CRI/A/86/82

IN THE
HIGH COURT OF' LESOTHO

In the
Appeal of :

MOLOPI
KOAESA Appellant

v

REX
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 30th day of
December 1982

The
appellant, who was charged with theft of a motor vehicle, was found
guilty of receiving the same knowing it to be stolen.

The
appellant was found in possession of the vehicle amply proved, indeed
conceded, to have been stolen from Johannesburg "sometime"

in April 1981, on the 7th May 1981 not 1982 (see the evidence of
Peter Moonsamy at lines 32-34 and the magistrates manuscript)
at his
home near Leribe in Lesotho.

The
period between theft and finding in possession was quite obviously
recent for a commodity of this nature-not more than 5 weeks
maximum.

The
appellant had no papers or documents in respect of the vehicle and
did not have its keys. The appellant was asked for an explanation.
Of
course no onus rests on him to give any explanation, but he did say
that the vehicle was left with him, by a certain Joe Ndhlovu
of
Naleli, Soweto, whosetelephone number was 9306117. Two other vehicles
werefound with the appellant in addition to the vehicle
subject

matter of
this charge. The prosecution witness (PW2) should not have been asked
about these at all (since they were subject to other
charges in
separate trials) but Mr.Mofolo

2

the
appellants counsel, elicited from the witnesses further information
on these last two vehicles. It appears that the appellant
explained
these last two were left with him by a John Mokoena. The appellant
was allowed by the police officer to use a telephone.
The police
officer testified that the appellant spoke to a person called "Buti"
and the conversation was about fixing
a date for "Buti" to
come to Maseru. There was no conversation about the vehicle subject
matter of this appeal or the
two other vehicles found in the
appellant's possession. The magistrate says that that conversation
was admissible as an "exception
to the hearsay rule". What
the appellant said on the telephone in the police officer's presence
and within his hearing (for
what it is worth) is not hearsay but
direct evidence.

Mr.
Mofolo's argument is that the appellant's explanation may be possibly
true, viz, that someone called Ndhlovu dumped the vehicle
at the
appellant's compound and that the onus was on the Crown to disprove
beyond reasonable doubt that this Ndhlovu did not exist.
I must
reject this. The Crown proved theft, proved possession by the
appellant, proved that that possession was recent, and have
adduced
circumstances from which an inference of guilt may (not necessarily
must) be drawn.

The
appellant elected to keep silent.

In the
magistrate's view guilty knowledge that the vehicle in question has
been stolen has been proved beyond reasonable doubt.
I have no reason
to differ from this conclusion.

The
sentence of six months imprisonment has struck me as lenient. The
menace of vehicle thefts is well known and has been referred
to in
many decisions of the High Court. The only reason why I refrained
from enhancing it is the fact that the appellant is serving
another
sentence of 12 months.

Will the
Registrar endorse the warrant that the six month: imprisonment under
this charge will begin to run consecutively to the
sentence the
appellant is now serving,

CHIEF
JUSTICE

For
Appellant: Adv. Mofolo

For
Respondent: Miss Moruthane