IN THE HIGH COURT OF LESOTHO In the
matter of :
FRANK LEBETE 1st Accused
THABANG MONYANE 2nd Accused
CARRINGTON MOEKETSI MASOABI 3rd Accused.
Delivered by the Honourable Acting Chief Justice Mr.
Justice J.L. Kheola on the 30th day of October, 1986.
The three accused, Frank Lebete (A1), Thabang Monyane
(A2) and Carrington Moeketsi Masoabi (A3) , are charged with the
crime of theft,
alternatively with the offence of contravening
section 343 (1) of the Criminal Procedure and Evidence Act 1981. The
"In that upon or about the 17th December, 1984 and
at or near Maluti Mountain Brewery, Maseru Township in the district
the said accused one or other or all of them did
unlawfully and intentionally steal 950 cases of beer and
108 cases of brandy the property or in the lawful possession of Ian
Frasers Ltd, a company lawfully registered
under the Companies Act of
"In that upon or about the 4th January, 1985 and at
or near Mazenod in the district of Maseru the said accused, one or
or all of them was or were found in possession of 950 cases of
beer in the regard of which there was reasonable suspicion that they
had been stolen and was or were unable to give a satisfactory account
of the possession and was or were guilty of the offence of
contravening the provisions as Section 343 of the Criminal
Procedure and Evidence Act of 1931."
The accused pleaded not guilty to both charges.
David Soai Rakuoane (P.W.1) is a businessman who deals
in transportation of goods for reward. He owns a Datsun half-truck
No. A6983. He had some business dealings with a lady by the
name of Martha of Welcome Transport. He used to take money from
and go to the mountains where he bought wool. He brought the
wool to the lawlands in his own truck.
On the 17th December, 1984 he came to Maseru for
shopping and met Martha. While he was still talking to her A1 and A2
left him and went to them. After talking to them for
a short while Martha returned to him accompanied by A1 and A2. She
to help the two accused by transporting their goods,and
told him that the accused would pay him whatever price he charged. As
did not want to disappoint Martha he agreed to help the accused.
He and the two accused climbed into the truck and he drove to Maluti
Mountain Brewery directed by A1. When they arrived at the gate of
Maluti Mountain Brewery (M.M.B) A1 alighted and showed the security
guard some papers and it seemed as if they were writing in a certain
book. A1 returned to the truck and directed him (P.W.1) to parking
zone No.9 and the truck was parked there.
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A1 again alighted and entered into some offices. When he
came back to them he reported that some papers were missing and that
have to go to town.
It was at about 11.30 a.m. when A1 left for town. P.W.1
and A2 remained at M.M.B. At about 3.00 p.m. A1 came back and
everything was all right. The beer was taken out of the
warehouse and packed near the truck. The labourers came and loaded it
the truck. During the loading both A1 and A2 were standing outside
the truck and it was filled to capacity. After the loading, the
accused and the labourers boarded the truck. A1 said that he would
direct P.W.1 as to where they were going. From the brewery
the road to Mafeteng till they came opposite the Moshoeshoe I
International Airport when A1 instructed him (P.W.1) to turn
right into a yard in which there is a restaurant and some
outbuildings. A1 ordered him to park infront of the restaurant
the door in the middle of the building. They all alighted
and the off-loading started in earnest and A1 and A2 assisted the
who P.W.1 saw a man who also assisted in the off-loading
the others where to put the beer. He was light in
complexion and heftier than the two accused. After the entire load of
beer was put
into the restaurant he (P.W.1) demanded his reward from
A1. He was given R100 and was satisfied. Just before he left A1 asked
to return to M.M.B. and take another load of beer promising him a
reward of R130. Having accepted the offer he and the two accused
together with the labourers returned to M.M.B. The truck was again
filled to capacity but another large quantity of beer still remained
behind. When they left the brewery A1 remained behind and said he was
going to look for another truck to carry the remaining
beer. P.W.I went to the restaurant where the first load was
by A2 and some labourers. On their
arrival at the restaurant the off-loading was supervised by A2 and
the man with a light complexion
referred to earlier.
While the off-loading was going on A1 arrived in another
truck of the same size as his (P.W.1's). It was also carrying a full
of beer. After the beer on his truck had been unloaded P.W.1 was
given his reward of R130 and left while the unloading of beer on
other truck was going on. He went to ha Marakabei. He again came down
to Maseru in about a week's time and met Martha at Welcome
In about two or three months' time after he had
transported beer for A1 and A2 he met Martha. She told him that
things were going
bad' about the service he had rendered to A1 and A2
and she invited him to accompany him to go and see her lawyer. He
they came to the offices of the lawyer at Lesotho Bank
Tower, he was introduced to accused 3 as the lawyer of Martha. A3
if he (P.W.1) knew anything about the investigations which
were being made by members of the C.I.D. regarding his involvement in
the transport of beer from M.M.B. He said he heard for the first time
about such investigations when Martha told him. A3 then
not that he should not say that he transported any beer
from M.M.B. and that
if he admitted having done so, he alone would be
arrested and punished while the boys (A1 and A2) got away with it.
P.W.1 says that
he got frightened and promised to keep his mouth
shut. After a few weeks the police contacted him but he denied any
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On the 22nd April, 1965 A3 came to his home at
Khubetsoana and told him that the case about the beer was to be heard
on the 6th May,
1985. He again warned him that the case was a very
dangerous one against him (P.W.1) and that he should not tell the
he transported any beer from M.M.B. P.W.1 says that it
was against his nature to tell a lie and decided that it was time to
tell the C.I.D. men the truth. He went to the C.I.D. office
and told them every-thing he has told the Court.
In cross-examination he admitted that after his truck
had been seized by the police he consulted the present defence
counsel, Mr. Matsau, and instructed him to make the
application for the release of his vehicle. He knew both A1 and A2 by
appearance but knew A1 better
than A2 because during the transactions
he had with them on the 17th December, 1984 A1 was more friendly to
him and did more of the
talking than A2. He admitted that he saw both
A1 and A2 for the first time on the 17th December, 1984 and saw them
for the second
time on the day this case started before this Court.
No identification parade was ever held at which he was asked to
two accused. He identified A2 by his appearance and that
he had no special or peculiar features by which he identifies him.
it was put to him that A2 has big protruding eyes he admitted
but said that although not all people had big protruding eyes, there
were many people who had big protruding eyes.
P.W.I said that he could no longer identify the hefty
man he saw at the restaurant because of the long lapse of time. He
a very short time during which he observed the features of
the hefty man. Regarding A1 and A2 he had a very long time during
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observed their appearances. Before he and the accused
went to M.M.B. they never sat down and discussed what goods he was
carry nor the destination of the goods. However, when they
were already in the truck they told him the destination. They did not
agree on the price/reward before he saw the goods he was supposed to
carry in his truck. After seeing the goods he charged them R100
full load. When Martha told him that the police had come to her and
showed her the registration number of his vehicle, he sensed
could be in trouble but did not volunteer to go to the C.I.D. men at
that stage because he did not know what was taking place.
that he made a mistake in his evidence-in-chief if he said the police
came to him. What happened is that he voluntarily went
to the police
and his vehicle was seized. He denied that he was in the conspiracy
to steal the beer.
Under cross-examination by A3 P.W.1 denied that he went
to A3's offices in order to instruct him to defend him in the case
the beer he had transported. He was shown a file from A3's
offices marked "David Rakuoane vs Rex". In the file there
a date = 15/3/85 and the words: Criminal case: theft of liquor and
release of vehicle; to pay R1000 for the entire case". He
that he had ever instructed A3 and asked why he was not ordered to
pay instruction/consultation fee. He also pointed out that
15/3/865 his vehicle had long been released to him by the police. He
went further to say that the file could have been made on
previous day. The file was handed in and marked "Exhibit A".
He denied that he confessed to A3 and told him that the
beer was taken to ha Marakabei and from there to Leribe at his
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where Martha would collect her share.
The second witness, Mantso Lenaneho Koloko, was involved
in the removal of the beer from ha 'Masana which is the name of the
where P.W.1 unloaded it. In 1984 he was working as a
lorry-driver for one Mohamed. The truck he drove was a hyno truck
Reg. No. A1232.
A few days before Christmas of 1984 his master
instructed him to go to ha 'Masana and transport some goods for A3.
From his master's
place at Mazenod to ha 'Masana he was shown the way
by A3 who was a passenger in the truck. When they came to ha 'Masana
him a restaurant and the truck was parked there. A certain
Mr. Moleko, who was well known to the witness, opened a storeroom in
there was beer. At that moment David Masoabi (P.W.12) arrived
he was driving A3's van and carrying some labourers. After the
was opened the labourers took out cases of beer and loaded
them on his truck until it was filled to capacity. The beer consisted
of Amstel and Castle and was in tins and bottles. That load of beer
was taken to a place at Mazenod or Masianokeng and off-loaded
place A3 called his farm. There is a house in the farm and the beer
was put into one of the rooms by the labourers brought there
Masoabi in A3's van.
They all returned to ha 'Masana and brought another full
load of beer to A3's farm. At this time A3 was a passenger in the
After the second load was off-loaded at the farm A3 released
him (witness). He went back to Mohamad's place.
About a month after he had transported A3's beer the
police came to him and asked him what he knew about the beer. He told
knew about the transporting of the beer from ha 'Masana
to A3's farm-house. A few days after the police had spoken to him A3
to him and asked him what the police had been saying to him. He
told him. A3 warned him not to be frightened since the police could
not do anything to him. Some time after he had met A3, Mr. Mohamed
instructed him to go to the offices of A3. David Masoabi collected
him in A3's vehicle and took him to the offices. They found A3 in his
office and again asked him some question about the beer and
something on a paper which he later gave to his secretary. From there
A3 took him to the Law Office where he was made to
sign a certain
paper before a certain lady. He denies that the lady read back the
contents of that paper to him. He also did not
read the contents
because he never suspected that A3 could write what he had not said.
The affidavit was handed in as an exhibit and marked "Ex
B". In the affidavit he is recorded as having said that he
377 cases of beer for A3 from Makhotsa Liquorama Bottle
Store. His statement before the police was handed in as Exhibit
statement is in his own handwriting and its contents are
substatially the same with his evidence before this Court.
David Masoabi (P.W.12) worked for A3 as a driver from
1983 to December, 1984. He drove A3's white van Reg. No. A 0897. He
last witness, Mantso Koloko, because he used to visit
Mazenod and saw that Mantso was working for Mohamed. He also knew
(P.W.5) and one Pule both of whom were employees of A3.
They roofed his cafe at 'Matsoana and repaired some doors of A3's
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One day in December, 1984 he collected Likotsi and Pule
in the van, they went to the Maseru Traffic circle and collected four
labourers. He drove them to the farm and dropped them there.
From there he came to A3's offices and took him to Mazenod at the
of Mohamed. A3 hired Mohamed's truck for the transportation of
his goods. When they left the home of Mohamed A3 was a passenger in
the truck driven by Mantso Koloko. He (David) went to the farm and
fetched Likotsi, Pule and the labourers and took them to ha 'Masana.
He was instructed by A3 to do all these things.
At 'Masana's A3 directed them to a restaurant. A big
storeroom was opened and they were instructed by A3 to take out the
was in that storeroom and to load it onto 'Mantso's truck.
He, Likotsi, Pule and the casual labourers loaded the truck until it
filled to capacity. 'Mantso and A3 travelled in the truck when
they left the restaurant. He and the labourers travelled in the van
and followed the truck. They went to A3's farm and unloaded the beer
and put it into one room. They returned to the restaurant and
the second load. The beer in the two loads consisted of Castle,
blacklabel and Amstel.
David Masoabi said that at one stage while the loading
on he heard when accused told one man that the beer
belonged to his
clients who had been arrested. He did not know where A3
got the beer
from. On the following day A3 instructed him to
transport some beer from
his farm to his home at ha 'Matsoana and allowed him to
drink only six tins of beer from the beer he was taking to ha
he used much more beer than he was allowed to
drink and was too drunk when
he came back from ha 'Matsoana. A3 strongly objected to
that kind of
conduct and fired him without pay.
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On the Saturday preceding the day on which the witness
gave evidence (17th May, 1986) A3 invited him (P.W.12) to a meeting
home of one Leticia Masoabi at Mazenod. When they met there
A3 told him that he (A3) was facing a criminal charge
and that there
were going to be some difficulties unless he (P.W.12)
He did not ask him what he meant by that but merely
demanded his salary. A3 gave him R50 that day. He went to A3's
offices to collect
the second R50 despite the fact that A3 had said
he did not want people to see him go to his office. A3 asked him to
say that Mantso
Koloko was collecting mealie stalks used as fodder at
ha 'Masana and not beer. As far as he knows the mealie stalks were
by him from ha 'Masana to A3's farm. It took him two weeks
to do that job.
In cross-examination David Masoabi said that he still
hates A3 because he has not paid him the balance of his salary.
The evidence of Edward Likotsi (P.W.5) corroborates that
of David Masoabi with regard to the loading of the beer from the
to A3's farm. However, there are some slight differences
in their versions. David said A3 was in the truck with Mantso. Edward
he was in the truck while A3 was in his 4 x 4 van. Again
according to David, Edward was present when the first load was
Edward says that ho arrived at the farmhouse while the
first load was being off-loaded from the truck.
He started working for A3 in 1979 and left him in
January, 1986. There were two reasons why he left him; the first one
was that A3
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drove it to ha 'Matsoana. He (witness) was going to
repair the door of A3's cafe. They arrived at ha 'Matsoana late in
and unloaded the beer and put it into the cafe. He worked
on the doors for the whole night till 5.00 a.m. when they came back
On Christmas day A3 again took them to the farm-house in
his own van and another load of beer and some brandy was taken to ha
On this occasion the beer was sold at the foot-ball ground
where a match was played. Phehello Masoabi (D.W.4) and A3's wife
them to the foot-ball ground. Since not all the beer was
sold, the remainder was taken to A3's cafe at ha 'Matsoana. A3 gave
one case of beer which they drank with some villagers.
One day he was working at the house of A3 at Happy Villa
when he saw nine cases of brandy in the house. Under
witness admitted that he took 200 roofing tiles
from A3's site at Mazenod because he (A3) failed to pay him his
salary. He sold the
tiles to one Nkane for
R200. He had previously warned A3 that unless he paid
him he would take the tiles.
Lin Chien Lieng (P.W.4) is the Chinese lady who runs a
restaurant known as Sparrows. Her father manages the garage known as
She knows A3 very well because he often visited her
restaurant. In December, 1984 or January, 1985 her father told her
that A3 was
closing his business at the mountains and wanted to sell
some beer from such business. She agreed to buy a case of beer at R2
R3 below the current market price. A3 brought three loads of beer
with his van. She paid between R400 and R500
for the first load; and between R600 and R700 for the
second and third
A3 loads. Her father knew A3 to be a lawyer. She did not
ask to produce his
licence because she did not suspect that he stole the
beer. She paid him in hard cash. She denied that A3 brought stout
beer and exchanged
it with castle lager.
pay him regularly and owed him some R2000; the second
one was that . there was no more work for him. He is a carpenter. The
did for A3 was to roof four of his houses located at Europa,
Mazenod, Masianokeng and at ha 'Matsoana. He also fitted in the doors
of the houses. After unloading the second load of beer at A3's farm
house A3 instructed them to close the windows with sacks and
instructed him to return to the house on the following morning and
repair one of the doors of the house. On the following day he
arrived at the farmhouse at 7.00 a.m. and repaired the door.
On the following day he and A3 came to the farmhouse in
van Reg. No. A 0987. It was driven by A3. On their
arrival at the
farm A3 instructed him and the farmhouse-quard to take
out some beer from
the house and load it onto the van. When the van was
full he and A3 came to Maseru and took the load of beer to a certain
garage in town. The beer was off-loaded there with the help
of the employees of the garage and the beer was put into the
of the garage. Before they left he saw that A3 was talking
to a Chinese man, but did not see him hand over to him any money.
On the following day A3 instructed him and Pule to
accompany him to the farmhouse again. During the course of the day
they took two
loads of beer from the farmhouse to the same Chinese
garage to which they delivered one load on the previous day. The beer
by a Chinese man and a Chinese woman. It was about a
week before Christmas.
About two days before Christmas A3 took him and Pule in
his van to the farmhouse. A3 instructed them to take out some beer
of the rooms and to load it onto the van. When the van was
full he (A3)
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The evidence of 'Masello Mpoko (P.W.3) was to the effect
that in December, 1964 she worked at the restaurant of one Mathibeli
Her master sold mostly castle lager. In December, 1984 she
saw nothing. In July, 1985 the police came to her and told her that
beer was brought to her place. She denied this.
Joachim Willem Korb is a grocery manager at Frasers
Wholesale. He is responsible for making external orders for the
purchase of liquor
for all Frasers lodges at Semokong, Qaba and
Marakabei. He says that on the 17th December, 1984 A2 brought an
internal order for
liquor for Qaba Lodge. A2 used to work at Frasers
Retail. He wrote one order for hard liquor and another for beer and
gave them to
A2. He is not quite sure what he did with the internal
order he received from A2 but he thinks that he either threw it away
it to A2. Under normal circumstances a person who takes the
external order to M.M.B. comes back with invoices showing the price
the whole merchandise. The accountant then issues a cheque and
gives it to the bearer together with the invoices. The bearer returns
to M.M.B. and pays for the order.
At the relevant time one Strydom (P.W.7) was responsible
for making internal orders because Rantenbach was on leave. The
was that after paying for the beer A2 had to bring
to him (Korb) the M.M.B. invoice so that he could issue an internal
the lodge concerned. On the 17th December, 1984 A2
never came back to him with the invoice from M.M.B. On the 18th
he contacted Strydom and asked him about the invoices.
As a result of the report made to him by Strydom they both went to
and found that the beer and hard liquor had been uplifted by
somebody whose signature they could not decipher . Under
admitted that not only A2 brought the internal orders
for liquor but A1 did as well. He did not know one Paul Seotsanyana
that he (Paul) never brought internal liquor orders to him.
(He handed in as exhibits the original copy of the order for hard
"Ex F" and its copy "Ex G"). He pointed
out that the fourth item on Ex F was not entered by him as Ex G
Thys Strydom was an accountant at Frasers. A1 worked
with one Rautenbach as an assistant merchandiser. He said that he
any order for liquor for the lodges because Rautenbach
told him before he left that he had already supplied the lodges with
stock of beer for the Christmas. When they went to M.M.B. they
were given photo copies of the relevant invoice, one of which is Ex
H. He admitted that A2 was transferred as an assistant lorry driver
for Marakabei before Rautenbach went on leave on the 5th December,
Alex Gwintsa is an accountant at Frasers Wholesale. He
deposed that in December, 1984 A2 brought some invoices for liquor
He drew a cheque for an amount of R14, 147-85 to cover
the invoices and gave it to A2. He had been dealing with A2 for about
year before the incident in question. He does not make the
employee to sign for the cheque before taking it away.
Stanley Mosoka (P.W.10) testified that on the 14th
December, 1984, which was a Friday,A2 came to M.M.B. where he
(P.W.10) worked as
a security guard. He showed him a Frasers order
for hard liquor and passed to one Mrs. Manyeli (P.W.11) who made out
A2 went to the cashier's office and paid for the
order. After paying for the order A2 came to him and he saw that the
been stamped with "paid" stamp. A2 said that
he did not have transport and left the invoices.
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On Monday (17th December, 1984) A1 came and said he had
come to fetch Frasers liquor left there on Friday. He (A1) was
by Checha Ralikhomo (P.W.4) driving a tractor with Reg.
No. OW, but he did not see the actual numbers. It had a trailer. The
liquor was taken away after he, Mrs. Manyeli and A1 signed the
invoices. He identified Ex H as the invoice he signed and stamped
with the "Security Checked" stamp. Although this witness
was adamant that A2 came on Friday, 14th December, 1984, he suddenly
conceded after a short break that he had made a mistake and that A2
came on Monday, the 17th December, 1984 and that A1 collected
liquor on the 18th December, 1984.
The evidence of Mampho Manyeli (P.W.11) corroborates
that of Stanley Mosoka that on the 17th December, 1984 A2 brought the
F. She ticked the items on the order to indicate to the
person who would issue the invoices what the goods were available in
warehouse. On the following day a tall slender man with a darkish
complexions came and collected the liquor.
Checha Ralikhomo was declared as an accomplice. He
testified that he worked for Morija Frasers shop as a tractor driver.
entailed collecting merchandise from the Frasers branch at
Maseru or at the station. In December, 1984 A1 instructed him to go
M.M.B. and said he would join him later. He went to M.M.B. and A1
arrived. He (A1) met the security guard and nine cases of different
kinds of brandy were checked out with the use of some papers. He and
A1 loaded the liquor on his trailer . After the liquor was loaded
they both got on the tractor and he drove away. When they passed near
Lesotho Flour Mills A1 instructed him to park on the side of
road. A car came and stopped behind the trailer. A1 alighted and went
to the car. He spoke to the driver and
returned to the tractor. They drove away leaving the car
behind. A1 said he should follow the road through Maseru West. When
were at Maseru West A1 again ordered him to park on the side of
the road. The car he referred to earlier came again and A1 off-loaded
the liquor from the trailer into the car. He (A1) said the driver of
the car was helping them to carry the liquor to Crocodile Retail
Store. A1 gave him R10 and he went to the station to collect
groceries to Morija.
Checha says that he was later arrested and remanded into
custody. While he was in remand A1 gave him R50-00 to pay rent since
not working. When they were at the charge office after they
had been arrested A1 asked him not to admit that he took hard liquor
Moshe Mohalenyane (P.W.18) was a security guard
stationed at M.M.B. in the beer section. On the 17th December, 1984 a
and he allotted parking zone No.9 to that customer. The
customer signed the register and entered the registration number of
in the register, the time and his company. According to
the register the vehicle's Reg. No. is A 6983. He was not sure
was the driver or the passenger who signed the register.
(The register was handed in as an exhibit and marked Ex G).
'Matli Hlalele (P.W.18) testified that in 1984 he worked
as a security checker at M.M.B. On the 17th December, 1984 A1 and A2
a Frasers order for beer. He checked the beer with both
accused when it was brought to loading zone No.9. He worked mostly
because A1 stood some distance away. He is not quite sure who
between the two accused signed the invoices because he worked with
both of them,
however, he thinks it was A2 who signed. He identified
Ex N as a copy of the invoice he signed with one of the accused.
The evidence of 'Mamachaba Machaba (P.W.13); Lipontso
Moima (P.W.19), 'Mampiti Mohale (P.W.20) and Lebeko Senyane (P.W.21)
beyond any reasonable doubt that on the 17th December, 1984
orders for both hard liquor and beer were received at M.M.B. and that
invoices were made out and that payment was duly made by cheque. They
all identified Ex J as the document (invoice) they issued or
and the customs officers kept it for purposes of assessing tax to bo
paid by M.M.B.
The evidence of the three police officers - D/WO/
Polanka (P.H.22), D/Sgt. Molefi (P.W.26), Trp. Sehlono and of Frasers
Tseliso Mpiti, was to the effect that on the 4th
January, 1985 the farmhouse of A3 at Masianokeng was searched and
that 376 cases
of different kinds of beer were found. When A3 was
asked about the beer, he said that it belonged to him and that he was
use if for the thanksgiving feast which he intended to hold
for his ancestors. He further explained that he bought the beer over
a long period in small quantities. When the beer was being checked
the witnesses noticed that A3 was using the original copy of the
of invoice used by them (Ex N). A3 said the invoice belonged to his
clients i.e. A1 and A2 who were charged with the theft of
The beer was transported from A3's house to the charge
office in Frasers truck because at that time the police had no
their own. From there the police went to A3's home at ha
no beer was found there. The beer was kept at frasers
storeroom because the
police had no facilities to store such a large quantity
of beer. The
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employees of Frasers gave the police the two keys of the
storeroom in which the beer was kept. Some goods of the complainant
in the storeroom in which the beer was kept, so that
whenever complainant's employees wanted anything from the storeroom
had to come and open for them.
It is common cause that when Griffin (P.W.23) was asked
by the Prosecution to check and determine the dates on which the beer
storeroom was manufactured the accused were not invited to
attend the checking. According to Griffin's evidence the Amstel
was produced on the 5th and 11th December, 1984 in South
Africa. The beer could not have reached Lesotho market on the 7th
1984 when it is alleged to have been sold to A3.
Frank Masoabi (P.W.15) and Limakatso Masoabi (P.W.16)
testified that one day during the morning hours the mother of A3
to remove a few cases of beer from her premises and to put
them in the veld in a field on which there was a mealie crop and in a
Kraal situated in the forest. During the afternoon of the same day A3
arrived at 'Matsoana accompanied by police looking for beer.
Masoabi further told the Court that during the evening of the same
day a van came and the beer from the field was taken away.
The defence of A1 is that on the 17th December, 1984 he
was in the office at Crocodile Retail Store for the whole day and
to M.M.B. He denies that on the 18th December, 1984 he and
Checha Ralikhomo went to M.M.B. and collected 9 cases of hard liquor.
It is A2's defence that on the 17th December, 1984 he
was working as an assistant lorry driver attached to a truck which
goods to Marakabei's. He denies that he delivered an
internal order for liquor to Mr. Korb. The defence of both A1 and A2
commonly known as alibi.
A3 denies the charges against him and testified that the
beer that was taken from his farm-house was his. He bought it
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from Makhotsa Liquorama Store for about M4000-00 plus.
He only paid M2000 cash because he negotiated with Mr. Makhotsa to
a discount or a set-off in respect of the cases in which he
had represented Mr. Makhotsa. In other words Mr. Makhotsa owed A3 a
of about M2000 in fees for legal services provided by A3. He
bought the large amount of beer because he intended to hold a feast
of thanksgiving to his ancestors. On the 1st September, 1984 he
was involved in a car accident and narrowly escaped death; he
therefore wanted to thank his dead. He handed in as an exhibit a
sheet of paper on which he recorded the serial numbers of the
in which he represented Mr. Makhotsa and the sums of money involved
in each case. The sheet is Exhibit T.
He denies that on 4th January, 1984 he had any document
which was similar to the one police used in checking the beer at the
He admits that he hired Mr. Mohamed's truck driven by
Mantso Koloko but he deposed that it was for the purpose of carrying
from Makhotsa Liquorama Bottle Store and also for carrying
mealie stalks from ha 'Masana to his farm-house. He also admits that
Christmas Day ho transported 10 cases of beer to ha 'Matsoana
where the beer was sold at the foot-ball ground. He denies that he
sold any beer to Miss Lin Chien Lieng (P.W.4), he merely exchanged
some cases of Black Label beer with those of Castle beer and the
transaction was between him and P.W.4's father.
The evidence of his three witnesses - 'Mako Masoabi,
Eliah Masoabi and Pheello Masoabi was to the effect that A3 intended
a feast to thank his ancestors for the narrow escape he had
when he was involved in a car accident. Pheello Masoabi deposed that
he is the one who collected the beer from Makhotsa Liquorama Bottle
Store but he did not have any receipt because A3 told him that
already paid for the beer and that it was outside the bottle store.
Whan he arrived there the beer was pointed out to him
by the ladies
who work in the store.
The evidence of. Pitso P. Makhotsa was that he owns
hotels and bottle stores. In November, 1984 A3 bought a lot of beer
He does not remember the exact quantity because A3 talked
in terms of the money he had which was in the region of M2000 and
for a discount. He (Makhotsa) refused to give him any discount
because the beer at his bottle stores was very cheap, so cheap that
it was even cheaper than M.M.B. He did not take any money from A3
because he had to pay to the cashier. Mr. Makhotsa said that
nothing about A3's story that they agreed on a set-off in respect of
the legal fees which he owed to A3.
There is overwhelming evidence that on the 17th
December, 1984 the complainant company, Ian Erasers Ltd. made an
order for 950 cases
of beer and 9 oases of heard liquor from M.M.B.
The order for beer is Order No.51103/7360 (Ex.0) and the order for
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liquor is Order No.51103/7361 (Ex.F). The orders were
signed by an employee of the complainant company, one Joachim Korb
The liquor in both orders was for Frasers Qaba Lodge.
That the two orders were received by M.M.B. has also
been proved beyond a reasonable doubt by the evidence of several
M.M.B. 'Mampho Manyeli (P.W.8) was given Ex.F and
checked what types of hard liquor was available in the warehouse, she
three items and the bearer of the order went to the
cashier and paid. He came back with invoice No. 3106 (Ex.H). She
took out the
liquor on the following day when a different man from
the one who brought the order on the previous day, came and said he
to collect Frasars' liquor left on the previous day. She and
the man signed Ex.H when the liquor was taken away by the latter.
Stanley Mosoka (P.W.10) checked the liquor and stamped
Ex.H with his security stamp before the liquor was taken out. Mrs.
Machaba (P.W.13) is the cashier to whom payment was made
and she issued receipt No.23312 (Ex.I). Lipots'o Moima (P.W.19)
as a computer operator at M.M.B. She processed the two orders
referred to above and issued invoices Nos. 3105 and 3106. 'Matli
Hlalele (P.W.18) is the security guard in the beer section of M.M.B.
and checked the consignment in Ex N (Ex J) and stamped the invoice
with his security stamp before the beer was taken out.
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It is clear from the evidence summarised above that the
order was made and that the liquor was removed from M.M.B. The main
is whether A1 and A2 removed the liquor. The first witness who
implicates them is P.W.1 David Rakuoane. He met the accused at
place and took them to M.M.B. in his truck. He transported
two loads of beer to 'Masana's and A1 and A2 paid him M230.00. It
submitted on behalf of the two accused that P.W.1's evidence of
identification leaves open a reasonable doubt and that the Court
reject it. It will be recalled that P.W.1 spent almost the whole
day with A2. He also spent a fairly long time with A1 who
friendly to him than A2 and did most of the talking. It is true that
when P.W.1 was asked to give any striking features
by which he
identified A2, he merely said he is a tall and slender person with a
long face. When Counsel for A2 gave him the opportunity
to have a
good look at A2, he suddenly conceded that he had big protruding
eyes. I was referred to the following cases: Daniel
and Others, CRI/T/35/79 (unreported), R.v. Masemang 1950(2)8.A. 488
and R. v Mokoena, 1958(2) S.A.212. These cases
car be distinguished
from the present case in a number of ways: In Lehloenya's case there
was a single witness who identified the
accused and Rooney, J. had
this to say:
"The two men who executed the robbery were quick
about it. All they had to do from the time they entered the Senior
office, was to commandeer the trunk and its contents and
made a quick escape. I have no estimate of the
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time which elapsed, but I doubt if the two men were in
the room for much more than one minute. They might have secured
in less time. Although the staff were, as one would
say, frozen to the spot, the robbers moved about and this might have
or confused Miss Adoro's observations. Two months is a long
time in which to remember an undistinguished face seen for such a
time and in such dramatic and frightening circumstances. The
possibility of mistaken identity cannot be excluded."
In the present case the witness was not frightened when
he saw the accused and remained with them for almost the whole day.
In Masemang's case, the complainant was attacked at 8.30
p.m. She did not see the face of her attacker but merely saw his
In Mokoena's case, the complainant's handbag was snatched
at night and the thief ran away immediately. It was also a case
on the colour of the clothes the thief wore. The other witness
who knew the accused was discredited.
In all the cases I have been referred to the single
witness was a victim of some assault and was not only frightened but
had. a very
short time within which to see the accused properly. In
R. v. Turnbull (1976) 3 All E.R. 549 at p.552 Lord Widgery, C.J.
"How long did the witness have the accused under
observation? At what distance? In what light? was the observation
any way, as for example by passing traffic or a press of
people? Had the witness ever seen the accused before? How often? If
occasionally, had he any special reason for remembering the
accused? How long elapsed between the original observation and the
identification to the police? Was there any material
- 24 -
discrepancy between the description of the accused given
to the police by the witness when first seen by them and his actual
If in any case, whether it is being dealt with summarily
or on indictment, the prosecution have reason to believe that there
a material discrepancy they should supply the accused or his
legal advisers with particulars of the description the police ware
given. In all cases if the accused asks to be given particulars
of such descriptions, the prosecution should supply them. Finally,
should remind the jury of any specific weaknesses which had appeared
in the identification evidence. Recognition may be more reliable
identification of a stranger; but, even when the witness is
purporting to recognise someone whom he knows, the jury should be
reminded that mistake in recognition of close relatives and
friends are sometimes made".
Although P.W.I was seeing the two accused for the first
time and the fact that no identification parade was not held, I am of
opinion that the Court must take his evidence as reliable because
he had a very long time during which he observed the two accused.
any case his evidence is corroborated by other witnesses.
Mr. Gwintsa (P.W.8) knows A2 very well because he dealt
with him whenever he brought invoices so that he, as the accountant
complainant company, could issue a cheque. His evidence is to
the effect that on the 17th December, 1984 he drew a cheque for the
sum of M14,147-85 for the purpose of liquor and gave it to A2 who
brought the invoices to him.
Mr. Korb (P.W.6) testified that on the 17th December.
1984 he gave two official orders to A2, he made the orders after A2
him an internal order from Frasers Retail Store.
The evidence of Mr. Gwintsa and Mr. Korb was critized on
the ground that they could not be sure that on the 17th December,
was A2 and not any other messenger such as Paul Seotsanyana
who brought the internal orders and collected the cheque. I do not
with that suggestion that the two witnesses may be mistaken.
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It must be remembered that the theft of beer was
committed on the 17th December, 1984 and on the following day, the
Mr. Korb discovered that there was something amiss. He
immediately started investigation. In my opinion his memory and that
Gwintsa were still very fresh as to what happened on the
previous day. If the theft was discovered after several weeks or
I would agree that they would not easily remember who among
the various messengers brought the internal orders and collected the
cheque. I can easily remember the attorney who appeared before me
yesterday but not the attorney who appeared before me on Monday
It must also be borne in mind that the orders for liquor
were not a daily occurrence. In other words it was not something that
done every day of the week.
With regard to A1 the corrobarative evidence comes from
'Matli Hlalele (P.W.18) who testified that on the 17th December, 1984
A1 at M.M.B. where he worked as a security officer. A1 was
standing near a white truck parked at zone No.9. He (P.W.18) checked
beer with A2. P.W. 18's evidence was seriously critized on the
ground that his version of what happened differs from that of P.W.1.
It is submitted that P.W.1 said A2 was sitting in the truck most of
the time. This is correct but it does not mean that A2 remained
the truck all the time. In his evidence-in-chief P.W.18 made it quite
clear that when beer was being loaded onto his truck both
A1 and A2
were standing outside the truck.
P.W.18 told the Court that when checking the beer
against the invoice he used two methods. He used to tick the items
and then sign
or just sign without ticking. But when he was shown Ex
N and shown
- 26 -
shown the crosses used in the checking he insisted that
those were ticks. I may say that the marks are not crosses in the
nor are they ticks as we know them. The court has been
asked to take P.W.18 as an unreliable witness because he refuses to
that what appear on Ex N are crosses. As I have stated above I
am not so sure that those marks are crosses because they have some
strokes which point upwards like ticks. I believed the evidence of
this witness and found him to be a truthful witness. He showed
signature on Ex N and stamped it with his security check stamp.
The defence again suggested that because A2 was a
regular customer at M.M.B., P.W.18 must be acquainted with his
signature so that
on the 17th December, 1984 if A2 used a different
and strange signature that would have aroused his suspicions. I do
not think that
a security officer is under any obligation to know the
signatures of customers who regularly buy from the premises. His main
is to check that the exact quantity bought by the customer is
taken out and that they both sign.
The evidence of P.W.1 is again corroborated by an entry
in the register that on the 17th December, 1984 his truck Reg. No A
the M.M.B. premises at 10.10 a.m. (Ex G). There is no
entry under the heading "Time Out" and it was suggested
truck never left the premises that day. I do not agree with
that suggestion because it is a common feature throughout the
that the times when the vehicles leave the premises are not
entered. On the day in question failure to make an entry under this
heading occurred in respect of twelve motor vehicles.
With regard to the 9 cases of liquor A1 and A2 are
implicated by Stanley Mosoka (P.W.10), Checha Ralikhomo (P.W.14) and
(P.W.11). The evidence of P.W.10 was altogether
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He was adamant that A2 came to M.M.B. on the 14th
December, 1984 which was a Friday. When it was put to him that he
could be mistaken
about the date and day of the week, he was quite
sure that he was not mistaken. He later admitted that he had made a
dates. I formed the opinion that he is not the type of
witness one can rely on.
Checha Ralikhomo was declared an accomplice, but his
evidence does not show that he was a conscious perpetrator of a
crime. He was
instructed by A1 to go to M.M.B. and obeyed the order
because A1 was senior to him. He drove his tractor and collected nine
of hard liquor from M.M.B. A1 accompanied him. When they came
back the liquor was off-loaded and put into a car. A1 said the person
in the car was helping them by taking the liquor to Frasers Retail
Store. He (A1) gave him M10 before he went away. When they met
charge office a few days later A1 told him not to admit that he took
liquor from M.M.B. One day he again gave him M50. It
seems to me that
if Checha's evidence is to be taken as the truth he cannot be
regarded as an accomplice because he was apparently
unaware that the
liquir was being stolen. Be that as it may, I shall take it that when
the liquor was off-loaded in Maseru West before
it reached its normal
destination he suspected that something must be wrong. It is,
therefore, necessary that Checha's evidence must
be approached with
extreme caution and unless his evidence is corrobrated by independent
evidence the Court cannot convict.
I have held that Mosoka is an unreliable witness, Mrs
Manyeli(P.W.11) does not implicate A1 in any way because
according to herevidence the man who came to collect the liquor
was tall and had adarkish complexion. That complexion does not
fit that of A1. So theevidence of the so called accomplice
remains uncorroborated as far asA1 is concerned.
I turn now to the alibi defence raised by A1 and
A2. A1 says that he was in his office for the whole day and that if
he left his office Mr. Strydom would
have noticed this. The evidence
was that A1 has his own office separate from that of Mr. Strydom. It
seems to me that Mr. Strydom
could go to A1's office only when he
wanted to order him to do something or to discuss something with him.
If he did not have any
business to discuss with A1 on the 17th
December, 1984 he would not notice that A1 was not in his office for
the whole day.
A2 says that during the relevant period he had been
transferred to be an assistant lorry driver to a lorry assigned to
He does not specifically say where he was on the 17th
and 18th December, 1984.
The legal position is that the accused does not bear any
onus of proving his alibi. It is sufficient if it might reasonably be
This does not mean that the court must consider the probability
of the alibi in isolation (R. v. Biya, 1952 (4) S.A.
514 A.D.). In the case of R. v. Hlongwane, 1959 (3) S.A. 377
(A.D.), at pp 340-342 Holmes, A.J.A. stated the legal position in
"The legal position with regard to an alibi
is that there is no onus on an accused to establish it, and if it
might reasonably be true he must be acquitted. R.v. Biya 1952 (4)
S.A. 514 (A.D). But it is important to point out that in applying
this test, the alibi does not have to be considered in isolation.
do not consider that in R. v. Masemang, 1950 (2) S.A. 4888
(A.D.) VAN DEN HEEVER, J.A., had this in mind when he said at pp. 494
and 495 that the trial Court had not rejected
the accused's alibi
evidence "independently". In my view he merely intended to
point out that it is wrong for a trial Court
to reason thus: "I
believe the Crown witnesses. Ergo, the alibi must be rejected."
See also correct approach is to consider
the alibi in the light of
the totality of the evidence in the case, and the Court's impressions
of the witnesses."
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I have considered the alibi together with all the
evidence adduced by the Crown and have Formed the opinion that the
Crown has proved beyond a reasonable doubt
that the alibi is
false. Accused were seen by many witnesses who knew them very well.
I now turn to the Crown case against A3. There is no
evidence directly connecting A3 with the removal of the liquor from
first comes into the picture when the beer was removed from
ha 'Masana to his farm-house at Masianokeng. The first witness who
the third accused is Mantso Koloko (P.W.2). He
did not know that the beer he transported from the restaurant at ha
'Masana to A3's
farm was stolen. He was instructed by his employer to
go and help A3. When the police later contacted him he told them
It was then that A3 also contacted him and asked him what
the police had said to him. He told him. A3 then said he should not
frightened. One day his employer ordered him to go to A3's office.
When he arrived there A3 asked him what the police had been saying
him and appeared to be recording his answers on a piece of paper
which he later gave to his secretary to type.
From there he was taken to the Law Office and made to
sign that typed document before a certain lady. The contents of that
were never read to him. He denies the contents of Ex B. It
is possible that the contents of Ex B were not read to him, however,
Court must approach his evidence with extreme caution because he
knows English fairly well as evidenced by Ex C which is . a statement
in the witness's own handwriting. He ought to have read the contents
of that document before he signed, but as he says he did not
that A3 could make him sign for something he had not said.
The evidence of Mantso Koloko is corroborated by Edward
Likotsi (P.W.5) and David Masoabi (P.W.12). They were present when
was taken from ha 'Masana to A3's farm-house. It is true
that David Masoabi said he still hates A3 for having failed to pay
balance of his salary, but he did not give me the impression
that he was biased against A3. In fact he is not the only witness who
claims that when he left A3's employment he was not paid all his
salary. Edward Likotsi testified that A3 failed to pay him for a
time till he finally decided to take some 200 roofing tiles and sold
them* I did not form the opinion that these witnesses were
against A3. In any case their evidence does not stand alone.
The evidence of Miss Lin Chien Lieng (P.W.4) shows that
during the period December 1984 to January, 1985 A3 had quite a lot
which he sold to her. A3 denied that he sold any beer to this
witness, his version is that he exchanged one type of beer for
type. In my view that is most improbable because at that time
A3 had a very large quantity of castle lager beer at his farm-house.
He could not go to P.W.4 when he had that type of beer. It must be
that the beer he had was for a feast for his dead and
ing a feast could not choose that they do not like black
label beer. The
road to ha 'Matsoana passes very close to his
farm-house. Furthermore, A3 took three loads of beer to P.W.4.
That a large quantity
of beer was taken to P.W.4 is corroborated by
Edward Likotsi who went to P.W.4's place with him. Likotsi stated
that another load
of beer was taken to A3's cafe at ha 'Matsoana.
There is the evidence of two relatives of A3 - Limakatso
Masoabi (P.W.16) and Frank Masoabi (P.W.15) whose evidence shows that
beer had earlier been hidden in the veld before A3 and the
at ha 'Matsoana. The effect of this evidence is to show
that there was something wrong about the beer and that some warning
been sent to ha 'Matsoana that the beer must be removed
because police were coming.
Another disturbing feature of the case against A3 is
that all the Crown witnesses who implicate him in this case testified
one time during the investigations A3 approached them and
pleaded with them to turn against the Crown. If the third accused
that he bought the beer lawfully why could he do such a thing.
I now turn to A3's defence. He says that he bought this
large quantity of beer from Mr. Makhotsa for about M4000-00. He
have paid M2000-00 in cash and then he and Mr. Makhotsa
agreed on a set-off because Mr. Makhotsa owed him legal fees in
certain cases in which he appeared for him. Mr. Makhotsa
says that he does not know anything about the set-off. All what Mr.
knows is that he refused to give him a discount when he (A3)
told him that he wanted to buy beer for about M2000-00. The problem
which A3 faced was that there was evidence that the beer exhibited
before this Court could cost about M5005.00 at the lowest prices
December, 1984. He attempted to justify how Mr. Makhotsa could give
him such a large quantity of beer for less than half price.
Unfortunately Mr. Makhotsa did not support him. Obviously the beer
could not have come from Mr. Makhotsa's bottle store.
A3 called some senior members of his family, namely
'Mako Masoabi and Eliah Masoabi. The evidence was to the effect that
A3 has previously
been holding thanksgiving feast for the dead and
that he was making preparations to hold one such feast in February,
Masoabi testified that he saw the beer at the farm
together with animals that were to be slaughtered for
the feast. The evidence of these two witnesses does not carry the
any further. The issue before the Court is whether A3
bought the beer found at his farm-house from Makhotsa Liquorama
The witnesses do not know this.
Pheello Masoabi's evidence is full of improbabilities.
He said that there wore one hundred cases of soft drinks at the
at the time the police searched the premises. It is most
unlikely that the police officers who searched the three rooms would
have seen such a large quantity of soft drinks. They saw the
mealies and other things but not that large quantity of soft drinks.
Even A3 himself never said there was such a large quantity of soft
drinks in one of his rooms. It seems to me that this is nothing
figment of his imagination.
It is also improbable that the beer could be left in the
street unattended outside Makhotsa Liquorama Bottle Store. If A3 paid
the beer why was it not taken out in his presence? Why should it
be taken out in the absence of any of A3 employees and be left
The truth seems to be that no beer was ever bought from
Makhotsa Liquorama Bottle Store. There is not a single witness from
Store that she or he sold that large quantity of beer to
A3. Not even Mr. Makhotsa is sure that A3 bought the beer from his
after he told him that he could not make any discount. Mr.
Makhotsa does not even know that A3 paid for the beer.
A3 challenges the evidence of Mr. Griffin on the ground
when he examined the beer on two occasions he (A3) was
it to attend. A3 also feels that was improper for the
police to keep the
beer in the complainant's storeroom where complainant
had access and the possibility that the complainant replaced the beer
at his farm with some old tins of beer, has not been ruled out.
The accused person is never invited when tests are conducted on the
exhibits taken from him. In a recent murder case before me, accused's
cloths were taken from him and sent to Pretoria for certain
examinations to find out if there was any human blood on them.
Accused was not invited to go to Pretoria. Experts often conduct
tests on motor vehicles or engines found in the possession of
an accused person. The accused is never invited to attend.
It seems to me that it was not . necessary to invite A3
when the dates on the beer tins or bottles were determined. The
evidence that they kept the beer in complainant's
storeroom because their exhibit-room was too small for that quantity
of beer. However,
they kept the two keys for that storeroom and
whenever the complainant's employees wanted to take some of their
goods from the storeroom,
they had to do so under the supervision of
the police. I believed the police witnesses when they said that the
beer exhibited before
this Court was the same beer they found at A3's
I now turn to Mr. Griffin's evidence. He regards himself
as an expert in the liquor production industry. According to him some
the beer he examined was produced on the 7/12/84, 5/12/84 and
11/12/84. It is clear from his evidence that such beer could not have
been sold by Mr. Makhotsa to A3 before the 7th December, 1984,
because it could never have reached the market before it was
Even the beer that was produced on the 5th and 7th
December, 1984 in
the South African Brewery, could not have reached
Lesotho market before the 7th December, 1984 (See Ex L and Ex M). The
Mr. Griffin completely disproves the evidence of Mr.
makhotsa but as I said Mr. Makhotsa does not know whether A3 actually
the oeer and took it. He knows only about the negotiations.
When the defence closed their case Mr. Muguluma,
counsel for the Crown, applied for the amendment of the charge sheet
in count I to read "9 cases of brandy" instead of
of brandy. I granted the application because it was clear from the
evidence of the Crown witnesses that 9 cases of hard
involved but the Crown consel decided to amend at the close of the
defence case. I rather think that the application
should not have been brought so late in the trial. Be that as it may
I saw no major prejudice to the accused.
The alternative charge is also wrong in that it alleges
that all the accused were found in possession of 950 cases of beer at
Mazenod. There is no evidence to that effect. Only A3 was
found in the possession of 376 cases of beer. Because the charge was
amended A3 cannot be convicted on the alternative charge as it
Section 192 of the Criminal Procedure and Evidence Act
1981 provides that any person charged with theft may be found guilty
stolen goods knowing them to have been stolen or of
contravening section 343 or 344 (1), if such be the facts proved. As
earlier in this judgment there is no evidence that A3
participated in any way when the beer was removed from
was there of M.M.B.nor was there any conspiracy to steal
such beer and hard liquor.
However, when A3 removed the beer from the restaurant at
ha 'Masana, I am of the opinion that he knew that the beer had been
There is abundant evidence that A3 tried on many occasions to
persuade some Crown witnesses not to give evidence favourable to the
Crown. If he did not know that the beer had been stolen from M.M.B.
he would not have asked P.W.1 not to say he transported the beer
there; he would not have approached Edward Likotsi and David Masoabi
in an attempt to force them to turn against the Crown.
A3 or somebody acting on his behalf obviously sent a
message to ha 'Matsoana that beer should be removed from his mother's
be hidden in the fields before the police arrived.
The beer was received at an unusual place and time and
from a person who would not ordinarily own such property,in this
regard I refer
to the owner of the cafe, Mr. Moleko or and A1 and A2
because it is not clear from whom A3 received the beer. The evidence
A1 and A2 stole the beer from M.M.B. and took it to Mr.
Moleko's cafe. Whether they sold the beer to Mr. Moleko who in turn .
it to A3 is not clear from the evidence. However, that is not
material and the Court has come to the conclusion that he received
from any one of them or from all of them.
The circumstances I have pointed out conclusively prove
that A3 had guilty knowledge and knew that the beer was stolen. He
the beer at night from people who could not reasonably be
expected to own such large quantity of beer. The evidence of 'Maseilo
the lady who worked at the restaurant was vague in the sense
that she does not positively say that on the night of the 17th
- 36 -
or the 18th December, 1984 she was on duty and saw no
beer being brought to the restaurant. I fail to understand why Mr.
Muguluma called this witness. If the witness had made a statement
which was inconsistent with her evidence, it was his duty to impeach
witness and discredit her in terms of section 274(2) of the
Criminal Procedure and Evidence Act 1981.
A3 referred me to many authorities, and I agree with the
law in all those authorities, but they cannot be applied to this
is not a case based on suspicion, it is based on direct
evidence implicating the third accused. His defence was composed of
but untruths and cannot be regarded as a story that may be
reasonably possibly true.
For the reasons I have attempted to summarise above I
formed the opinion that the Crown had proved its case beyond a
I find A1 guilty of the theft of 950 cases of beer in
the main charge;
I find A2 guilty as charged in the main charge (as
I find A3 guilty of receiving 950 cases of beer in the
main charge knowing them to have been stolen.
Both A1 and A3 are not found guilty in respect of the 9
cases of brandy.
J.L. KHEOLA ACTING CHIEF JUSTICE.
30th October, 1986. For Crown - Mr. Muguluma For
Defence - Mr. Matsau
- 37 -
Three (3) years imprisonment of which one year is
suspended for 3 years on condition that during the period of
suspension the accused
are not convicted of any offence involving
dishonesty committed during the period of suspension.
My assessors agree,
ACTING CHIEF JUSTICE.
30th October. 1986.
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