CRI/APN/187/2001

IN THE HIGH COURT OF LESOTHO

In the application of:

LITEBOHO LESITHA 1^st APPLICANT

TUMELO LETSIKA 2^nd APPLICANT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT

Delivered by the Honourable Mr Justice K.J. Guni on the
7^th day of August, 2001

This matter came before me on appeal from the
Subordinate Court - sitting in Botha-Bothe. There, the three accused,
including these
two appellants, were charged with contravention of
section 10 (1) MOTOR VEHICLE THEFT ACT NO. 13 OF 2000. It was alleged
that each
or all of the accused broke into a motor vehicle of one
TSEPANG THEKO without his consent and did unlawfully steal a car
radio, fire
extinguisher, a cell phone, a jack and a driver's
licence, the property of the said TSEPANG THEKO.

Section 10 of the said Act deals specifically with
offences which relates to breaking into motor vehicle. It reads as
follows:-

2

"10. (1) A person who breaks into a motor vehicle
without the consent of the owner or a person in lawful possession
thereof,
shall, unless the contrary is proved, be presumed to have
broken into it with the intention of stealing, whether of the vehicle
or
of articles in the vehicle, and is guilty of an offence and on
conviction is liable to imprisonment for a period not less than 3
years or to a fine not less than M6.000 or to both.

(2) A conviction and sentence imposed in terms of
subsection (1) is in addition to any conviction and sentence imposed
in respect
of the theft of the vehicle concerned or of the theft of
anything in the vehicle."

The three accused appeared before the trial court in
person. Now on appeal by the two of them, they are legal represented.
There is
nothing on record which indicates that the three accused
were informed of their right to legal representation. This has been
raised
as one of the grounds for this appeal. I shall deal with it at
the time I consider the grounds of this appeal. The accused pleaded
guilty to the charge. Their plea was accepted by the public
prosecutor who thereafter proceeded to outline the facts of the case.
The accused admitted the facts as outlined by the public prosecutor.

Here I shall make a brief summary of that statement of
agreed facts. The complaint, one TSEPANG THEKO was driving his motor
vehicle
along the road-travelling from Botha-Bothe to MOKHOTLONG. He
was involved in an automobile accident, in the course of which his
motor
vehicle overturned. The accused arrived at the scene of
accident in the company of one THABANG.

3 Apparently, they were travelling with THABANG in a
motor vehicle driven by

him. They must have stopped to see what has happened and
perhaps to render assistance. It would appear that a decision was
made for
the complainant to go to the hospital in the company of
THABANG - presumably in THABANG's motor vehicle. The three accused
were left
behind with the instructions to take care of the
complainant's car in his absence.

While the complainant and THABANG were gone to the
hospital, the accused took and hid in the veld away from the scene of
the accident,
the items of property listed in this charge. The total
value of the stolen property was estimated at M2,000,00. The
complainant had
not permitted the accused or anyone to take away that
property.

THABANG and the complainant returned from the hospital.
Nothing is said about the complainant's injuries. May be he had
sustained
no injuries. He was not detained by the hospital. The
accused were still present at the complainant's overturned motor
vehicle when
the owner and THABANG returned. The complainant noticed
that the property listed in the charge was missing from his motor
vehicle.
The complainant together with THABANG confronted the accused
about the missing property. The accused denied any knowledge of the
missing

4 property.

THABANG and the accused boarded their motor vehicle and
continued with their journey. They travelled a short distance from
the scene
of the accident where they left the complainant in his
motor vehicle.

The motor vehicle in which the accused and THABANG were
travelling was stopped just a short distance from where the
complainant was
left and still within his sight. Complainant must
have seen the accused go out of that motor vehicle. They entered into
the grass
from hence they retrieved the items of property which the
complainant had found missing from his motor vehicle. Having noticed
what
was happening, the complainant approached the accused and
THABANG. On his arrival there, he recognised and identified the
property
in their possession as his property which he found missing
from his motor vehicle when he and THABANG returned from the
hospital.

The report was made to the police. The accused gave
their explanations to the police who thereafter cautioned and charged
them. Nearly
all the items of the missing property were recovered
except for the driver's licence and a cell phone. At the trial the
accused were
found guilty as pleaded. They were sentenced, as

5 appears from the reasons for sentence of the learned
magistrate, in terms of the

statute under which they were charged. In addition, the
learned magistrate had other considerations such as the prevalence of
that
type of offence in that jurisdiction.

Two of the accused appealed against both the conviction
and sentence on the following grounds:-

1. 
   The facts outlined by the public prosecutor did not
   disclose an offence.

   
   

2. 
   The sentence imposed by the learned magistrate is harsh
   and induces sense of shock.

   
   

3. 
   Accused were not informed of their right to legal
   representation.

   
   

The accused were convicted and sentenced on the 26^th
January 2001. The notice of appeal together with an application for
condonation for late filing of that notice of appeal were filed
on
26^th March 2001. In that application for condonation for
late filing of the notice of appeal the appellants are seeking the
leave of this
court to appeal out of time.

When considering this application for condonation for
late filing of the notice of

6 appeal, there are two most important factors of which
the court must be satisfied. Firstly, the appeal must have clear
prospects
of success. Secondly, the appellants must show good cause
why they failed to appeal timeously.

The crime with which the accused were charged has three
most important elements. Firstly, there must be the breaking into the
motor
vehicle without the consent of the owner. Secondly, there must
be an unlawful entry made into the said motor vehicle without the
consent of the owner. Thirdly, once the entry is effected, there must
be the taking and the removal of the property in question.
In this
case, there are no facts indicating the condition, be it that of the
car itself or its contents or both.

The first ground of appeal is that the facts outlined by
the public prosecutor do not disclose the offence. The facts must
establish
the essential elements of the offence charged. Forere v Rex
1967 - 70 LLR per JACOBS C.J. as he then was. The conviction for
assault
with intent to cause Grievous Bodily Harm was set aside and a
verdict of guilty for common assault substituted in this case. There
was no evidence in that case to show the court that the complainant
sustained a wound. Without the physical injury and the degree
of its
seriousness, the conviction on a charge of Assault with intent to
cause Grievous Bodily Harm could not be

7 sustained.

In our present case, there are no facts, which show the
court that the motor vehicle in question was properly secured before
it was
left in the care of the accused by the owner. Were the accused
left inside or outside the motor vehicle? When the owner returned,
did he observe how the entry was effected by the accused if they were
left outside the motor vehicle? Bearing in mind that this motor
vehicle was involved in an accident, were its doors and windows still
intact? Where was this property after the rollover of the said
motor
vehicle? Could it have been still inside the motor vehicle? Where?
The answers to these questions cannot be found in that statement
of
agreed facts.

There must be facts which establish beyond doubt that an
unauthorised entry or access was gained by the accused into the said
motor
vehicle. The access or entry was gained by removing or
defeating an obstruction barring their an unauthorised entry therein.
These
sentiments were succinctly expressed by the learned author
SNYMAN, in his Book CRIMINAL LAW, Third Edition at page 510.
"Breaking
in" has been divided into two separate
components, namely (a) breaking into the structure and (b) entering
therein :Breaking
into" consists of removal or displacement of
any obstacle which bars entry into the structure and which forms part
of the structure
itself. MOSOSA 1931 CPD 348 at 352.

8
The facts outlined by the public prosecutor in
this case, do not show the court that there was any breaking into the
said motor vehicle.
Therefore it was not proper to find the accused
guilty as charged without any prove that they did break into that
motor vehicle.
S.V. RUDMAN 1989 (3) SA 368 at 385. The facts outlined
by the public prosecutor establish that the accused committed a crime
of theft.
Accordingly the conviction is set aside. The verdict of
guilty of Theft is substituted.

Another ground of appeal is that the sentence imposed by
the learned magistrate is harsh and induces a sense of shock. The
reasons
for sentence clearly show that the learned magistrate was not
entirely using her discretionary powers. It is spelled out in no
uncertain
terms that the sentence passed was prescribed by the
statute under which the accused were charged and convicted. Having
set aside
the conviction this court on appeal may interfere with the
sentence. Otherwise the sentencing was primarily the matter in the
discretion
of the trial court. MOREKE LEBITSA AND ANOTHER v REX 1980
(2) LLR.

Having found that the facts outlined by the public
prosecutor only disclose the commission of the crime of theft which
is less serious
than the offence with which the accused were
originally charged, they are on appeal entitled to a consideration

9
of a lesser punishment than the one meted out by
the trial court. I shall

accordingly reduce the sentence.

He last ground of appeal is that the accused were not
informed of their right to legal representation. SV. RUDMAN 1989 (3)
SA 368.
There is a duty placed upon the judicial office to inform the
accused of his or her right to legal representation. S. V. MAUNATLALA
1982 (1)SA 877. The failure to inform the accused of this right does
not per se result in the miscarriage of Justice. There must
be clear
grounds which show that the accused suffered some prejudice because
of the complexity of the offence charged. Further the
court must be
satisfied that the accused needed special skills to deal with his
defence and the lawyer was readily available for
that purpose had the
accused been accordingly advised of his or her right. Our present
case was a simple case. No special skills
were needed by the accused
in order to defend themselves. The accused could not afford to engage
a legal representative at the time.
They sought and found one to
handle this appeal but out of time because they had no money at the
time of their trial. In their circumstances
of indigence, wealth of
knowledge of their right to legal representation was of little or no
use at all. There is no merit in this
ground of appeal especially
because there is no legal aid in this kingdom to help accused persons
charged with such offences.

10
This brings me to the consideration of their
application for condonation of late

noting of the appeal. The grounds on which they seek
condonation are:-Their ignorance as regards the prescribed time limit
within
which to appeal. Coupled with that is their plea of indigence.
Even if they knew that they must file their notice to appeal against
the judgment of the magistrate within a certain period, they could
not do so because at the time they had no money. They enlisted
the
assistance of their relatives in order to raise the necessary funds
to engage the lawyer to file this appeal. This is good enough
a cause
to entitle the court to grant them leave to appeal more especially
because there are clear prospects of success of their
appeal.

On the question of imposing a sentence after setting
aside the conviction, I have . to bear in mind those other
considerations which
influenced the learned magistrate in sentencing
the accused. Apart from the considerations of the provisions of MOTOR
VEHICLE THEFT
ACT 2000, the learned magistrate bore in mind, and
properly so, the prevalence of the crime of Theft of motor vehicle
and theft from
motor vehicle.

The accused presented themselves to the complainant, as
good Samaritans. They stopped or discontinued their own journey
temporarily
in order to render the

11

complainant assistance. They accepted to take care of
the complainant's motor vehicle while he went to seek medical
treatment. They
used an opportunity to be left with his motor vehicle
and his absence, to steal from him. They gained the complainant's
confidence
when they appeared like they want to help him. They in
fact manipulated him into believing that they are helping him when
they had
planned to help themselves to his property.

The sentence is altered to M4,000.00 or 2 years
imprisonment.

K.J. GUNI
JUDGE

For Applicants : Mr Mathafeng
For Respondent :
Ms Makoko