CRI/A/I0/80
IN THE HIGH COURT OF LESOTHO
In the Appeal of
LESOLE MOEKETSI PAUL MOHLOKI Appellant
v.
REX Respondent
JUDGMENT
Delivered by the Hon. Judge Mr. Justice M.P. Mofokeng on the 28th day of March, 1980.
The appellant was charged before the Senior Resident Magistrate with theft it being alleged :
"that upon or about the 20th day of July 1979 and at Leribe Barclays Bank, in the district of Leribe, the said accused did unlawfully and inten-tionally steal the sum of M80 the property of Mphongoa Pone, in lawful possession of the Barclays Bank Manager".
When the charge was put to him, he pleaded guilty and in terms of s. 235(b) of the Criminal Procedure and Evidence Proclamation 59 of 1938, as amended, the public prosecutor outlined to the Court the facts disclosed by the evidence in his possession. Briefly, they were :
that one Mphongoa Pone had a savings account with the Barclays Bank at Rustenburg in the Transvaal, Republic of South Africa;
that while on a visit to Lesotho during or about early July, 1979 the said Mphongoa lost his savings account book and he reported the loss of the said book to his bank at Rustenburg. He (Pone) was consequently issued with a duplicate savings account book;
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that on the 20th July, 1979 the appellant went to the Barclays Bank at Leribe where he pretended to be Mphongoa Pone and produced for identification a passport issued to Mphongoa Pone. He completed a withdrawal slip for 1180.00 which he then submitted to the Bank together with the savings book which Mphongoa Pone had lost. The Sank delivered a sum of M80.00 to the appellant believing that he was Mphongoa Pone and that he was entitled to make withdrawals from his savings account;
that the Bank parted with the sum of M80.00 as a result of the fraudulent conduct of the appellant. At the time of the appellant's trial the said amount had not been repaid to the Bank;
that the appellant was in October, 1979 found in possession of the savings account book lost by Mphongoa Pone in July, 1979. Also found in his possession was a Lesotho Passport issued to Mphongoa Pone. The said documents were retrieved from the appellant at Barclays Bank, Leribe when the appellant attempted to make further withdrawals from the account of Pone;
that the actual Pone identified the savings account book found in possession of the appellant in October, 1079 as the savings account book which he lost in July, 1979. He did not know anything about the passport bearing his name found in the possession of the appellant;
that the appellant's actual names were Lesole Moeketsi Paul Mohloki and not Mphongoa Pone.
The appellant admitted the facts as outlined by the public prosecutor and he was found guilty of theft by false pretences and sentenced to pay a fine of M180.00 or in default of payment to undergo imprisonment for a period of 18 (eighteen) months.
The appellant appeals to this Court on two grounds viz:
that there was no evidence to prove the allegation of theft; and
that he pleaded quilty because he was assaulted by the police and that the prosecutor persuaded
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him to plead guilty.
The money which is alleged to have been stolen strictly speaking belongs to the Bank. It was with this in mind that Crown Counsel made an application to amend the charge to read in part i.e. after the figure M80.00 to insert the following :
"the property of and in the lawful possession of the Barclays Bank Manager".
I explained very carefully Crown Counsel's application to the accused and he said he had no objection since he knew nothing about the charge. I am of the view that the appellant suffered no prejudice whatever and the appli-cation was granted, (See R. v. Grainger. I956(3) S.A. 282 at 285H.)
Now, the facts as outlined by the prosecutor and admitted by the appellant proved beyond reasonable doubt that the accused was guilty. The charge, on the facts, should either have been fraud or theft by false pretences. Theft by false pretences is always theft simpliciter. It is clear to me that the appellant was informed how it was alleged he stole the sum of M80.00.(See Mokalo Khiba v. Rex. C.of A.(CRI) No.2 of 1979 (unreported) at pp. 4-5)• In respect of the second ground of appeal I need only refer to the remarks of the learned magistrate.
"Accused appeared before me and he was in his sound and sober senses. He was quite aware that in court he was before a magistrate and he replied to the questions that were put to him by the magistrate before and after the evidence was outlined. He could have told the magistrate that he had been coerced if this were true. I am convinced that this is just a fabrication......"
There is nothing more to add to these remarks. The choice whether or not to plead guilty was the appellant's and his alone. I saw the appellant and heard him in argument. He is no simpleton.
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The oppeal is therefore dismissed.
JUDGE.
28th day of March, 1980.
For the Appellant : In Person
For the Respondent : Mr. Muguluma/Mdhluli.
