CRI/APPEAL/05/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

RAMOSEBO
MACHACHAMISE APPELLANT

V

REX
RESPONDENT

JUDGMENT

DELIVERED
BY THE HONOURABLE MRS. JUSTICE KJ. GUNI ON THE 6th DAY OF JUNE 2005.

Appeal against conviction______________________________

Facts not disclosing the offence charge.

A presumption can be made that the person found in possession of
recently stolen property is a thief, only if there is a proof
that
the person is in fact in possession.

This
matter came before this court on Appeal from the Subordinate court -
sitting in the district of BEREA. The Appellant was charged
with and
convicted, on his own plea of guilty, of CONTRAVENING SECTION 4 (1)
MOTOR VEHICLE THEFT ACT NO. 13 OF 2000.

It was
being alleged that the accused did unlawfully and intentionally steal
motor vehicle parts to wit (3) three wheels, the property
or in the
lawful possession of MOLETSANE NTAOTE. The exact wording of the
relevant portion of the section reads as follows:-

" 4 (1) A person who steals parts of a motor vehicle or receives
parts of a motor vehicle knowing or having reason to believe
that the
parts were stolen is guilty of an offence and, not withstanding the
provisions of any other written law, liable for a
first offence to
imprisonment for a period not less than six years but not exceeding
eight years without the option of a fine.................."

The
essential elements of the crime created under this section
are:-firstly the person must be shown to have stolen. This could
be
achieved by leading direct or circumstantial evidence. That is to say
there must be evidence showing the court that the accused
actually
stole. The accused may have been caught red-handed actually taking
the property in question. There could be evidence showing
the court
that the accused was found in actual possession of the property
recently stolen in which case a fair and justifiable
presumption
could be made, that he has stolen it. This presumption is rebuttable.
The possessor may give reasonably acceptable
explanation for his or
her possession.

2

In terms
of the provisions of SECTION 4(1) MOTOR VEHICLE THEFT ACT. NO. 13 OF
2000 the accused may be shown to have received [if
he was not
actually seem taking the property] the 3 wheels -knowing or having
reason to believe that the wheels were stolen.

In our
present case, the accused pleaded guilty to the charge. The
prosecutor accepted the plea and proceeded to make the statement
of
the facts of the case. The accused person must have accepted those
facts. It is on these facts that the trial court found the
accused
guilty as charged and sentenced him to a minimum sentence set out in
the said section. This discretion of the court was
limited to the
period or periods of imprisonment as set out in the statute. The
accused has appealed to this court against both
his conviction and
sentence on the following grounds:-

1. That
   the facts as stated on the record, do not disclose the commission of
   the offence charged.

   
   

2. That
   the weight of the evidence on record does not favour conviction.

   
   

3. The
   sentence was too harsh and induces a sense of shock"

   
   

In order
to determine whether or not the evidence on record disclose the
commission of the offence charged, that evidence must be
properly
analysed.

3

The facts
as stated by the Public Prosecutor are so wanting in substance and
intelligence, they must be repeated again here especially
when their
deficiency is the cause of the problem which resulted in this appeal.

"On the 8th December 2004, complainant wake up in the morning to
find his motor vehicle left only with one wheel and supported
with
bricks. The previous night when he parked it it had all the four
wheels intact The complainant had not permitted anyone to
take his
motor vehicle tyres. The matter was reported to MABOTE POLICE. When
investigating the matter they met with one MOREMOHOLD
who reported
that he had declined a request by the accused to go and steal these
three wheels. When he arrived at his rented flat
he found three
wheels in the room. The accused's sister with one MAPHILLIP loaded
those tyres in her motor vehicle. One MONTSO
LENKOE would tell the
court that the accused arrived where he was - selling tyres. Just
then accused's sister arrived and he bought
one".

How do
these facts relate to the essential elements of the crime as created
in SECTION 4(1) MOTOR VEHICLE THEFT ACT 2000? There
is no stated fact
that the accused actually was seen taking away the said tyres from
the complainant's motor vehicle.

The
report by one MOREMOHOLO that he declined an invitation to go and
steal those tyres, does in no way provides reliable evidence
that the
accused took those tyres by himself or with anyone.

4

Can the
accused fall in the category of those who receive parts of motor
vehicle knowing or having reason to believe that the parts
were
stolen? There are no facts on the record from which a reliable
inference can be drawn that the accused received those tyres.
They
were not found in his possession. The facts as stated by the Public
Prosecutor show that these tyres were in one room of the
flat rented
by one MOREMOHOLO. Whose room was that? How did they get in that
room? Are they the complainant's tyres? There are
no facts showing
the court who was in control of the room. There are no facts which
show the court the identity of the tyres found
in the room.

The
accused person's sister and one MAPHILLIP came and loaded the tyres
on her car. Was any of the two women claiming ownership
of those
tyres? There is no answer to that question. The accused came to
MONTSO LENKOE whom he offered to sell some wheels. The
accused's
sister came on the scene apparently with those tyres and he (may be
Montso Lenkoe) bought one. Was the purchase done
from the accused or
his sister, or both? The accused's plea of guilt to the charge is not
by itself sufficient to sustain the conviction.
The presumption that
the accused was found in the possession cannot be safely and properly
made in the absence of the actual facts
pointing at no other
possibility.

5

In
mitigation when the accused further admits that he did what he did
because of his drunkenness does not patch the none existing
facts
which must show the court that the crime was actually committed.

If the
accused was not found in possession of the recently stolen property,
he cannot be assumed to be a thief. HLATSOANE MOFOLO
AND OTHERS V REX
CRI/A/523 OF 1969. The accused must be proved to be the person who
was in actual possession of the stolen property.
Is it the accused or
his sister who was in possession of the stolen property?

The
learned Magistrate must have wrongly presumed that the tyres were
found in the possession of the accused person. Being in possession
of
the stolen property does not always raise an irrebuttable presumption
that the possessor is a thief. HLATSOANE MOFOLO V REX
C of A (CRI)
NO.5 OF 1973.

There are
no facts stated in this case, to show the court that the tyres were
found in the possession of the accused. There are
no facts to show
the court if those tyres before court were in fact identified by the
complainant as his tyres which he discovered
were stolen from his
motor vehicle on the 8th December 2004.

6

There
should be a clear and straight-forward link between the facts to show
how and where the wheels were taken. There should be
facts which show
where they were found - under whose control, under what
circumstances. The sister of the accused person according
to the
facts set out in the Public Prosecutor's statement is as implicated
in the commission of the alleged offence, as the accused.
There
should have been some facts which show the court how the accused's
sister came into the picture but luckily to get out clean
even after
delivering the tyre to the purchaser - MONTSO LENKOE.

The total
effect of the facts stated by the Public Prosecutor and presumably
accepted by the accused, does not implicate this accused
alone. The
accused was wrongly convicted of the crime where there are no facts
disdosing that the crime charged was committed by
the accused.

The
disjointed scanty facts created no crime. The weight of the evidence
according to the facts outlined by the Public Prosecutor
point at a
various possibilities. The burden of proof in criminal cases is a
very heavy one. This burden of proof must be discharged
beyond a
reasonable doubt.

7

There is
no such proof in the facts set out by the Public Prosecutor. The
weight of the evidence favoured the accused's discharge.

ORDER

THE
APPEAL AGAINST CONVICTIONS IS UPHELD AND THE CONVICTION IS SET ASIDE.

K.J. GUNI

JUDGE

For
Appellant : Mr. Fosa

For
Respondent: Ms. Dlangamandla

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