IN THE HIGH COURT OF LESOTHO In the matter
V MAKOTOKO KHABO
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 6th day of July, 1990.
For the Crown : Mr. S.P. Sakoane, Crown Counsel
For the Accused : Mr. M.M. Ramodibedi
Cases referred to:
R v Albasini (1967)4 SA 605;
R v Brand (1960)3 SA 637 (A.D.);
R v Peerkhan & Lalloo
(1906) TS 798;
R v Nkau Majara (1954) AC
R v Gani & Ors. (1957)2
SA 212 (A.D.).
The accused, aged 73 years, is a 'bewys' registrar at
Fobane in the Leribe District. He was convicted of stock theft by the
Court at Leribe and sentenced to the statutory minimum
sentence of five years' imprisonment.
The accused's alleged involvement in the offence was
that of an accessory. The principal or principals did not stand trial
accused was charged thus:
"That the said accused is charged with the crime of
Theft of Stock. In that upon or about the 25th day of September, 1989
at Ficksburg in the Republic of South Africa, the said accused
did unlawfully and intentionally steal: 5 head of cattle, the
or in the lawful possession of Lucas Johanness Van Vuureen,
and did unlawfully bring the said stock into Lesotho to wit at Fobane
in the district of Leribe, where this court has jurisdiction of this
case thus committing the crime of Theft of Stock."
Those particulars indicate that the accused acted as the
principal in the matter. He pleaded guilty. The statement of facts
that his alleged involvement was not that of a principal.
The statement of facts indicated that about nine head of cattle were
by the complainant in the Republic of South Africa
on 25th September, 1989. He reported the matter to the South African
No date is stated thereafter, the statement of facts
"Then two people came to accused driving 5 head of
cattle black & white & they bringing there was of some
Then these two people told accused that the cattle were
stolen but they asked him to register them as after selling them he
to get his share. Accused prepared bewys for the cattle, and
these two people left.
Then accused on second thoughts supplemented
the duplicates as he knew the authorities will check on
these animals and registered as if
3 the registering was of wool not cattle.
On the original it's written the cattle but the
duplicate has wool registered. Lesotho police in their investigation
found other offenders
involving livestock but they escaped police
custody and are still at large. Then complainant came &
identified the 4 cattle as
part of his lost cattle. Accused assisted
to continue the theft that was already committed in the R.S.A.
Complainant has not allowed anybody to take his cattle
and bring them at Fobane where this court has jurisdiction, without
The two cattle, were in calves so they were released to
their owner for safekeeping. Accused was then cautioned, and charged
theft as he assisted on committed offence, as socius
There is a good deal of conflict as to whether or not an
accessory after the fact to the crime of theft, which is a delictum
must himself effect a fraudulosa contrectatic before he
can be convicted of theft as such. The learned author Hunt in his
African Criminal Law & Procedure Vol.11 at pp.605/606
submits that this is unnecessary. He points however to the contrary
of the Rhodesian Appellate Division in the case of R vAlbasini (1) per Beadle C.J. In any event the test enunciated
in that case of what constitutes a contrectatio, was, as Hunt
observes, so wide
as to indicate that there is little practical
difference between the opposing views. That test, based on a dictum
of Schreiner J.A.
in R v Brand (2) at p.637, is
whether what the accessory did in regard to the stolen property
"made it less easy for the owner to exercise
4 his rights in respect of it."
Applying that test to the present case it can be said
that the accused's actions made it less easy for the complainant to
his rights of ownership. There are however defects in the
Firstly, while an accessory may thus be charged with the
substantive offence of theft (see section 140(1)(a) of the Criminal
& Evidence Act 1981), nonetheless it is desireable that
the exact role played by the accused be alleged in the particulars of
the offence. It may be said that an accused charged with the
commission of the substantive offence may nonetheless, under the
alternative provisions of section 182(2) of the Criminal
Procedure & Evidence Act, 1981, be found guilty as an accessory
the fact in respect of that offence. Be that as it may, where
the prosecution is fully aware of the role played by the accused,
though statutorily it may charge him with the substantive
offence, nevertheless it is desireable that such details be alleged
the particulars of the offence. The common law rule in the matter,
now given statutory form in sections 140 and 182(2), was stated
far back as 1906 by Innes C.J. in the case of R vPeerkhan & Lalloo (2) at pp.802/803. The
learned authors of The South African Law of Criminal Procedure
(Swift) (1957) at p.471 point out however that
the wording of section
372(2) of the Criminal Procedure Act, 1955, of the Republic of
South Africa, upon which section 140(2) is based, are
permissive, and that particulars should be alleged in keeping with
of the Act (see section 127(1) of the Criminal Procedure &
Evidence Act, 1981), so as to inform the accused of the case he has
to meet. In the present case, with an unrepresented aged accused,
where the particulars of the substantive offence and even the
of the thieves was unknown, it seems to me to be entirely
improper to have accepted a plea of guilty to the charge as framed.
I appreciate that the learned trial Magistrate was not
initially aware of the role allegedly played by the accused,
statement of facts clarified the situation, when the
magistrate should have insisted on an amendment to the charge, so as
particulars, or altered the plea to one of not guilty.
In any event, the statement of facts did not disclose
the identity of the thieves: more importantly, it did not allege that
persons who approached the accused were the thieves: that may
be an inference to be drawn, but it is certainly not the only
inference: the inference that they were guilty receivers
is equally consistent with the facts. I have repeatedly said that the
should not be astute in drawing unfavourable inferences from a
statement of facts: the prosecution is relieved by a plea of guilty
from adducing evidence; it is not relieved of the duty of stating the
facts, including each and every necessary ingredient of the
in clear and unequivocal language.
All the South African authorities indicate that for a
person to become an accessory after the fact he must render
assistance to the
principal offender: see the Privy Council case of Rv Nkau Majara (3) at p.242, an appeal from the
then High Court of Basutoland in which the Roman-Dutch common law was
applicable, though the expression
of an 'accessory after the fact' is
imported from English Law. In the present case it might be said that
the two unknown persons
were themselves accessories after the fact:
but I do not see that it could be said that the accused was also an
accessory in that
he aided and abetted them: his acts cannot be
construed as an aiding and abetting. It might be said nonetheless
that he participated
in the crime of the accessories (see e.g. R
v Gani & Ors. (4) per Schreiner J.A. at
pp.218/222) and thus is guilty of being an accessory after the fact.
In essence it is there being said
that the accused is an accessory
after the fact in resect of an offence of being an accessory after
the fact. While it may be that
the law permits of such permutations
and combinations, so that the guilty may be convicted and punished
and crime prevented, nonetheless
I take the view that in such a case
the prosecution must clearly state its case, that is, in the
statement of facts.
Further, the statement of facts is vague in the extreme.
It discloses that the two unknown persons brought with them five head
cattle. Upon registration by the accused the two left, presumably
with the five cattle. The statement mentions "other
offenders involving livestock but they escaped police
custody...". The statement then reveals that the complainant
and identified the 4 cattle as part of his lost cattle".
Thereafter the statement refers to "the two cattle" as
in calf. In brief, the number of cattle involved is uncertain,
but, more importantly, it is not stated as to who held possession
the cattle identified by the complainant, or rather where they had
been found, and how the accused was connected with such cattle.
statement of facts did not disclose an essential ingredient and the
plea of guilty was then equivocal.
I had thought of a retrial. The accused has now been in
prison for six months, the equivalent of a sentence of nine months'
that is, with remission. He is aged 73 years. That in
itself attracts the exercise of the court's discretion in the matter.
the circumstances I decline to order a retial. It would be
unsafe to allow the conviction to stand. The conviction and sentence
set aside and the appellant is acquitted.
Delivered at Maseru This 6th Day of July, 1990.
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