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.

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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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