C. OF A.
(CRI) NO.21/86

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

FRANK
LEBETE 1ST APPELLANT

CARRINGTON
MOEKETSI MASOABI 2ND APPELLANT

AND

REX
RESPONDENT

HELD AT:
MASERU

CORAM:

BROWDE,
JA

KOTZE, JA

LEON, JA

JUDGMENT

BROWDE
J.A.

The
accused in the Court below were Frank Lebete (Accused No.1), Thabang
Moejane (Accused No.2) and Carrington Masoabi (Accused
No.3). They
were charged as follows:

"In that upon or about the 17th December, 1984 and at or near
Maluti Mountain Brewery, Maseru

2

Township
in the district of Maseru the said accused one or other or all of
them did unlawfully and intentionally steal 950 cases
of beer and 108
cases of brandy the property or in the lawful possession of Ian
Frasers Ltd., a company lawfully registered under
the Companies Act
of 1967

and

In that
upon or about 4th January 1985 and at or near Mazenod in the district
of Maseru the said accused, one or other or all of
them was or were
found in possession of 950 cases of beer in regard to which there was
a reasonable suspicion that they had been
stolen and was or were
unable to give a satisfactory account of the possession and was or
were guilty of the offence of contravening
the provisions of Section
343 of the Criminal Procedure and Evidence Act of 1981."

All the
accused pleaded not guilty to the charges but were found guilty by
the Court a quo as follows:

1. Accused
   No.1 guilty of the charge of theft of the 950 cases of beer in the
   main charge.

   
   

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2. Accused
   No.2 guilty as charged in the main charge as amended. (The amendment
   related to the number of cases of brandy).

   
   

3. Accused
   No. 3 guilty of receiving the 950 cases of beer referred to in the
   main charge well knowing them to have been stolen.

   
   

Accused
No.2 did not appeal but the other two accused appealed to this Court
both against their convictions and sentences.

It is
common cause that 950 cases of beer were stolen from the complainant
on or about the 17th December, 1984. The crime was apparently

perpetrated by persons who took the beer into their possession and
instead of delivering it to Ian Fraser Ltd., appropriated it
to
themselves. There was evidence that the two persons concerned were
Accused No.l and 2 but Accused No.l (the first appellant)
denied his
participation and gave evidence to the effect that on the 17th and
18th December, 1984 he did not leave his office where
he was employed
by Ian Erasers Ltd. in Maseru.

The sole
question at issue in the appeal of the First Appellant is whether or
not he was properly identified by the Crown witnesses
as one of the
persons who, on the 17th

4

December,
1984, arrived at the Maluti mountain Brewery to take possession of
the 950 cases of beer. The evidence on which the Crown
relies is that
of P.W.I DAVID RAKOUANE, P.W. 14 Checha Ralikhomo and P.W.18 'Matli
Hlalele. P.W.I stated that on the day in question
he was approached
by one Maretha who asked him to assist accused No.1 and 2 by taking
them in his vehicle "to carry their
property*. He acceded to
that request and as a result he took the two accused to the Brewery.
His evidence is fully set out in
the judgment of the Court a quo and
I do not think it necessary to repeat it in detail. It appears,
however, that the person identified
by P.W.,1 as the first appellant,
was with the witness until they reached the brewery - the exact time
of such arrival was not
established but it was some time in the
morning -and that after a period, the length which was also not
established with any precision,
he left for Maseru. Thereafter, so
the evidence went, he returned at about 3 p.m. The beer was loaded
and they left the brewery
premises. Counsel for the first appellant
in his able argument before us, has levelled certain criticisms
against the way in which
the Crown attempted to establish his
client's identity in the trial Court. He pointed to the fact that the
witness, P.W.I, gave
his evidence some eighteen months after 17
December, 1984 and that alone considerably reduced its cogency.
P.W.I, so the argument
went, did not know the first appellant well
and consequently

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without a
properly constituted identification parade there must be a doubt as
to the reliability of his identification. In my view
there is
substance in this submission. The Crown was aware that the first
appellant's defence was an alibi and consequently the
need for an
identification parade should have been obvious. There then followed
the failure to call as a witness the woman Maretha
who, as I have
mentioned, obtained the services of P.W.I to convey the two persons
to the brewery. If she was available to the
Crown, which is not clear
on the record, it would have been appropriate in my view to draw an
adverse inference against the Crown
on the basis that her evidence
would not have supported the Crown case.

As far as
P.W.1's evidence is concerned Counsel has criticised the way in which
he identified the first appellant in Court. He referred
particularly
to the following:-

1. "C.C.
   (Crown Counsel) Now, Ntate, do you know the accused persons -look at
   them - this is A1 - do you know him?

   
   

P.W.I Yes

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2. C.
   C. With whom did you have business or dealings?

   
   

P.W.I The two accused in the dock."

Counsel
has submitted that this is unsatisfactory since a witness who is
called upon to identify a person whose identity is at issue
should
not be led in evidence to identify that person in the dock in the
manner in which the first appellant was identified. At
least one
might expect the prosecutor to say such words as "Do you see the
person in this Court?" That the identification
in the Court was
unfair to the first appellant is, I think, illustrated by a further
extract from the evidence in which P.W.I is
questioned as to why he
identified the first appellant as the person who went to the brewery
on 17 December. He said,

"P.W.I I say that you are the person involved in this matter
because you are one of the accused persons in the dock."

Counsel
has contended that the opportunity for identification on the day in
question was not as good as it appears on the surface.
P.W.I was
driving the vehicle and therefore, of necessity, had to concentrate
on the road. Thereafter the first appellant was present
at the scene,
on

7

P.W.1's
own version, only sporadically - that there must have been vehicles
coming and going, people moving about and, above all,
no particular
reason for P.W.I to observe the features and any identifiable
characteristics of the first appellant. There seems
to me to be some
substance in these submissions. A further point of merit is that
P.W.I could not identify a further person he
had allegedly seen that
day because, as he put it, there had been a lapse of time of one year
since he had seen him. When one considers
that P.W.I stated in
evidence that he had not seen the first appellant between 17
December, 1984 and the day of trial i.e. 7 May,
1986 one must, I
think, seriously doubt the reliability of the identification. Mr.
Mdhluli, who argued this aspect of the appeal
on behalf of the Crown
with his usual ability, contended that P.W.1's evidence did not stand
alone. He supported the learned Judge
a quo's finding that P.W.1's
identification of first appellant was corroborated by P.W.18 who was
the security checker at the Brewery
at the relevant time. An analysis
of this evidence given by this witness shows however that

1. He
   saw first appellant only from "some distance away."

   
   

2. When
   asked if he had given an invoice to first appellant his reply was to
   the effect

   
   

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that he gave it "to the customer*.

3. That
   beer had been taken by the first appellant and accused number 2 on
   several occasions and he could not positively say that
   he remembered
   the 17 December, 1984 specifically. All he could say in regard to
   the first appellant's presence at the Brewery
   at the relevant date
   was that he remembered the invoice which gave rise to trouble a few
   days after the event.

   
   

4. He
   differs from P.W.I regarding the movements of accused 2. P.W.I said
   that accused 2 remained in the truck all the time, whereas
   P.W. 18
   said that accused 2 it was who was with him, away from the truck,
   and who signed the documents.

   
   

5. He
   was generally vague about things. For example, he could not even say
   whether there was a driver in the vehicle in which the
   accused 2 and
   the first appellant came to the brewery and he was extremely vague
   if not evasive about how many times he had seen
   the first appellant
   prior to 17 December, 1984.

   
   

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In the
circumstances I am inclined to agree with Mr. Sooknanan that P.W.1S's
evidence cannot be regarded as corroboration on the
question of the
identification of the first appellant.

As far as
corroboration of the identification by P.W.I is concerned the last
string to Mr. Mdhluli's bow was P.W.14 Checha Ralikhomo.
This witness
was declared to be an accomplice. The effect of his evidence is that
he accompanied the first appellant to fetch cases
of brandy from the
Brewery on an unspecified date and that subsequently he was given two
sums of money by the appellant, the first
a sum of R10 accompanied by
a suggestion that if asked he should deny transporting liquor and the
second the sum of R50 to pay
his rent because he was out of work. It
will be readily observed that P.W.14 in no way corroborated the
taking of the beer nor
does his evidence appear to bear on what
occurred cm 17 December. Consequently his evidence, too, is of no
assistance to the Crown.

Consequently,
the evidence of P.W.I effectively stands alone and does not, in my
view, stand up to the test required for that degree
of reliability
which is needed to prove first appellant's guilt beyond reasonable
doubt. See in this regard.

10

S. v
Mehlape 1963(2) SA.29 (AD)

in which
it is pointed out that it is necessary to satisfy a Court in any
particular case that an identification is reliable and
trustworthy as
distinct from being merely bona fide and honest.

I should
also point out that the learned Judge appears to have rejected the
alibi evidence of the appellant because he believed
the Crown
witnesses. That is the wrong approach. Before an accused's version is
rejected it must itself be evaluated and assessed
in the light of the
impression made by the accused and the question whether his evidence
may reasonably possibly be true. To say
"I believe the Crown
witnesses ergo the accused is lying" is an approach which has
often be criticised by our Courts.

To sum
up, therefore, I am of the view that the conviction of the first
appellant cannot stand and that his conviction and sentence
should be
set aside.

I turn
now to consider the appeal of the second appellant. In order to
justify his conviction for receiving stolen property well-knowing
it
to have been stolen the Crown was obliged to prove the three elements
of the offence viz.

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1. That
   the property was stolen,

   
   

2. That
   the property was stolen from the complainant and,

   
   

3. When
   he took possession of the property the appellant knew it was stolen.

   
   

The first
two elements are common cause i.e. the theft from the complainant of
950 cases of beer. The only remaining issue is, therefore,
whether
the second appellant received the beer and knew it was stolen.

Mr.
Masoabi, the third appellant, appeared before us in person, and
attacked various aspects of the judgment of the Court a quo.
He
particularly pointed to the following passage in the judgment:

"The beer was received (by the appellant) at an unusual place
and time and from a person who would ordinarily not own such

property. In this regard I refer to the owner of the cafe, Mr. Moleko
or and (sic) A1 and A2 because it is not clear from whom
A3 received
the beer (A3 being a reference to second appellant). The evidence is
that A1 and A2 stole the beer from M.M.B. and
took it to Mr. Moleko's
cafe. Whether they sold the beer to Mr. Moleko who in turn sold it to
A3 is not clear from the evidence.
However, that is not material and
the Court has come to the conclusion

12

that be received it from any one of them or from all of them".

Mr.
Masoabi has submitted that because there was doubt about how he
obtained the beer and from whom, he should, on that point alone,
have
been discharged. I cannot agree with that. The sole question, as I
have already said, is whether the beer received by second
appellant
was stolen from the complainant and whether, when he received it the
appellant knew it was stolen. The evidence regarding
the first part
of the question was not seriously disputed i.e. that on 17 December,
1984 the admittedly stolen beer was taken from
the premises of the
Brewery and off-loaded at a restaurant at Ha Masana. During argument
I understood Mr. Masoabi to concede that.
Thereafter, and according
to, inter alia, the evidence of P.W.5 Edward Likotsi very large
quantities of the beer, if not all of
it, was at the instance of
second appellant loaded on to a truck and taken to second appellant's
house at Masianokeng. According
to this witness the operation was
commenced after sunset and went on deep into the night. The second
appellant was present throughout.
It was he who directed the loading
from the store-room at the restaurant on to the truck and it was he
who supervised the unloading
at his house and the packing of the
numerous cases of beer into the rooms there. When the rooms were
fully packed with beer the
appellant ordered that

13

the
witness and other helpers "close the back windows with sacks ...
. There were two windows because the beer was packed into
two rooms."

Now the
second appellant has admitted being found in possession of the beer -
in fact when W.O. Polanka was called to give evidence
regarding the
finding of the beer second appellant interjected and said

"To save time I may indicate to the Court ... that if the
witness is going to give evidence that he found 374 cases of beer
at
my farm, that is admitted, and that I said they were mine, that is
the position ...."

There
remains, therefore, only the question of second appellant's knowledge
that the beer was stolen. In this regard the Crown relies
entirely on
circumstantial evidence which in resume is the following:-

The
appellant supervised the nocturnal removal of hundreds of cases of
stolen beer from the store­room of a restaurant - an
unlikely
place from which so much beer could legitimately and in the ordinary
course of events be purchased. He then stored them
at his own
premises and made sure they could not be Been from outside.
Thereafter, so the evidence went, P.W.I was brought to him
in his

14

ostensible
capacity as the Attorney of Maretha (she it was who allegedly
introduced the first appellant and accused two in the Court
below to
P.W.I). P.W.I testified that second appellant said to him, "You
should never say you ever took any beer from Maluti
Mountain Brewery"
and "if you can say that you have taken the beer from Maluti
Brewery you will remain alone and the
boys will be released".
Then there is the evidence of one Koloko (P.W.2) who testifies that
he assisted in the removal of
the beer from Ha Masana to Masianokeng.
Thereafter he was called to the office of second appellant who got
him to sign a document
which subsequently turned out to be an
affidavit with the false allegation in it that he, the witness, had
collected 377 cases
of beer for the second appellant from Makhotsa
Liquorama Bottle Store.

The Crown
also led evidence from one David Masoabi (P.W;12) who testified that
he too assisted in the removal of the beer from the
restaurant. He
stated that he heard the appellant, during the course of the removal,
say that the beer belonged to his clients
who had been arrested.
Later, at the offices of the appellant, the latter told the

15

witness
to say, if asked, that Koloko was collecting mealie stalks as fodder
at Ha 'Masana and not beer. Then there is the uncontested
evidence of
P.W.5 Likotsi that on Christmas day of 1984 he assisted the appellant
in selling a load of beer taken from appellant's
house to a football
match. Finally there is the evidence of three police officers who
found 376 cases of beer at appellant's house
at Masianokeng and that,
in claiming the beer to be his, the appellant said he was going to
use it at a thanksgiving feast which
he intended to hold for his
ancestors. He claimed to have bought the beer in small quantities
over a period. At that time he was
in possession of an invoice which
he was apparently using to check the beer which was being inspected
and counted by the police.
The invoice was the original of an invoice
being used by the police and the appellant claimed that it (the
invoice) belonged to
his clients who were charged with the theft of
the beer.

The
appellant stated in evidence that he had purchased the beer from a
bottle store - this was, in my opinion, properly rejected
by the
learned Judge after his careful and comprehensive analysis

16

of the
evidence. He rightly, in my judgment, rejected the appellant's
assertion that he had purchased the beer for the feast since
the
appellant sold beer not only at the football match but also in a
substantial quantity to P.W.4 Ms. Lieng who runs a restaurant,
below
the current market price. The suggestion that the appellant merely
exchanged beers with this witness was quite correctly,
in my view,
rejected by the trial Judge.

I have
not referred to all the evidence which was led by the Crown and which
was properly taken into account by the Court a quo
in convicting the
appellant. I have, I think referred to enough of the circumstances to
justify the conclusion that whereas individually
each circumstance
may not appear to have great significance, when taken together they
are decisive. In Rex v de Villiers 1944 A.D.
493 in dealing with
circumstantial evidence, Davis A.J.A. (as he then was) said:-

"As
stated by Best, Evidence (5th ed., sec. 298):-

"Not to speak of greater numbers; even two articles of
circumstantial evidence -though each taken by itself weigh but as a

feather - join them together, you will find them pressing on the
delinquent with the weight of a millstone ... It is of the utmost

importance Co bear in mind that, where a

17

number of independent circumstances point to the same conclusion the
probability of the justness of that conclusion is not the
sum of the
simple probabilities of those circumstances, but is the compound
result of them."

See also
Evans' Pothier on Obligations (2.242), and Wills, Circumstantial
Evidence (7th ed. , p. 46). The Court must not take each
circumstance
separately and give the accused the benefit of any reasonable doubt
as to the inference to be drawn from each one
so taken. It must
carefully weigh the cumulative effect of all of them together, and it
is only after it has done so that the accused
is entitled to the
benefit of any reasonable doubt which it may have as to whether the
inference of guilt is the only inference
which can reasonably be
drawn. To put the matter in another way; the Crown must satisfy the
Court, not that each separate fact
is inconsistent with the innocence
of the accused, but that the evidence as a whole is beyond reasonable
doubt inconsistent with
such innocence."

In my
judgment the circumstantial evidence against the second appellant was
overwhelming and proved beyond reasonable doubt that
at least the 376
cases of beer found on appellant's premises were received by him
well-knowing them to have been stolen.

Although
there is a strong suspicion that second appellant was the receiver of
all the stolen beer I think that the leap from finding
only 376 cases
to the conclusion that the appellant received all the 950 cases
cannot be made with the necessary degree of certainty.
Consequently I
am of the view that the proper verdict should have been that

18

the
appellant received 376 cases of beer well-knowing them to have been
stolen.

This
brings me to the question of sentence. I have little sympathy for the
appellant. As a practising Attorney he must have known
that if there
were no receivers in this sort of case there may well be no thieves.
It is for this reason that receiving is so seriously
viewed by the
Courts and why, no doubt, Kheola J. took such a serious view of the
matter. In fact there is something to be said
for Mr. Lenono's
submission that if anything the sentence of 3 years imprisonment of
which one year was conditionally suspended
for 3 years was lenient.
Nevertheless because I have found the case proved only in relation to
a very materially reduced quantity
of beer, I think it would be just
if the sentence was also reduced. I think that justice will be done
if, instead of suspending
1 year of the sentence, this Court suspends
18 months.

In the
result therefore,

1. The
   appeal of the first appellant is upheld and his conviction and
   sentence are set aside.

   
   

2. The
   appeal of the second appellant succeeds

   
   

19

to the extent that the conviction of the Court a quo is altered to
read:

"the accused is found guilty of receiving 376 cases of beer
knowing them to have been stolen"; and

3. The
   sentence imposed by the Court a quo is altered to

   
   

"Three (3) years imprisonment of which 18 months is suspended
for 3 years on condition that during the period of suspension
the
accused is not convicted of any offence involving dishonesty
committed during the period of suspension."

J. BROWDE

JUDGE OF
APPEAL

I agree

G.P.C.
KOTZE

JUDGE OF
APPEAL

I agree

R.N. LEON

JUDGE OF
APPEAL

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Delivered at Maseru This 22nd Day of January, 1994.