HIGH COURT OF LESOTHO
Appeal of :
by the Hon. Mr. Justice F.X. Rooney on the 30th day of September,
Moruthane for the Crown
Mofolo for the Appellant
appellant appeared before Mr. M.T. Motinyane at Leribe charged as
"That the said accused is charged with the crime of Theft
Common. In that upon or about the 16th day of April 1981, and at
Alberton in the Republic of South Africa, the said accused did
unlawfully and intentionally steal one motor vehicle, the property
the South African Block Pty Ltd in the lawful possession of Tlhoriso
Constable Tisane, and did unlawfully bring same motor vehicle
Lesotho, to wit at Ha Makakamela, in the district of Leribe, where
this court has jurisdiction of this case and did thereby
crime of Theft Common."
convicted as charged and sentenced to 12 months imprisonment.
of grounds of appeal were put forward. The appellant states that it
was his defence at the trial that he obtained the vehicle
John Ndhlofu alias Mokhomane of Naledi in the Transvaal. He claimed
that the actual thieves had been convicted in the
O.F.S. and that his
connection with the vehicle arose entirely out of his activities as a
police informer. Ground of appeal (5)
reads as follows :
"In the light of the evidence and appellant's qualified
admissions, at least the court should have convicted appellant of
receiving stolen property knowing it to be stolen."
person charged with theft may be found guilty of receiving stolen
goods knowing them to have been stolen (Criminal Procedure
Evidence Act S.192).
not in dispute that sometime in 1981, on a date not disclosed the
vehicle in question was stolen at the point of a knife
by three men
in Alberton in the Transvaal. According to the victim of the robbery
Tlisang (PW.1) he was unable to identify the
robbers as he was afraid
to look at their faces, but, they were speaking to each other in
It is not
in dispute that on the 7th May, 1981 L/Sgt. Koza (PW.2) found the
stolen vehicle at the residence of the appellant. The
explained to this witness that he had obtained the vehicle from
certain people who were selling it and they produced
document relating to the change of ownership.
evidence in the Subordinate Court the appellant denied that he was a
thief. He claimed that he was asked by Sgt. Koza to
go to the
Republic of South Africa and give evidence at the trial of the
persons charged with stealing the vehicle. The appellant
to do so for fear that members of the gang might come to Lesotho and
appellant also said in evidence that he was a police informer and
that he knew that the vehicle in question had been stolen.
he did not take immediate action to advise the police, he replied
with the curious claim that he could not do anything
Chassis number of the vehicle had not yet been tampered with. Who was
to do the tampering was not very clear. The appellant
he had vehicle in his possession since the 14th April 1981, which if
the charge sheet is to be accepted at it's face
value was two days
before the theft.
appellant was ill-advised to call as a defence witness one Teke
Nkalai who said that he hired the stolen vehicle from the accused
used it to transport goods in the mountains.
the appellant is a police informer, such an activity would not give
him a licence to commit a crime. He could not in that
receive a stolen article and then proceed to make money out of it for
his own benefit and afterwards claim that he was
acting in aid of the
law without a guilty intention. I find the defence put forward at the
trial both farfetched and without substance.
judgment the magistrate said :
"Our law knows no distinction between principles in the first
and second degrees or between principals in the second degree
degree or between principles in the second degree and accessories. If
calls a person who aids abets counsels or assists in
a crime a socius
criminis-an accomplice or partner in crime. And being so he is under
the Roman Dutch Law as guilty and liable
to as much punishment as if
he had been the actual perpetrator of the deed."
hearing of the appeal it was submitted by learned Crown Counsel that
this statement of the law was correct. I am unable to
agree that it
is so as a general principle. It was decided in R v. Mlooi 1925 AD
131 that it is a general rule of the Roman Dutch
Law that an
accessory after the fact is not a socius criminis and cannot
therefore be convicted for the main offence.
no evidence to support the view that the appellant acted in concert
with the thieves or asssisted them before the initial
that he agreed before the theft to receive the stolen vehicle from
any of the thieves. The question for consideration
is whether by
receiving the property (and whether this was done in the R.S.A. or in
Lesotho is open to question) the appellant
effected a contrectatio of
it so as to render him liable to be convicted in Lesotho on the basis
that theft is a continuing offence.
In R. v.
Mlooi (supra) Innes CJ. at 138 having stated the general rule that
our law recognises the distinction between the guilt
of a socius who
assists the perpetrator of a crime beforehand or at the time, and the
guilt of an accessory who only assists him
exceptions to the rule
"which however, are more apparent than real. One of them has
been noticed above-the accessory becomes a socius if the assistance
rendered after the event was promised beforehand. Another may
probably be found in cases where a thief has been assisted in the
disposal of the stolen property by one who only intervened after the
event. For theft where the article remains in possession of
is a continuing crime; and the assistance subsequently rendered by
one who had no part in the original taking may well
of the fraudulosa contrectatio which is the essence of the offence.
Rex v. Brett & Levy 1915 TPD 53 was such
a case. The accused
knowing the waggons which were in the possession of two other persons
had been stolen by the later assisted
in the disposal of the
property. It was held that they had rightly been convicted of theft."
the remarks of Solomon J.A. at 142 and Kotze J.A. at 152 to 154.
parte Minister of Justice in re Rex v. Maserow 1942 AD 164 Watermeyer
J.A. pointed out at 169. that the offence of receiving
knowing the same to have been stolen has been taken over from English
law as the name of a substantive crime. On page
170 he said
a person who receives stolen property from a thief knowing it to have
been stolen may fall into one of several classes.
may commit no crime at all, for example when he receives the goods
honestly, either with the consent of the owner or for the
returning them to the owner.
may be a socius in the crime of theft, e.g. when he has acted in
concert with the thief and agreed before the taking that he
receive and assist to dispose of the stolen property.
may be an accessory after the fact, e.g. when he receives and hides
the stolen property for the thief without have made any
arrangement with the thief.
may be a receiver in what I may call the proper sense, viz. one who
acquires the stolen pro property from the thief not for
of assisting the thief but for his own profit or gain.
In the second and fourth cases the receiver is clearly guilty of
theft (see Rex v. Brett and Levy, 1915, T.P.D. 53; Rex v. Mlooi.
1925. A.D. 131 at pp. 138,142,153; Rex v. Attia, 1937, T.P.D. at p.
106),while in tne third case he may not be guilty of theft.
remarks of KOTZE, J.A. in Rex v. Mlooi, supra at p.153)."
accused's purpose in this case was his own gain and profit. He knew
that the vehicle was stolen in the Republic and he continued
possession in Lesotho. In retaining the vehicle, he assumed control
of it thus depriving the owner of the exercise of his
respect of it. This amounted to contrectatio and the accused was
therefore rightly convicted of the theft of the vehicle.
magistrate misdirected himself in passing sentence by making a
reference to robbery being a serious crime, in all
a sentence of 12 months imprisonment is appropriate.
result therefore this appeal is dismissed.
for the Appellant : G.N. Mofolo
for the Respondent: The Law Office.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law