CRI/A/13/90

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MAMAKHETHA
JOYCE 'MATLI Appellant

and

REX

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. KHEOLA on the 30th day of April,
1990

The
appellant was charged in Count 1 with theft of a cheque leaf and the
sum of M5000-00 and in Count 2 with theft of M538-22; all
the
property or in the lawful possession of Roger Binns. She pleaded not
guilty to both charges but was found guilty as charged
on both of
them and sentenced to 36 months' imprisonment and 6 months'
imprisonment respectively. She appeals against both conviction
and
sentence on a number of grounds with which I shall deal at a later
stage.

It is
common cause that the appellant was employed by the Outwardbound
Centre as a secretary. Her duties included typing, the keeping
of
books of accounts and general office administration.

2

Although
she had no authority to sign cheques she had access to cheques books.
Cheques were signed by Roger Binns who was the director
of the
Centre. Sometimes the cheques were signed in blank in order to enable
the lady, who worked in the kitchen at the Centre,
to fill the
correct particulars and the exact amount of money spent after making
her purchases of groceries from a store.

It is
common cause that cheque number 319911 for the amount of M538-22 was
properly signed by Mr. Binns for the purpose of buying
groceries.
Spar Supermarket, from which groceries were bought, refused to accept
it on the ground that it was made payable to "Cash"
instead
of to Spar Supermarket. The cheque was returned to the Centre and
another cheque was drawn and made payable to Spar Supermarket.
The
second cheque is number 319912 and for the same amount of M538-22.
The returned cheque had to be cancelled as soon as it was
replaced by
another cheque. It seems that this was not done until it was
allegedly misappropriated by the appellant. She denies
this and
alleges that Mr. Rogers Binns gave it to her as a loan because at the
time she borrowed money, there was no petty cash.

The
cheque in Count 1 for the amount of M5,000-00 was signed in blank by
Mr. Binns. It is common cause that the particulars were
filled by the
appellant. She made it payable to "Cash" and was cashed by
her at the Maputsoe branch of the Bank. She
alleges that she was sent
by Mr. Binns to go and cash it for him. This is denied by Mr. Binns.

3

The
evidence of Mr. Roger Binns is to the effect that on the 17th June,
1987 the appellant came to him and asked for leave to go
and see a
doctor because she was not feeling well. Leave was granted. On the
following day she brought a sick leave certificate
covering the
period from the 18th June to the 25th June, 1987. She did not return
to work on the 26th June. Mr. Binns says that
a few days later he
received a letter from a firm of attorneys styled N. Mphalane and
Company. In that letter the attorneys purported
to be representing
the appellant. The letter was handed in as an exhibit together with
the two cheques mentioned above but they
are now missing from the
file. Mr. Mphalane was kind enough to show the Court a copy of the
letter. The gist of its contents is
that the appellant reported that
she had taken the cheque in Count 2 without the permission of Mr.
Binns and she had utilized the
amount for her own benefit. She had
intended to refund the money but she had some problems and asked for
some extension.

Mr. Binns
says that on receipt of the above letter, he and his wife checked the
books of account of the Centre, and they found that
there was a
cheque for M5,000-00 for which they could not account. He went to
Maputsoe and found that the cheque in question had
been cashed by the
appellant. He reported the matter to the police because the appellant
was not authorised to cash that cheque.
He denied that he asked the
appellant to cash it for him because he wanted to make a big present
to his friend who was getting
married in August, 1987. He also denied
that he lent the appellant the amount of M538-22 by authorising her
to utilize the returned
cheque because they had no petty cash at the
relevant time

4

The
appellant's version is that on the 17th June, 1987 Mr. Binns
instructed her to draw a cheque for the amount of M5,000-00. She

complied and Mr. Dinns checked it before he signed it. She denies
that it was signed in blank. He then gave her the cheque to go
and
cash it for him. She cashed it and gave the whole amount to Mr.
Binns. He had told her that he was going to make a big present
to a
friend who was going to get married.

At the
time she was going on sick leave she asked Mr. Binns to lend her an
amount of M500-00 from the petty cash. As there was no
petty cash, he
allowed her to take the returned cheque referred to above. She has
denied that she instructed her attorneys to say
that she took the
cheque without permission.

In his
judgment the learned Resident Magistrate states that after her sick
leave expired, the appellant did not go back to work
nor did she
apply for extension. He asks whether or not the behaviour of the
appellant is consistent with that of a person who
had borrowed money.
He further states that if a person has borrowed money from another
person and time for payment has come, the
normal thing for the debtor
to do is to go to that person and tender payment or to negotiate an
extension of time. The appellant
decided to go to her attorneys. The
learned Resident Magistrate found her behaviour to be extraordinary
and formed the opinion
that the appellant was afraid of meeting Mr.
Binnes and that could not be without cause.

5

I have no
reason to critise the finding of the court a quo. I find it most
improbable that appellant could go to the extent of paying
a lawyer
to write letter referred to above instead of going to Mr. Binns to
explain her difficulties. She has not explained why
she did not go
back to work after her sick leave. There is no evidence that her
leave was extended by her doctor. She cannot be
telling the truth
that she was still ill after the expiry of her leave because she did
not report this to Mr. Binns. In her attorneys'
letter she is alleged
to have said she was on sick leave. The letter is dated the 8th July,
1987 and she was definitely no longer
on leave on that day because
her leave had expired on the 25th June, 1987. The only reason why she
was unwilling to go back to
work seems to be that she knew that she
had stolen money and was afraid to meet Mr. Binns.

The
letter written by her own attorneys implicates her by saying that she
admits that she took the cheque without the authority
of the Director
of the Centre. This statement tallies with the evidence of Mr. Binns
that she never allowed her to take the returned
cheque.

Mr.
Mphalane, attorney for the appellant, submitted that Mr. Binns took
advantage when he received the letter in which the appellant
had
directly implicated herself. He decided to cover up what he had done
regarding the cheque for M5,000-00. He decided to charge
the
appellant with theft of both cheques.

6

It seems
to me that when Mr. Binns received the letter it was his first time
to know that the returned cheque had been used by the
appellant for
her own benefit. He naturally checked the books of account and made a
further discovery that an amount of M5,000-00
had been withdrawn from
the Bank but he could not find out how it was used. It was unusual to
withdraw such a large sum of money.
He naturally went to see the Bank
Manager and found out that the cheque was properly signed by him and
that the appellant withdrew
the money. I do not find anything,in the
behaviour or reaction of Mr. Binns when he received the letter, which
suggests that he
took advantage and decided to put all the blame on
the appellant.

The
submission that Mr. Binns should have been aware that one of the
cheques that were given to the Kitchen lady to buy grocery
from Spar
was missing before he could have received a letter from the
appellant's attorneys, is totally untenable. He did not suspect
that
there was anything amiss when the appellant went on leave. There was
no reason why he could immediately check the books. In
any case it is
common cause that there was no proper keeping of books at the Centre.
He could not have been aware of the returned
cheque unless he
thoroughly checked the cheque books and other books of account which
show how the money has been used. The appellant
was under the wrong
impression that by confession that she took the cheque without
permission and that she would refund the money,
Mr. Binns would not
take any action against her. He would probably have not charged the
appellant with theft if he had not discovered
that in addition to
that cheque there was yet another cheque for a very large amount of
money which the appellant had unlawfully
used.

7

The
allegation that Mr. Binns used the money for the wedding of his
friends is also untenable. I do not see how if he intended to
steal
the money he could tell a fellow worker that he was going to use the
money for that purpose and at the same time ask the
same fellow
worker to go and withdraw the money for him. This allegation is a
complete lie and even a stupid person would not have
agreed to cash
the cheque.

Mr.
Mphalane has submitted that the Crown case rests on circumstantial
evidence and that the proved facts ought to point to only
one
reasonable inference that has to be drawn from them. There is direct
evidence that the appellant cashed the two cheques and
appropriated
the proceeds and never gave them to Mr. Binns. The evidence of Mr.
Binns that she never gave him the amount of M5,000-00
is direct
evidence and was believed by the court a quo. There is nothing to
show that it was wrong.

The
finding of the court a quo was criticized on the ground that it
failed to caution itself that this was a case of a single witness.

Section 238 of the Criminal Procedure and Evidence Act 1981 provides
that a court may convict any person of any offence alleged
against
him in the charge on the evidence of a single witness if such witness
is competent and credible; the exceptions being perjury
and treason.

In R. v.
Mokoena. 1932 O.P.D. 79 at p. 80 De Villiers, J.P. said:

8

"Now the uncorroborated evidence of a single competent and
credible witness is no doubt declared to be sufficient for a
conviction
by sec. 284 of Act 31 of 1917, but in my opinion that
section should only be relied on where the evidence of the single
witness
is clear and satisfactory in every material respect. Thus the
section ought not to be invoked where, for instance, the witness has

an interest or bias adverse to the accused, where he has made a
previous inconsistent statement, where he contradicts himself in
the
witness box, where he has been found guilty of an offence involving
dishonesty, where he has not had proper opportunities for

observation, etc., etc."

Mr. Binns
was put under very rigorous cross-examination but answered very well
and was not shaken at any stage. His bona fides are
not in any doubt.
It cannot be said that he had any motive whatsoever to implicate the
appellant. If he had such motive he would
have taken action against
the appellant immediately he received the money from her because that
was a clear indication that she
had cashed the cheque. Why should he
wait for about twenty days? He did not even know that the appellant
would write the abovementioned
letter.

Mr.
Mphalane submitted that there is a reasonable possibi­lity of the
appellant's explanation being true and that she was entitled
to an
acquittal (R. v. Difford 1937 A.D. 370).

In a
recent case of S. v. Jaffer, 1988 (2) S.A. 85 at p. 88 Tebbut, J.
said:

9

"Dealing with Singh's case Van der Spuy AJ, with whom Klopper
ACJ concurred, said that the proper approach was for a court
to apply
its mind not only to the merits and demerits of the State and the
defence witnesses, but also to the probabilities of
the case. This
was no ascertain if the accused's version was so improbable as not
reasonably to be true. This, however, did not
mean a departure from
the test as laid down in R. v. Difford 1937 AD 37k at 373 that, even
if an accused's explana­tion be
improbable, the court is not
entitled to convict unless it is satisfied not only that the
explanation is improbable but that beyond
any reasonable doubt it is
false. If there is any reasonable possibility of his explanation
being true, then he is entitled his
acquittal."

I have
considered the probabilities and have come to conclusion that the
explanation given by the appellant is so improbable that
it cannot be
reasonably possibly true.

The
appeal against the convictions in both counts is dismissed.

As far as
the sentences are concerned the learned Resident Magistrate does not
seem to have taken into consideration the personal
and mitigating
factors brought to his notice by the defence counsel. The mitigating
factors appear on pages 38 to 39 of the record
and immediately after
the appellant had given evidence in mitigation the sentence was
passed. It has been indicated by this Court
in many cases that the
record must show that the mitigating factors have been taken into
account. In other words judicial officers
must give reasons for
sentence.

10

Because
of the irregularity committed above this Court is at large to
reconsider the sentence. Taking into account all the mitigating

circumstances I am of the opinion that the sentence in Count 1 is on
the heavy side.

The
appeal against sentence in Count 1 is upheld. The sentence imposed by
the court a quo is set aside and substituted with one
of two (2)
years' imprisonment.

The
appeal against the sentence in Count 2 is dismissed. It is ordered
that the sentences shall run concurrently.

J.L.
KHEOLA

JUDGE

30th
April, 1990.

For
Appellant - Mr. Mphalane

For Crown
- Miss Moruthoane.