CRI/A /37/85

IN THE HIGH COURT OF LESOTHO

In the Appeal of

TEBOHO DLAMINI Appellant 1

THOZAMILE SIXISHE Appellant 2

TSOAKAE MABOEE Appellant 3

V
REX Respondent

JUDGMENT

Delivered by the Hon. Chief Justice T S. Cotran on the
10th day of January, 1986

Six accused persons appeared before a Resident Magistrate at Leribe charged with fraud, alternatively with theft by false pretences. Three of the accused were found guilty, namely, Tsoakae Velaphi Maboee (accused No 2) Joseph Teboho Dlamini (accused No 3) and Thozamile Sixishe (accused No. 5). Each was sentenced to four years imprisonment. The others Duma David Makhubu (accused No 1) All Zakhura (accused No.4) and Mahomad Zakhura (accused No 6) were acquitted, Makhubu (accused No 1) after the Court held he had a case to answer, whilst All and Mahomad Zakhura (accused Nos 4 and 6) at the close of the case for the Crown.Joseph Teboho Dlamini (appellant 1) Thozamile Sixishe (appellant 2) and Tsoakae Malephe Maboee (appellant 3) appeal against their conviction and sentence. I shall call the appellants also by their surnames.

In so far as it possible to understand the English language as used by the trial magistrate, and with the aid of some of the Exhibits produced in,Court, and ignoring some irrelevant matters, what happened appear to be as follows

Sometime in the latter part of April 1984 a person from Lesotho giving his name as "George" rang up Mr Neil Bruice (PW1) who is an employee or manager of a company in Johannesburg that sells Building Materials This company's name is

/Jack Hobson

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Jack Hobson (Pty) Ltd. This man "George" put in an order for a large quantity of goods that included amongst other items electric water geysers, bath tubs, wash basins, low level w.c.s., toilet seats, valves, taps, and paints worth over M61,000. The caller "George" requested that the goods be consigned to Maluti Construction (Pty) Ltd, New International Airport, Maseru to be delivered via Ficksburg Bridge, at Maputsoe, where the lorries carrying the goods will be met. It was agreed that payment will be effected by Bank guaranteed cheques on delivery

It is quite evident Jack Hobson (Pty) Ltd did not have all the goods in stock but they managed to hurriedly assemble between about the 24th April and 9th May from other suppliers or manufacturers the goods ordered by "George". Three lorry loads of the goods arrived at Maputsoe during the period between the 26th April and 10th May 1984. The lorries, which bore R.S.A. registration plates, were hired by Mr. Bruice from Bezuidenhout Transport The lorries were driven by

1. Tsietsi Robert Molangane (PW4) - who says his load consisted
   of geyesers and valves

2. David Moeketsi Mokuena (P.w.3) who says his load consisted of
   baths, and

3. Release Ngyame (P W 2) who says his load consisted of toilet
   basins, seats, and paint.

The three drivers were armed with invoices from Jack Hobson (Pty) Ltd showing the details of the goods supplied and the cost. The original invoice (No 32369) of the 1st load dated 26-4-84 is Exhibit H (Exhibit B is a copy). The original invoice (No. 25501) of the 2nd load dated 8-5-84 is Exhibit A The original invoice (No. 25505) of the 3rd load dated 9-5-84 is Exhibit C.

The driver of the last lorry Release Ngyame (PW2) testified that he arrived at Maputsoe and found difficulty in finding the person who was supposed to take delivery of the load of goods reflected in the invoice Exhibit C He hung round "Mabua's place" till 6 p m , in vain, awaiting the lorry to which his load was to be tranferred. When it had not arrived he went back to Ficksburg for the night. He returned the following day to Maputsoe where he met Makhubu, formerly accused No. THE witness says

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he told Makhubu he brought "George's" property. Makhubu is alleged to have said that he is the one who deals with "George's,property". The goods were transferred onto Makhubu's lorry Makhubu's driver helped in the transfer That person would be Kalaele Malebo (PW 6) - more about him later The witness handed Makhubu some documents to sign which Makhubu did He received no cheque from Makhubu. The following week he returned to Maputsoe with a driver from Jack Hobson to collect the cheque from Makhubu The witness found Makhubu in his shop. and when he asked him for the cheque(s) Makhubu replied that the "money was never brought by those persons" .

It is important to digress for a moment here to say that on or about the 11th June 1984, after an interview with a police investigation team under the command of Det Lt. Koza (PW 10), the police recovered almost intact from premises under the control of Makhubu in Maputsoe , Matukeng and Ha Simone almost all the goods (toilet seats, basins, etc reflected in the invoice Exhibit C) delivered to Makhubu (for George) by the driver Ralease Ngyame (P W.2).I shall now revert to the earlier two consignments of goods sent on the authority of Mr. Neil Bruice, in response to the telephone order of "George".

Tsietsi Robert Molangane (P.W 4) was the lorry driver who carried 60 geysers and valves to Maputsoe. Molangane says he was expecting to see at Maputsoe border gate the person who was to take delivery of the goods. No such person was there Enquiries were made about Maluti Construction. He drove to Maseru but could not find the company's premises He returned to Maputsoe reaching there at sunset and found "a person" who alleged the property on the lorry was "theirs". However, the witness (and his mate) proceeded to the 0 F S. for the night, telephoned their place of work and reported on the "difficulties" encountered. The witness must have been reassured because he (and his mate) returned with the lorry load to the Maputsoe border gate in the morning. It would appear that on that morning the person whom they saw the previous evening was with another man who said he was the "manager". They proceeded to the town and at a certain site the geysers were off loaded from their lorry

onto another lorry. The "manager" bought them meals, gave them a cheque, and

/signed...

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signed the invoice. At a later date the witness was asked to come to Leribe to identify the person to whom he handed the property and or received the cheque from but he (or they if they were two) was not amongst the group he had been shown. It is clear that the invoice Exhibit H was for R19,214 97 The invoice has on endorsement reading "Bank guaranteed cheque as arranged Separate cheque for Transport" The witness says he was given one cheque but he was obviously wrong. There are two cheques one for R19919.97 and the other for R705 00 both dated 30-4-84 (Exhibit D land 02) the first made out to Jack Hobson (to which invoice was added R705 00) and the other made out to Bezuidenhout Transport. The gentleman who handed the cheques "paid" twice for the transport charges but he knew of course that the cheques were useless.

David Moeketsi Mokuena (PW.3) testifies that he came with a lorry load of 60 baths He says that he had "already been informed what kind of a person to identify". The witness probably meant either that the driver of the first load (Tsietsi) described to him the person or that the driver and or Mr. Bruice told him to look or ask for a "George" at Maputsoe gate The invoice for the "baths" is Exhibit A, 14 describes the goods as 60 "white Harmony baths and handles" and "40 drums 25 litres white enamel paint". The total value was R19299.80 Mokuena says he found that person who led him to a place in Maputsoe behind the bus rank where the baths were transferred from his lorry to a white Nissan lorry "George" signed a cheque which was handed to the witness The witness was shown 17 baths by the police which he identified as part of these he brought but "not with certainity" The police also showed him a number of persons and asked him whether he could identify the "George" who gave him the cheque He replied he could not. The witness speaks of one cheque but again I think he is wrong. Two cheques dated the 9th May 1984 were produced in evidence, one for R25,639.80 made to Jack Hobson and another for R850 made out to Bezuidenhout Transport (Exhibit D3 and D4)

Mr Bruice (P.W.1) says he was handed four cheques two for the goods supplied and two for transport charges but I do not understand Mr. Bruice's explanation of the excess amount of the cheques certainly the second cheque in relation to the

/value

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value shown in invoice

Kalaele Malebo (PW 6) works as a driver of a lorry owned by Makhubu He testified that in April/May 1984 he was ordered by Makhubu to transport about 80 geysers (if he remembered well) from Maputsoe to Maseru or Mafeteng The "owners"of the property were present. These were appellant Sixishe whose name he knew, and appellants Maboee and Dlamim; whose names he did not know but it is not clear if he knew them by sight from before or did not. All of them set off appellant Sixishe directed the witness to proceed to Mafeteng first which they reached at nightfall and all had to sleep in the lorry. On the following day appellant Dlamini directed him to the hardware shop of one Zakhura who was A4

at the trial but was acquitted. The directions to the hardware shop were given to the witness in the presence of appellant Sixishe and appellant Maboee. The witness added that appellant Dlamini and appellant Sixishe entered Zakhura's shop and "negotiated" with him but appellant Maboee remained standing outside the fence Zakhura instructed his staff to off-load "about" 70 geysers and these were placed under a "shelter" The witness says he was ordered back to Maseru and was directed by appellant Sixishe to the hardware shop of a Chinese. Appellant Sixishe and appellant Dlamini entered the shop (appellant Maboee and the witness remaining in the vehicle) and shortly after, the Chinese came with

his men and off loaded the 10 remaining geysers. The three appellants remained with the Chinese and the witness returned and reported the events to his employer Mr Makhubu at Maputsoe. Only 60 geysers were sent so the witness is either lying or is mistaken.

On a subsequent occassion shortly after the events above described (recorded by the Magistrate to have been the "other day thereafter") the same witness was Ordered by his employer Mr. Makhubu to drive a lorry load of goods to Mafeteng. The goods were 60bath tubs - white in colour. He went with the load in company of appellants Dlamini, Sixishe and Maboee - arriving at Mafeteng late in the evening. On appellant Dlamini's instructions the loaded vehicle was left near Zakhura's (former accused No. 4) shop at Mafeteng which had a nightwatchman

/The witness .. . .

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The witness says he and the three appellants drove to Mount Maluti Hotel at Mohale's Hoek where they sent the night It would seem that both appellant Maboee and appellant Sixishe had private cars on this occassion. On the following day the witness was driven in appellant Maboee's car back to Mafeteng. Appellants Dlamini and Sixishe arrived in their car at Zakhura's shop in Mafeteng. Appellants Dlamini and Sixishe went into Zakhura's office and came out with him Fifty bath tubs were off-loaded from the lorry at Zakhura's The witness then says they travelled to Maseru to the shop of the Chinese The remaining ten bath tubs were off-loaded there The three appellants remained with the Chinese and the witness returned to Maputsoe. The witness goes on further to say that the property subject matter of his two trips in company of the three appellants were off loaded from another lorry with Republic of South Africa registration plates onto Makhubu's lorry at the compound of Lucas Mopeli (P.W 5) whi us Makhubu's neighbour

Lucas Mopeli (P.W 5) resides at Maputsoe, appellant Maboee's father is the witness's cousin. He says that a vehicle arrived at Maputsoe from Johannesburg driven by a personon unknown to the witness and goods from the Johannesburg vehicle were trans­ferred to a vehicle owned by Makhubu On that occasion the witness could not identify the property that was being loaded on Makhubu's vehicle, but on a subsequent occasion Makhubu came and said another lorry load will be coming from Johannesburg Appellant Maboee did not mention what property will be delivered but on the witness's return from work he found appellant Maboee with his men, including Makhubu's driver (that would be Kalaele Malebo) off-loading bath tubs on Makhubu's lorry He did not enquire from appellant Maboee about the bath tubs. He identified some tubs he saw at the police station to be "similar" to the tubs he saw being loaded on Makhubu's vehicle In fact this witness also says that he did not at the time entertain any suspicion about the goods.

'Mamokone Bereng (P.W 11) the Accountant of Standard Bank Maputsoe Branch testified that four cheques came out of a cheque book issued to appellant Sixishe on the 7th Dec. 1981 (Exh. R) in his capacity as propriator of Orbit Driving School. He was the signatory of the account which was opened on 1st Nov 1978 (Exh, Q).

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The cheques were forged in that the work Maputsoe

was tippexed out and substituted by "Mohalo's Hoek". The signatures thereon

did not resemble appellant Sixishe's specimen signature. No report was made

to the bank about the loss of cheques. These four cheques are not Bankers cheques though Mr Bruice must have thought that they were. They do however have space for two signatures. There were two signatures but these were not decipherable. To the unwary they look like Bankers cheques.

Molapo Mothabeng (P.W.12) testified that he was a receptionist at Mount Maluti Hotel in Mohale's Hoek and that according to the Hotel guest register, four of eleven parsons who spent the night at the hotel on the 10/5/84 gave their names as Teboho Dlamini, T. Sixishe, E.T. Maboee and K Malabo. T. Sixishe paid for the accommodation of all four. The receptionist could not identify the guests who had stayed that night. The names are the same as those of the three appellants and driver Malebo. The witness was not seriously challenged The appellants legal representatives must have seen the register and examined it. It is not amongst the exhibits but 1' must assume there was no evidence apparent to the appellant's attorneys that there was any tampering with the entries which came to be there in the normal course of the hotel's business.

Tsitso Polaki (PW 7) is a labourer at the hardware shop of Mr Zakhura(A4 -at the trial) in Mafeteng. He testified that one day he was instructed by Mr. Zakhura to take and store 10 baths unloaded from a lorry that arrived at their premises There were three persons on the truck as far as he remembers. Later "strangers" came They said they were "Police Officers" and took the ten baths to the Police Charge Office. Ho is unable to identify the three persons on the lorry that brought the bath tubs.

Mr. Vincent Lai (P.W. 13) who is a dealer in Building Materials in Maseru testified that one day a man came to his office wanting to sell geysers. The geysers were on a "big truck". There were "2 or 4" persons. The man said he was a contractor to Maluti Construction and wanted to 'close his contract." He concluded a deal

/with him .

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with him. Each geyser cost "about" M200 and he paid that man "about" M3000 hard cash. That would make "about" 15 geysers I suppose. The man showed him an invoice. "About" three months later Lt. Koza came and seized all the geysers and "about" 19 bath tub Mr Lai could not remember whether it was him or "his brother" who bought the baths. Lt. Koza says that he seized 10 baths tubs from a store near Mahomad Zakhura's (formerly A6) house, in Mafeteng

This was the case for the Crown.

Makhubu's defence was that he hired out his lorry at a certain price to the three appellants who told him that the goods that arrived on two lorry loads from Johannesburg were their property He claimed, firstly, that he was not fully paid as agreed and secondly that the period of hire had extended beyond the time stipulated between him and the three appellants and hence they owed him more money. He confirms receiving the third lorry load of goods and storing it in different premises but says that this was due to lack of space and he was keeping the goods in safe custody until the three appellants came to collect them after paying him the arrears of his hire charges. He denies he was privy to the swindle perpetrated on the company of Mr. Bruice. The three appellants defence was in affect the same viz, that they knew nothing about the goods, that Makhubu was not only implicating them falsely to save his neck, but had also pursuaded his driver to do likewise. Appellant Sixishe says that the four cheques do come from a cheque book issued to him in Maputsoe in 1981 but he had left Maputsoe (with the account overdrawn) in that year and moved to Maseru where he opened an account in Standard Bonk Maseru branch and forgot all about the Maputsoe cheque book.

The key witnesses are Makhubu ( a co-accused) and his driver Even though the magistrate believed Makhub's evidence about the appellants it is, as against the appellants, worthless to sustain a conviction But there is nothing in the evidence to suggest that A1's driver Kalaele Malabo (P.W.6) was party to the fraud, certainly not at inception, for he had no cause to be apprehensive that the goods transported to Mafeteng and Maseru and disposed of at Zakhura's and Chinese were fraudulantly obtained from the suppliers.

/It may

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It may be that after the first load was delivered he should have started to entertain some suspicion but at the same time one can understand that he was an employee in a humble occupation under orders. Furthermore it may not have occured to an honest man that the goods were not paid for I will assume however, also in favour of appellants, that he become tainted with the illegally as an accessory after the fact, and that his evidence should be corroborated.

Corroboration of Kalaele's evidence, in my view, has been supplied against the three appellants by

1. The evidence of the receptionist Mothabeng (P.W 12) of Mount Maluti
Hotel that four persons bearing the names of the three appellants

and the witness (denied by the appellants) had spent the night at the Hotel on the 10th May 1984. This date coincided with the delivery of the baths to Zakhura's shop at Mafeteng the following morning. If Kalaela has been proved truthful about the baths there is no reason why he should not have been truthful about the geysers as well.

2. The evidence of Zakhura's labourer Tsitso Polaki - P W.7)- that one day
he was instructed to unload 10 baths from a lorry which had "three
persons" was rather reticent but if he said more he would certainly
have lost his job with Mr. Zakhura The driver says that 50 baths were
undloaded and this must be accepted as the truth. There is evidence
that some were transferred to a store near where Mahomad Zkhura (P.W 6)
had his house and it may be this what the witness has done with some

of the 50 baths.

3. The evidence of Mr. Lai that he bought geysers from a person who
   came with "2 or 4" persons in a lorry load of geysers and that either
   he or his brother had also bought baths.

4. The evidence of Lucas Mopeli (P W.5), who had no axe to grind, and was
   in fact a relative of appellant Mabooe, who testified, if I understand
   his testimony correctly, that appellant Maboee was present"with his
   men" at a stage where there was "off-loading of baths on their vehicle"
   Makhubu's driver was present The witness however could not identify
   the baths with certaintity when he saw them at the Charge Office but
   there is a little doubt which baths he was talking about namely the
   baths that came on a lorry with RSA registration number and transferred
   to Makhubu's.

5. The evidence of 'Mamokone Bereng (P.W 11) the Accountant of Standard
   Bank Maputsoe that the four cheques used in the fraud came from a
   cheque book issued to appellant Sixishe in 1981 the loss of which
   cheque book was never reported. The witness adds that Sixishe was
   issued with another cheque book after the 7th December 1981 (p "33 line
   9 and 10 of the typed record) so Sixishe is lying in this point as
   well.

I see nothing perverse in the magistrate rejecting the appellants denial of their complicity in this fraud. There is firstly nothing inherently false in

/Makhubu's

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Makhubu's evidence except his assertion that he played no role in the fraud.

The driver Kalaele was not shaken on cross-examination except about the number of geysers he carried on the first occasion but that is not surprising. His description of the baths as yellow or white is not a discrepancy that destroys his evidence He did not try to protect his employer as far as I can see. The magistrate did not belive he was a prejurer. Nor do I,

The "particulars" of the offence (and its alternative) in the Charge Sheet is not quite correct. The drafting was inelegant but not one of the legal representative of the appellants attacked or challenged the charge either before plea or thereafter The evidence was that goods to the value of some M60,000 were ordered from one employee or manager of Jack Hobson (Pty) Ltd by a telephone caller from Lesotho and the former sent the goods C.O.D. payment by Bank guaranteed cheques.

Two of the three loads delivered the payment was made (by forged cheques) not on Barclays Bank International as the particulars state but on Standard Bank Ltd. Neil Bruice was not present "then and there" when the forged cheques were passed. These cheques were given to two drivers employed by a transport company hired by Mr Bruice, who handed the cheques to management for banking, and when banked were returned unpaid.

The defects in the particulars however were not in my opinion material and have been cured by the evidence at the trial I see no merit in the ground of appeal about the magistrate's alleged failure to hear oral addresses from attorneys before he gave his verdict.

What seems to have happened is that attorneys and counsel opted for written sub­missions.

There is no "absolute" right of address in any event. The position is that opportunity ought to be given and an appellate Court will frown on a subordinate Court if it acts contrary to the rule of practice and will guest the conviction

/if there

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if there was material prejudice to the accused. This is not what happened in his case.

One last point about the acquittal of A. Zakhura (A4) and Mahomad Zakhura (A6). has retired from the business and did not deal with either geysers or baths.

The only evidence against him was that some baths had been stored near his house.

There is no evidence to connect A Zakhura (A4) with the fraud perpetrated on Jack Hobson (Pty) Ltd by the appellants and by possibly Makhubu. He is at most a receiver of stolen property but no evidence was forthcoming in the case for the Crown that he knew the property was stolen. Lai was not charged and he was in the same position It is unnecessary to go into a research on whether receiving is a competent verdict on a charge of fraud or theft by false pretences but A. Zakhura': discharge by magistrate at the end of the case for the Crown is not relevant to the appellants guilt.

The appeal against conviction is dismissed. I will hear submissions on

sentence from Mr. Gwentshe and Mr. Matlhare.

CHIEF JUSTICE
10th January, 1986

Mr. Gwentshe For appellants I find situation difficult but the

sentence is excessive

Mr. Matlhare It is possible to modify the sentence by suspending a part

on condition that compensation is paid for Hobson's loss. Incarceration is not traditionally an african sanction.

Miss Moruthoane No sense of shock

Order Appeal against sentence is also dismissed.

CHIEF JUSTICE

10th January, 1986