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

-2-

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

-3-

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...

-4-

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

-5-

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 .. . .

-6-

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).

-7-

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 .

-8-

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

-9-

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

-10-
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

-11-

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