C.of A.
(CRI) No.2. of 1984

IN THE
LESOTHO COURT OF APPEAL

In the
appeal of:

REDVERS
TEBOHO SEHOLOHOLO Appellant

and

REX
Respondent

HELD AT
MASERU

Coram:

SCHUTZ P.

AARON
J.A.

WENTZEL
J.A,

JUDGMENT

Aaron
J.A,

This is
an appeal against a conviction of common theft.

This
matter originated in the Subordinate Court of Leribe where the
appellant, who was formerly a Junior Executive Officer in the

Ministry of the Interior, was charged with the crime of theft of
M3,430 committed during the period 26 February 1977 to 25 March
1978.
It is common cause that appellant was in charge of the account books
in the office of the District Administrator in Leribe,
and that his
responsibilities also included the selling of stray stock at auction
sales, and the depositing of the proceeds thereof
on behalf of his
employer, the Lesotho Government, either with the Sub-Accountancy
Branch or in a bank.

Evidence
was given in the trial Court as to the procedure that should be
followed at such auction sales. It was not challenged.
The animals
are to be sold, for cash, to the highest bidders, At each auction
sale, there should be three officials

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present:
someone from the police to keep an eye on the possibility of stolen
stock being sold, the bewys - writer of the place where
the auction
is held; and an official from the District Administrator's office.
The duties of the latter include receiving the purchase
price, and
the giving of receipts to the buyers. Receipts are taken from a
receipt book which contains an original and two copies.
The original
should be handed to the buyer. The second copy remains in the book
untill the official from the District Administrator's
office pays
over the aggregate proceeds of the sale to the Sub-Accountancy
Department. At that point in time, the money is checked
against the
duplicate receipts, and they are then detached for onward
transmission to the National Treasury in Maseru. The third
copy
(triplicate) is the fast copy which remains in the receipt book.

The case
against appellant was, in brief, that during the period from February
1977 to March 1978, he conducted some nine auction
sales in various
places within the district of Leribe, failed to account to the
government for the whole of the moneys received,
and concealed his
action by reflecting on the duplicate and triplicate copies a lesser
amount than that paid by the purchaser.

The
proceedings in the Subordinate Court originally took the form of a
preparatory examination, during the hearing of which the
depositions
of a large number of witnesses were recorded. These fell into certain
groups –

1. thirty-four
   of the witnesses were persons who had bought cattle at the auction
   sales conducted by the appellant. Between them
   they testified to
   having bought about 60 different lots at these sales. Most of them
   were able to identify the original receipts
   which had been given to
   them by appellant; and which were handed in as exhibits, but in
   respect of thirteen of the lots sold,
   the witnesses said that they
   had been given only a bewys, not a receipt. In the case of four
   transactions, the witnesses stated
   that although they had received
   receipts, they were no longer able to produce them.

   
   

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2. The
   investigating officer, Lt/Sgt. Sekonyela stated that after
   collecting original receipts from a number of purchasers, he had

   compared these with the triplicate copies in the receipt books, and
   had found that the amounts shown on the triplicate copies
   did not
   tally with those on the original receipts. The aggregate difference
   was Ml 856.

   
   

His deposition contains details of the differences between each
original and its triplicate copy. Presumably because this was only
a
preparatory examination the Crown did not hand in a schedule showing
how these receipts related to the various complainants.
It is
possible to establish such a relationship in respect of about 29
transactions involving witnesses who produced or identified
the
originals given to them. In the case of witnesses who had lost their
receipts, or who had not been given receipts, such a relationship

cannot be established. It appears also that the purchasers who had
been given the originals of some of the receipts referred to
by
Lt./Sgt. Sekonyela could not be found, and did not make depositions.

The Chief Inspector or Revenue, one Morolong deposed to having
repreated the exercise carried out by Lt/Sgt. Sekonyela. He analysed

the receipts into groups relating to each of the various sales
conducted by applicant, and gave totals for the discrepancies in

respect of each such sale. The figures deposed to by him add up to R1
632, but in his deposition, he gave a total of R1 855.50,
No attempt
was made by the prosecution at the preparatory examination to
correlate the receipts referred to by him with the various

purchasers, but the receipt numbers were given, and a substantial
number of them can at any rate be so correlated.

3. A
   number of officials from the Sub-Accountancy Department and from the
   Standard Bank deposed to various sums of money which appellant
   had
   deposited with them shortly after each of the auction sales. On each
   occasion when such moneys were deposited, applicant
   also handed in a
   batch of the duplicate receipts relating to the moneys being
   deposited. The significance of this evidence does
   not lie so much in
   the amount which was deposited on each occasion, becuse it included
   the proceeds of all the animals sold at
   the relevant auction, and
   included receipts on which the amount had not been salsified. The
   significance of the evidence is that
   appellant deposited only such
   amounts as were reflected on the duplicate and triplicate receipts
   (on some occasions, the amount
   deposited was larger by one or two
   Maloti than the total of the amounts receipted); and that if the
   amounts reflected on the
   duplicate and triplicate copies were less
   than those reflected on the original receipts, then it must follow
   that applellant
   failed to account for

   
   

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the shortfall. Moreover, if the original receipts are available, one
can determine the amount of the shortfall in that day's deposit.

Again, there was no attempt made at the preparatory examination to
correlate any shortfalls on each deposit with the particular

purchasers to whom the receipts had been issued, but I have examined
the batch of receipts attached to one such deposit slip, and
have
been able to correlate some of the original receipts produced to
particular purchasers.

4. The
   signatures of the appellant on a large number of receipts were
   identified by his departmental head.

   
   

At the
close of the preparatory examination, appellant was committed for
trial by the High Court on a change of common theft. When
it came to
drawing the charge sheet, the Crown did not charge appellant with a
series of separate thefts in respect of the sum
of money
misappropriated from the proceeds of particular lots sold, but
alleged instead, in general terms, that the

"accused did during the period between 26th day of March, 1978,
and at or near Hlotse Reserve,In the district of Leribe. unlawfully

and intentionally steal the sum of money amounting to R3 430 .......
and did thereby create a general deficiency and committed
the crime
of theft common".

After the
appellant was commiteed for trial by the High Court, the Director of
Public Prosecutions exercised his powers in terms
of the provisions
of section 90 of the Criminal Procedure and Evidence Proclamation
No,58 of 1938 (which has since been repealed)
and remitted the case
for summary trial by the Subordinate Court. The matter then underwent
various vicissitudes, which appellant
at one stage contended
consituted irregularities in the proceedings. These points were not
however argued by Mr.Kuny who appeared
before us on behalf of
appellant, and it is accordingly unnecessary to sec out the full
history of the matter. Suffice it to say
that on 7th October; 1981,
the appellant again appeared in the Subordinate

5

Court,
where the charge was put to him, and he pleaded not guilty.

Appellant,
through his legal representative, asked the Court to dispense with
the reading of the depositions taken at the preparatory
examination,
and indicated that he was not leading evidence.

Although
not formally recorded, it appears that the depositions were admitted
as evidence at the trial in terms of section 227 of
the Criminal
Procedure and Evidence Act. No further evidence was tendered by the
Crown, which relied solely on the contents of
the depositions.

In the
argument that was addressed to the trial Court, the prosecutor did
not attempt to piece together the evidence of the various
witnesses,
but simply contended that R3 430 had been stolen, without indicating
how this figure was arrived at. Mr.Sello, who at
that stage appeared
for appellant, stated in his argument that he could not find this sum
mentioned; and that the only figure mentioned
was that of R1 055.50,
which had been referred to by Lt./Sgt. Sekonyela. He contended that
if the Court was not sure as to what
amount had been stolen, the
proper verdict was one of not guilty.

The
learned magistrate found the appellant guilty of theft of R1 828.22,
and sentenced him to imprisonment for a period of twelve
months. He
arrived at this amount by taking the figure of R1 855.50 deposed by
Lt./Sgt. Sekonyela, and subtracting therefrom the
various small
amounts which had been "overpaid" by appellant when he made
the various deposits.

The
matter was thereafter taken on appeal to the High Court, It was
contended that the conviction was against the weight of the
evidence,
that the learned magistrate had erred in convicting appellant because
of a certain procedural irregularity which had
occurred, and that the
sentence was excessive.

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When the
appeal was argued in the High Court, counsel for the Crown handed in
a schedule in which she compared the total amounts
banked or
deposited on each occasion by the appellant, with the amounts paid in
by the various purchasers who had deposed to buying
stock at the
immediately preceeding auction. In all cases, the amounts deposited
exceeded the amounts paid in by the purchasers
referred to above. The
comparison was, however, an invalid one because, as already pointed
out, the amounts deposited included
amounts received from purchasers
of other lots, in cases where Che duplicate receipts reflected the
same amounts as the originals.
To illustrate this by a simple
example: if 10 lots are auctioned, and each lot realizes M40, the
auction should realize a total
of M400. If the appellant had
falsified 3 receipts, pocketing M20 for himself in the case of each
lot (i.e. a total of M60) he
would then have had only M340 left to
deposit. The fact that this amount exceeds the amount paid for 3 lots
where receipts were
falsified (M120), does not indicate that there
was no shortfall* but rather a surplus.

The
leared judge was, correctly, not persuaded by this argument, and he
dismissed the first two points. When it came to the question
of
sentence, he took the view that it had been too light, and acting
under the provisions of Sec. 329(1)(c) of the Criminal Procedure
&
Evidence Act, 1981, he set aside the sentence of 12 months, and
substituted therefore a sentence of 2 years imprisonment.

Appellant
thereafter sought leave to appeal to this Court, and the judge a quo
granted a certificate in terms of section 8 of the
Court of Appeal
Act, certifying that the case was one fit for appeal on the following
grounds (as Mr. Kuny, who appeared for the
grounds, which deal with
alleged procedural irregularities, I do not include these):

1. The
   learned judge erred in holding that there was evidence to support
   the charge of a general deficiency;

   
   

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2. the
   learned judge ought to have held that Mr. Morolong's evidence that
   he had compared original receipts with what he purported
   to be their
   duplicate copies, was without substance in as much as he did not -
   and indeed could not-testify on what basis he
   was able to say that
   the one receipt was the duplicate of the other, having not himself
   issued the original receipt books (sic);

   
   

3. the
   learned judge ought to have held that Mr. Morolong's conclusion that
   the difference between the amounts reflected on the original

   receipts, and the amounts reflected on what he called their
   duplicate copies, was not paid to the receiver of revenue was
   insupportable,
   as there was no direct evidence of which of the
   respective amounts were actually paid to the receiver of revenue,
   there being
   evidence only that more was paid to the receiver than
   was collected;

   
   

4. the
   learned judge ought to have held that the trial magistrate had
   misdirected himself, by merely taking a figure supplied by
   a
   policeman, deducting therefrom a few Maloti, and convicting the
   appellant;

   
   

5. the
   learned judge erred in ignoring the analysis of the evidence by
   counsel for the Crown, and her submission that no general
   deficiency
   had been proved;

   
   

6. the
   learned judge committed a serious irregularity in not warning
   appellant's counsel that he intended to increase the sentence

   imposed by the trial Court, and in not giving him an opportunity to
   address him as to why this should not be done.

   
   

I must
point out, however, that formulated in this manner, the second,
third, fourth and fifth grounds raise questions of fact,
and not of
law. There is no suggestion that the learned judge a quo misdirected
himself in any way. The true purport of the first
ground is to raise
the question "whether there was any evidence upon which a
reasonable Court could have convicted the accused".
(See
Letsoela & Lesoela v. Letsoela (CIV/APP 11 of 1983) and Matooane
v. Phillip (CIV/APP. 10 of 1984), both judgment of this
Court),

The
second third, fourth and fifth grounds are really no more than
arguments dealing with the question whether there was evidence

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upon
which a reasonable Court could convict. In the circumstancest the
only question of law which arises for decision by this Court
is
whether there was evidence upon which a reasonable Court could
convict.

In
arguing this point on behalf of the appellant, Mr.Kuny made two broad
submissions:

1. that
   the Crown case rested upon proof of

   
   

a general deficiency, but that it set about proving such general
deficiency in an incorrect manner;

2. that
   the evidence given by Lt./Sgt. Sekonyela in respect of many of the
   receipts was hearsay, and therefore inadmissible.

   
   

I shall
elaborate on these contentions as I deal with them separately
hereunder. Was there evidence to support the finding of a
general
deficiency?

With
regard to the argument on a general deficiency, Mr.Kuny contended
that a vital element was missing from the Crown case; it
was not
sufficient for the Crown merely to have produced original and
duplicate copies of certain receipts, and to have demonstrated
a
discrepancy between them. It did not follow from this that the moneys
were never paid into the banking accounts of the department
concerned
or, if there was a failure to pay in the money, that it was the
appellant who was responsible therefore. He referred
to the analysis
made by counsel who appeared for the Crown in the hearing before the
High Court, which reflected a surplus and
contended in any event that
whether or not her analysis was correct, unless the Crown was
presented with a total picture of all
receipts and all deposits,
there was no basis for the finding of a general deficiency.

This
argument loses sight of the evidence of the group of witnesses from
the Sub-Accountancy branch and from the Standard Bank,
who testified
to the various deposits made by the appellant after each auction
sale, and indicated that save for some very minor

9

discrepancies,
the aggregate amount deposited equalled the aggregate amount
reflected on the duplicate copies of the receipts presented
to then.
If the total reflected on the duplicate receipts was less than the
total reflected on the corresponding originals, then
it must follow
that there was a "general deficiency" in the amount
deposited on each of the days when deposits were made.
Evidence that
these totalled M1 855.50, was given by both Lt./Sgt. Sekonyela and
Mr. Morolong, although, as I have indicated, when
the detailed
figures given by the witness Morolong are added up, the deficiency
apprears to have been only M1 632. A careful reading
of Mr.
Morolong's deposition shows however that when he gave the detailed
list of receipts and of the differences between originals
and
dupli­cates, he omitted the batch of exhibits numnbered 1.1 to
1.7. This means that the total of M1 632 arrived at by adding
up the
details need not cause one to doubt the accuracy of the figure of M1
855.50 given by both Lt./Sgt. Sekonyela and Mr. Morolong.

As I have
indicated earlier, if one examines each deposit slip, and then
extracts those duplicate receipts which have been shown
to differ
from the corresponding originals, one not only establishes the
general deficiency in that deposit, but traces back the
deficiency to
the various auction lots in respect of which the duplicate copies
were falsified. This completes the chain of evidence
and there is no
missing link, as contended by Mr.Kuny.

Admissibility
of evidence.

This
argument relates only to certain of the 60 original receipts produced
by Lt./Sgt. Sekonyela, namely, those issued to purchasers
who did not
make depositions at the preparatory examination in which they
identified the receipts, and deposed that they had in
fact paid to
appellant the sum reflected on the original receipt. The reason was
that subpoenae issued on these witnesses could
not be

10

served.
The receipts were identified by him as being exhibits G.5, 1.1,, 1.2,
J.5 and J.12. Reference to the list in which he indicates
those
receipts which were falsified shows that in arriving at this figure
of Ml 855.50 he took into account only three of these,
namely, 1.1,
1,2 and J.5. These receipts were numbered 76551,76552 and 78741
respectively. When the District Administrator under
whom appellant
worked made his deposition, he identified the signature on all three
of these receipts as being that of appellant.
He was not
cross-examined on this evidence, and his evidence was not rebutted by
appellant, who gave no evidence at all.

It
follows that Mr.Kuny's argument on this aspect of the case must fail:
there was evidence linking appellant with all the amounts
which were
brought into account in calculating the deficiency.

In the
result, I come to the conclusion that there was evidence before the
trial Court upon which a reasonable Court could convict,
and the
appeal against the conviction must accordingly fail.

Sentence.

It was
conceded by counsel for the Crown, and correctly so, that the judge a
quo had erred in increasing the sentence from 12 months
to 2 years
without first warning the appellant of his intention so to do, and
without affording him an opportunity of addressing
argument on the
point whether it should be so increased.

Strictly
speaking, therefore, the increase of sentence by the judge a quo must
be set aside. However, at the outset of the argument
in this Court,
appellant's counsel was advised that this Court also considered the
sentence imposed by the magistrate as being
too light, and invited
him to address argument as to why the sentence should not be
increased by this Court,

The
reason why this Court considers a sentence of 12 months as too light
was that appellant was a relatively senior official

11

In the
public service, who was placed in a position of trust in relation to
the moneys collected by him. The offence took place
over a lengthy
period of time, and embraced some nine different auction sales. There
was evidence by one witness, Atoro, that after
he had attended a sale
conducted by appellant in December 1977, and had noticed that the
procedure adopted there was wrong, in
that there was no policeman who
kept records and no separate bewys-writer present, he warned the
appellant, but that appellant
said he was not taking his advice. This
indicates a deliberate and persistent intention on the part of
appellant to carry on with
his dishonest practice.

In
imposing a sentence of 12 months, the magistrate indicated that he
realized that this was a lenient sentence, but: that he was
doing so
because he took into account the likelihood of the accused losing his
employment and pension. While the magistrate was
un­doubtedly
correct in taking these factors into account, the sentence imposed by
him was nevertheless too low.

In the
circumstances, the Court makes the following order:

1. The
   appeal against the conviction is dismissed.

   
   

2. The
   order made by Molai J on 15th June, 1984, in which he increased the
   sentence, is set aside, but this Court sets aside the
   sentence of 12
   months imprisonment imposed by the magistrate, and increases it to 2
   years imprisonment.

   
   

I agree
Signed : S.Aaron

S.AARON

Judge of Appeal

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I agree
Signed: W.P. Schutz

W.P.SCHUTZ

President

I agree
Signed: E.M.Wentzel

Judge of Appeal

Delivered
this 28th day of January 1985 at MASERU.

For
Appellant : Mr. Kuny

For Crown
: Mr. Kamalanathan