CRI/S/4/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of

REX

v

'MOLELI
NTSUKUNYANE TSELISO MOHAPI

Delivered
by the Hon Mr Justice J L. Kheola on the 7TH day of March, 1985

The
accused were charged with theft before the subordinate court of the
First Class at Mohale's Hoek, it being alleged that upon
or about the
17th day of August, 1982 and at or near Loveday Street in
Johannesburg in the Republic of South Africa the said accused
did
each or both of them unlawfully and intentionally steal a motor
vehicle with Reg No DLG 930T the property or in the lawful
possession
of J.L Clark and Co and did bring it to Holy Cross in the Kingdom of
Lesotho where this court has jurisdiction. Alternatively
they were
charged with contravening section 343 of the Criminal Procedure and
Evidence Act 1981 Accused pleaded not guilty to the
charges but
accused 1 was found guilty as charged on the main charge Accused 2
was found not guilty on both charges

In terms
of Section 293 of the Criminal Procedure and Evidence Act 1981 the
learned magistrate committed accused 1 to this Court
for sentence
because he was of the opinion that

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greater
punishment ought to be inflicted for the offence than he has power to
inflict He took into account the alarming state of
affairs in this
country regarding car thefts In some of our charge office yards one
finds a fleet of cars suspected of having been
stolen I think the
time has now come that all car theft cases should be presided over by
Resident Magistrates whose criminal jurisdiction
is four years

It is
common cause that on the 17th August; 1982 the vehicle described
above which is a Datsun E20 Econobus was stolen from the
premises of
the complainant On the 18th October, 1982 the same vehicle was found
in the possession of accused 2, He explained that
the vehicle
belonged to accused 1 When they were confronted with each other at
the charge office accused 1 admitted that the vehicle
was his
property He alleged that he bought the vehicle from one Tiiso Dlamini
of Soweto but whose exact address he did not know
he said he paid a
deposit of R2000 leaving a balance of R6000 Dlamini did

not give
him documents proving ownership of the vehicle except to promise him
that he would bring the documents of ownership He
was not given any
receipt for the R2000 he paid as deposit

It is
trite law that in a criminal trial the onus on the Crown throughout
the trial. The law was stated

in R v
Difford 1937 A D 370 at p. 373 where Greenberg,

J said

no onus rests on the accused to convince the court of the truth of
any explanation which he gives. If he gives an explanation,
even if
that explanation is improbable., the court is not entitled to convict
unless it la satisfied not

3

only that the explanation is improbable, but that beyond any
reasonable doubt it is false If there is any reasonable possibility

of his explanation being true then he is entitled to his acquittal "

The
explanation given by the accused that he bought the vehicle from one
Tiiso Dlamini. whose full particulars he did not even know
is not
only improbable but beyond any reasonable doubt it is false The
accused explanation to the court a quo that it was not his
first time
to buy a motor vehicle but or the alleged occasion he did not ask for
a change of ownership certificate and the registration
certificate I
or the vehicle No court can believe such a story that a man who is
well experienced in the sale of motor vehicles
would purport to buy a
motor vehicle in such fashion The truth is that Til3o Dlamaini is a
fictiticus person intended to mislead
this court It was argued on
behalf of the accused by Mr Mda

that the
explaration given by the accused could reasonably be true I disagree
with him This is not the sort of explanation that
may reasonably be
true The accused did not appear to me to be such a simpleton that
could accept a motor vehicle from a person
who was almost a stranger
to him without any papers and part with R2OO0 without any receipt It
was again argued that the evidence
does not support a convict ton on
the main charge save to show that the accused or his associate was
found in possession of stolen
property if an accused is proved to
have been found in possession of recently stolen goods and has failed
to give any explanation
which could reasonably be true, the court is
entitled to infer either that he stole them or that he received thorn
knowing them
to be stolen Re. v Gentleman 1919 C P D 245) I an of

4

the
opinion that a period of two months was recent enough to justify the
court to come to the conclusion that the person found in
possession
had stolen the vehicle unless he gave an explanation that could be
reasonably true

It was
also argued that in as much as the learned magistrate has not shown
whether there was a proper basis of distinguishing the
accused from
his co-accused the accused ought to have been liberated on the same
consideration as his co-accused This argument
loses sight of the fact
that accused 2 gave an explanation that the vehicle did not belong to
him but to accused 1 This explanation
was subsequently confirmed by
accused I and the court a que found that the explanation could
reasonably he true

In the
result I concluded that the accused was right y convicted and I also
find him guilty as charged

Sentence-
Three (3) years' imprisonment

JL KHEOLA

JUDGE

7th
March, 1985.

For Crown
Mrs Bosiu

For
Defence Mr Mda