IN THE HIGH COURT OF LESOTHO
In the Appeal of
MABITLE MABITLE 1st Appellant
MOTLALENTOA PONTSIANE 2nd Appellant
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice B.K. Molai on the 3rd day of March, 1988
I have already disposed of this appeal on the following reasons.
The two appellants appeared before a magistrate with third class powers charged with the crime of Housebreaking with intent to steal and theft, it being alleged that on or about 23rd July 1981 and at or near St. Michael School in the district of Maseru, they both or either of them unlawfully and intentionally broke and entered into one of the classooms at St. Michael School and stole three olympia typerwriters, the property or in the lawful possession of St. Michael School.
Although they had pleaded not guilty to the charge, the appellants were, at the end of the trial found guilty as charged and sentenced to serve a term of six months' imprisonment. The appeal was against both the convictions and sentences on the grounds that the convictions were against the evidence and the sentences too harsh.
Briefly, the evidence heard by the court was that of P.W.1, Jeniva Moffat, who although she initially told the court
that she was a typing teacher at St. Michael school it turned out, under cross-examination, that she was in fact an English teacher and Miss- Principal at the school. On the morning of 24th July, 1961 she noticed that two windows of the school building had their window panes broken and pieces of broken glasses were scattered on the ground next to the windows. On closer examination of the damage she Found that after the panes had been broken the windows were opened and entry made into the building. The door leading into the typing classroom was broken open and according to the school register in which they were listed three of the school typewriters were missing. As no one had the right to break into the typing classroom and take away the typerwriiers, she informed the school manager with whom she went to report the incident to the Police at Roma Police Station.
P.W.2 D/Tpr Mohau, confirmed that on 24th July, 1981 he received the report as a result of which he proceeded to St. Michael School. He found that two of the windows had their window panes broken and peices of broken glasses were still on the window seals, on the floor and on the ground outside the windows. The door leading into the classroom was also broken open and some of its broken pieces were lying on the floor.
It was not really disputed that two windows of the school building and the door leading into the typing classroom were found broken on the morning of 24th July, 1981 when it was noticed that three of the school typewriters were missing. It was, however, argued that as the school manager was not called as a witness it could not be said with any certainty that the typewriters were unlawfully taken.
It is to be observed, however, that P.W.1's evidence that after it had been found that the school had been broken into and the typewriters taken away she and the school manager went to report the incident to the police. That evidence was unchallenged. The relevant question was, therefore, how, the manager could have gone to report to the police that the school typewriters were missing if he had authorised their removal. In my view the fact that both P.W.1, who was the vice-prmcipal, and the school manager went to report the housebreaking and the theft of the typewriters to the police was a clear indication that they had not authorised anybody to break into the school and remove the typewriters. Consequently, whoever broke into the school building and removed those typewriters did so without permission and,therefore,unlawfully.
The salient question was whether or not the two appellants were the persons who had unlawfully broken into the school building and removed the three typewriters. In that regard P.W.2 told the court that on 14th May 1982 and following information received he interrogated the two appellants who then took him to the home of one Teboho Rantseli at the village of Mohalalitoe in Maseru. No.1 appellant asked Teboho Rantseli to produce the typewriter he had asked him to keep. Teboho Rantseli then took a typewriter from a scrap car in his yard and gave it to No. 1 appellant who in turn gave it to P.W.2. That was confirmed by P.W.3, Teboho Rantseli, who told him court that prior to 14th May, 1982 the appellants had brought the typewriter to his home for safekeeping.
According to P.W.2 the two appellants then took him to a certain Julius Ramokotjo who produced another typewriter. Julius Ramokotjo himself testified as P.W.4. His evidence was not
challenged in any way by either of the appellants. It was to the effect that he had bought the typewriter for M60 from No.1 appellant either in August or early September, 1981. The appellant had told him that he had bought the typewriter from a certain construction for which he had been working.
P.W.4 confirmed the evidence of P.W.2 that on 14th May, 1982 the latter who was accompanied by the two appellants, came to him. No.1 appellant then informed him that he was under arrest. He (P.W.4) should, therefore, hand over the typewriter which he(No.1 appellant) had previously sold to him and they would discuss the refund of the M60 at a later stage. He (P.W.4) obliged.
P.W.2 testified that the appellants informed him that the third typewriter was with a certain Washington Thabane who lives at Hill'sview in Maseru. They all proceeded to Thabane's house at Hill's View where No.1 appellant immediately identified a typewriter which was placed on a table as the one he and No.2 appellant had been talking about. As Washington Thabane was not in , P.W.2 did not take possession of the typewriter. He,however, took possession of the other two typewriters and brought them to his police station at Roma together with the two appellants. When they were at the main traffic circle in Maseru on their way to Roma police station they, however, met Washington Thabane whom P.W.2 instructed to bring to Roma Police Station a typewriter he had once bought from the appellants. Washington Thabane did bring the typewriter to Roma police station on the afternoon of the same day.
P.W.5, Washington Thabane, told the court that on 4th August, 1981 he was travelling in his vehicle from Roma to Maseru. When he passed next to st.Micheel's P.W. 5 met No.1 appellant who asked for a lift to Maseru. P.W.5 did give No.1 appellant a lift in his vehicle. On the way No.1 appellant offered to sell a typewriter to P.W.5 They negotiated the price and eventually agreed on M100. On arrival at Maseru P.W.5 went straight to Lesotho Hank from where he withdrew some money so as to be able to pay No.1 appellant. They proceeded to a certain house at the village of Mohalalitoe where No.1 appellant gave him the typewriter and he paid him the M100. As No.1 appellant had no receipt book the acknowledgement receipt was isued and signed by No.1 appellant on page 2 of his (P.W.5's) carbon book. Although he no longer recollected whether or not No.2 appellant was with No.1 appellant when he gave the latter a lift at St. Michael, P.W.5 was positive that No.2 appellant was present when the acknowledgement receipt was issued and signed at Mohalalitoe. He confirmed the evidence that he subsequently met P.W.2 and the two appellants at the main traffic circle and on the instructions of the former he took the typewriter to Roma Police Station.
According to both P.W.1 and P.W.2, on 15th May, 1982 the former, came to Roma police station and identified the three typewrtiers as the ones which had disappeared from St. Michael school after the school had been broken into on 23rd July, 1981. Both P.W.2 and P.W.1 told the court that
the latter had brought with her a piece of paper on which she had written the serial number of the missing typewriters, P.W.2 checked the serial numbers end was satisfied that they corresponded with the serial numbers on the three typewriters He subsequently caution and charged the appellants as aforesaid.
The two appellants testified on oath and told the court that their houses were next to St Michael school where No.1 appellant had, in fact, been a teacher until March, 1980 One night in July 1981 they were returning home from Maseru. As they passed next to St Michael school they noticed three people carrying a box to a car which was waiting some distance away. When the appellants approached them those people dropped the box on the ground, ran to their car and drove away. On inspecting the box the two appellants found that it contained the three typewriters before the
court. They took the typewriters to No.2 appellant's house where they were kept for about a day or two. As no person claimed the typewriters the appellants decided to take them to P.W.3's house in Maseru from where they sold two of them as described by the crown witnesses and shared the proceeds. They confirmed the crown evidence on how the three typewriters were later recovered by P.W.2. The appellants denied, therefore, that they had broken into St. Michael school and stole the typewriters According to them the appellants merely picked up the typewriters after they had been dropped by the three unknown people who ran away in a car.
The trial court was not convinced by the appellant's story that they picked up the typewriters after they had been dropped by some strange people who had escaped in a car. It is significant to bear in mind that No.1 appellant told the court that he had been a teacher at St, Michael school which admittedly offered typing as a subject. Likewise No.2 appellant who admit-tedly lived in the neighbourhood of 5t Michael school knew that typing was taught at the school. If it were true that they saw some strange people running away after they had dropped three typewriters in the vicinity of St. Michael school the appellant would naturally have suspected that those people were thieves and had stolen the typewriters from the school. That being so, the appellants would no doubt have reported the incident to the authorities at St. Michael school. In their own testimony the appellants failed to do that. Insteated they took and kept the typewriters in No.2 appellant's house for a day or two before removing them to Maseru where they admittedly sold them to various people and shared the proceeds.
Moreover, if it were true that they had picked up the typewriters the appellants had no right to sell them and share the proceeds thereof between themselves. Their duty was to take the typewriters before either the chief or the police who in turn would look for the
owner thereof. By and large, I was not prepared to quarrel with the conclusion arrived
at by the trial court viz. that the appellants' story that they picked up the typewriters after they had been dropped by some strange people who had away in a car was simply unconvincing.
As has been pointed out earlier, I was satisfied, on the evidence that on the night of 23rd July, 1981 St. Michael school was broken into and three typewriters taken away, Neither the appellants nor anybody else had permission of the-authorities at St. Michael school to lake away those typewriters. Consequently whoever took away the typewriters did so unlawfully.
True enough there was no direct evidence indicating that the appellants were the persons who had broken into the school and unlawfully taken away the typewriters. There was, however, ample evidence, given by the appellants themselves, indicating that shortly after the school had been broken into and the three typewriters unlawfully removed therefrom the appellants were in possession of those typewriters. For reasons already explained the trial court rejected and rightly so in my opinion, the appellants' story that they had picked up the typewriters.
On the well known doctrine of possession of recently stolen property the appellants
were presumed to have broken into the school and unlawfully removed the typewriters. The fact that they admittedly sold away two of the typewriters leaves no doubt in my mind that the appellants broke into the school and unlawfully removed the typewriters with the requisite intention to steal. In the circumstances I came to the conclusion that the trial court correctly found the appellants guilty as charged.
As regard the sentence of 6 months' imprisonment, it is to be observed that the magistrate who presided over this trial had third class powers which limited her jurisdiction to only 6 months' imprison ment. I asked counsel for the defence whether or not the appellants were persisting on the appeal against sentence which I considered rather too lenient for a conviction on a charge of House-breaking with intent to steal and theft. The reply was that the appellants persisted on the appeal against the sentence.
After considering the factors which the court was invited to take into account in mitigation of sentence I took the view that in the circumstances of this case the appropriate sentence for the appellants would be 18 months' imprisonment. 1 accordingly set aside the sentence of 6 months imprisonment imposed by the trial magistrate and substituted therefor 18 months' imprisonment
In the premises the appeal was dismissed.
Sgd. B.K. Molai
26th February, 1988.
For Appellants Mr. Moorosi
For Respondent Miss Nku.
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