CRI/A/6/88

IN THE
HIGH COURT OF LESOTHO

In the
Appeal between:-

TS'OKOLO
MAKHELE 1st Appellant

TLHERISO
MAKHELE 2nd Appellant

THUSO
MOEPI 3rd Appellant

SELIMO
MPHAKA 4th Appellant

MOKETE
MACHELI 5th Appellant

CHOLO
MAKHABANE 6th Appellant

'MATHUSO
MOEPI 7th Appellant

and

REX
Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 20th day of June,
1988

The
appellants were charged before the Resident Magistrate for the
district of Berea of one count of housebreaking with intent to
steal
and theft and two counts of robbery. On count 1 only 1st appellant
was found guilty as charged. On the two counts of robbery
all the
appellants were found guilty as charged and each was sentenced to a
fine of M500 or 18 months' imprisonment of which half
was suspended
for three years on some conditions; on the second count of robbery
they were each sentenced to pay a fine of M1,000
or three years'
imprisonment of which half was suspended for three years on certain
conditions.

The
appellants were convicted and sentenced on the.10th December, 1986
but the file of the proceedings was placed before me for
the first
time on the 9th March, 1988. I decided that the

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matter
should be placed on the roll for argument and it was only on the 23rd
May, 1988 that I heard argument. The Crown did not
support the
convictions.

The
evidence supporting the first count, i.e. housebreaking with intent
to steal and theft was that the cafe of one Phokojoe Katile
was
broken into on the night of the 19th June, 1986 and the articles
listed in the charge sheet were stolen. On the 11th August,
1986
goods similar to the stolen goods were found in the possession of the
1st appellant. At the trial and in this Court Mr. Mphutlane,
for all
the appellants, argued that the goods were not properly identified as
those stolen from the cafe. I shall consider that
argument later.

The
evidence led by the Crown in support of the second count i.e.
robbery, was that on the night of the 10th July, 1986 one Seipati

Mpusi who is a night-watchman at the cafe of 'Maroshein, was attacked
by a group of men who threw stones at him and hit him on
the head. He
fell. They came to him and flogged him till he was unconscious. When
he came round he was already in hospital. While
he was lying there
unconscious his assailants broke the door of the cafe and stole the
27 items listed on the charge sheet. Most
of the articles stolen were
later pointed out by the appellants.

Again in
count 3 a night-watchman named Litaba Kobile was involved. He was on
duty on the night of the 7th August, 1986 when a number
of men
started throwing stones at him. He was struck on the knee and fell
down. The men came to him and ordered him to keep silent
if he did
not want to die. He complied. They bound his hands with a rope. They
broke the door of the shop and came out carrying
bags

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containing
some goods. After they had left he managed to unti his hands and
went to his master's home and made a report. Some of
the stolen goods
were later pointed out by the appellants.

P.W. 11
Leduma Lejaha is the chief of all the appellants except the 4th
appellant. He testified that on the 11th August, 1986 the
1st, 3rd,
5th, 8th, 6th and 7th appellants were brought to the village under
police escort. The home of the 1st appellant was searched
and a
testor was found under the bed; some basins were also found in the
house and four blankets were found. All these articles
were later
identified by P.W.9 who is the complainant in count 3. P.W. 11 said
that after the search of the home of the 1st appellant
they proceeded
to the home of accused no. 3 (he has not appealed). He led the police
to a spot outside the village where he dug
and took out some exercise
books, panties and some other articles. At his home accused No.3
produced three blankets which were
hidden under a bundle of dry
mealie stalks. He also pointed out a brown bag hidden in a cooking
pot in the house.

From
there they porceeded to the home of the 3rd appellant. When they
arrived there the 3rd appellant asked his mother (7th appellant)
to
take out his property and to give it to him. She told him that his
property had been taken to a village called Majaheng. The
3rd and 7th
appellants were escorted to Majaheng and brought four blankets. A few
days later the 7th appellant gave P.W.11 three
pairs of shoes as part
of the 3rd appellant's property. The shoes were taken to the charge
office.

The 5th
appellant led the police to a spot near his home and dug out some
boxes of cigarettes and bottles of lotions. He

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led the
police to two places outside the village where he dug and took out a
bag, a bridle and a pair of shoes.

The 6th
appellant led the police to an abandoned kraal and dug and took out
some articles.

The 4th
appellant is also implicated by his own chief, P.W. 13 K. Lejaha who
testified that on the 13th August, 1986 the 4th appellant
led the
police to an ash heap and dug with a spade and took out a bag
containing shoes stockings, shirts and ball­point pens.

The
evidence of the chiefs of the appellants is corroborated by P.W. 4
Detective Lance Sergeant Fesi, P.W. 16 Detective Trooper
Mosoeu and
P.W. 17 Detective Trooper Moonyane. Their evidence is to the effect
that the appellants led them to obscure places and
pointed out
articles similar to the ones which were stolen at various places in
the Mapoteng area.

The main
ground of appeal is that the articles found in the possession of the
appellants were not positively identified by the complainants
as
those stolen from their shops/cafes. Mr. Mphutlane, attorney for the
appellants, submitted very strongly that the Crown had
failed to
prove the identity of the articles found in the possession of the
appellants. He argued that the evidence of the various
complainants
that the articles were similar to their missing articles was not
enough to support a conviction. I do not agree with
this submission
because sometimes the owner of a large quantity of goods cannot say
with certainity that any have been stolen (R.
v. Kota, 1911 E.D.L.
141, R. v. Tube 1920 E.D.L. 243, R. v. Bande, 1953 (2) S.A. 781). In
such a case the Court has to decide on
a

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consideration
of all the circumstances whether there is sufficient proof that the
goods were stolen. "All the circumstances"
includes X's
conduct and explanation of possession. See Hunt: South African
Criminal Law and Procedure, 1st edition pp. 611-612.

In the
instant case the trial court heavily relied on the fact that the
appellants pointed out these articles at very obscure places
where
they were buried. Section 229 (2) of the Criminal Procedure and
Evidence Act 1981 makes such pointing out admissible evidence
against
the person who did it. It was never denied in cross-examination of
the Crown witnesses that the appellants pointed out
the articles. It
has been pointed out in a number of cases that when the Crown wishes
the court to draw an inference of guilt solely
from a pointing out by
an accused, then the evidence of pointing out must be satisfactory in
every respect and beyond sus­picion.
It must be such that it is
beyond reasonable doubt that the only inference which can be drawn is
that the accused had knowledge
of the exact position of an
implicatory spot because he took part in the commission of the
offence (S v. Gwevu and another, 1961
(4) S.A. 536).

The trial
court found that the appellants did the pointing out and drew the
inference that they had knowledge of those obscure places
because
they took part in the offence. I am unable to criticize-that finding
. It seems to me that even if the appellants were
assaulted before
they pointed out the articles, the evidence would still be admissible
because I do not see how an assault would
force one to know the
implicatory places unless he had taken part in the offence.
Furthermore evidence which has been illegally
obtained is admissible
if it is relevant to the issue (Kuruma v. Rx (1955) A.C. 197, at p.
203.)

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Mr.
Mphutlane submitted that the doctrine of recent possession had no
application in the present case inasmuch as there was no proof
that
the goods in question: had been stolen. Not only were the
complainants unable to identify any of the property and that it
was
not strange for some of the appellants to be found in possession of
the property. He further submitted that they were goods
which were
being disposed of in the ordinary course of business and without
labels being removed and often without proper receipts.

It seems
to me that what must not be forgotten is the fact that there were
three housebreakings with intent to steal and theft.
In two of these
offences the housebreaking was preceded by the assaults of the
nightwatchmen. Goods similar to the ones stolen
on these occasions
were found in the possession of the appellants where they had buried
them. The appellants elected not to give
any evidence or explanation
at the end of the Crown case. To say that the appellants bought the
goods from the shops which were
broken into is speculative inasmuch
as the appellants decided not to give any explanation. If the
appellants had bought these goods
from the complainants' shops why
were they not prepared to go into the witness box and explain.

If one
looks at the nature of the goods found in the possession of the
appellants and their similarity with those stolen from the
shops of
the complainants, there can be no doubt that the appellants were
guilty. See page 43 to 47 (inclusive) of the record.
Take as an
example the 1st appellant; he had :

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6 (six) boxes of Mills cigarettes x 20

9 (nine) boxes of Lexington " x 20

8 (eight) boxes of Rothmans " x 20

4 (four) boxes of Consulate " x 20

2 (two) boxes of Rothmans " x 30

2 (two) boxes of Lexington " x 30

1 (one) box of Stuyvesant " x 20

1 have
picked these items out of 24 items to show that it is most unusual
for a Mosotho who does not own any cafe to buy that amount
of
cigarettes of various blends for his own consumption. I am of the
opinion that the trial court was justified to come to the
conclusion
that the appellants were guilty.

It was
submitted that the trial court seriously misdirected itself by
drawing an adverse inference from the failure of the appellants
to
give evidence. Our law is that if the prosecution has proved
suspicious circumstances which the accused, if innocent, could

reasonably be expected to answer or explain, his failure to testify
will strengthen any unfavourable inference which can properly
be
drawn from the prosecution evidence (R. v. Dube, 1915 A.D. 557, at p.
563). It has also been pointed out that in order to expect
the
accused to answer the Crown case must be very strong. It must be
sufficient in itself to justify, in the absence of explanation
or
answer, the inference of guilt. I am of the opinion that the trial
court was entitled to take into account, together with other
factors,
the fact that the appellants failed to give an explanation or answer.
They were found in possession of goods recently
stolen from various
shops and had pointed out places when. they had buried them. The
Crown had established a very strong case against
them and were
expected to explain,

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In the
result the appeals against convictions and sentences are dismissed.

J.L.
KHEOLA

JUDGE

20th
June, 1988

For
Appellants - Mr. Mphutlane

For Crown
- Mr. Mdhluli.