IN THE HIGH COURT OF LESOTHO
In the matter between -
MANKOE QHOBOSHEANE 1st Appellant
MARY PHOOKO 2nd Appellant
NAHA SETHLOTLELO 3rd Appellant
Delivered by the Honourable Mr. Justice J.L. Kheola on the 29th day of February, 1988.
The appellants were charged with the crime of robbery, it being alleged that upon or about the 24th December, 1985 and at or near Airfield Police Station in Maseru District, the said accused did each or one or all of them unlawfully assault Puseletso Makotoane and by intentionally using force and violence to induce submission by the said Puseletso Makotoane did take and steal from his person sliced mutton his property or in his lawful possession.
They pleaded not guilty to the charqe but at the end of the day the appellants were found guilty of theft and were cautioned and discharged. Accused 3 was acquitted.
The evidence adduced by the Crown was to the effect that on the night of the 24th December, 1985 the complainant bought a sheep for M86-00, he took it to one 'Malepekola Mothepu (P.W.1) who owns a mechanical butcher saw and asked her to slice it for him. She sliced
it and put it into four plastic bags. The bags were placed in the van driven by the complainant. After leaving P.W.1's place the complainant was stopped by one Moroentsi Mahao near Mochochoko's butchery. She lives in that area. She asked him to call the police for them as someone was attacking them at the plot where she lives. He decided to go to Airfield Police Station and when he arrived there the main gate was closed. He hooted and then alighted.
The three accused got out of the office, A1 was wearing private cloths, A2 was wearing a brown overral. The complainant did not notice what A3 was wearing. They shouted at him asking what assistance he needed. He told them that next to Mochochoko's butchery there was a person who was attacking people and that he had been asked by someone he knew to call the police.
The appellants were apparently not satisfied that the report was a genuine one and kept on asking the complainant as to the particulars of the attacker and the plot where the attack was taking place. He said he did not know the attacker but knew the person who had asked him to call the police and the plot where she lived. The appellants were not satisfied with that explanation.
A2 told him that "they were devils and terrorists who pretended to be giving reports about serious events and yet they were lying." Immediately after uttering those words A2 rushed at him and struck him with a fist on the face. He explained to them that he works at the Airport next to the police station but A1 pointed a firearm at him, and A2 hit him on the face with her fist.
The complainant got scared when A1 pointed a firearm at him and thought that he was shooting him. He asked that they allow him to take
his car and leave. They ordered him to go away as he was a devil and a terrorist. He went away and left his vehicle with its lights on and the driver's door open. He had the car keys with him. Inside the vehicle he left the four plastic bags containing meat and a Tanzanian rod which had a knife in it.
After leaving the police station he walked a very short distance and then hid himself under a shade where he had a good view of his car. He then saw two people enter into his car and search it. He identified A2 because she was still swearing at him. After they had left the car he stealthily returned to his vehicle and drove it away. He discovered that the four packets of meat and the Tanzanian rod were missinq. He returned to Moroentsi Mahao and a report was made to him that the attacker was still on the rampage. They went to Bus Stop Police Station and got assistance. The attacker was arrested.
On the following day the complainant went to Airfield Police Station and found that the appellants were not there. The policeman who was on duty at the time knew nothing about complainant's meat. The complainant went to A2's house accompanied by one Eqfate Nkuebe Sempe who is a relative of A2. They asked her about the meat, she told them that if they had come to her house about the story of a man who attache them while they were carrying out their duties, they must leave her house. They complied.
On the 26th December, 1985 Major Makepe (P.W.4) and Lt. Malephand. (P.W.5) confronted the appellants with the complainant and some agreement was reached that the appellants would pay damages in the sum of M86-00 because at that stage the meat was rotten and only three packets of meat were found in the room described as the inner office at the police station. Eventually the appellants chanced their minds and refused to pay the damages, it was only then that they were charged with robbery.
The grounds of appeal are that
The learned magistrate having acquitted the appellants of assault and robbery erred in convicting the accused of theft common.
Inasmuch as the meat had been in the charge Office where several shifts of Policemen came on duty between the 24th December 1985 and the 26th December 1985, there was no evidence that the accused stole any of the meat.
The Court a quo disregarded the fact that statements of witnesses for the crown reduced to writing, in December 1985 and January 1985 stated that the packets of meat had been three, and consequently the evidence given in Court that the packets were four was false.
The Crown in the light of self-destructive conflicts in the evidence of Crown-witnesses failed to make a prima facie case. Consequently conviction is against evidence and the weight of evidence.
The first ground of appeal may be disposed of by showing that on a charge of robbery, theft is a competent verdict (Section 185 (1) (d) of the Criminal Procedure and Evidence Act 1981). However, theft is not a competent verdict where the evidence discloses that the accused is guilty of robbery (S. v. Makhutla 1968 (2) S.A. 768 (0). In the present case there was no evidence disclosing robbery inasmuch as the assaults which preceded the taking of the meat was not shown to have been perpetrated with the intention of causing submission to the taking.
The next question to be decided by the court is the exact number of meat packets in the car when the complainant was forced to leave his car at gunpoint. The Court a quo did not make any finding as to the exact number of meat packets at that stage. It was not disputed by the defence that after the meat was sliced it was packed in four plastic bags and that all the bags were placed in the complainant's car. P.W.1 who cut the meat and packed it in the bags was not cross-examined by the defence.
Regarding the cross-examination of the complainant two questions were put to him. The first one is on page 7 of the record and reads
"Q Do you say the three (3) parcels and your sword were turned by these accused into their own property? A. Yes. "
I think the question was somewhat ambiguous and unfair. The answer 'yes' was to the fact that the accused had turned the property into their own property. If the defence counsel wanted to establish the number of the packets he ought to have put that question in a precise manner and not in a question which has a double meaning . He cannot seriously argue that the complainant admitted that there were only three parcels of meat in the car.
The second question reads
"Q. The accused will show that you held the opinion that the packets were no longer as full as you knew them to be but not that they were no longer 4? A. I deny."
The accused (appellants) never showed what was put to the Crown witness because they did not go into the witness-box i.e. their case was closed without giving any evidence. The evidence of the complainant that there were four parcels of meat in the car has not been contradicted and the Court is entitled to accept it. Moreover, the evidence of the complainant is corroborated by that of P.W.I. From P.W.1's place the complainant drove straight to a place near Mochochoko's butchery where he met Moroentsi Mahao who requested him to go to the charge office and
to call police for her. He turned and went to the Airfield police station. At that stage there were still four parcels of meat in the car. From there he did not call at any place but went straight to the Airfield police station where he was eventually dispossessed of his car, meat and a stick. The car was recovered after a very short time.
It was submitted by the defence that the evidence of Major Makepe and Lt. Malephane contradicts that of the complainant on the question of the number of parcels. Major Makepe's evidence was that the complaint was that the parcels were no longer as full as they were and that they were not all. When he was asked to refer to his report, it was found that there was reference to a shortage of the quantity. There was no mention of one bag that was missing. It seems to me that again the question was ambiguous inasmuch as quantity may mean the amount or number of things. The report was that "the quantity is not as he had it before."
The report of Lt. Malephane was to the effect that "his meat which was packed into three plastic bags was taken by those police officers." He testified that the complainant had complained that there had been four parcels and that one of them was missing and that his report was made on the 23rd January, 1986. Very little weight ought to be attached to the report because it was made a month after the incident. The officer may have forgotten the exact number when he made the report. There is no evidence that he was compiling that report from notes he had made on the day he interviewed the appellants and the complainant.
In my view there is abundant evidence that at the time the appellant searched complainant's car there were four parcels of meat in it and the immediately after the search all the parcels were missing and that the only inference to be drawn is that the appellants took them.
The next question to be decided by the Court is whether the taking of the meat was lawful or not. The appellants assaulted the complainant and pointed a firearm at him and ordered him to go away leaving his vehicle behind. If the appellants reasonably suspected that the complainant was a terrorist, why did they expel him before they searched his vehicle? The normal thing for them to have done would have been to detain him and to search his vehicle in his presence and to ascertain the contents of the vehicle from him. IT they were lawfully searching the vehicle of a person suspected of being a terrorist, the presence of the suspect was essential. Section 54 of the Internal Security (General) Act 1954 clearly authorizes a policeman to detain the owner or a person in charge of a vehicle they intend to search and to establish the identity and movements of that person. The appellants expelled that person before they searched the vehicle . I doubt if it was a search at all but an unlawful taking of a person's property.
If the appellants had found explosives in the vehicle, they would have been expected to arrest the owner. But that would have been impossible because they had expelled him.
I am convinced that the appellants never suspected the complainant to be a terrorist but merely wanted to humiliate him and to assault him without any cause. They could never have allowed a person they suspected to be a terrorist to have gone scot-free. They did not even take the registration numbers of the vehicle they were searching.
The next question to consider is the manner in which the appellants disposed of the meat and the rod/stick after seizing them. Section 52 (a) of the Criminal Procedure and Evidence Act 1981 reads as follows
"A policeman who siezes any article which is concerned in or on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within Lesotho or elsewhere, or which may afford evidence of the commission or suspected of an offence whether within Lesotho or elsewhere or which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence -
may, if the article is perishable with due regard to the interests of the persons concerned, dispose of the article in such manner as the circumstances may require or."
Section 53 (1) reads as follows
53. (1) If no criminal proceedings are instituted in connection with any article referred to in section 52 (c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article or, if such person may not lawfully possess such article, to the person who may lawfully possess it."
The appellants did not follow the procedure described above, but that does not necessarily mean that they stole the meat, it shows that the taking was unlawful. There is also evidence that no entry was made in the police occurrence book. Failure to follow the prescribed rules proves beyond any reasonable doubt that the taking was unlawful.
It was submitted on behalf of the appellants that they did not take the meat and the rod to their homes but kept them at the charge office where exhibits are normally kept, that there was evidence that on the 25th and 26th December, 1985 several shifts of policemen came on dury. It is implied in this submission that the meat could have been taken by other policemen. The first policeman who was found there on the 25th knew nothing about the meat. In other words, there had been no handing over of the meat to him, the appellants simply abandoned the meat in
inner office where it could not be easily seen. In my opinion this amounted to abandonment of the part of the meat because the appellarts were aware that meat is perishable in the sense that it rots within a very short period if not kept under suitable conditions. The appellants did not care what happened to that part of the meat.
In Rex v. Oliver and others, 1921 T.P.D. 120 at p. 124 Wesswels, J.P., said
"If, however, I take your umbrella out of the club for a temporary purpose and throu it away not caring what becomes of it the act is no longer innocent, but becomes an offence. It is no longer an unauthorised borrowing but is according to our law a theft of the umbrella."
In the example given above the initial taking was not with the intention of depriving the owner permanently of his property however, as soon as the property was abandoned not caring what happened to it the act amounted to theft. In the present case the initial taking was unlawful and from the unlawful taking one would normally infer animus furandi. See Rex v. De Kock, 1951 (2) S.A. 342 at 343.
In the case of S. V. Engelbrecht, 1966 (1) S.A 210 at p. 212 Van Winsen, J. said -
"I entertain little doubt that, irrespective of whether the accused's taking of the handcuffs constituted theft at the time he deprived the constable of them, the accused's action in so doing was unlawful, and his continued possession of them thereafter had no lawful foundation. If later he abandons them in circumstances from which the only reasonable inference to be drawn is that he was reckless as to whether the owner ever recovered them, I can only conclude that the STATE has established the necessary fraudulosa contrectatio on the accused's part."
In the present case the appellants' taking of the complainants property was unlawful from the beginning and they finally abandoned it.
In Rex v. Roberts 1982 C.P.D. 87 it was held (at page 01) that the intention to terminate the owner's enjoyment of his rights may be presumed from an abandonment of the thing unlawfully taken in such circumstances as show a reckless disregard as to what may become of it. See Rex v. Laforte 1922 C.P.D. 487 at p. 499.
I have already held that there were four parcels of meat when the appellants unlawfully removed the meat from the vehicle and the question is what happened to the fourth parcel. The answer co this question is not very important because the crime of theft was completed' when the meat was abandoned in the charge office after his unlawful taking from the vehicle. However, there is some evidence that tends to show that the appellants are likely to have taken that parco; to their homes. That piece of evidence is that the rod was found at the home of one of the appellants. It is likely that they shared the meat in the fourth parcel and then one of them decided to take the rod as well.
It is not clear why the Prosecution decided not to include the rod in the charge because it was taken at the same time with the means and was later found at the home of one of the appellants. Again it is not clear why the appellants were not charged with robbery involving the vehicle and its contents. The fact that the appellants did not know what was in the vehicle at the time they assaulted and threathed the complainant is irrelevant. In any case I have already held and agreed with the trial court that because of the interval between the assault and the taking of the property robbery had not been proved. In my opinion the appellants ought to have been convicted of common assault and common theft.
The appeal is dismissed.
J L KHEOLA
29th February, 1988.
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