CRI/A/42/91

IN THE
HIGH COURT OF LESOTHO

In the
appeal of:

TSEHLA
MAKHETHE 1ST APPELLANT

and

MAITSE
TULO 2ND APPELLANT

v

REX

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 27th April, 1993

In this
case, that is Criminal Appeal Number 42 of 1992, Ts'ehla Makhethe and
Maitse Tulo were jointly charged with the crime of
robbery. However,
in the well set out set of heads of arguments by the Crown, it was
conceded that Appellant No.2 does not seem
to be sufficiently linked
with the offence charged thus he was accordingly acquitted and
discharged. Then it fell to consider the
position of Appellant No.1.
In brief it appears that Appellant No.1 and No.2 were at the
Stockfair on the day in question when
two policemen one of whom was a
complainant who happened to have gone on stock-theft drive in
Butha-Buthe came to that party.

The two
policemen were on a stocktheft raid at Mathebe village in the
district of Butha-Buthe, in the process of their stocktheft
raid they
impounded an ox, rounded this ox and left it at the Chief's place.
They also left their guns at the Chief's place when
they made their
way to the stockfair where together with the villagers they enjoyed
their drinks. But because they were aware that
this ox is rather wild
it occurred to one of the policeman that he should go and check at
the kraal as to whether that ox was still
there. When he got to the
kraal he found that the ox was missing. Apparently it had cleared the
kraal by jumping clear of the wall
and disappeared into the night.

2

The
complainant accordingly made for the guns where they had been kept
and took both his gun and that of his colleague and made
for the
stockfair intending to alert his colleague of the fact that the ox
had disappeared.

When he
got to the stockfair one of the people in there, namely Appellant
No.2 asked whether he had come so armed for the disturbance
of the
peace in the stockfair party. The policeman answered that no he had
not come armed against those people in there. He had
only come to
alert his colleague of the fact that the ox which had been kept in a
kraal had disappeared. Somehow the the door got
locked - it is not
clear how - but the people who were in there were unable to go out
except through the window. One of the people
in there went out
through this window but it so happened that when the complainant
tried to go out he was caught hold of by Appellant
No.1. He fell to
the ground but managed to escape and run away; whereupon Appellant
No.1 collected the gun which the policeman
was wearing around his
neck; the other gun having been placed somewhere behind the chairs in
the house.

The state
of lighting had been disturbed or snuffed out by the owner of the
house who kept throwing stones at the lamp till it broke,
she was
outside - but she kept throwing stones through the window till the
lamp broke and the light was out thereby the police
were aboe to hide
the other gun behind the chairs.

The
situation outside as I earlier alluded to it was that the
complainant's gun somehow landed in the hands of Appellant No.1. When

later the complainant came back looking for it he didn't find it. The
gun was, at much later stage, found hidden in the ruins and
the
search party for this gun were led to this place by Appellant No.1.

3

Now the
question is can he properly be convicted of robbery which was
charged? I am satisfied that robbery could not have been properly

charged in a case like this. Instead the proper charges should have
been first that of assault if any did in fact occur, next;
that of
theft as it appears that the owner of this gun had not allowed
Appellant No.1 to take it.

Now, this
clearly is theft because Appellant No.1 didn't take this gun to the
Chief or any authority after picking it up. He took
it to the ruins
to hide it. So it can be inferred that the motive was to permanently
deprive the custodian of this gun.

I
accordingly set aside the conviction for robbery and in substitution
thereof prefer the verdict of theft.

With
regard to sentence the Court has to take into account the fact that
the atmosphere in which this unfortunate occurrence took
place was at
the stockfair and one can hardly think that in coming to the
stockfair Appellant No.1 had made a specific intent that
on that day
he was going to rob or steal a gun from a policeman. Another factor
which of course is a credit to the investigators
is that the
Appellant didn't take long to discover where this gun was; so this,
in a sense, does redound to the Appellant's underserved
benefit; but
benefit it is. So the length of time during which a custodian is
deprived of his property may in certain circumstance
go to the
benefit of an accused person and I think in the particular
circumstances it is fitting that this benefit should redound
to
Appellant No.1. In other words the complainant was deprived of his
custody of the gun for a brief period of time although the
motive was
clearly, of course, theft.

4

The Court
takes this to be to the benefit of the Appellant for the same reasons
that 1 alluded to earlier, namely that when he came
there it was not
for purposes of depriving the owner of the gun.

Having
said so then 1 would set aside the six years' inprisonment and in
place thereof impose a sentence of two years' inprisonment
of which
half is suspended for two years on condition that the Appellant be
not convicted of an offence of which dishonesty is
an element
committed during the period of the suspension.

JUDGE

27th
April, 1993

For
Appellant : Mr. Ramafole

For
Respondent : Mr. Khauoe