CRI/A/35/37
IN THE HIGH COURT OF LESOTHO
In the Appeal of:-
MAPOLANKA MAKEPE Appellant
Vs
REX Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 23rd day of May, 1988
The accused was charged before a Second Class magistrate at Thaba-Tseka with the offence of contravening section 343 of the Criminal
Procedure and Evidence Act 1981; it being alleged that upon or about the 28th day of April, 1985 and at or near Thaba-Tseka Project
premises in the district of Thaba-Tseka the said accused was found in possession of a car bearing temporary number plates A 0284 and there being reasonable grounds of suspicion that the said car was stolen and accused failed to give a satisfactory account of such possession. He pleaded not guilty to the charge but was found guilty as charged.
The procedure followed by the trial court was irregular in that immediately after the judgment was pronounced, Mr. Mafisa, counsel
for the accused, lodged an appeal against conviction even before the sentence was passed.Mrs. Mophethe. for the Crown, has
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submitted that the appeal was premature and should be dismissed. I agree that the trial had not reached finality. The trial court ought not to have allowed Mr. Mafisa to lodge an appeal at that stage of the proceedings because the matter had not been finalized. The learned magistrate has indicated that he had intended to commit the accused for sentence by the High Court. I had initially intended to return the proceedings to the trial court with the order that the trial should be finalized, but taking into account that the trial court had intended to commit the accused for sentence by this Court, I came to the conclusion that it would serve no good purpose to return the proceedings to the trial court.
The appellant's grounds of appeal are as follows:
The learned magistrate erred in holding that the appellant was found in possession of the motor vehicle;
The learned magistrate erred in finding that when they seized the motor vehicle the police had reasonable grounds for suspecting that the motor vehicle had been stolen;
The learned magistrate misdirected himself in finding the appellant guilty as charged in the absence of any evidence on the falsity of the appellant's explanation.
Sergeant Ndonkeni testified that on the 27th April, 1985 he saw a white van being driven by a person he could not identify because the vehicle was far from where he was standing. On the following day he left Thaba-Tseka police station and went into the village to do some investigations. On his return from the village he walked through Thaba-Tseka Project yard and saw a motor vehicle parked near the house of one Koena Monese (D.W.2). He approached it to find out whether it was not the white van he was looking for.
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The white colour he had seen on the previous day had been changed to yellow and orange; only the bonnet remained white. The paint was still wet.
The changing of the colour aroused suspicion in him and he decided to find more information about the van. There was ho one near the van at that time and its ignition key was still in the ignition hole. He knocked at the door and Koena Monese came out. Sergeant Ntonkeni asked D.W.2 the name of the owner of the van parked near the house. The latter explained that it belonged to his guest who had gone to Maseru. Sgt. Ndonkeni decided to take the van to the charge office and requested D.W.2 to tell the owner of van to go to the charge office as soon as he arrived from Maseru. He kept the van at the charge office from the 28th April until the 1st May, 1985 when the accused arrived at the charge office and explained that the van was his and explained that he had bought it from one Keketso Sekhonyana (P.W.2). This explanation was found to be unsatisfactory by Sgt. Ndonkeni.
On the 5th May, 1985 Sgt. Ndonkeni went to Upper Thamae and failed to get P.W.2 whose name appeared in the registration certificate (blue card) as the previous owner of the van. He failed to get him. On the 17th June, 1985 he again came to Maseru and found P.W.2 at Lesotho Agricultural College. He knew nothing about the blue card. (The blue card is Exhibit "A" in these proceedings but is not attached to the proceedings).
Under cross-examination Sergeant Ndonkeni said that he took the vehicle in the absence of the accused because he feared it might
The changing of the colour aroused suspicion in him and he decided to find more information about the van. There was no one near the van at that time and its ignition key was still in the ignition hole. He knocked at the door and Koena Monese came out. Sergeant Ntonkeni asked D.W.2 the name of the owner of the van parked near the house. The latter explained that it belonged to his guest who had gone to Maseru. Sgt. Ndonkeni decided to take the van to the charge office and requested D.W.2 to tell the owner of van to go to the charge office as soon as he arrived from Maseru. He kept the van at the charge office from the 28th April until the 1st May, 1985 when the accused arrived at the charge office and explained that the van was his and explained that he had bought it from one Keketso Sekhonyana (P.W.2). This explanation was found to be unsatisfactory by Sgt. Ndonkeni.
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disappear before he got an explanation. He said his suspicion was aroused by the fresh paint on the vehicle and the fact that it was strange in Thaba-Tseka township and that it was a Mazda van similar to the one he was looking for. When asked why he charged the accused and yet the section under which he is charged requires that he must be found in possession of the goods, he said the accused was still in possession because he claimed ownership of the vehicle.
The second Crown witness was Warrant Officer Ntaitsane who deposed that in 1985 he went to Thaba-Tseka to carry out the acid test on the engine and chassis of the vehicle in question. The engine number was 2298. The chassis number could not be found because the tag on which it was imprinted was missing. He said the vehicle in question was a 1984 model and that the engine numbers of the 1984 model in Mazda vans are never less than five digits and he formed the opinion that the numbers 2298 were not numbers the original ones. The engine block where the engine are usually imprinted had been filed to such an extent that it was even slanting and not level. He failed to carry out the acid test because the accused was not there.
P.W.3 Keketso Sekhonyana testified that he did not know the accused. He once owned a fawn Mazda van which he bought from Hlotse High School. Its Reg. No. was C 0399 and it was a 1978 model according to its blue card. That vehicle was involved in an accident and after that he sold it to one Boiki Kosene (P.W.4). When the vehicle which forms the subject matter of this charge was shown to him P.W.3. said it differed from the one he sold to P.W.4 in colour and make.
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In his evidence Boiki Kosene admitted that he bought a beige 1978 model Mazda van from P.W.2. At the time he bought the van it had been involved in an accident. His intention was to cannibalize it but his brother needed some parts of it; he therefore sold it to him. He later learnt that his brother had sold it.
The accused's evidence is that at the time the police arrived at his host's house he was still within Thaba-Tseka township road testing a vehicle he was repairing. He denies that he had gone to Maseru. While he was still road testing that vehicle D.W.2 Nkopane Monese came to him and told him that the police had taken his vehicle and requested that he must report himself at the charge office. He complied. He eventually gave the police a blue card which was given to him when he bought the vehicle from the person whose names appear in the blue card. Finally the accused said he bought the vehicle from one Joel Makoanyane Kosene who is the father of P.W.4 Boiki Kosene.
One of the essential elements of the offence created by section 343 of the Criminal Procedure and Evidence Act 1981 is that the accused must be "found in possession" of the property suspected of having been stolen. The phrase, "found in possession", has been interpreted in a number of cases of this Court and in numerous cases in South Africa where they have a statute (Section 36 of Act 62 of 1955) similar to our section 343.
In the case of Makeng Mpesi v. Rex, 1967-70 LLR 112 it was held that "possession" does not necessarily mean accused had actual physical detention. It is sufficient if it is shown he had physical detention. It is sufficient if it is shown he had
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possession in the extended sense in which one may be said to possess a thing, which is at one's cattle post or in one's house, or is in the custody of one's servant or agent.
In the case of R v. Hassen, 1956 (4) S.A. 41 (N.P.D.) it was held that the very drastic provisions of section 36 of Act 62 of 1955 are directed against a person who is, as it were, caught red-handed with the stolen goods.
They cannot be extended to apply to a person who is shown to have had direct control at some time other than the time when he is caught, nor to person who, not being found in possession, falsely claims ownership.
In the present case it is common cause that when the policeman (P.W.1) found the van in question the appellant was not present. He was either road testing a vehicle some good distance from where the van was found or was in Maseru. P.W.1 testified that D.W.2 told him that the appellant was in Maseru and that was the reason why he (P.W.1) decided to drive the van to the charge office so that when the appellant returned he could report himself at the charge office and give an explanation. But the accused says that he was still within Thaba-Tseka road testing a vehicle he was repairing. It seems to me that it does not matter where the appellant was at the relevant time; what matters is that he was not found anywhere near that van. He had left the keys of that van in the cabin and as such cannot be shown to have had any direct control of the van when it was found in the yard of D.W.2. It
cannot be said that he was caught red-handed with the van suspected of having been stolen.
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P.W.1 claims to have seized the van on the 28th April, 1985 and the appellant presented himself at the charge office on the 1st May, 1985 and it was only then that he was asked to furnish an explanation. It seems to me that at that time the appellant was not in the possession of the van. The appellant must have been in possession of the van either when it was found or when he was asked for an explanation (R. v. Ndou, 1959 (1) S.A. 504 (T). He was not found in possession of the van and when an explanation was demanded from him the van was no longer in his possession but in the possession of the police.
Mrs. Mophethe submitted that though the appellant was temporarily absent when the police found the van, he had not abandoned it. She referred the Court to Hunt, The South African Criminal Law and Procedure, 1st edition at page 624. But this is the opinion of the learned author and is not supported by the decisions of the courts. In R. v. Coetzer, 1928 E.D.L. 159 the goods were found in X's bedroom in his absence and the court held that X was not "found in possession." In the present case the appellant was absent when the police found the van and there is no evidence to show for how long he was away.
I have come to the conclusion that the Crown has failed to prove that the appellant was found in possession of the motor vehicle in question. The evidence does not even show exactly where he was when the motor vehicle was found by the police.
The court a quo came to the conclusion that D.W.2 was the agent of the appellant and that he was in physical control of
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the vehicle when the police came. It held that a person can possess property through his agent. I agree with Broome, J.P. In R. v . Hassen (supra) at p. 42 where the learned judge said,
"Now it is clear that the 2 suitcases which were found in someone else's house were not under appellant's direct control. Even if the owner of the house were appellant's agent and held the goods in that capacity, it would be the agent and not the appellant who was "found in possession."
I entirely agree with the learned Judge President. In the present case D.W. 2 cannot be regarded as agent of the appellant.
Having come to the conclusion that the appellant was not found in possession of the motor vehicle in question, it seems to me that it will not be necessary to decide whether the suspicion P.W.1 had was based on reasonable grinds or whether the explanation given by the appellant was a satisfactory one. The reasonable grounds of the suspicion and the giving of a satisfactory explanation arise only after proof that the accused person was found in possession of the stolen goods.
In the result the appeal is upheld and the conviction is set aside. The appeal fee must be refunded to the appellant.
J.L. KHEOLA
JUDGE.
23rd May, 1988.
For the Appellant - Mr. Mafisa
For the Respondent - Mrs. Mophethe.
