CRI/A/52/81

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

LEKOKO
QHOBANE Appellant

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 25th day of
February, 1982

The
appellant was convicted of theft of M175-38 the property of the
Produce Marketing Corporation. He was cautioned and discharged
but
ordered to repay the sum to the Corporation. This had been paid.

He is
appealing against his conviction.

The
standard of English of the record of proceedings is perhaps on the
poor side and I have not been able to follow the events precisely.

What has been established seems to be this:

The
appellant was said to be a "cashier" employed by the
Corporation at Leribe. His duties included the buying of wheat
or
other produce from the farmers of the area on behalf of the
Corporation. He used to receive from the Corporation a cheque made

out in his own personal name. He would cash it in Leribe pay the
farmers in his area and submit to head­quarters return sheets

known as "Weekly Summary of Produce Buying" in which he
would show what produce was bought, the amount paid, and the
"cash
on hand" at the close of the week. The appellant's paper work
was in order and the Corporation had no complaint.
Exhibit A shows
that appellant declared that on 24th April 1980 he had M175.38 "cash
in hand".

The
"Regulations" of the Corporation were not produced

2

in
evidence as an exhibit. The only evidence that could have brought
home the appellant's conviction was that of Mr. Brathe the
Chief
Financial Officer of the Corporation who read a passage from the
regulations which the appellant allegedly offended which
the
magistrate did not record.

Although
Mr. Brathe kept a diary of his movements this was not available at
the trial and had to give the dates from memory. His
memory was
evidently very hazy.

The
"Facts" upon which the magistrate relied to convict the
appellant are not supported by the evidence of the main witness
as it
appears on the record. That evidence must of course include his
answers to questions put to him in cross examination. The
exhibit (A
and attachments) that were produced also form part of the evidence so
that the only conclusion that can be drawn was
that sometime at the
end of April or early May 1960 the appellant did not have in his
possession M175.38 in cash which he is supposed
to have had in a box
measuring 12 x 6 and told Mr. Brathe that he could not produce it
because the police siezed his bank savings
book which contained more
than sufficient funds to cover the M175.38.

I am
prepared to accept the inference that the police acted on the
information given to them by PMC against the appellant in that
he is
mixing the Corporation's money with his own.

The
appellant was in fact the holder of cash: cash which, on any spot
check, should be in the small box provided for the purpose.
It would
seem that on a previous occasion appellant did not have "cash in
hand" in the cash box during an inspection
tour made by Mr.
Brathe. This may well have been the occasion in March when the
appellant explained to Mr. Brathe that at weekends
he does not keep
the money in the cash box in the depot but in his bank account at
Leribe. He explained that the depot had been
broken into. It was not
absolutely clear by the way that there was a safe at the depot in
which the cash box could be securely
kept. Mr. Brathe seems to have
accepted the explanation and advised the appellant that in that event
what he should do at weekends
was

1. to
   go to the bank manager with the cash left with him and deliver it to
   him against a receipt, and

   
   

3

2. produce
   the receipt on Monday to the manager and get the cash.

   
   

When on
the 24th April the appellant did not send back to headquarters the
M175.38 they informed the police.

Mr.
Maqutu's contention is that the loose arrangements of the Corporation
were such that as long as the appellant had sufficient
funds to meet
his commitments to the Corporation intent to defraud or to steal
could not be proved beyond reasonable doubt more
particularly because
the explanation the appellant advanced of the breaking into the depot
was accepted by the Corporation's Financial
Controller who advised
him to adopt another course (above described) which he may not have
had the time to put into action since
the police siezed his own
savings book.

Now
mixing personal money and trust money may indicate an intent to
defraud or to steal but in the extraordinary circumstances of
this
case the inference was not irresistible. It follows that the
appellant though foolish and unwise should have been given the

benefit of the doubt. He was justified in appealing against the
"caution and discharge" for the stigma of being a thief

will haunt him all his life.

The
appellant, if I may add, was not immediately suspended from his
duties but continued with his work as usual (see his returns
of 30th
April and the 1st May that are filed immediately after Exhibit A).
From this additional fact it is clear that though the
Corporation
regarded his actions as irregular they did not regard them as
necessarily criminal. Naturally the Court is not bound
by what they
think, but it is not safe to allow this conviction to stand.

The
appeal must accordingly be allowed.

CHIEF
JUSTICE

25th
February, 1982

For
Appellant : Mr. Maqutu

For
Respondent: Mr. Peete