C. of A.
(CRI) No. 2 of 1979

IN THE
LESOTHO COURT OF APPEA

In the
Appeal of :

MAKALO
KHIBA Appellant

V

REX
Respondent

HELD AT
MASERU

Coram:

MAISELS,
P.

DENDY
YOUNG, A.J.A.

SCHUTZ, A.J.A.

JUDGMENT Maisels, P.

The
appellant appeared before Rooney J. in the High Court on a number of
charges.

The first
was that he stole a cheque form No. 1698, the property of the Lesotho
Electricity Corporation, the second that he forged
this cheque, the
third that he stole R55,546-99 the amount for which the
abovementioned cheque was made out. There were two alternative

charges to the third charge, namely, theft by false pretences and
fraud. These two alternative charges were numbered 4 and 5 in
the
indictment.

The sixth
charge against him was that he stole another cheque form No. 1861,
the property of the Lesotho Electricity Corporation,
and the seventh
that he stole R56,589 the amount for which this cheque was made out.
The eighth and ninth charges alleged, as alternatives
to the seventh
charge, theft by false pretences and fraud.

2

I should
have mentioned that charged together with the appellant was one
Forrester. There was no case at all against Forrester and
he was
discharged at the end of the Crown case. Rooney J. in a full, careful
and well reasoned judgment came to the conclusion
that the appellant
was guilty on Counts 1, 3, & and 7 and sentenced him to a term of
imprisonment. This appeal is against conviction
only. The appellant,
who was defended in the Court a quo, gave no evidence, but made an
unsworn statement from the dock in which
he simply disclaimed all
knowledge of the offences with which he was charged.

The
appellant was employed by the Lesotho Electri­city Corporation as
an accountant. Rooney J. found

1. that
   the appellant stole the cheque, which formed the subject of Counts 1
   and 3, from his employer;

   
   

2. that
   he took the cheque, which it is common cause was forged after it was
   stolen, made out to Kopano and Sons Construction as
   payee, to the
   Standard Bank Ficksburg in the Orange Free State, where he had
   opened an account in the name of Kopano and Sons
   Construction, and
   deposited the cheque to the credit of this account;

   
   

3. that
   this cheque which was ostensibly drawn on the account of Lesotho
   Electricity Corporation at Lesotho Bank, Maseru, was sent
   by the
   Standard Bank Ficksburg, as collecting agent for Kopano and Sons
   Construction (in reality the appellant);

   
   

4. that
   the account of Lesotho Electricity Corporation at the Lesotho Bank
   was debited with the amount of R55,546-99, the sum for
   which the
   cheque was made out, and the Standard Bank credited there­with
   i.e. the cheque was paid in this way;

   
   

5. that
   the forgery was subsequently discovered and the entry reversed;

   
   

6. that
   the appellant did not withdraw any of this money from the Standard
   Bank;

   
   

7. that
   the appellant stole the cheque which formed the subject of Counts 6
   and 7 from his employer;

   
   

8. that
   he opened an account in the name of Sons Construction at Barclays
   National Bank, Ficksburg and deposited the cheque which
   was made out
   for the sum of R56,489-00 to the credit of this account;

   
   

3

9. that
   this cheque, ostensibly made out by Lesotho Electricity Corporation
   and drawn on Lesotho Bank was forged after it was stolen;

   
   

10. that
    when the cheque was deposited Barclays Bank was instructed to have
    it specially cleared;

    
    

11. that
    this was done, the Lesotho Bank accepted it as a valid cheque, the
    Lesotho Electricity Corporation was debited with R56,489,
    and
    Barclays Bank was credited therewith;

    
    

12. that
    the appellant drew two cheques made payable to cash in the sums of
    R32,610-55 and R22,840-27 respectively on the account
    of Sons
    Construction at Barclays Ficksburg and appropriated the proceeds
    thereof for his own purposes.

    
    

That
these findings by Rooney J. were amply justified on the direct and
circumstantial evidence admits of no doubt. It would be
a work of
supererogation on my part to set out the facts upon which Rooney J.
came to his con­clusion- It suffices to say that,
not
surprisingly, Mr. Kuny who appeared for the appellant found himself
unable to contest any of these findings of fact; especially,
as the
appellants as stated above, gave no evidence, a factor which in a
case of this nature may properly be taken into account
against him
cf. S. v. Letseke and Others 1964(4) S.A. 768 at 776 (AD) and Ndwande
v. R. 1970-76 Swaziland Law Reports 386 at 389.

That
being the case Mr. Kuny did not challenge the correctness of the
verdict on Counts 1 and 6 which related to the theft of the
cheque
forms. He contended however, that on the facts found by the learned
Judge a quo the crime which the appellant committed
in relation to
the proceeds of these cheques which had been forged was that of theft
by false pretences. The learned Judge a quo
was of the opinion that
the appellant could indeed have been found guilty of theft by false
pretences on the alternative Counts
to 3 and 7, i.e. Counts 4 and 8
but because he found the appellant guilty on the main counts, i.e.
Counts 3 and 7 and because to
use his words "the remaining
charges cannot be left in the air without resolution" he
returned a formal verdict of not
guilty on Counts 4 and 8.

4

Mr.
Muguluma in a powerful and able argument on behalf of the Crown
submitted the appellant was indeed guilty of theft as charged
under
Counts 3 and 7. Mr. Kuny argued that the appellant was on Count 3 in
a position where he could have drawn the proceeds of
the cheque at
Standard Sank Ficksburg as a result of his having falsely pretended
to the Standard Bank at Fick-sburg that the cheque
deposited by him
there was a good and valid cheque. So too, it was contended, with
reference to Count 7, that the appellant falsely
pretended to
Barclays Bank at Ficksburg that the cheque deposited by him there was
a good and valid cheque and in this case he
drew at Barclays
Ficksburg against this cheque as stated above two cheques for
substantial amounts which were paid to him. Upon
these facts Mr. Kuny
contended that the crimes committed by the appellant in relation to
these cheques were committed in the orange
Free State and the Courts
of Lesotho had no jurisdiction to try the appellant in respect
thereof. Alternatively and additionally
he argued that even if the
Courts of Lesotho had jurisdiction, the High Court had acquitted the
appellant of theft by false pretences
and it was not open to this
Court, because of this acquittals notwithstanding the powers
conferred on it by section 10 of the Court
of Appeal Act, to alter
the convictions to Theft by False Pretences. In the view I take of
this matter it is not necessary to deal
with this last point.

That
theft by false pretences is always theft simpliciter admits of no
doubt. Cf. Ex Parte Minister of Justice : in re R. v. Gesa
1959(1)
S.A. 234 at 239 (A.D.); Dalrymple, Frank & Feinstein v. Friedman
& Another 1954(4) S.A. 649 at 664(W); R. v. Collins
19 EDC 163.
Hunt South African Criminal Law Vol. II says at p. 758, after
analysing the law on this subject,

"theft simpliciter can legitimately be charged where the owner's
consent has been induced by false pretences, but such charge
sheets
should, in order to avoid prejudice to the accused, usually
specifically allege the false pretence."

5

In the
present case it was made abundantly clear to the appellant how it was
alleged he stole the money and he suffered no prejudice
as a result
of the failure specifically to allege a false pretence. But in my
judgment, there is no doubt that this is a case of
theft simpliciter.
Theft consists in an unlawful contrectatio with intent to steal of a
thing capable of being stolen, Cf Hunt
op cit p. 566. That money is
capable of being stolen, even where it is not corpo­real cash,
but is represented by a credit
entry in books of account appears to
be clear cf. S. v. Graham 1975(3) S.A. 569 (AD); R. v. Milne &
Erleigh(7) 1951(1) S.A.
791 at 877 (AD); S. v. Solomon 1953(4) S.A.
510 at 522 (AD). As was said by Greenberg J.A. in an unreported case
of Rex v. Manuel
(A.D. 28th March 1950) referred to with approval in
Graham, Milne & Erleigh, and Solomon supra,

"Under our modern system of banking and paying by cheque or
kindred process, the question of ownership in specific coins no

longer exists in cases where resort to that system is made".

The
appellant's agents, albeit innocent agents, i.e. Standard Bank and
Barclays Sank, presented the cheques for payment in Lesotho.
It
matters not that the appellant himself did not present these cheques
in Lesotho cf. Hunt op cit p. 572(V) and authorities there
cited. The
entries debiting the Lesotho Electricity Corporation in the books of
the Lesotho Bank and crediting the Standard Bank
and Barclays Bank,
as collecting agents, were made in Lesotho. In this way thefts were
committed and these thefts were committed
in Lesotho. It was there
that the unlawful contrectatio took place. This indeed was what Mr.
Muguluma argued and in my judgment
correctly argued. It follows from
what I have said that the points raised on behalf of the appellant
cannot be upheld and that
this appeal must be dismissed.

(Signed)
I.A. Maisels I.A. MAISELS President

6

I agree
(Signed) J.R. Dendy Young

J.R. DENDY YOUNG

Acting Judge of Appeal

I agree
(Signed) W.P. Schutz

W.P. SCHUTZ

Acting Judge of Appeal

Delivered
this 10th day of January, 1980 at MASERU.