CRI/A/3-6/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MATEBOHO
TSEPPE & 3 OTHERS Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice J L Kheola on the 6th day of May 1985.

The
appeal has already been dismissed and what follow are my reasons for
that decision.

The
appellants were charged, in the Subordinate Court for the district of
Berea, with the offence of housebreaking with intent to
steal and
theft.. It was alleged that on the 19th May, 1984 the said accused
did each or one or other or all of them unlawfully
and with intent to
steal break and enter the house there situate of Oscar Buberwa and
did steal a hifi set, a TV. set, a blaupunkt
music, two speakers, 3
suits, a radio set and cash amounting to R600 the pro­perty or in
the lawful possession of Oscar Buberwa.
They were all found guilty of
theft and sentenced to twelve (12) months' imprisonment.

Oscar
Buberwa gave evidence to the effect that on the day in question he
and the second appellant went on a drinking spree. They
started
drinking at about 9.00 p.m. at Roadside Restaurant. At about 9.30
p.m. Oscar asked the second appellant to take him home
at Mamathe
High School where he was teaching. They travelled to the school in
the vehicle of the second appellant and remained
there until midnight
when they decided to go to the home of the friend of the second
appellant in a village near the school. They
were served with beer
until 1.30 a.m. when they left for the home of the complainant. On
the way to the

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complainant's
home the second appellant was driving and acciden­tally drove the
vehicle into a ditch. They tried to push it
out but in vain. Finally
they asked the villagers to help them and at about 3.00 a.m. the
vehicle was taken out of the ditch. When
they arrived at home they
drank a few tins of beer which were in the house until they finished
them. As the second appellant was
still not satisfied he asked the
complainant to take his (appe­llant's) vehicle and go to a
shebeen in the village and buy
some more beer. The complainant agreed
but decided to lock him into the house because he realised that he
was drunk. He went to
the shebeen and bought half a dozen beers.
Unfortunately the van could not start because it had run out of
petrol. He pushed it
to a nearly house and left it there in the care
of the owner of that house. He found it difficult to walk back to
'Mamathe High
School and slept at the home of Radiapeng.

On the
following morning he woke up at about 7.00 p.m. and proceeded to the
school intending to open for the second appellant. On
his way to the
school he met appellants 1, 3 and 4 who were swearing at him and
accusing him of having locked the second appellant
into his house and
then gone to sleep elsewhere. He tried to explain to them what had
happened but they did not seem to understand.
He nevertheless managed
to tell them where the vehicle was and gave them its keys together
with the keys of his house. They then
left him there and went to his
house. He decided to go to Lioli sports ground where he had to make
arrangements for the children's
sports that were to be played that
day. The appellants found him near the Government Hospital and gave
him his house keys,, They
were still very angry and the second
appellant was accompanying them. At about 10.00 a.m. he went to his
house and discovered that
the following goods were missing: a T.V.
set, Hifi set, a radio recorder, pieces of music system, three suits
and R600.00 contained
in a canvas bank bag. The money was for the
sports. One of his neighbours told him that the

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goods had
been taken by the appellants

He
returned to the sports ground and asked one student to trace the
fourth appellant. At about 3,30 p.m. the fourth appellant came
to the
sports ground driving the same van that he had left in the village
when it ran out of fuel. He asked him if he knew anything
about his
goods and the fourth appellant ordered him to go and ask the man he
had locked into his house. On the following day he
reported the
matter to the police and one policeman was detailed to go with him to
the home of appellants 2 and 3 who are man and
wife. A search was
conducted at their home at Lekokoaneng and a T.V. set and Hifi set
were found Nothing was found at the homes
of appellants 1 and 4.
Under cross-examination this witness told the court that the second
appellant told the policeman that he
took these articles' because the
complainant had locked him in his house and also because he did not
see his van back so he took
them to compensate himself about his van.
The second appellant said he was advised by appellants 1, 3 and 4 to
do so. When the
police said they were giving him time to return all
the items, the second appellant said that 'because the com­plainant
did
not want to go to court they would try their level best to return
those other items.

The
second Crown witness Sgt. Masupha testified that he found the T.V.
and Hifi sets at the home of appellants 2 and 3. They explained
that
they had taken them because the complainant had damaged their van and
that they would return them as soon as he had repaired
it. He said he
did not remember that the 2nd and 3rd appellants said that because
the complainant did not want to take the matter
to the court they
would try their level best to return the other items.

The
appellants elected to remain silent,

Mr.
Monyakn who appeared for the appellants at the trial sub­mitted
that the Crown had failed to prove beyond a reasonable doubt
that the
appellants had the necessary intention for theft, i.e. to

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deprive
the owner of his property permanently. He contended that the present
case was a pledge-taking case; the appellants never
had the intention
to keep the articles permanently because they made it quite clear
that as soon as the complainant repaired their
vehicle they would
return his goods. In his very well reasoned judgment the learned
magi­strate rejected this contention on
the ground that in all
pledge-taking cases the debt between the accused and the complainant
is esta­blished. After referring
to the cases of R. v. Mtshali,
1960 (4) S.A. 252 (N.P.D.) and R.v. Tsunyanyana, 1960 (4) S.A. 449
(E.C.D.) he came to the conclusion
that (1) there was no indication
that the van was broken and the circumstances of the case pointed to
the contrary; (2) even if
the van was broken complainant was never
told to repair it so that his goods could be returned, so it goes
without saying that
he would never repair it. The learned magistrate
held that there was animus furandi and convicted all the appellants
of theft.

At the
hearing of the appeal Dr. Tsotsi appeared for the appellants and
argued that the evidence revealed that appellants 2 and
3 did not
intend to deprive the owner of his property permanently. Appellant 1
and 4 were not asked to explain what happened. With
regard to what
goods were taken he argued that only the Hifi and T.V. sets were
taken and that this was confirmed by complainant's
co-teacher. He
submitted that the period during which the goods were taken was too
short to have warranted an inference of theft.
I point out that on
page five (5) of the record the complainant said that the police
further said that they were giving the appellants
time to return all
the items taken and that the second appellant said that because the
complainant did not want to go to court
they (appellants) would try
their level best to return those other items. To me this statement
appears to be a clear admission
by the second appellant that besides
the Hifi and the T.V. sets, they had taken other goods. I do not
think that the second appellant
would have undertaken to return the
other goods if he knew nothing about them. This piece of evidence was

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elicited
from the witness by Mr. Monyako in cross-examination. To my greatest
surprise he immediately abandoned that aspect of the
case after this
damaging answer was made. If the appellant had not said so one would
expect him to have put it to the witness that
the appellant would
deny that he ever said such a thing. The evidence of Louma (the
complainant's co-teacher) does not rule out
the fact that other items
were taken because the appellants went to his house and said they
were taking this Hifi and this T.V.
sets. They could have hidden the
other items which were very small.

I further
point out that there was common purpose because the second appellant
told the policeman that appellants 1,3 and 4 advised
him to take the
goods (page 5 line 2) .

I proceed
now to consider the question whether the appellants had the intention
to terminate complainant's enjoyment of his property
permanently. In
R.v. Mtshali, supa, at p. 255 Holmes, J. said:

"In the present case the appellant's intention was apparently to
hold the wireless and gramophone until the complainant paid
him the
money which he suspected she had stolen from him. How permanent did
he intend that situation to be? It seems to me to be
relevant to
enquire whether he had reasonable grounds for suspecting that the
complainant had stolen his money, for if he had no
such grounds, he
could not have expected that she would pay the money, and his
intended retention of the goods becomes indefinite.
That, in the
absence of factors pointing the other way, would give rise to an
inference of an intention to terminate the complainant's
enjoyment of
her right; and a conviction of theft would be in order." (My
underlining).

In the
instant case the appellants met the complainant and he explained to
them that the vehicle had run out of fuel and told them
where they
could find it. He gave them the keys of the van and those of his
house. From there they went straight to the complainant's
house and
took his goods. At that point in time they had not seen the vehicle

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and they
did not know whether or not it had been damaged. Now the question is:
did the appellants have any reasonable grounds for
suspecting that
the van had been damaged? It must be borne in mind that the
complainant had been permitted by the second appellant
to use the
vehicle; he had not stolen it. It seems to me that at the time of
taking the goods the appellants did not have any reasonable
grounds
for suspecting that the complainant had damaged their van. If they
suspected that the vehicle had been damaged one would
have "
expected them to have gone to the spot where the vehicle was standing
before they went to complainant's place and removed
his goods. There
is evidence that the second appellant said he took the goods because
'he did not see his vehicle back so he took
them to compensate
himself about his van. (page 4 of the record). If the second
appellant did not want to see his vehicle where
it had run out of
fuel there was no justification for him to take the goods of the
complainant for the simple reason that he did
not see his vehicle.
The complainant told them where they could find it. It was later put
to the complainant that the third appellant
took the goods because
the complainant had damaged the van (page 6 of the record). I have
already pointed out that at that juncture,
i.e. at the time of the
taking of the goods, the appellants did not know that the vehicle had
been damaged. They merely assumed
that it had been damaged. They
later found the vehicle and it was not damaged. Later that afternoon
the fourth appellant was seen
driving it and there was nothing wrong
with it. In any case even if there had been any damage the
complainant explained that earlier
that night the second appellant
had driven it into a ditch. Under cross-examination MR. Monyako did
not suggest that the second
appellant never drove it into a ditch. It
was not shown under cross-examination what parts of the vehicle were
damaged. The complainant
was not even asked to repair the vehicle . I
am of the opinion that the learned magistrate was right

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to come
to the conclusion that the retention of the goods was permanent
because the complainant would never repair the vehicle either
because
there was no damage at all or because he was never asked to do so.

As proof
that the appellants never intended to return the goods if police had
not intervened , the other goods namely, the radio
recorder, money
and music systems have never been returned and yet the second
appellant had undertaken to return them if the matter
was not taken
to the courts of law.

In the
result the appeal against conviction of theft is

dismissed.

There was
also an appeal against sentence. I am of the view that the sentence
of twelve months' imprisonment without the option
of a fine was too
harsh and differed very substantially from what this court would have
imposed. The following were mitigating
circumstances:

1. The
   items which were recovered had not been damaged,

   
   

2. The
   complainant and the second appellant were friends and had been on a
   drinking spree on the previous night.

   
   

3. The
   complainant had locked up the second appellant in his house and the
   appellants were very angry when they found him in the
   house on the
   following day.

   
   

The
appeal against sentence succeeds and the sentence of the trial court
is varied to read "Twelve (12) months imprisonment
suspended for
three years on condition that the appellants are not convicted of an
offence involving dishonesty during the period
of suspension.

J.L.
KHEOLA

JUDGE.

26th
June, 1985.

For
Appellant : Mr. Tsotsi

For Crown
: Mr. Lenono.