CRI/A/29/94 IN THE HIGH COURT OF LESOTHO
In the matter between:
THABANG SEKHONYANA APPELLANT
V THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
REASONS FOR JUDGMENT
Delivered by the Honourable Mr. Justice W.C.M. Maqutu,
on the 13th day of February, 1995.
On the 13th February, 1995 I dismissed Appellant's
appeal on conviction on Counts 1 and 2. And partially allowed his
appeal on sentence
by reducing his time imprisonment as follows;
Count 1 Appellant is sentenced to 9 months'
Count II Appellant shall serve three years'
Both sentences to run concurrently. These are the
Appellant was charged with five counts involving theft
and contravening Section 9(1) (a) of Act No.17 of 1966 on Arms and
He was acquitted of the last three counts on the
indictment consequently they are of no interest to us in this appeal.
We are concerned
with counts 1 and 2, in them Appellant is charged:
Count I : That the said accused is charged with the
crime of THEFT.
In that upon or about the period between 1-9-92 and
30-9-92 and at or near Hlotse Reserve in the district of Leribe, the
did unlawfully and intentionally steal two firearms the
property or in the lawful possession of Lesotho Government.
-3-Pistol and S.L.R.
Count II : That the said accused is charged with the
crime of ARMED ROBBERY. In that upon or about the 18th day of
January, 1993 and
at or near ha Ramapepe in the district of Leribe,
the said accused did unlawfully assault Molefi Khantsi and by
force and violence to induce submission by Molefi
Khantsi did take and steal from his person or ahispresence out of a
care and protection, certain property to wit motor
vehicle YBX 25967 (van) his property or in his lawful possession and
did rob him
of the same.
On Count 1 the greatest problem that the Appellant has
is that he did not give any evidence rebutting that of Crown
was evidence that two firearms, a pistol and an SLR,
were stolen from the Lesotho Government. P.W.18 Nkoane Letuka was a
the parents of P.W.5
Mohau Letseka. He says Appellant says Appellant left
property in a bag at the home of a lady called "Nurse".
This was a
bag. P.W.18 later collected that bag. It contained a fire
arm. He later informed Appellant he had taken that fire arm. The
later took it away from P.W. 18's room in his absence. He
later reported himself to the police.
P.W.4 and P.W.5 came with a man who was handcuffed
looking for a fire-arm. During the search P.W.4 says the man who was
said they should look under the mattress, They found a
firearm. The man told the police that the firearm belonged to Nkoane.
evidence of P.W.5 who was present is to the fact that this
firearm was found during a search of the house by the police. Nobody
said they should lift the mattress. P.W.5 says the man that was
handcuffed is the Appellant. P.W.14 states that the firearm that
found under the mattress of P.W.18 was an SLR rifle. P.W.14 says that
SLR rifle is government property.
It seems to me that the Appellant ought not to have
closed his case when there was such evidence against him in
respect of the SLR rifle. P.W.18 may be a single witness
who unequivocally connects Appellant to the theft in that it came in
possession through the Appellant. It would have helped had
Appellant given evidence. The fact that the police say Appellant took
them to P.W.18's house though not proving he is a thief, is a link
which on its own could not lead to his conviction. Similarly the
that the gun was found where Appellant had taken the police would
similarly on its own not lead to his conviction. But once
actually said the firearm was Appellant's property and that Appellant
brought it in a bag and left it at the house of "Nurse",
this changed the picture completely. Then, the Crown case can be said
to definitely require rebuttal if Appellant wants it to be
The learned Magistrate was obliged to caution himself on
the dangers of relying on the evidence of a single witness before
on the evidence of a single witness. See Rex v Mokoena
1956 (3) 81. It is not enough for the Court merely to say it
of the dangers of convicting on the evidence of a
single witness. What we look for is whether such evidence was in fact
/. . .
The trial Court was alive to the fact that at places the
evidence of many of the Crown witnesses was far from perfect. It
relied on the evidence of P.W.18. The learned Magistrate
then said of the evidence of P.W. 10:
"This court considers the dangers inherent inthis
type of evidence. That of quasiaccomplices. It is trite law that
evidence ofaccomplices has inherent dangers which the courthas
to worry about. In Lesotho our criminalprocedure prescribes that
a single anduncorroborated evidence of an accomplice maysuffice
to sustain a conviction provided theaccomplice is worthy of
credit. Re has proved tobe a truthful witness, he remains
unshaken thatthe fire-arm is the property of the accused "
Appellant closed his case on count one in the face of
the evidence of P.W.18. It seems when there is prima facie evidence
the accused as Hoffmann & Zeffertt 77?e South
African Law of Evidence 4th Edition page 598 sums up the position;
"Accused is not technically obliged to give
evidence but is usually under strong pressure to do so. If a witness
has given evidence
directly implicating the accused, he can seldom
afford to leave such testimony unanswered. Although evidence does not
have to be
accepted because it is uncontradicted, the court is
reject credible evidence which the accused himself
has chosen not to deny."
The Appellant closed his case on Count 1 and gave no
evidence. In cross-examination when he was dealing with other counts,
in passing denied the theft charged in Count 1.
The learned Magistrate analysed the unchallenged
evidence against appellant conscious of the fact that the crucial
evidence in the
chain was that of a single witness. I do not find any
grounds for faulting the learned Magistrate's conviction of Appellant
On Count II everything depends on credibility. The
vehicle in question was seized by people in police uniform from P.W.2
who was with
P.W.3 at a road block. These "policemen"
pointed fire-arms at them. This vehicle used to be parked at the
the Appellant. He used (according to P.W.12) even to
drive it although it had no registration numbers and discs. Appellant
belonged to his friend Tsietsi Lefoka of Phamong. Whether
accused did the actual stealing he was found in possession of this
-8-stolen vehicle which had been recently stolen.
P.W.14 who is the investigating officer says Appellant
used to drive around in this vehicle and even parked it outside the
Office. It neither had a registration number or a disc. On
15th January he found the vehicle outside the house in which
lived. When he asked Appellant for a "blue card"
for the vehicle Appellant could not produce it. Appellant said he
the vehicle from one Bushy in Maseru. P.W.14 seized the
vehicle and charged Appellant with theft. Appellant made a written
which he signed.
Appellant denies the theft of the vehicle or that he
ever said it belonged to him. The vehicle was brought by one Moeketsi
who was his visitor. He once drove the vehicle. The police
according to accused seized the vehicle in his absence. In
Appellant says he did not arrest Moeketsi Lefoka
because that was the job of another section of the police. It turns
out the section
that should have arrested Moeketsi Lefoka is the CID,
which is he very section he himself was attatthed. Appellant then
Lefoka was his intimate friend:
/ . . .
The Court that was obliged to deal with issues of
credibility is the trial Court. It saw and heard witnesses. It saw
in giving evidence. I am not steeped int he
atmosphere of trial, I have as an appellate Court to go by the
record. See Rex v Dhlumayo
1948(2) SA 677. Going by the record I am
unable to see where the trial Court went wrong. Everything points to
the Appellant having
stolen or received this vehicle. P.W.12 was not
shaken in his evidence from what the record discloses. The
Appellant's evidence on
record is itself unsatisfactory and
I am therefore of the view that the Magistrate was right
in convicting the Appellant. It was for that reason obliged to
appeal on conviction.
Corbett JA (as he then was) made the following remarks
about appeals against sentence in the case of S v Rabie 1975(4) SA
855 at page
"I, too, am not certain what I would have done, had
I been the trial judge. I might have suspended the whole prison
but I cannot be sure that I would have done so."
In these words Corbett JA was agonising about punishment
and endorsing the fact that punishment is pre-eminently a matter for
trial court. Therefore it is not easy or even correct for the
appellate court to substitute its discretion for that of the trial
court. As a general rule appellate courts do not interfere with
sentences trial courts have imposed unless it can he shown the trial
court was wrong.
When it comes to punishment, courts feel uncomfortable
because they are not sure whether it will do any good. The recidivism
bedevils all attempts to reform prisoners have brought the
courts to the edge of despair.
We are here dealing with a nineteen years old child.
This point seems not to have had the impact on the Magistrate.
does not fall within the definition of a child in
terms of the Childrens Protection Act of 1980, there is no doubt he
is a minor.
Children are the future and hope of mankind. Whatever is
done with or for children must be done with this in mind.
Accused is a first offender. He was having his first
job. He has botched it. Too much was expected of a nineteen year old
a policeman he was expected to be the every embodiment of
law, order and propriety. Be has not only failed but did turn to the
crime he was supposed to protect society from. He has become a
thief of motor vehicles and firearms. In fact he has become a gun
smuggler. Guns are a threat to law and order if they are in the hands
of irresponsible people.
Courts have a broad discretion and do take the personal
circumstances into consideration. The courts now find it hard to put
circumstances of the accused among its first priorities.
The first reason for this is that the Court has to consider society
whole. The other reason why courts do not warm up to the
reformative aspects of punishment is that often does not seem to
do not seem to reform. After promising not to commit
crime, they do so again and again. In other words reformation of
is an end of society itself) does not always yield
the results that society expects, despite the money invested and the
takes in order to make reformation of offenders
In the case of young people, I am of the view that we
cannot give up on them. Courts are obliged to take the personal
of each child and try and give such a child a chance.
We know recidism is a serious problem. But there is always a
an outside chance that a child such as the accused
might reform. Courts are obliged to give him such a chance.
In my view a sentence of seven years for stealing guns
and a motor vehicle puts property above human beings. I feel this
on a nineteen years old boy not only gives me a sense of
shock but numbs my senses. Even for a grown and mature man I would
find it too harsh.
One of the aims of punishment that is by no means absent
in all sentences (though much criticised) is that of retribution.
of punishment is lumped up with deterrence. When these two
purposes of punishment are brought together they become to many
morally and logically acceptable. To deter the police from
crime I suppose the trial Court imposed this sentence of seven
Do heavy sentences really deter people from crime? We
cannot be shown any proof that they do. All we can say with certainty
all punishment up to a point deters people from committing
Some would say conviction after a public trial is a
method of punishment that serves the ends of punishment just as well.
itself amount to public denunciation. Nevertheless society
still expects the courts through the sentences they hand down to show
the degree of their abhorrence of a particular crime and the way it
was committed. Therefore up to a point, a heavy sentence becomes
retributive and denunciatory. Yet righteous anger should not becloud
judgment as Schreiner JA said in R v Karg 1961(1) SA 231.
When dealing with children's punishment in private
homes, we use a far harsher language that we use in courts. As
parents we cannot
dare suggest to the children that we have any share
in any of their deviant behaviour. But in a judicial setting we are
(as a society)
to recognise where we failed children during their
upbringing. Mr. Phoofolo's grounds of appeal point out that:
" In sentencing the appellant the learned
magistrate did not exercise his discretion judicially because he did
not bother to
investigate the accused's personal circumstances"
The record confirms Mr. Phoofolo is correct, the trial
Court did indeed fail to investigate and comment on the personal
of the accused. The question I ask myself is whether it
was not Mr. Phoofolo's obligation to bring to the trial Court's
the personal circumstances of the accused. The record does
not show Mr. Phoofolo canvassed the point of Appellant's youth at all
To remit this case to the Court below so that the
Appellant's personal circumstances can be investigated would be to
agony unnecessarily. I therefore propose to
assume that perhaps it was not entirely Appellant's fault that has
turned out so badly.
Therefore he has a much reduced debt to pay to
will therefore notionally deduct the society's
blameworthiness from his sentence. In so doing T am fortified by what
Burthell and Hunt said in General Principles of Criminal Law
Volume 1. The South African Criminal Procedure (1970) at page 191
where the learned authors
"But youth may mitigate sentence or warrant the
imposition of a punishment of a more reformative kind than would have
on an adult."
Faced with capital punishment in a murder case involving
an 18 years youth Mohamed JA (as he then was) in Vincent Thebe v Rex
A (CRI) No.3 of 1984 said:
"The Court a quo took into account the youth of the
appellant but failed to appreciate sufficiently that this was prima
evidence of immaturity and that the evidence did not support
the conclusion that the offence of the appellant was committed purely
from inherent wickedness."
From the aforegoing it seems clear that a lot of
investigations and serious thinking is called for when a court has to
punish a youth.
In this case (although I am conscious of Appellant's
youth) I did not give the reformatory aspect of punishment a dominant
when I considered his sentence. Nevertheless, even where
deterrence and denunciation are uppermost in a court's mind, the
being a youth, should not be broken. In fact it is never an
end of punishment to break any offender. The police remain an
pillar in the maintenance of an orderly society. Therefore
(up to a point) the sentences of our courts should reflect this
It was for the above reason I have cause the Appellant
to serve a total of three years' imprisonment.
W.C.M. MAQUTO JUDGE
Appellant : Mr. H. Phoofolo
the Crown : Mr. J.R. Mofelehetsi
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