CRI/A/85/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

BOKANG
LELIMO Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 11th day of
March, 1983

The
appellant Bokang Lelimo was jointly charged (with Ephraim Leihlo
Lenono) with the following offences the brief particulars whereof

being shown in brackets :-

Theft (of a negotiable instrument in the sum of R37,650.47 the
property or in the lawful possession of the Food Self-Sufficiency

Project -Count III);

Forgery (of the name of the payee of the note from Fedmis to Fedmisa
-Count IV); Fraud (with the object of causing loss and prejudice
to
the Food Self-Sufficiency Project -Count V).

The
learned Chief Magistrate convicted the appellant of receiving stolen
property, a competent verdict under the charge of theft,
supra; and
sentenced him to four years imprisonment but found him not guilty of
forgery and fraud. The appellant appeals against
his conviction but
not, against the sentence.

The
evidence against the appellant was largely common cause but it is
important I think to put the facts into perspective.

Ephraim
Leihlo Lenono was the Financial Controller of the "Food
Self-Sufficiency Project" (the project) a Government department

attached to the Prime Minister's office in Maseru according to the
oral evidence but on documents produced, such as Exhibit B and

Exhibit F, also associated with the Ministry of Agriculture. The name
of the project is indicative of its

2

objects.
The operation of the project involved, amongst other things, the
purchase of fertilizers for distribution to farmers in
Lesotho.
Fedmis(Pty)Ltd of Sasolburg in the Republic of South Africa supplied
the fertilizers. It is not necessary for the purpose
of this appeal
to go. into the details about the method of payment to the supplier,
suffice it to say that upon the receipt of
the invoice or invoices
the project accounts department would prepare a payment voucher and a
cheque in the name of the supplier
covering the invoice or invoices
for the goods. Mr. Lenono will have to check if the cheque and the
voucher are in order, would
sign the cheque as first signatory (to
the project's account held at Lesotho Bank) and present the cheque
(and supporting papers)
to his superior and Director Mr. Phakoane
(PW1) who was the second signatory. The cheque is, or should be, then
posted or passed
in some way to the supplier in settlement.

On the
10th January 1981 the appellant went to the Standard Bank Branch in
Ladybrand and opened a "partnership account"
in the name of
Fedmisa. It has been described as a "Savings Account" but
on the document it is styled "Plus Plan".
The form (Exhibit
H) upon the strength of which the account was opened states that at a
meeting of the partners of Fedmisa held
in Maseru on the 9th January
1981 (a day previously) it was agreed that such an account be opened.
The appellant deposited R1000
and left. The "partnership"
purported to be between the appellant and one Ralph Lenyolosa who
purported to have appended
his signature to the form. Mr. Visser
(PW9) of Standard Bank Ladybrand testified he did not know who is
Ralph Lenyolosa. Mr. Borsman
for the appellant did not ask Mr.Visser
if he had seen another man with the appellant that day who may have
been Ralph. The appellant,
however, testified Ralph was there. The
sole signatory on the partnership account however was the appellant.
There is, if I may
digress for a moment here, an obvious error in the
typed record that the signatory was Al.(i.e. Lenono) but I have
checked the
magistrate's handwritten manuscript and it was in fact
the appellant.

On the
16th January 1981 the accounts department of the project prepared a
payment voucher (Exhibit B) to settle Fedmis (Pty)Ltd
of Sasolburg
six invoices in the total sum of R37,650.47. The cheque for that
amount (Exhibit C) was prepared on the 20th January
1961 and both
were passed first to Lenono

3

who
signed the cheque and next to Phakoane (PW1) the director and second
signatory. It was a bank certified cheque. It was also
crossed.

The
cheque was seen at the project's office in possession of or in the
custody of Lenono on or about this date. Lenono was in charge
of the
safe.

The
cheque never reached its destination.

On the
21st January 1981, i.e. a day after the cheque was issued, and eleven
days after the opening by the appellant of an account
at Standard
Bank Ladybrand in the partnership name of Fedmisa the appellant
presented himself at the bank in Ladybrand with the
cheque for
R37,650.47. The cheque originally issued to Fedmis(Pty)Ltd had in the
meantime been altered by the addition on an "a"
to the word
Fedmis. The Bank accepted the cheque and was prepared to deal with
the proceeds in whatever manner the appellant requested.
The crossing
of the cheque would not of course have been a hinderance but the
cheque was made out in the name of a limited private
company not a
partnership and the proceeds ought not to have been paid, certainly
not paid without a query. But this is what happened.
I emphasise this
because in part of the proceedings and throughout the magistrate's
judgment the partnership account opened by
the appellant has been
referred to as Fedmisa(Pty)Ltd. It was not. It was simply Fedmisa.

The
appellant then and there opened a personal account in which
R21,650.47 were deposited. He deposited R4000 in the Fedmisa
partnership
account. , He asked for and was given a banker's cheque
for the amount of R7800 made in favour of Thusanarg Motor Spares
(this
amount Mr. Visser says was credited to Thusanang Motor Spares
but it is not clear if he had meant the firm's account at their
Branch
in Ladybrand or to an account elsewhere where the cheque was
cashed) and he asked for and. was given R5000 in travellers cheques.

The learned magistrate at page 55 of his judgment seems to have been
perplexed by Mr. Visser's treatment of the proceeds since
the total
disbursements were R38,450 and the amount of the cheque was less.
With respect I see nothing extraordinary in this. The
appellant, as
Mr. Visser says, drew R800 on the same day from the Fedmisa account,
and he thought it was probably in cash. The
position on the 21st
January 1981 then was that the sum of R37,650.47 destined to the
fertilizer firm of Fedmis(Pty)Ltd

4

of
Sasolburg ended up precisely and in its totality in the appellant's
pocket or in an account or accounts of which he was the sole

signatory.

The
appellant admits at the trial that the project had suffered loss but
says that he himself was not party to that and had acted
throughout
in good faith. Lenono absconded in the midst of the trial which
commenced in April 1982 and has not been traced since
but a statement
Lenono made to another magistrate wes already in evidence before the
trial magistrate. Mr.Boraman for the appellant
briefly cross examined
the magistrate who took down that statement.

The loss
was not discovered until a bank reconciliation was made in June 1981
and the appellant and Lenono were apprehended and
interviewed by the
police. There is of course no onus upon the appellant to say anything
either to the police or to anybody else
but there was proof that he
had been in possession of a cheque recently stolen -in fact on the
same or previous day -and the presumption,rebuttable
of course, is
that he acquired it from somebody, most probably Lenono, with whom it
was last seen. In late July 1981 the appellant
made a statement to a
magistrate in Sesotho, an official language, and the mother tongue of
the presiding Chief Magistrate. The
Sesotho and English translation
were admitted in evidence without contest i.e. the appellant did not
at any time suggest that it
was not freely and voluntarily made.

The
Sesotho and English translation appear in the magistrate's judgment
and need not be repeated.

The
appellant when giving evidence disputed the accuracy of the
translation on two points. Firstly he says that he told the
magistrate
who took it down this: "I assisted Lenono in his act
of theft by way of cashing a cheque from his employers" and not
as appears in the translation. Secondly that the consideration for
cashing the cheque was that Lenono would give him R5000 not R500
as
it appears in both the original Sesotho and the translation. The
magistrate at pages 52 and 53 accepted the first point taken
by the
appellant as the more accurate translation, and on the second point
he accepted that the consideration to be received by
the appellant
was to be R5000 not R500.

5

In sum
total that statement is prima facie a confession of guilt. The
appellant has identified the R37,650.47 he cashed to have
been
somebody else's, viz, Lenono's employers; he identified his role as
an assistant to theft; and identified his consideration
(or cut) on
the deal which consisted of R5000 and a promise that a further R5000
would be lent to him. In that statement he explains
that out of the
proceeds he gave Lenono R10,000 at the Holiday Inn Maseru and R15,000
in Johannesburg. That of course totals R35,000
assuming he helped
himself immediately to the "loan". The statement continues
that he started to pay Lenono the balance
(whether of the proceeds or
the loan and the proceeds combined matters not) by instalments
leaving R2500 still outstanding.

The
evidence against the appellant at the end of the case for the Crown
was formidable. It consisted of circumstantial evidence
of the most
compelling kind which was buttressed by, to any reasonable reader, an
unequivocal confession of association with the
crime or crimes
committed. There was a lot of explaining to do not only in regard to
the circumstantial evidence but in regard
to the confession.I say
this because it is clear as anything can be that Lenono but not the
appellant (for he did not work at the
project) was familiar, because
of his senior position at the project, of the name of the company
Fedmis(Pty)Ltd who supplied the
fertilizers. When therefore on the
10th January 1981 the appellant opened the account at Ladybrand with
Fedmisa as his choice of
name (at an alleged meeting of partners held
on the 9th January 1981) only one of two things could have happened,

1. that
   the choice of name was a coincidence, or

   
   

2. that
   Lenono passed to the appellant the name of one of the project's
   suppliers in furtherance of a conspiracy between them and
   in
   preparation of the impending fraud which did in fact succeed twelve
   days later.

   
   

The
cheoue itself" (Exhibit C) did not bear the project's stamp but
there were clear indices, known to the appellant, who knew
Lenono's
job at the project, that it was not his personal cheoue:-it was made
out to a limited private company and the appellant's
firm was not; it
bore two signatures not one; it was a bank certified cheque
(individual persons admittedly sometimes do get such
cheques to pay
for a purchase in situations such as

6

an
auction or where personal cheques are unacceptable in tender); and it
was for a relatively large amount. When coupled with

1. the
   fact that the appellant is an educated man and holder of a BA degree
   in administration (obtained in 1977) and a former Maseru
   Town clerk,
   and

   
   

2. the
   statement he gave the magistrate in July 1981; the possibility that
   the appellant was a victim of ill fate of grotesque dimensions
   is
   reduced to practically nil.

   
   

The only
chance the appellant had to escape conviction was to try to explain
what appears to be the inexplicable for the force of
circumstances
alone admit of little other inference except one of guilt and his
statement also had to be explained for as I said
it admits of little
other inference except one of confession of guilt.

The
appellant's explanation to the trial magistrate was that Lenono gave
him the cheque at Maseru Bridge (the magistrate accepted
this) but
that he did not know was stolen from Lenono's employers. The
appellant proceeded to unfold a story of a deal in diamonds
worth
R5000 (which took place in December) between a partnership of which
Lenono was a partner on the one hand, and his (i.e. the
appellant's)
partnership (Fedmisa) on the other, and explained his statement to
the magistrate who took it down by relating the
word "consideration"
to that diamond deal adding (at p 36 lines 10 -13 of the typed
record) that the police told him
"that the cheque deposited at
the Standard Bank was a stolen cheque and that was the reason why he
made the statement",
a kind of explanation that reminds me of
Littledale's J charge to the jury more than a century ago in R. v.
Clark (full report
not available to me but the passage is quoted in
Wills on Circumstantial Evidence 5th Ed p.112) who is reported to
have said:

"So natural and forcible is this rule of presumption (modern
legal text book writers prefer the words 'inference' or 'irresistible

inference1) that the guilty are insinctively compelled to endeavour
to evade its application by giving some explanation or interpretation

of adverse facts, consistent, if true, with innocence, but its force
is commonly aggravated by the improbability or absurdity even,
of
such explanation or the inconsistency of them with admitted or
incontrovertible facts. All such false,incredible, or contradictory

statements, if disproved or disbelieved, are not simply neutralised,
out become of substantive inculpatory effect".

7

Appellant's
counsel In his address to the trial magistrate (and indeed to me)
submitted rather ingenously that the appellant's previous
statement
before the magistrate who had taken it down is capable of two
interpretations: either that the appellant was telling
the magistrate
about his "state of mind" at the time he received Exhibit C
(the cheque) from Lenono or about his state
of mind and knowledge
after being Informed by the police of Lenono's actions "thus
conveying his present state of mind to
the magistrate". The
implication of this submission is that an inference of guilt via
Visser's evidence (admitted anyway)
cannot be had,and if via the
previous statement it cannot be had either unless it is established
that the appellant was referring
to the events in January 1981 when
he received the cheque from Lenono, but not if the appellant was
describing his feelings after
having been informed by the police in
July that the cheque was stolen In which event the appellant's
assertion that he did not
have guilty knowledge in January 1981 and
his explanation of the diamond deal, could "reasonably possibly
be true".

The
appellant of course did not swear to this latter interpretation In
his evidence but counsel pointed out that the appellant did
lay the
ground for this by the statement he made to the trial magistrate
which I quoted earlier In this judgment. The learned magistrate
who
had before him the circumstantial evidence earlier outlined in this
judgment and the direct evidence of an apparently unequivocal

confession of guilt rejected the appellant's explanation of the
diamond deal and also rejected counsel's submission about the "two

interpetations".

The only
ground of appeal is that the magistrate had misdirected himself by
relying (in convicting the appellant of receiving) on
the confession
of Lenono (Exhibit E) implicating the appellant which confession
(apart from its having been contested -this latter
emerged on cross
examination not before the magistrate gave evidence) was inadmissible
as evidence against the appellant in terms
of s. 230 of the Criminal
Procedure and Evidence Act 1981.

Principal
Crown Counsel admits that misdirections occurred but submits that it
is a case where the proviso to s. 329 should be applied.
To uphold
the appeal (he added) would tantamount to gross miscarriage of
justice.

8

The
passages where the misdirections occur (these last are underlined)
are herewith reproduced: p 50 lines 25 to end of page and
p.51 line
1.

1. "How
   the cheque - Exhibit C - which according to the evidence of PW5 was
   handed to accused 1 for safe-keeping in his office
   at the project
   came into the hands of accused 2 is explained by accused 2's
   evidence on oath before this court, his statement
   -Exhibit A -before
   a magistrate and to a certain degree supported by accused l's
   statement before a magistrate".

   
   

2. Page
   53 line 13 to line 26:

   
   

"Here again I am inclined to believe the accused when he says he
told the magistrate that the consideration for cashing of
a cheque -
Exhibit C -was that Lenono would give him R5000 and not M500. That
however does not mean accused 2 did not know that
the cheque was from
Lenono's place of work. Indeed, as it will be shown shortly hereafter
this (sic) supports accused 1's statement
to another magistrate in
that the agreement between accused 1 and accused 2 was that the
latter Would receive some benefit out
of the cheque he received from
the former.

Accused 2's evidence supported by his statement to the magistrate
(Exhibit A) as well as the statement of accused 1 (Exhibit E)
all
explain that the cheque -Exhibit C -was handed to him by Lenono.
According to the statement of accused 1, Exhibit E, accused
2
received the cheque, Exhibit C, at the project offices, etc..."

3. Page
55 line 10 to the end and p. 56 lines 1-16. Lenono's statement
appears fully in the magistrate's Judgment and is not quoted.

"Be that as it may, the important point is that accused 2
clearly treated the money on Exhibit C as though it was his own

money. In accordance with what he had told the magistrate in his.
statement, Exhibit A, one would have expected him to have cashed
the
cheque and handed the money to accused 1 and perhaps retain only
R5,000 which was to be a gift or consideration to him for
cashing
that cheque. Realising this anormaly accused 2, in his evidence,
started the story that he and a certain Ralph Lenyolosa
were dealing
in diamonds and accused 1 had taken their R5,000 worth of diamonds
and the R5,000 he had taken out of the amount on
Exhibit C was for
the diamonds which accused 1 had taken. Ralph Lenyolosa was not
called as a witness and asked where this Lenyolosa
could be found
accused .2 told the court that he had lost contact with him and did
not know where he could be found. Although,
according to the evidence
of accused 2, Ralph Lenyolosa was present when Exhibit H was
completed at the Bank in Ladybrand, accused
2 was the only partner
who

9

filled in the names of the partners of Fedmisa(Pty) Ltd. There was an
error in the way the name of _ Lenyolosa was written on Exhibit
H and
accused 2 initialled the correction of the error in the name of
Lenyolosa. The whole story about this Ralph Lenyolosa bristles
with
uncertainly and I have no doubt in my mind that it is a fabrication
which accused 2 thought of after he had made the statement
Exhibit A
before the magistrate.

Again in his evidence on oath accused 2 told the court that when he
received Exhibit C from Lenono he did not suspect that there
was
anything wrong with it as it was bearing only the Bank guarantee and
no departmental stamp of any kind. He took it to be a
faithful cheque
from Lenono who was paying the debts he (Lenono) was owing to
Fedmisa(Pty)Ltd for diamonds received or to be received
from the
partnership Fedmisa(Pty)Ltd. This is certainly not what accused 2
said in his statement, Exhibit C, which was admitted
unchallenged
except in two points already referred to, supra. In that statement
accused 2 told the magistrate who recorded it that
the cheque was
from accused, l's place of work. That accused 2 knew that the cheque
Exhibit C was not a personal cheque but came
from accused. l's place
of work is supported by accused l's confession, Exhibit E. recorded
by PW3, Mr. C.M. Pali, one of the magistrates
in Maseru etc.....'

4. rage 58 line 20 to end and p. 59 line 1 to 4:

"It has been argued before me that accused 2's statement,
Exhibit A, is capable of two interpretations, namely, that accused
2
was either telling the magistrate about his state of mind at the time
when he received Exhibit C from Lenono or he was telling
the
magistrate about his state of mind and knowledge after being informed
by the police of Lenono's action and thus conveying his
mind to the
magistrate. I am not impressed by the argument. The statement,
Exhibit A, was made by accused 2 on 29th July 1981,
long after he had
received Exhibit C from Lenono. Read in conjunction with the above
quoted statement Exhibit E -by accused 1 before
another magistrate
accused 2's statement leaves no room for any of the two
interpretations. when he received Exhibit C from Lenono
in January,
1981, accused 2 knew very well that the cheque had been stolen from
Lenono's employer and it was in accordance with
a premeditated scheme
made by the two men that Exhibit C would be cashed and the money used
for their own interests. There is therefore
no reasonable
justification for the argument which I have no hesitation to reject
as being unfounded."

5. The magistrate also wrote thus (page not numbered) In his reply to
the grounds of appeal:

"It has been pointed out during the course of my judgment that
there was undisputed evidence that the appellant had received
the
cheque -Exhibit C –

10

from Lenono. Although the appellant wanted the court to believe that
he did not know that Exhibit C had been stolen and he took
it to be a
faithful cheque from Lenono his story was rejected as false. If
appellant's statement (Exhibit A) were to be read in
conjunction with
that of Lenono (Exhibit E) there can be no doubt at all that the
appellant was fully aware that Exhibit C had
been stolen. Indeed, on
the evidence as a whole I was satisfied that it had been proved
beyond reasonable doubt that appellant
had committed the crime of
receiving stolen property well knowing that it had been stolen and
was accordingly convicted.

(Sgd) B.K. Molai

CHIEF MAGISTRATE

14/9/82"

I must
confess that at first sight I found the underlined misdirections far
too serious to sustain the conviction but on further
and maturer
reflection it would be wrong I think to take them in isolation and
out of context.

The first
passage quoted deals with the question of how the stolen cheque came
into the hands of the appellant. The fact of the
matter is that the
learned magistrate's discourse of Lenono's role was irrelevant for
there can be no doubt surely that appellant
had possession of the
cheque. The magistrate in fact excluded Lenono's inadmissible
statement that the cheque was received by the
appellant at his office
and accepted the only evidence that could have been accepted (that of
the appellant himself) in the following
words that appear at the end
of p.53 and in the first paragraph of p. 54:

"Acc 1 (i.e. Lenono) had conveniently disappeared and was not
available for cross examination..... In any event even if he
. were
available .... and had adhered to what he told the magistrate(i.e.
testified so on oath) it must be borne in mind that he
and accused 2
(appellant) were co-accused in law. Accused 2 (appellant) could not
be convicted on the 'evidence' of his co-accused
alone. In the
absence of any other evidence apart from the statement made by
accused 1 (Lenono) to the magistrate I am prepared
to accept etc....
that he(appellant) received Exhibit C at the border post".

The
second passage quoted begins with the acceptance of appellant's
evidence that he told the magistrate that his "consideration"

would be M5000 not M500 but the magistrate adds that that did not
mean that the appellant did not know that the cheque was from

Lenono's place of work (this was the magistrate's preferred
translation) but the rest of the passage

11

(though
inarticulately expressed) means that the figure itself mattered
little and that the operative words used by appellant in
his
statement, to wit, receipt of "consideration" "supports"
Lenono's statement that the appellant was to have
this gift. There is
some confusion of thought as well as expression for by that time
Lenono was gone and no "support"
was needed by anything
said against him by the appellant. The magistrate may have implied
that the converse provides the "support".
If any support is
needed that the appellant did not do what he did on the 21st January
for love, or the fancy story of the diamonds,
it has been provided by
his deeds viz, the manner of his disposition of the proceeds of the
cheque subject matter of the charges
which the magistrate dealt with
in the third passage quoted above where another misdirection occurs.
This however was prefaced
by a lengthy review of the story of the
diamonds and the appellant's partner Lenyolosa which story was
rejected as a fabrication
and an after thought. This occurred before
the magistrate misdirected himself further. The magistrate dealt with
the import of
the appellant's words as used in his statement but this
was with reference to his previous finding of "fabrication"
and
afterthought". The magistrate concludes that the points the
appellant challenges had no bearing on, or touch upon, his admission

of. receipt of the "consideration". What the learned
magistrate was attempting to say with respect, is that the story
of
the diamonds, if there was a scintilla of truth in it would have been
told by the appellant to the magistrate, irrespective
of what
appellant's counsel submitted in argument may have been the
appellant's state of mind.

The
fourth misdirection appears in the magistrate's discourse in answer
to counsel's argument, an argument based on no positive
oath but on
an oblique and evasive testimony. If there is substance in this the
appellant (who is no fool) would have told the
magistrate something
like this –

"I have now been informed by the police that the cheque I cashed
for Lenono was stolen from his employers. If so then I must
have
assisted him in his act of theft. This is not so,he owed my firm
R5000 on a diamonds deal and since the cheque he gave me
exceeded
that amount I asked him if he would grant me a loan of R5000 and he
accepted. I have repaid the balance of the cheque
except for perhaps
R2500".

No
judicial mind, considering the circumstances, could Interpret the
words used in the statement as having this meaning. Even if

12

that was
what was actually said (which was not) it is still a fanciful
explanation that cannot fall under the "reasonably possibly

true" formula.

The fifth
misdirection occurs in the learned magistrate's reply to the ground
(actually notice) of appeal when he again refers to
Lenono's
statement but this only after he declares that he found the
appellant's explanation" false.

In the
five instances of misdirection an unmistakable thread emerges, viz,
that the learned magistrate was not hopelessly oblivious
of the
inadmissibility of anything Lehono bad said. It was constantly at the
back of his mind. This is clearly demonstrated from
his treatment of
the evidence on the substantive charges of theft, forgery, and fraud,
at p.59 from line 7 to almost the end of
the judgment. The magistrate
is completely wrong, incidentally, in his analysis of the meaning of
actus reus. He seems to have
been under the impression that there
must be a witness or witnesses who physically perceived a joint theft
of the cheque from the
project's office to bring the theft conviction
home, or had physically seen the appellant insert the additional "a"
to
bring the forgery conviction home, or heard him at the bank make
an oral false representation, to bring the fraud conviction home.

This is not so. The actus reus to sustain all three counts has been
proved by the appellant's possession of the cheque, his taking
it to
the bank in Ladybrand, and in the manner of his disposal of the
proceeds. If he did not add the "a" or there was
doubt as
to who did it, the appellant is guilty of uttering (a competent
verdict on forgery) if he knew the instrument had thus
been forged,
and in fraud he need not have said a single word to Mr. Visser for
there can be misrepresentation by conduct which
there was.

What
heppened in brief is that the learned magistrate rightly thought that
Lenono's statement was no good for theft, forgery and
fraud. He
rejected the appellant's explanation of possession as false but
wrongly thought Lenono's statement was an additional
reason for
convicting on receiving. He has have certainly gone astray on the
law.

I have
been invited by the Crown to apply the proviso. The proviso (with
similar text) has been in existence in English Law since
the Criminal
Appeal Act of 1907 and has been also in

13

existence
in Southern African jurisprudence for a long time, with this
difference however, that in England and (until juries were
abolished
in Southern Africa) the application of the proviso had perforce to be
interpreted with reference to the division of functions
between the
Judge and the Jury. Now the Judge(or Judicial officer) Here performs
both functions i.e. facts and law. I will rely
on Southern African
authorities.

The
subject has been dealt with admirably if briefly in Hoffmann South
African Law of Evidence (2nd Ed. 1970 -the third edition
is not
available to me) at page 342 to page 345.

The
principles upon which an appellate tribunal would act are, or seem to
be :

1. That
   the proviso would not apply if there had been an irregularity per se
   or actual arid substantial prejudice to the accused
   not necessarily
   amounting to the satisfaction of the appellate tribunal that an
   innocent man has been convicted, (S. v Moodie
   1961 (4) SA 752 (AD);
   R. v. Rose 1937 AD 4b7;

   
   

2. Relying
   on inadmissible evidence in disbelieving a witness (which must
   include an accused if he gives evidence) is an irregularity
   an
   appellate tribunal may or may not regard as vitiating the court a
   quo's findings though its leaning would be towards the accuseds
   (R.
   v. Owen 1942 AD 389 and R. v Sibanda 1965(1) SA 329(SR.AD)

   
   

3. An
   appellate court will be satisfied that there has in fact been a
   failure of Justice if it cannot hold that on the evidence and

   findings of credibility unaffected by the irregularity there is
   proof of guilt beyond reasonable doubt(S.v Tuge 1966(4) SA 565
   AD).

   
   

Applying
the above principles there has been no irregularity per se, and
looking at the evidence on record, and ignoring the misdirections

there is no doubt whatsoever the appellant Ms guilty to the hilt not
merely of receiving, but of theft, of uttering a forged document

knowing it to be forged, and fraud, or to put it in the magistrate's
own words "it" (i,e. what happened) "was in
accordance
with a premeditated scheme made by the two men that the cheque
(Exhibit C) would be cashed and the money used for their
own
interests".

In sum
total then, the appellant's conviction of receiving if it errs at
all, errs to the appellant's undeserved advantage. There
is no
necessity to disturb this conviction though I think theft has been
proved. Under the powers

14

conferred
upon the High Court in its appellante jurisdiction in terms of
s.329(l)(c) and (d) of the Criminal Procedure and Evidence
Act 1981
appellant's acquittal on the other counts is perverse and accordingly
set aside and substituted for convictions of the
crimes of uttering
and fraud.

I confirm
the sentence of 4 years imprisonment. The same sentence is imposed on
each of the crimes of uttering and fraud all the
sentences to run
concurrently.

CHIEF
JUSTICE

11th
March, 1983

For
Appellant : Mr. Boreman

For
Respondent: Mr. Kamalanathan