"I have come to the conclusion that both under the
Colonial Law and under the English law there must be a
taking with an intent to deprive the owner wholly of his
property in order to constitute theft. In this
case the accused took the boats merely for the purpose
of making a temporary use of them, and without any intention whatever
depriving their owners
them; or, in common parlance, he never intended to steal them. The
act was wrongful, and a trespass for which the owner may maintain
civil action to recover damages for the injury sustained; but neither
in law nor in common sense can it be called a crime. I do
by anything that I have said to lay down that - if a man takes away
anything belonging to another and applies
it to his own purposes, and then abandons it with a
reckless disregard as to whether it is destroyed or not, and it is
destroyed - such an act is not criminal. On
the contrary, I am of opinion that a man so acting can
clearly be found guilty of theft". (My underlining) See Mohale
v Rex 1967-70 by Evans J. at pages 39-40.
It is significat that in reference to the words
underlined i.e. "and it is destroyed" Schreiner A.C.J. says
they are superfluous.
The Roman rule penalising furtum usus beyond the
measure of the owner's actual loss was declared obsolete by the Roman
Referring to R. v Fortuin B.A.C. 290 in R. v.
Sibiya supra at 252 Schreiner A.C.J. summarised the facts
briefly as follows:
"The accused was travelling with a wagon and a span
of oxen. One ox fell sick and the accused substituted for it an ox
he took from the veld. In the town to which he was travelling
the ox was identified by its owner. The accused was charged in the
magistrate's Court with theft of the ox and acquitted. He was at
once charged again, this time with the theft of the use of the
was convicted by the magistrate but, on the records coming up for
review, the question was referred to the Court of Appeal,
the theft of the use of an ox a crime?" The Court unanimously
answered the question in the negative."
It should thus be clear that furtum usus is
authoritatively declared to be not a crime. What about its close
cousin, the unauthorised borrowing? (My underlining).
In R. v. Sibiva supra at page 253 it has been
laid down that the Court having considered whether conduct
like Fortuins amounted to a crime "
It was undoubtedly accepted by the Court that taking
of thing with the intention of returning; it was not theft,
though abandonment with reckless disregard of whether the
owner recovered it or not would evidence an intention to
deprive the owner of the whole benefit of his property and would
to establish theft." The answer to the case under
consideration has been underlined.
The learned magistrate in the instant case has. in big
reasons for judgment taken issue with appellant's act of removing the
the number plates and the carrier from the vehicle and
concluded that such removals geared at altering the identity of the
indicated that appellants meant "to steal the vehicle."
It seems to me that the indications which the learned magistrate
properly pointed out would be of use in a case where the charge had
been brought under section 345 of the C.P. & E. 1981
Act. In the
instant case the existence of such indications does not derogate from
the fact that appellant all the while intended
returning the property
to the owner as soon as their claims had been met.
It is important to be aware that the offence created by
section 345 supra is not part of the Common Law offence of theft and
therefore where the Common Law theft fails to stand but facts or
evidence adduced points to the existence of an offence under section
345 a conviction under the latter section cannot stand either;
because an offence revealed under it where Common Law theft is
is not a competent verdict or vice versa.
Removal of appendages to a vehicle such as the mirror,
number plates and carrier do not constitute such damage or
destruction as is
envisaged by the expression repeatedly made in
Sibiya above namely "abandonment of the
thing unlawfully taken in such circumstances as show a
reckless disregard as to what may become ot it," in order to
to the appellants' act. Evidence was abounding to show
that the unlawful taking was not coupled with an intention to
owner's enjoyment of his rights. In any case when
asked if the vehicle was still intact when it was recovered the
was present when it was, said "It was still in
the same condition as it was when it was in my possession before it
See S. v Coller 1970(1) SA. 417 and R.
v. Mtaung 1942(4) SA. 120 overruled in Sibiya (supra)
It would thus be clear that the court a quo laboured
under some misapprehension in basing its conclusion on absence of
owner's consent in convicting the appellants. On the dictum
authorities consulted it would be safe to say in the circumstances of
a case of this nature the absence of the owner's consent
bearing on the matter.
It is noteworthy that the learned magistrate's fears are
coincidental with those of the distinguished Lord Justice - Clerk
in Strathern vs Seeforth 1926 J.C. 100 (a Scottish
case) involving Clandestine taking possession of a motor car well
knowing that accused had not received
permission from and that he
would not have received it from the owner for so doing, and that
he did drive and use the said motor
car in the streets.
Lord Justice - Clerk Alness said even without authority
he would have been convinced of the Criminality of the charge, his
being that otherwise an article "may be taken from its
owner, and may be retained for an
indefinite time by the person who abstracts it and who
may make profit out of the adventure, but that, if he intends
return it, no offence .... has been
committed .. ... if that were so, in these days ......
motor cars are openly parked in the public streets, the
result would be not only lamentable but absurd." But Burnett and
have categorically stated that Scots Law does not recognise
the furtum usus of Roman Law. The application of the rule laid down
inStrathern vs. Seaforth may not be tested since
taking and driving away motor vehicles without authority is now a
statutory offence in that country.
A similar remedy in Lesotho is to be found in section
345 of the 1981 C.P.E. Act although needless to say authorities cited
show that the said Act came in the wake of a trail which had
long been blazed as to what the correct position was and is in our
While I do appreciate that the occasional likelihood is
not minimal for the unwary to march blindfold into the ancient trap I
it fitting to observe that despite the correct statement of law
in Sibiya supra and subsequent authorities the former
misconceptions still pose as perennial pitfalls.
It is therefore necessary to point out that the unlawful
taking required in the Common Law theft should not be equated to the
taking and using as visualised in the Roman Law furtum
usus; for even under the Roman Law this fell under a class of
delictual wrongs actionable against for instance bailies, pawnbrokers
their exclusive class. I hope this will help to avoid
the unconscious invocation of the furtum usus doctrine
whenever it rears its ugly head in the future.
Complainant has not gainsaid appellants' allegation that
he owed them at least four months' salary. Not only has he failed to
but in my judgment had no reason to say their story is not
true. It has been pointed out that unauthorised borrowing ' becomes
immediately the intent to return the thing of another in the
taker's control ceases and the taker changes his intention into an
to terminate the owner's enjoyment of his rights. Theft of
the thing commences at the monent of such change of intention. InSibiya supra Van den Heever A.J. at page 258 says it is
regarded "as theft instances where a non-owner already in
possession of another's
property fraudulently arrogates to himself
the rights comprised in ownership."
Finally, complainant's failure to controvert appellants'
story as to their intent to return the vehicle cannot be read as
any contention that appellants meant to terminate
complainant's ownership. On the contrary this failure lends credence
It was for the foregoing reasons that this appeal was
allowed. I may add that the crown is in agreement with this result.
ACTING JUDGE. 28th August, 1986.
the Appellants : Mr. Mda
the Crown : Mr. Seholoholo.
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