CRI/A/33/80
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
OSCAR MAKAKAMELA LELUMA Appellant
v
REX      Respondent
JUDGMENT
Delivered by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on the 10th day of March, 1981

The appellant was convicted of theft of a motor vehicle
by a magistrate at Butha-Buthe and was sentenced to 18 months
imprisonment of which 6 months were suspended for three years
on condition that he be not convicted of theft of a vehicle
during the period of suspension.
He is appealing against his conviction (and sentence)
on a number of grounds, listed in the notice, which can however
be summarised in the following :-
1.      That there was no evidence that the appellant
stole the vehicle subject matter of the charge
and that he gave a satisfactory explanation of
his possession.
2.      That there was nothing in the appellant's conduct
that could be construed as criminal since no
evidence was produced which can be said that his
registration of the vehicle in Lesotho had been
fraudulent.
3.      That ownership of the vehicle was not proved
beyond reasonable doubt.
4.      That the vehicle was not reported stolen and its
"loss circulated to Police stations throughout the
Republic and Lesotho".
5.      That no reliance should have been placed on the
evidence of one Rametloa(PW5) who had testified
that he never sold the vehicle in question to the
appellant.
6.      That documents were lost in police possession which
prejudiced the appellant's case.
7.      That the Crown failed to call an essential witness.
8.      That the inference of guilt was not irresistible.
2/      

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9. That the Crown evidence was conflicting in material
respects.
The record of the proceedings is rather long but the
following facts have been established:
Mr. N.J. Britz(PW3) is a manager of a Pick and Pay Store
in a Johannesburg suburb. The company owned a Toyota Coaster
registration number TBV 3082. On the morning of the 29th December
1977 he parked it on the road outside the shop and an hour or so
later it was gone. The theft was reported to Ravonia Police
Station. He was called to Leribe (this was a year before he gave
evidence at the trial and must have taken place in mid 1978)
where he identified the vehicle from certain perculiarities in
the body and the dashboard of which he was familiar. The colour
and model were the same. Keys in his possession opened the
engine switch and the passenger door, the third key he said was
to open the petrol cap but by then the cap was not there and rags
were used to close it. He could not remember the engine and
chassis numbers of that vehicle since the papers were handed to
the South African Police when the theft was reported and the
insurance company had settled their claim. We know however from
Mr. Opperman (PW7), the Chief Licencing Officer of Bedfordview
Municipal Council, that its engine number was B0095465 and its
chassis number was BU 19005591.
It is common cause that just over two weeks after the
theft i.e. on the 18th January 1978, the appellant, either
personally or through an agent, procured from the Lesotho Police
authority to register in Lesotho a Toyota Coaster bearing
registration number TJ 115393 (Exhibit A1). They had before
them apparently the following documents:
1.      Clearance from Lesotho Customs Department(Exhibit A2).
2.      A certificate of roadworthiness from Lesotho Traffic
Police (Exhibit A3).
3.      Notice of change of ownership on a Transvaal Province
Licencing Form V10 (Exhibit A4).
On the face of the last document Mr. Solomon Rametloa of
267 Zone 2 Meadowlands is purported to have sold his Toyota
Coaster registration number TJ 115393 to the appellant on the
29th December 1977 i.e. on the same day as the Toyota Coaster
stolen from Pick and Pay which bore the registration number
TBV 3082.
The Lesotho authorities accepted the appellant's papers
and issued him with a Lesotho registration. The appellant plied
the vehicle in Lesotho for about three months.
/The

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The computor records in the Republic of South Africa
confirm that the registration number TJ 115393 was issued for a
Toyota Coaster to a Rametloa S. of 267 Zone 2 Meadowlands. That
vehicle according to the records had engine number 110776 and
chassis number BU 19006546 (Exhibit B).
The Toyota Coaster which the appellant invited the Lesotho
Licencing authorities to register on the strength of the change
of ownership form Exhibit A4, the customs clearance form Exhibit
A2, and the roadworthiness certificate Exhibit A3 had engine
number 0110776 and chassis number 005591. Up to this point
therefore, apart from Mr. Britz general physical identification
of the Toyota Coaster in Leribe as Pick and Pay's, its engine
number appears to be that of the Toyota Coaster of Solomon
Rametloa of 267 Zone 2 Meadowlands minus the first "0" and its
chassis number Pick and Pay's Toyota Coaster minus the "BU 19".
Before a vehicle imported from the Republic is given
clearance, a Lesotho police officer must be satisfied, by a visual
physical examination, that the engine and chassis numbers
reflected on the papers coincide with the engine and chassis
numbers of the vehicle sought to be registered.
Policewoman Makepe (PW8) testified that she examined the
Toyota Coaster TJ 115393 brought by the appellant (or his agent)
for registration in Lesotho and found that its engine and chassis
numbers were identical to those of the change of ownership form
(Exhibit A4). She filled in the clearance form and put it on
Mr. Lefere's desk. Mr. Lefere (PW9) was Officer Commanding
Butha-Buthe Police. He testified that he assumed that the
policewoman did her duty properly and he signed the form
accordingly without himself examining the vehicle. It was given
Lesotho Registration No. LB 275. The Lesotho Licencing file
(Exhibit A) discloses that the LB 275 was a wreck and its
registration book surrendered. It should be noticed however that
the date of notification of this fact was not inserted on the
relevant form.
The vehicle was stopped by Det. Trooper Mokhali (PW1) on
the 21st April 1978. He too examined the vehicle after
procuring the file relating to it from the Lesotho Licencing
authority. His physical examination revealed that the engine
number of the vehicle was 0110776 (as policewoman Makepe had
testified) coinciding with the change of ownership form(Exhibit A4)
/but

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but the chassis number was DU 19005591 (Pick and Pay's Coaster
chassis number) contrary to what policewoman Makepe said it was,
viz, 005591. He added in cross-examination that an attempt had
been made at alteration of the engine number.
At the trial which took place on 18th July 1979, i.e.
almost 15 months later, the magistrate tried to read the figures
himself but he could not gain access to either of the numbers.
It is possible of course that mud and dirt had accumulated during
this long period but he should have persevered. In his judgment,
however, the magistrate accepted Trooper Mokhali's(PWl) evidence
in preference to that of policewoman Makepe (PW8). The trooper
has been on the job investigating car thefts for five years and
had undergone a course of training in that discipline, the
policewoman was a recruit of only six months standing and her
powers of observation could not have been particularly keen. The
magistrate described her as not being "diligent". A number of
cases have passed through my hands and unfortunately in some a
few members of the staff in licencing authority were in league
with the thieves. I am not saying this policewoman was one of
those but I accept the magistrate's assessment of their respective
evidence. I agree also that even Mr. Molapo's (PW6) evidence is
true that the appellant had the registration certificate of
TJ 115393 (which I doubt) it would make no difference to the
result. If the appellant was in fact acting bona fide and above
board and the sub-accountancy and licencing staff were acting
bona fide and above board there is no reason whatsoever why the
registration certificate of Rametloa if it was indeed with the
other papers, should disappear from the file. It could conceivably
have been produced and then extracted.
Coupled with Mr. Britz's of Pick and Pay' identification
from its general appearance of their Toyota Coaster vehicle and
the fact (established from the evidence of Mr. Opperman) that its
chassis number was BU 19005591, it is more than clear that the
appellant's vehicle which he registered in Lesotho (minus the
engine) was definitely the one stolen from Pick and Pay. That
finding of the magistrate cannot therefore, on the facts as
believed, be disturbed. The magistrate convicted the appellant
of the theft of the vehicle but awarded the engine to him. He
was no doubt influenced by the evidence of Rametloa (PV5) who
testified that his Toyota Coaster TJ 115393 and the registration
book are still at home at Johannesburg (which may be literally
true) and that he has never seen or met the appellant in his life
/before.

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before. The magistrate believed him but I myself am skeptical.
The stolen "disc" was not proved to contain all the details of
Rametloa and his vehicle. The difference between Rametloa's
vehicle engine number and that found in Leribe with the appellant
is only the first "0". One of course cannot be absolutely certain
of this unless Rametloa's vehicle was also available for
inspection. It was not, Mr. J.M. Edwards (PW4) of the Johannesburg
Licencing Board was cross-examined as follows :-
"Q : When one engine is written 110776 and another
one 0110776?
A : I would not say they are the same. What I know
however is that "0" before any number means
nothing and is often left out. This is what
we normally do but if there were an "O" before
this engine number I would have put it in my
papers."
Now of course there could well have been two vehicles one
with engine number 110776 belonging to Rametloa and 'a second
with engine number 0110776 belonging to another vehicle (but not
Pick and Pay ) but the coincidence of the appellant procuring it
is too too far fetched for comfort and the probabilities are that
it is in fact Rametloa's engine especially as Trooper Mokhali
noticed an alteration. If so, his denial of ever knowing or
meeting the appellant cannot be true, and on this assumption,
which is more favourable to the appellant, only two inferences
can be drawn:-
1.      Rametloa alone stole Pick and Pay's vehicle, drove
it to where his vehicle (same colour and model) was
situate, took out its engine (B0095465) and put his
instead, and made a duplicate registration number
plate of his own vehicle or used his own (TJ 115393)
and put his "disc" knowing that he will be able to
get a new one in a day or two and flogged the stolen
vehicle on the appellant who bought it in good faith,
or
2.      Rametloa and the appellant (acting in concert) stole
the Pick and Pay's vehicle, and fitted Rametloa's
engine to the stolen vehicle, or the appellant, if
not in league with Rametloa in the theft, knew when
he bought the vehicle from Rametloa that it was a
stolen vehicle.
We know that the Pick and Pay's Toyota was stolen between
10-11 a.m. on the 29th December 1977. The appellant says he
bought it on the 29th December 1977 and this is shown on the
change of ownership form Exhibit A4. It means that within the
course of the next few hours left of the day (of theft) Rametloa
(a) dismantled his own engine (b) dismantled the Pick and Pay's
engine (c) fitted his engine into the Pick and Pay's Toyota
/(d) removed....

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(d) removed the Pick and Pay's Toyota plate number and put his
own instead with his nearly expired disc and (e) found a ready
purchaser in the shape of the appellant. This is much too remote
a possibility and it can, with complete confidence, be excluded.
We are thus left with inference 2. Assuming, also in the
appellant's favour, that he was not actually participating in the
theft, one has nevertheless to consider whether when he bought
the vehicle, he knew it was stolen. He was of course, in
possession of a recently stolen property as proved by the date
on the change of ownership form and other documents dated 18th
January 1978, and there was thus an onus on him, not an onerous
one of course, since he can discharge it on balance of
probabilities, to explain how he acquired it. He supplied this
by saying he bona fide bought it from Rametloa which assertion
however could not as I indicated above stand the test of
scrutiny. His performance in the witness box was of crucial
significance and there, as the magistrate rightly held, he had
failed. Apart from a key (of longer shape) that could switch the
engine, other keys he held would not open the passenger door.
There was no other way to explain the damage to the body and the
cellotape on the dashboard except by adopting accidents similar
to Mr. Britz's. He could produce no receipt and could not
remember how much he has paid.
I am not prepared to interfere in the trial Court's
finding on credibility that the appellant's explanation was false
beyond reasonable doubt. In my view the conviction was in order
and the appeal against it is dismissed.
The Crown submitted that the sentence was too lenient and
that it ought to be enhanced. I have considered the submission
carefully but I do not feel justified in increasing the sentence
and the appeal against sentence is also dismissed except that the
condition of suspension will be varied to cover any theft or
receiving stolen property knowingly, and not merely theft of
vehicles. I also quash the order awarding the engine to the
appellant since if he was the thief (or the receiver) he should
not be allowed to benefit from the proceeds of his crime. The
engine will remain in the vehicle which was ordered to be returned
to the owners or their insurers.
CHIEF JUSTICE
10th March, 1981
For Appellant : Adv. G.N. Mofolo
For Respondent: Mr. Mdhluli