CRI/A/15/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

LEBAJOA
PITSO Appellant

V

R E X
Respondent

JUDGMENT

Develired
by the Hon Mr. Justice J L Kheola on the 24th day of June, 1985.

The
appellant and one Mohami Ntoampe were jointly charged with theft, in
that between the 1st and the 31st January, 1983 and at
or near
Lekokoaneng in the district of Berea, the said accused were employed
as teachers at Lekokoaneng Lesotho Evangelical church
school and as
such were entrusted with the custody and care of school fees monies
which belonged to the Lesotho Evangelical Church
or which monies came
into their possession on account of the said position they held in
the Lesotho Evangelical Church, the said
accused did during the
aforesaid period unlawfully and intentionally steal some of the
monies causing a general deficiency in the
sum of R2,070 - 00
belonging to and in the possession of the Lesotho Evange­lical
Church .

They were
found guilty as charged and sentenced to pay a fine of R200 - 00 or
twelve (12) months' imprisonment Mohami Ntoampe's
sentence was
suspended for two years on certain conditions The matter was brought
to the High Court on automatic review and the
reviewing judge
acquitted Mohami Ntoampe and quashed the option of a fine in respect
of the appellant and sentenced him to ten
(10) months' imprisonment
The appellant is now appealing to this Court against both conviction
and sentence The appellant and Mohami
Ntoampe were employed as
teachers by the Lesotho Evangelical Church at Lekokoaneng Primary
School The appellant

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was the
headmaster and Ntoampe was one of the teachers and was the elected
treasurer. On the 24th and the 25th January, 1963 the
teachers
collected the amount of R2,070 - 00 as school fees. The money was
given to the treasurer who was supposed to take it to
the bank on the
following day. It is not in dispute that during the evening of the
25th January, 1983 Ntoampe asked the appellant
to keep the money at
his home because he (Ntoampe) had naughty children and was afraid
that they would steal the money. At first
the appellant was reluctant
to accept the money but Ntoampe pleaded with him until he finally
accepted the money. He kept it on
a table in his room. He slept and
at about 4 00 a m he woke up and went out of the room in order to
spill water that he had used
for washing on the previous night before
he retired.

When he
came back into the room he tried to close the door but someone pushed
it from outside Two men entered They were wearing
grey blankets and
hats which covered most of their faces At gun point they ordered him
to give them the money they had collected
on the previous day He
complied and they took not only the money but his radio and passport
A short while after they had left he
came out of the room and raised
alarm. He went to 'Moleli's place and met him at the gate He and
'Moleli went to the chief and
reported the robbery. On the following
day he made a report to his colleagues as well as to the manager

The
learned magistrate did not believe the story of the appellant and she
said that even if she were to believe that he was robbed,
it must
have been according to plan. It is unfortunate that the learned
magistrate does not give any reasons why she believes that
it was
according to plan The evidence in the record does not support her
belief She goes on to say that the appellant led no evidence
to
convince the court that he was robbed of the money and that he
reported the matter. This is clearly a gross misdirection on
the part
of the

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magistrate.
In a criminal trial the onus is on the Crown throughout to prove
beyond a reasonable doubt that the appellant is guilty
or that his
story is beyond any reasonable doubt, false In R. v. Difford, 1937 A
D. 370 at 373 Greenberg, J stated the criminal
standard thus

" . 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 is satisfied, not only that the explanation
is
improbable, but that beyond any reasonable doubt it is false. If
there is a reasonable possibility of his explanation being
true, then
he is entitled to his acquittal".

I
entirely agree with this statement of the law In the present case the
appellant gave an explanation and I think there is a reasonable

possibility that it may be substantially true. The trial court
mis­directed itself when it said that the appellant led no
evidence to convince it that the robbery took place. The appellant
gave an explanation in which he gave the names of 'Moleli and
the
chief as being the people to whom he reported that night that he had
been robbed He even went to the chief's place accompanied
by 'Moleli.
I find it rather strange that neither the court nor the Prosecution
decided to call any of those people in order to
prove that the
appellant's story was false. The appellant was not under any
obligation to prove his innocence. It was sufficient
that he gave a
full explanation which included the names of people who saw him that
night The appellant gave a list of his own
articles which were stolen
on the same night The passport was picked up in the veld by
some­body and the radio was never recovered.
These aspects of the
case tend to confirm the story of the appellant.

The
learned magistrate seems to have convicted the appellant on the
ground that he was "very careless in keeping that money"

(see page 14 of the record). As far as I am aware mere carelessness

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has never
been regarded as constituting intent to steal.

In the
result the appeal is allowed. The appeal fee must be refunded to the
appellant

J.L.
KHEOLA

JUDGE.

9th July,
1985

For
Appellant Mr Ramodibeli

For Crown
Miss Moruthoane.