CRI\A\64\94

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

'MALEHASA
MAPIKITLA Appellant

VS

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehonla on the 16th day of December,
1994

In the
present appeal, the appellant 'Malehasa Mapikitla a fourty-five year
old teacher was convicted on her own plea in the court
below of
having stolen M770-00 which was the property and in the lawful
possession of 'Mamahaae Mokhobatau, as outlined in the
Charge sheet.

The
record is very very brief and I need just go over it as follows : She
appeared in court on the 7th November 1994 and she assured
the court
below that she understood the charge for her response to it is that
she is guilty. Her plea was accepted by the prosecutor
who, as he was
wont to do, outlined the facts of the case as follows, namely,
evidence would show that accused is a teacher at
Motati Primary
School. Complainant is the vice-

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Principal.
A trip was organised at the school whereby the school would go on a
visit to Moriia end Thaba-Bosiu.

The
accused was assigned to collect the money for transport and each
student was paying M15-00. Accused was supposed to collect
the total
amount of M770-00. The trip was to take place on the 3rd of November,
1994. On that day everybody i.e. the students,
teachers and bus owner
were waiting for the accused to arrive but she did not until they
left. On the way back home the teachers
went via accused's place to
collect the money but accused said she had given it to the owner of
the bus already. The teachers went
to meet the owner of the bus who
said he did not receive such money from the accused. The teachers
then went to report the incident
to the police who went to meet the
accused. They asked the accused for an explanation and the accused
was charged as aforesaid.

The
accused in her turn accepted as correct the outline of facts by the
public prosecutor. She was accordingly convicted on her
own plea it
being indicated also that she had no previous convictions.

She made
a plea in mitigation which was to the effect that she would wish to
be given an opportunity to pay back the money and she
indicated that
she was the sole breadwinner, that she had six children and that her
husband had died in 1990; that she has been

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a teacher
for seventeen years; and that she earns a salary of M500-00 per month
as an employee of the government.

In
imposing sentence of six months' imprisonment without an option of a
fine the learned Magistrate indicated that he had taken
into
consideration the mitigating factors and personal circumstances of
the appellant. She appealed represented by MR TEELE on
the ground -

1. that
   there is no proof beyond reasonable doubt that she took the money
   without the consent of the owner;

   
   

2. the
   second ground of appeal is that the outline of facts demonstrates
   that the alleged complainant Mamahase Mokhobatau, the vice-Principal

   was not the owner and her legal interest does not appear ex-facie
   the record, and therefore there was an error in convicting
   the
   appellant without establishing the link or the interest of the
   complainant which is a necessary element in the cummission
   of theft.

   
   

3. that
   the learned Magistrate failed to attach due weight to the personal
   circumstances of the appellant in passing sentence and
   therefore
   this sentence is bad in law.

   
   

The Court
is grateful for the arguments advanced by both counsel and
particularly for the heads of argument which were filed on
behalf of
the Crown by MR RAMAFOLE who indicated - I must say as to conviction
- very correctly that the appellant was the agent
of the
vice-Principal of the school and in that capacity was entitled to
receive the money which had been collected for purposes
of the trip
from the appellant and in that regard the vice-

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Principal
was entitled to feature in this proceedings as complainant who bore
the relationship of principal via a vie the appellant
who was the
principal's agent.

A
question of some nicety was brought into play during these
proceedings namely how much money is alleged to have been actually

stolen, because according to the outline of the case we were told
that each student for the purpose of this trip was to pay M15-00
and
that the accused was supposed to collect the total amount of M770-00.
It is not clear whether she collected the amount stated,
and without
speculating, it cannot be said all the amount collected would amount
only to M15-00 otherwise I don't think practical
wisdom or common
sense would be shown to be complied with if a trip is taken where
each student is supposed to pay M15-00 and all
the amount paid is
only M15-00. It wouldn't have been worth accepting the undertaking to
go on the trip from the bus owner's viewpoint.

But what
is clear is that some money was collected.

With
regard to the question whether in fact the crime of theft has been
committed one would have to look at the record and from
it. it
appears that the appellant referred to the money that she alleged she
had given to the owner of the bus and the money that
one could infer
was referred to here is the money which was collected for purposes of
the trip, although as I have indicated above
it is not clear whether
it was the M770-00 which was supposed

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to have
been collected or a lesser amount, I would assume for purposes of
this matter and in the appellant's interest that it could
have been a
lesser amount notwithstanding the real possibility that it could have
been the same M770-00 if one has regard to the
inelegance unsually
attendant on drafting or summarising evidence on the part of public
prosecutors generally with the result that
the phrase that "the
appellant was supposed to collect the total amount of M770-00"
could very well have been used to
mean in fact that the amount was
collected. Thus the inelegance in the leading of evidence cannot be
visited on the appellant.

But
however, I would imagine an amount not far below the M770-00 was
collected otherwise the trip wouldn't have been worth taking
due
regard being paid to the fact that a certain number of students
paying M15-00 each were actually conveyed.

One
cannot for purposes of conviction overlook the fact that a teacher
who is the appellant stated that she had collected the money
and the
money collected was given to the owner, and this happens not to be
true. So, from that surely an inference can be drawn
that she was
lying when she said she had given this money to the owner of the bus.
Basing oneself on the case of Broadhurat vs
R (1964) AC 441 at 457
which says, an accused person who gives false evidence is no
different from an accused who says nothing
at all; and that in the
event that two inferences may be drawn as to

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the
accused's conduct, the fact that the accused has been untruthful is a
factor which can be taken into account as strengthening
the inference
of guilt I think the proposition in that case applies in the instant
one. I accordingly find that the accused was
properly convicted of
the crime of theft. But I would leave open the question of the amount
forming the subiect matter of the theft
committed.

As to
sentence it has been strongly argued by MR TEELE that account which
has been taken of the circumstances of the appellant excluded
the
balancing of the interests of the appellant against those of society.
Because this factor was not taken into account when the
learned
Magistrate considered the plea in mitigation this Court is entitled
to interfere in the matter of sentence, he thus urged
that either a
suspended sentence or an option of fine should have been imposed.
Indeed sentencing is pre-eminently a matter for
a trial court. This
Court can only interfere either if it finds as properly put in the
Heads of Argument - that the sentence was
shockingly low or
shockingly high. I must say the learned Magistrate did not only state
that he took into account the personal
circumstances of the appellant
but he in fact appears to have done so. The only element which I
think was properly placed before
this Court {which in any case was
originally of the view that the appellant seems to have got away with
a rather liqht sentence)
is that advanced by MR. TEELE that the
interesta of society were not taken into account as against those of
the

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appellant
or vice versa, and therefore it is fitting for this Court to give its
attention to that. It is in this regard that the
Court finds very
reluctantly that it can and should interefere - thanks to the
argument advanced by MR TEELE.

I have
stated that the Court was of the original view that the sentence
imposed was Coo light but on the basis of authorities cited
the Court
is persuaded that because this particular factor was not raised and
does not seem to have been involved in any case,
in the court below,
it ought to have been given some significance in the interests of the
appellant. In the result while confirming
the conviction the Court
feels that the sentence should be altered or set aside and replaced
by the following: the accused is sentenced
to M400-00 fine or six
months' imprisonment.

JUDGE

16th
December, 1994

For
Appellant : Mr. Teele

For
Respondent: Mr. Ramafole