CRI/A/10/95 IN THE HIGH COURT OF LESOTHO
In the matter between:
MOLEFI MOKHELE APPELLANT
V.R E X RESPONDENT
REASONS FOR JUDGMENT
Delivered by the Honourable Mr. G.N. Mofolo on the 9th
day of November, 1995
This is an appeal from the Magistrate Court, Maseru, in
which the appellant Molefi Mokhele was charged with Theft Common in
'at or near L.E.C. in the Maseru district and on the
14th November, 1994 the said accused did wrongfully and unlawfully
steal two (2) car batteries, the property or in the
lawful possession of L.E.C. i.e. Lesotho Electricity Corporation.'
The appellant had pleaded not guilty and evidence was
led against him. In the end the Magistrate had found the appellant
sentenced him to ten (10) months imprisonment. It was
against both the conviction and sentence that the appellant had
When this appeal came before me. Mr. Putsoane appeared
for the appellant and there was no appearance by the Crown. I
appeal and intimated that my judgment would follow as. it
From the record of proceedings it appears that P.W.l's
evidence had been that he was security officer of L.E.C. and that on
1994 he was patrolling complainant's premises at about 6
p.m. and that when, at 7.45 he continued his patrol he saw a person
down. Getting closer to the accused and asking him what he
was doing there he said he had not been to the gate and would show us
where he had been at Hoohlo's. They had not gone there. He testified
that the man was wearing a blue top and a white skipper. That
carried nothing at the time. It was then at this time that he saw a
man carrying a car battery and wearing a white skipper.
When he got
closer to the man he put down the battery and ran away.
The accused, according to this witness, had lumped over
the fence into Government Stores. He said the top covering the
similar to the one which accused had been wearing.
In cross-examination the accused is shown to have asked
0. Where is the man with whom you found battery
covered with a top?
There is no reply recorded to this question. P.W.2's
evidence was that he also worked for Security Lesotho and that on the
of 14/11/94 after 6 p.m. he went to where P.W.1 worked and
the latter gave him a report of finding the gate open and he (P.W.2)
it. After some time he was given another report
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but found nothing there though after some time accused
appeared, walked towards them wearing an L.E.C. overall with L.E.C.
They told him they'd seen a suspicious looking man and they
had identified him as the accused though accused had wanted to show
where he came from at Hoohlo's but they had not accepted the
P.W.2 went on to tell the court he had seen accused
under light with the top now removed. A chase had been given and
P.W.I was calling
that accused had dropped a battery. Accused had
then -jumped into the Government Stores yard. They had then looked
but failed to find him. They had then found a 2nd
battery and a jacket similar to one worn by accused prio thereto.
In cross-examination accused had asked the question:
0. Do you have a right to check in accused outside the
A. We do.
P.W.3's evidence was short and was to the effect that
having received a report a search was made to no avail. In due course
search a battery was found covered by the top and it was the
one before court.
P.W.4 Motebang Ntsukunyane testified to the effect that
he had found his battery missing from his car - it's name was
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"Dixon" and black with a handle. He had been
shown his battery in security guardroom and had identified it as his.
P.W.5 Ike Makhoane testified having received a report
along with the suspect who had been handed to him and after receiving
from him he had charged him with theft.
Mr. Putsoane for the appellant submitted that exhibits
were not treated in accordance with the Criminal Procedure and
1981 and particularly sections 52 and 55 of the Act. I
should add to this S.53.
I do not think it is necessary to reproduce these
Sections in full for purposes of this -judgment. Suffice it to say
that S.52 speaks
of the disposal by a police official of an article
after seizure while S.53 speaks of disposal of an article where no
are instituted or where such an article is not
required at the trial for purposes of evidence or for purposes of an
order of court
and that in such an event the article is returnable to
the person from whom it was seized,
S.55 requires that where criminal proceedings are
instituted concerning the article and the article is required at the
trial for purposes
of evidence or for purposes of an order of court
the police official shall, save for the article's bulk, deliver the
same to the
Clerk of Court where criminal proceedings are instituted
or to the Registrar of the High Court as the case may be.
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As there were criminal proceedings against the appellant
it being alleged as I have shown that he stole two (2) L.E.C.
it follows that Sections 52 and 55 should have been
complied with. I am not aware that these provisions of the law were
with. I have scanned the record of proceedings in this
matter and nowhere do I find that these batteries were before court
in law required. My earlier impression was that these batteries
were not before court and therefore treated as in a case where there
was no prosecution as in envisaged by section 53 above.
P.W.3 Mokhethi Kapoko evidence does show, however, that
'It was a car battery under the top the battery is the
one before court.'
Cross-examined P.W.4 Motebang Ntsukunyane also reflects
that there was another battery before court. P.W.3's evidence tends
P.W.4 that the 'black battery' is P.W.4's though I am
making no finding on this. I am making no finding because the charge
claims 'intentionally steal 2 (two) car batteries the property
or in the lawful possession of L.E.C.
What I find very strange is that there was no claim by
L.E.C. that the batteries or anyone of them is their property and I
appreciate bow the Magistrate convicted the accused 'as
charged.' He could, in the light of P.W.4's evidence convict the
but not in respect of the other battery which was not proved
to be L.E.C's.
What was going on in the court a quo confuses the mind.
I don't know how the batteries came before court if they were there
besides this they were not court exhibits for they were not
handed in as exhibits. How the learned Magistrate made the order
to be returned to owner' puzzles me for he cannot
make an order in respect of articles that are not before him in law
from the fact that L.E.C. had not claimed the batteries
There is also another thing: it was P.W.1's evidence
that events complained of occurred on 15 November, 1994 while other
said it was on 14 November. 1994. Certainly there was
conflict in the crown evidence which called for the court a quo's
and resolution? I am also of the view L.E.C. the complainant
did not claim the batteries because they were not satisfied that
was such theft.
It is also claimed that appellant worked with witnesses
in this case. If these witnesses positively identified appellant I
understand why if he was their colleague they did not say to
themselves or in court that the man who was seen fleeing was Molefi
Mokhele: that it was accused as they said has no basis whatsoever and
not without cause because while P.W.1 and P.W.2 said the man
that it was after 7.45 p.m.. P.W.3 said.
at about 7.50 p.m. we received a report, pursuant to
that we went to L.E.C. we found P.W.1 and P.W.2 searching for a man.
search but to no avail.'
This witness concedes that a car battery was found but
'I never saw the man reportedly fleeing.'
As P.W.1. P.W.2 & P.W.3 were together looking for
the culprit how come P.W.3 'never saw the man reportedly fleeing?'
And yet the
learned Magistrate did not reflect on this very serious
conflict in the crown evidence?
It seems to me there are times when evidence is taken
for granted or first impressions rule the roost. They must not be
be the order of the day for they can, sometimes, be
misleading. Before arriving at conclusions, we have to be alert and
facts and consider our judgments well.
The English case of Elias and others, (1934) 2 K.B. 164
sheds light on the use of exhibits where on p.173 Horridge J.
'In my opinion the seizure of these exhibits was
justified, because they were capable of being and were used as
in this trial.'
the same page above Horridge J. continued:
"In this country I take it that it is undoubted law
that it is within the power of, and it is the duty of, constables to
for use in court things which may be of evidences of crime,
and which have come into the possession of the constables . I think
is also undoubted law that when articles have once been produced
in court by witnesses it is right and necessary for the court, or
constable in whose charge they are placed ( ); to preserve and
retain them, so that they may be always available for the
justice until the trial is concluded."
The above passage is to be read in conjunction with S.55
of the Criminal Procedure and Evidence Act. 1981 so that a fortuitori
by a policeman of goods which are not likely to be used or
be of use in substantiating a charge of theft is a wrongful seizure
in such circumstances, were the batteries found on accused,
seized and not produced in court as exhibits though they were
whoever was responsible exposed himself to and was liable
to accused for trespass.
In his judgment the learned Magistrate seemed to place
much reliance on the fact that accused was identified by P.W.I and
well as he worked with them and appears to have relied on
accused's suspicions movements. The learned Magistrate said nothing
the evidence of P.W.3 which was exculpatory of the accused.
In this regard it was held by Schreiner. A.C.J. in R. v.
Nzimande, 1957(3) S.A. 772 (A.D.) at pp. 777-9 that a court
the evidence of a witness favourable to the appellant
was as much a misdiscretion as a court precluding the defence to call
in its defence or willing to give such evidence.
On identification Wigmore (3rd Ed. Vol.3 sec.786(a)
p.164) advocates for caution in that
'On the one hand, the risk of injustice being so
serious, the great possibilities of lurking error should cause
9 In E. v. T. 1958(2)S.A. 676 (A.D.) Oqilvie
Thompson fas he then was) at P.677A said
"The position accordingly is that the Crown's case
against appellant depends, in the ultimate analysis, solely upon the
of complainant's identification of appellant. The essence
of the inquiry is whether complainant's evidence identifying the
as the assailant, can be accepted as proof beyond
I reach the conclusion that in this case the evidence
was inconsistent with accused's quilt and far from convicting the
the learned Magistrate should have found the appellant not
guilty and acquitted him.
I have accordingly upheld the appeal, set aside both the
conviction and sentence of the appellant by the court a quo. The
is to be refunded appellant.
For the Appelant: Mr. Putsoane For the Crown: No
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