CRI/A/29/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THABANG
SEKHONYANA APPELLANT

V

THE
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

REASONS
FOR JUDGMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu, on the 13th day of
February, 1995.

On the
13th February, 1995 I dismissed Appellant's appeal on conviction on
Counts 1 and 2. And partially allowed his appeal on sentence
by
reducing his time imprisonment as follows;

Count 1
Appellant is sentenced to 9 months' imprisonment

2

Count II
Appellant shall serve three years' imprisonment.

Both
sentences to run concurrently.

These are
the reasons.

Appellant
was charged with five counts involving theft and contravening Section
9(1) (a) of Act No.17 of 1966 on Arms and Ammunition.
He was
acquitted of the last three counts on the indictment consequently
they are of no interest to us in this appeal. We are concerned
with
counts 1 and 2, in them Appellant is charged:

Count I : That the said accused is charged with the crime of THEFT.
In that upon or about the period between 1-9-92 and 30-9-92
and at or
near Hlotse Reserve in the district of Leribe, the said accused did
unlawfully and intentionally steal two firearms the
property or in
the lawful possession of Lesotho Government.

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Pistol and S.L.R.

Count II : That the said accused is charged with the crime of ARMED
ROBBERY. In that upon or about the 18th day of January, 1993
and at
or near ha Ramapepe in the district of Leribe, the said accused did
unlawfully assault Molefi Khantsi and by intentionally
using force
and violence to induce submission by Molefi Khantsi did take and
steal from his person or ahispresence out of a his
immediate care and
protection, certain property to wit motor vehicle YBX 25967 (van) his
property or in his lawful possession and
did rob him of the same.

On Count
1 the greatest problem that the Appellant has is that he did not give
any evidence rebutting that of Crown witnesses. There
was evidence
that two firearms, a pistol and an SLR, were stolen from the Lesotho
Government. P.W.18 Nkoane Letuka was a tenant
of the parents of P.W.5

4

Mohau
Letseka. He says Appellant says Appellant left property in a bag at
the home of a lady called "Nurse". This was
a bag. P.W.18
later collected that bag. It contained a fire arm. He later informed
Appellant he had taken that fire arm. The police
later took it away
from P.W. 18's room in his absence. He later reported himself to the
police.

P.W.4 and
P.W.5 came with a man who was handcuffed looking for a fire-arm.
During the search P.W.4 says the man who was handcuffed
said they
should look under the mattress, They found a firearm. The man told
the police that the firearm belonged to Nkoane. The
evidence of P.W.5
who was present is to the fact that this firearm was found during a
search of the house by the police. Nobody
had said they should lift
the mattress. P.W.5 says the man that was handcuffed is the
Appellant. P.W.14 states that the firearm
that was found under the
mattress of P.W.18 was an SLR rifle. P.W.14 says that SLR rifle is
government property.

It seems
to me that the Appellant ought not to have closed his case when there
was such evidence against him in

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respect
of the SLR rifle. P.W.18 may be a single witness who unequivocally
connects Appellant to the theft in that it came in P.W.18's

possession through the Appellant. It would have helped had Appellant
given evidence. The fact that the police say Appellant took
them to
P.W.18's house though not proving he is a thief, is a link which on
its own could not lead to his conviction. Similarly
the fact that the
gun was found where Appellant had taken the police would similarly on
its own not lead to his conviction. But
once P.W.18 actually said the
firearm was Appellant's property and that Appellant brought it in a
bag and left it at the house
of "Nurse", this changed the
picture completely. Then, the Crown case can be said to definitely
require rebuttal if Appellant
wants it to be disbelieved.

The
learned Magistrate was obliged to caution himself on the dangers of
relying on the evidence of a single witness before convicting
on the
evidence of a single witness. See Rex v Mokoena 1956 (3) 81. It is
not enough for the Court merely to say it cautioned itself
of the
dangers of convicting on the evidence of a single witness. What we
look for is whether such evidence was in fact approached
with
caution.

6

The trial
Court was alive to the fact that at places the evidence of many of
the Crown witnesses was far from perfect. It therefore
relied on the
evidence of P.W.18. The learned Magistrate then said of the evidence
of P.W. 10:

"This court considers the dangers inherent in this type of
evidence. That of quasi accomplices. It is trite law that evidence
of
accomplices has inherent dangers which the court has to worry about.
In Lesotho our criminal procedure prescribes that a single
and
uncorroborated evidence of an accomplice may suffice to sustain a
conviction provided the accomplice is worthy of credit. Re
has proved
to be a truthful witness, he remains unshaken that the fire-arm is
the property of the accused....."

Appellant
closed his case on count one in the face of the evidence of P.W.18.
It seems when there is prima facie evidence against
the accused as
Hoffmann & Zeffertt 77?e South African Law of Evidence 4th
Edition page 598 sums up the position;

"Accused is not technically obliged to give evidence but is
usually under strong pressure to do so. If a witness has given

evidence directly implicating the accused, he can seldom afford to
leave such testimony unanswered. Although evidence does not
have to
be accepted because it is uncontradicted, the court is unlikely to

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reject credible evidence which the accused himself has chosen not to
deny."

The
Appellant closed his case on Count 1 and gave no evidence. In
cross-examination when he was dealing with other counts, Appellant
in
passing denied the theft charged in Count 1.

The
learned Magistrate analysed the unchallenged evidence against
appellant conscious of the fact that the crucial evidence in the

chain was that of a single witness. I do not find any grounds for
faulting the learned Magistrate's conviction of Appellant on
Count 1.

On Count
II everything depends on credibility. The vehicle in question was
seized by people in police uniform from P.W.2 who was
with P.W.3 at a
road block. These "policemen" pointed fire-arms at them.
This vehicle used to be parked at the residence
of the Appellant. He
used (according to P.W.12) even to drive it although it had no
registration numbers and discs. Appellant says
it belonged to his
friend Tsietsi Lefoka of Phamong. Whether accused did the actual
stealing he was found in possession of this

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stolen
vehicle which had been recently stolen.

P.W.14
who is the investigating officer says Appellant used to drive around
in this vehicle and even parked it outside the Charge
Office. It
neither had a registration number or a disc. On 15th January he found
the vehicle outside the house in which Appellant
lived. When he asked
Appellant for a "blue card" for the vehicle Appellant could
not produce it. Appellant said he bought
the vehicle from one Bushy
in Maseru. P.W.14 seized the vehicle and charged Appellant with
theft. Appellant made a written report
which he signed.

Appellant
denies the theft of the vehicle or that he ever said it belonged to
him. The vehicle was brought by one Moeketsi Lefoka
who was his
visitor. He once drove the vehicle. The police according to accused
seized the vehicle in his absence. In cross-examination
Appellant
says he did not arrest Moeketsi Lefoka because that was the job of
another section of the police. It turns out the section
that should
have arrested Moeketsi Lefoka is the CID, which is he very section he
himself was attatthed. Appellant then said Moeketsi
Lefoka was his
intimate friend:

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The Court
that was obliged to deal with issues of credibility is the trial
Court. It saw and heard witnesses. It saw their demeanour
in giving
evidence. I am not steeped int he atmosphere of trial, I have as an
appellate Court to go by the record. See Rex v Dhlumayo
1948(2) SA
677. Going by the record I am unable to see where the trial Court
went wrong. Everything points to the Appellant having
stolen or
received this vehicle. P.W.12 was not shaken in his evidence from
what the record discloses. The Appellant's evidence
on record is
itself unsatisfactory and unconvincing.

I am
therefore of the view that the Magistrate was right in convicting the
Appellant. It was for that reason obliged to dismiss
the appeal on
conviction.

Corbett
JA (as he then was) made the following remarks about appeals against
sentence in the case of S v Rabie 1975(4) SA 855 at
page 865E:

"I, too, am not certain what I would have done, had I been the
trial judge. I might have suspended the whole prison sentence
but I
cannot be sure that I would have done so."

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In these
words Corbett JA was agonising about punishment and endorsing the
fact that punishment is pre-eminently a matter for the
trial court.
Therefore it is not easy or even correct for the appellate court to
substitute its discretion for that of the trial
court. As a general
rule appellate courts do not interfere with sentences trial courts
have imposed unless it can he shown the
trial court was wrong.

When it
comes to punishment, courts feel uncomfortable because they are not
sure whether it will do any good. The recidivism that
bedevils all
attempts to reform prisoners have brought the courts to the edge of
despair.

We are
here dealing with a nineteen years old child. This point seems not to
have had the impact on the Magistrate. Although Appellant
does not
fall within the definition of a child in terms of the Childrens
Protection Act of 1980, there is no doubt he is a minor.
Children are
the future and hope of mankind. Whatever is done with or for children
must be done with this in mind.

11

Accused
is a first offender. He was having his first job. He has botched it.
Too much was expected of a nineteen year old boy. As
a policeman he
was expected to be the every embodiment of law, order and propriety.
Be has not only failed but did turn to the
very crime he was supposed
to protect society from. He has become a thief of motor vehicles and
firearms. In fact he has become
a gun smuggler. Guns are a threat to
law and order if they are in the hands of irresponsible people.

Courts
have a broad discretion and do take the personal circumstances into
consideration. The courts now find it hard to put the
personal
circumstances of the accused among its first priorities. The first
reason for this is that the Court has to consider society
as a whole.
The other reason why courts do not warm up to the reformative aspects
of punishment is that often does not seem to
work. Offenders do not
seem to reform. After promising not to commit crime, they do so again
and again. In other words reformation
of offenders (which is an end
of society itself) does not always yield the results that society
expects, despite the money invested
and the risks society takes in
order to make reformation of offenders

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possible.

In the
case of young people, I am of the view that we cannot give up on
them. Courts are obliged to take the personal circumstances
of each
child and try and give such a child a chance. We know recidism is a
serious problem. But there is always a possibility
or an outside
chance that a child such as the accused might reform. Courts are
obliged to give him such a chance.

In my
view a sentence of seven years for stealing guns and a motor vehicle
puts property above human beings. I feel this sentence
on a nineteen
years old boy not only gives me a sense of shock but numbs my senses.
Even for a grown and mature man I would still
find it too harsh.

One of
the aims of punishment that is by no means absent in all sentences
(though much criticised) is that of retribution. This
end of
punishment is lumped up with deterrence. When these two purposes of
punishment are brought together they become to many
people morally
and logically acceptable. To deter the police from crime I suppose
the trial Court imposed this sentence of seven

13

years'
imprisonment.

Do heavy
sentences really deter people from crime? We cannot be shown any
proof that they do. All we can say with certainty is that
all
punishment up to a point deters people from committing crime.

Some
would say conviction after a public trial is a method of punishment
that serves the ends of punishment just as well. Conviction
itself
amount to public denunciation. Nevertheless society still expects the
courts through the sentences they hand down to show
the degree of
their abhorrence of a particular crime and the way it was committed.
Therefore up to a point, a heavy sentence becomes
both retributive
and denunciatory. Yet righteous anger should not becloud judgment as
Schreiner JA said in R v Karg 1961(1) SA
231.

When
dealing with children's punishment in private homes, we use a far
harsher language that we use in courts. As parents we cannot
dare
suggest to the children that we have any share in any of their
deviant behaviour. But in a judicial setting we are (as a society)

obliged sometimes

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to
recognise where we failed children during their upbringing. Mr.
Phoofolo's grounds of appeal point out that:

"In sentencing the appellant the learned magistrate did not
exercise his discretion judicially because he did not bother to

investigate the accused's personal circumstances"

The
record confirms Mr. Phoofolo is correct, the trial Court did indeed
fail to investigate and comment on the personal circumstances
of the
accused. The question I ask myself is whether it was not Mr.
Phoofolo's obligation to bring to the trial Court's attention
the
personal circumstances of the accused. The record does not show Mr.
Phoofolo canvassed the point of Appellant's youth at all
before
sentence.

To remit
this case to the Court below so that the Appellant's personal
circumstances can be investigated would be to prolong Appellant's

agony unnecessarily. I therefore propose to assume that perhaps it
was not entirely Appellant's fault that has turned out so badly.

Therefore he has a much reduced debt to pay to society. I

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will
therefore notionally deduct the society's blameworthiness from his
sentence. In so doing T am fortified by what Burthell and
Hunt said
in General Principles of Criminal Law Volume 1. The South African
Criminal Procedure (1970) at page 191 where the learned
authors say:

"But youth may mitigate sentence or warrant the imposition of a
punishment of a more reformative kind than would have been
imposed on
an adult."

Faced
with capital punishment in a murder case involving an 18 years youth
Mohamed JA (as he then was) in Vincent Thebe v Rex C
of A (CRI) No.3
of 1984 said:

"The Court a quo took into account the youth of the appellant
but failed to appreciate sufficiently that this was prima facie

evidence of immaturity and that the evidence did not support the
conclusion that the offence of the appellant was committed purely

from inherent wickedness."

From the
aforegoing it seems clear that a lot of investigations and serious
thinking is called for when a court has to punish a
youth.

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In this
case (although I am conscious of Appellant's youth) I did not give
the reformatory aspect of punishment a dominant position
when I
considered his sentence. Nevertheless, even where deterrence and
denunciation are uppermost in a court's mind, the Appellant
being a
youth, should not be broken. In fact it is never an end of punishment
to break any offender. The police remain an important
pillar in the
maintenance of an orderly society. Therefore (up to a point) the
sentences of our courts should reflect this concern.

It was
for the above reason I have cause the Appellant to serve a total of
three years' imprisonment.

W.C.M.
MAQUTO

JUDGE

For
Appellant : Mr. H. Phoofolo

For the
Crown : Mr. J.R. Mofelehetsi