CRI/A/31/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

LEROTHOLI
POSHOLI Appellant

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 23rd September, 1982.

The
appellant (hereinafter referred to as the accused) was charged with
theft of money while employed by the Government in the Ministry
of
Posts and Telegraphs as a cage clerk at Mafeteng. The period covered
by the charge is between the 1st May 1978 and 28th February
1979 and
the amount involved is about M3,947.00 being the property or in the
lawful possession of the Government. Accused pleaded
not guilty but,
after a very lengthy trial in which more than eighty witnesses
testified for the Crown, he was found guilty and
sentenced to undergo
imprisonment for a period of three (3) years. He now appeals to this
Court on conviction only.

The
procedure which is followed when a registered letter is received at
the post office was fully described by the Post-master (PW.87).
After
receiving several reports from some of the Crown witnesses he began
his investigations. He also made enquiries from places
of

2

origin.
On perusing form P10 (EXH.T1-29) he found that twenty-eight (28)
registered letters had been received by the accused in
his cage.
These cover the period between July and November 1978. Incidentally
letters registered NOG. 1218 from Stilgold and 00819
from Swartklip
were among those subsequently found in the room occupied by the
accused.

Det/Sgt
Matamane searched the room occupied by the accused. He found
registered envelopes (with no contents) under the accused's
mattress.
Among these he also found some empty express envelopes. He asked the
accused to whom they belonged and he said they belonged
to him. None
of these envelopes were addressed to the accused.

On
arrival at the Charge Office the accused's person was searched and
some postal orders were found. The payee was one 'Mateboho
A.
Ntsinyi.

There was
no dispute that the letters were found in the room occupied by the
accused but the accused denied all knowledge of them.
He said that
twice previously he found the door of;hls room slightly opened on his
arrival. Once he lost the key to his box in
which he kept the
registered letters overnight and that the Post-master PW. 37) found a
key in his bunch of keys which opened the
box. Subsequently he had
found his lost key and returned that of the Post-master. He was not
on good terms with the latter. These
explanations were put to the
Post-master who denied them. The stories of the door being found left
ajar twice and the lost key
and a key from a bunch of Keys

3

opening
the box wherein registered mail was kept were news to the
Post-master.

The crux
of the argument before me by Mr. Gwentshe, on behalf of the accused
is that the explanation of the accused may reasonable
be true and
although it need not be true For it tobe rejected, it must be
palpably false beyond reasonable doubt He further argues
that the
accused was not the only person who had access to that room. He then
cited the two occasions when the door of the room
was found ajar. He
further stresses the animosity that existed between the accused and
the Post master. The accused concludes,
so the argument goes, that
the whole exercise of finding the registered envelopes in his room is
staged to implicate him. The man
who lived in that room previously,
moreover, was not even called by the Crown to come and deny or admit
that the registered envelopes
were his or brought in by him As
evidence later revealed this became quite unnecessary.

The
simple inquiry is: what happened to the contents of the registered
letters.

The Crown
adduced evidence that the registered letters that were stolen had
contained various sums of money. Evidence was adduced
to show that
certain registered envelopes which were subsequently found under a
mattress in the room occupied solely by the accused
had previously
been received and signed for by the accused in the course of his
normal duty He was solely responsible for the safekeeping
of all
registered letters The Crown's evidence therefore, is that the
registered envelopes,

4

together
with their enclosures, disappeared in the hands of the accused.
Moitseki Lepheane (PW 66) says : "On P10 dated 1/8/78
the
accused appears as a receiver of a registered letter No. 1/232 from
Odendaalsrust to Mafeteng Post Office It was received by
the accused
who signed for it and I countersigned " (See p 49 L 25 of the
record). Anna Kekhotsofetse Mokhethi says : "P10
form issued at
Maseru on the 2/8/78 item 38 was a registered letter No 2973 from
Vierfontein to Mafeteng Post Office It was received
on the 3/8/78 by
the accused and I counter signed." (See p. 58 L 29) and "Item
31 on P10 form issued in Maseru on the
8/8/78 was a registered letter
No 00118 from Western Levels to Mafeteng Post Office. It was received
by the accused on the 9/8/78
and I countersigned " (P 59 L. 7)
Clementina Maleka says "Item 9 which is registered letter No
1019 from Zuping was there
during the checking After checking and
affixing our signatures I left the accused in the cage and went to
attend to my duties.
Accused on that day was calling out members of
the registered letters while I checked the numbers he was calling out
on P10. I
do not know what happened to a registered letter No. 1019 "
(See p. 68 L 17-23) These same registered envelopes referred to
by
the witnesses, whom the learned Resident Magistrate believed, were
subsequently found under a mattress used by the accused But
accused
counters this by saying that the finger should not point at him as
Zondiga, an employee of the Post Office at Mafeteng
and on
interdiction also had access to the room

5

he, the
accused, occupied. However, Tsitso Khabisi (PW.87) at p. 96) says.
"Zondiga first came to fetch his property from the
flat house in
September 1979. From July 1978 to March 1979 Zondiga never came to
the flat." The magistrate believed him and
there is no reason
why this Court should hold otherwise.

It has
not been suggested that the learned Resident Magistrate misdirected
himself in any manner whatsoever. Indeed, where he, the
accused, was
slightly placed at a disadvantage he decided in favour of the
accused; an example is the confession which the Crown
sought to have
admitted; he doubted its admissibility. He did not hesitate to
exercise that doubt in accused's favour. The patience
that the
learned Resident Magistrate displayed in listening to such lengthy,
exhausting and sometimes tidious cross-examination
is a wonder. In
the final analysis the learned Resident Magistrate carefully went
through this huge record and arrived at a conclusion
which cannot, on
the evidence, be faulted.

In the
result the appeal is dismissed.

JUDGE

For the
Appellant : Adv. Gwentshe

For the
Respondent : Adv. Khauoe