IN THE HIGH COURT OF LESOTHO
In the appeal of:
TSEHLA MAKHETHE 1ST APPELLANT
MAITSE TULO 2ND APPELLANT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
27th April, 1993
In this case, that is Criminal Appeal Number 42 of 1992,
Ts'ehla Makhethe and Maitse Tulo were jointly charged with the crime
However, in the well set out set of heads of arguments by
the Crown, it was conceded that Appellant No.2 does not seem to be
linked with the offence charged thus he was accordingly
acquitted and discharged. Then it fell to consider the position of
No.1. In brief it appears that Appellant No.1 and No.2 were
at the Stockfair on the day in question when two policemen one of
was a complainant who happened to have gone on stock-theft drive
in Butha-Buthe came to that party.
The two policemen were on a stocktheft raid at Mathebe
village in the district of Butha-Buthe, in the process of their
raid they impounded an ox, rounded this ox and left it at
the Chief's place. They also left their guns at the Chief's place
they made their way to the stockfair where together with the
villagers they enjoyed their drinks. But because they were aware that
this ox is rather wild it occurred to one of the policeman that he
should go and check at the kraal as to whether that ox was still
there. When he got to the kraal he found that the ox was missing.
Apparently it had cleared the kraal by jumping clear of the wall
disappeared into the night.
- 2 -
The complainant accordingly made for the guns where they
had been kept and took both his gun and that of his colleague and
the stockfair intending to alert his colleague of the fact
that the ox had disappeared.
When he got to the stockfair one of the people in there,
namely Appellant No.2 asked whether he had come so armed for the
of the peace in the stockfair party. The policeman
answered that no he had not come armed against those people in there.
He had only
come to alert his colleague of the fact that the ox which
had been kept in a kraal had disappeared. Somehow the the door got
- it is not clear how - but the people who were in there were
unable to go out except through the window. One of the people in
went out through this window but it so happened that when the
complainant tried to go out he was caught hold of by Appellant No.1.
He fell to the ground but managed to escape and run away; whereupon
Appellant No.1 collected the gun which the policeman was wearing
around his neck; the other gun having been placed somewhere behind
the chairs in the house.
The state of lighting had been disturbed or snuffed out
by the owner of the house who kept throwing stones at the lamp till
she was outside - but she kept throwing stones through the
window till the lamp broke and the light was out thereby the police
aboe to hide the other gun behind the chairs.
The situation outside as I earlier alluded to it was
that the complainant's gun somehow landed in the hands of Appellant
later the complainant came back looking for it he didn't
find it. The gun was, at much later stage, found hidden in the ruins
the search party for this gun were led to this place by Appellant
- 3 -
Now the question is can he properly be convicted of
robbery which was charged? I am satisfied that robbery could not have
charged in a case like this. Instead the proper charges
should have been first that of assault if any did in fact occur,
of theft as it appears that the owner of this gun had not
allowed Appellant No.1 to take it.
Now, this clearly is theft because Appellant No.1 didn't
take this gun to the Chief or any authority after picking it up. He
it to the ruins to hide it. So it can be inferred that the
motive was to permanently deprive the custodian of this gun.
I accordingly set aside the conviction for robbery and
in substitution thereof prefer the verdict of theft.
With regard to sentence the Court has to take into
account the fact that the atmosphere in which this unfortunate
place was at the stockfair and one can hardly think
that in coming to the stockfair Appellant No.1 had made a specific
on that day he was going to rob or steal a gun from a
policeman. Another factor which of course is a credit to the
is that the Appellant didn't take long to discover
where this gun was; so this, in a sense, does redound to the
benefit; but benefit it is. So the length of
time during which a custodian is deprived of his property may in
go to the benefit of an accused person and I
think in the particular circumstances it is fitting that this benefit
to Appellant No.1. In other words the complainant was
deprived of his custody of the gun for a brief period of time
motive was clearly, of course, theft.
The Court takes this to be to the benefit of the
the same reasons that 1 alluded to earlier, namely that
when he came
there it was not for purposes of depriving the owner of
Having said so then 1 would set aside the six years'
inprisonment and in place thereof impose a sentence of two years'
of which half is suspended for two years on condition
that the Appellant be not convicted of an offence of which dishonesty
element committed during the period of the suspension.
JUDGE 27th April, 1993
For Appellant : Mr. Ramafole For Respondent : Mr.
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