CRI\A\275\95

IN THE
HIGH COURT OF LESOTHO .

In the
Appeal of :

KOKHELE
MOLEFE 1ST APPELLANT

MALEFETSANE
MOKHATLA 2ND APPELLANT

v

THE
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

REASONS
FOR JUDGMENT

Delivered
by the Honourable Acting Mrs Justice J.R. Guni on the 12th day of
June, 1995

This
appeal was heard and dismissed on the 12th June, 1995. At the time I
indicated that the reasons will follow. These are the
reasons:

The two
appellants were convicted on their own pleas of guilt on the charge
of theft of a motor vehicle.

The
statement of agreed facts shows that the father of the owner of the
motor vehicle came home at Clarance from Bloemfontein at
about 04
hours on 9th November, 1994. On his arrival he discovered that this
motor vehicle was. missing. He

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telephone
and reported this to the owner who was at Fourisburg. The owner in
turn reported the theft to Lesotho Police at Butha-
Buthe Camp Charge
Office. The Police in the company of the complainant went out in
search of that motor vehicle. At about 3 p.m
at Ha Marakabei they saw
the said motor vehicle travelling from East towards West. They
followed after it. On their arrival at
the vehicle they signalled the
driver to stop. He did not stop. He excelerated. The chase ensued as
the driver sped away. During
that chase, police produced and pointed
guns at the appellants. At Ha Pokane the police caught up with them.
Appellants surrendered
to the police. In the possession of these
appellants two keys were found tied together. One key is a hand­made
master key and
the other is the toyota key but of a different number
from that of the complainant's motor vehicle.

The
appellants were sentenced to (6) six years imprisonment each.

The case
was forwarded to the High court on automatic review. It was placed
before the honourable reviewing judge who reduced the
sentence to (3)
three years imprisonment. After the case was duly reviewed the
appellants nevertheless still exercised 'their right
to take the
matter on appeal as this is not precluded in terms of section 66
Subordinate Courts Order of 1988.

The
grounds on which this appeal is based are:

1. That
   the sentence of six years is excessive.

   
   

2. That
   the Learned Magistrate erred when imposing sentence by considering
   only the question of prevalence of theft of motor vehicles.

   
   

3. That
   the Learned Magistrate had not considered accused's personal
   circumstances. e.g. that they are married and have children.

   
   

The
record shows that the appellants have no previous convictions. In
their address in mitigation of sentence it appears both are
married
men. One has one child and the other has two children. Both
appellants are 28 years of age. One is Kestil Municipality
employee
and the other runs a shebeen at Qwa-

It was
argued for and on behalf of the appellants that had the Learned
Magistrate taken into account those personal circumstances
of the
appellants he would have arrived at the different sentence. This
court was urged to consider all these factors personal
to the
appellants. It was submitted that. When all these factors are
considered an appropriate sentence should be a fine with imprisonment

as an alternative if the appellants fail to pay the fine. At worst
the court could couple that fine with wholly suspended sentence.
The
authority sited in support of this submission is Rex v Ndlovu 1967
(2) S.A 230. In Ndlovu's case young J observed, "I
think the
time has come when the power of imprisonment should be exercised more
sparingly than has hitherto been the case; that
imprisonment should
be reserved for serious cases, that is, cases where there are serious
economic . or security implications."
(My underlining)

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In
Ndlovu's case the accused was charged and convicted of forgery and
uttering an omnibus ticket. This ticket had been used. The
accused
had forged some entries on the ticket in an attempt to validate it.
The accused uttered the said ticket to the bus inspector
who was
observant enough to notice that the said ticket was not completed nor
signed by his bus conductors. The value of that ticket
was (34)
thirty-four cents. In both cases the prejudice is only potential. The
motor vehicle in our case was recovered. The value
of that motor
vehicle is not stated in the record of proceedings. But it would be
absurd to consider the value of the motor vehicle
the same as that of
the bus ticket in Ndlovu's case. Young J. directed that the power of
imprisonment should be reserved for serious
cases. Our present case
is such a serious case. The economic implication or potential
prejudice involved in a car theft are serious
indeed.

The
Learned Magistrate when dealing with the question of prevalency of
this type of offence, pointed out and correctly so,that there
are
problems between the two neighbouring states, the kingdom of Lesotho
and the Republic of South Africa as a direct consequence
of these car
thefts committed across our borders.

Although
these appellants are first offenders, in their possession the police
found tied together a toyota key which was apparently
used for
driving the stolen vehicle and another hand­made master key. The
impression one gets from this is that the

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appellants
were not amateurs. The motor vehicle in question was discovered
missing by the father of the complainant when he arrived
at home at
04:00 hours. In his address in mitigation of sentence one of the
appellants claims that they were travelling in their
own motor
vehicle when they were suddenly tempted to steal this motor vehicle.

Armed
with their keys the two appellants went about at night, to be
precise, it was during what could be termed bewitching hour.
Their
keys are specially made to be used for driving any or every motor
vehicle. When they saw the motor vehicle in question it
was not
difficult for them to succumbed to sudden temptation. They seem to
have been going about, if not looking for motor vehicle
to steal, but
at lest prepare and ready to steal one if circumstances permitted.
They have not bothered to explain why they were
out at night. They
also have not explain why they had in their possession those keys.

Mr. G.M.
Kolisang persisted with his submission that the Learned Magistrate
should have considered suspending part of the sentence.
R v Mutizwa
1968 (4) S.A. at page 278, is the authority sited in support of this
submission. The two cases are quite different
except that both
accused had no previous convictions. Mr. Mutizwa stole during the day
time at the shop where he worked. He stole
one packet of washing
powder and some cigarettes. He was observed by an alert shop owner
who called him to come back into the shop.
He was observed going out
of the shop with those items in the box by an alert owner of the
shop.

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He was
called back to help serve the customers. He left the box outside when
he returned into the shop to assist serving the customers.
After
helping the customers he went out again to where he left that box.
The owner called him to bring that box and he did.

These
appellants stole something more valuable than a packet of washing
powder and some cigarettes which together were value at
£9.

The trial
court in Mutizwa's case accepted that his salary £14 per month
was meagre. He had a wife and two children whom he
struggled to
support and maintain on that salary. He requested advances from his
employer all the time and at the end of the month
he received £4.
after deductions of the advances. QUENET J.P was of the view that Mr.
Mutizwa stole out of need. Nothing
of the kind could be said of these
appellants. They were travelling in their own motor vehicle. That
shows they are the men of
means. They made no mention of their
earnings from their employment or other sources. e.g shebeen. They
were motivated by greet
and\or mischief rather than need.

The
sentence of six (6) years imprisonment has already been reduced to
three (3) years by the honourable reviewing Judge. Although
there are
no reasons given for this reduction it could be in consideration of
the factors which this court is being urged to take
into account for
the same purpose. That is to reduce further the already reduced
sentence. These appellants

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have
already been treated with greatest leniency. It is for these reasons
that the appeal was dismissed.

K.J. GUNI

ACTING
JUDGE

For
Appellant : Mr. G.N. Kolisang

For
Respondent : Mr Ramafole