CRI/A/24/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

RAMOLATSA
MAKHETHA Appellant

V

R E X
Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice S. Peete on the 10th June, 1985.

The
appellant was originally charged with five counts before Mr. M.N.
Ramashamole, the magistrate at T.Y. Subordinate Court.

"Count
1

The said accused is charged with the crime of C/S 17(1) Road Traffic
Act No. 8 of 1981.

In that
upon or about the 24th day of December, 1983, and at or near T.Y.
Reserve in the district of Berea, upon a Public road the
said accused
did wrongfully and unlawfully drive a motor vehicle D 1165 upon the
said public road without being licenced by the
licencing authority.

Count 2

The said accused is charged with the crime of C/S 22 of order No. 18
of 1972. In that upon or about 24th day of December, 1983
and at or
near T.Y. Reserve in the district of Berea, upon a public road the
said accused did wrongfully and unlawfully drive a
motor vehicle D
1165 upon a public road without being insured.

Count 3

The said accused is charged with a crime of

C/S
113(1) of road Traffic Act No. 8 of 1981. In that upon or about 24th
day of December, 1983, and at or near T.Y. Reserve along
Leabua
Highway in the district of Berea the said accused did wrongfully and
unlawfully drive a motor vehicle D 1165 upon the said
public road and
did wrongfully obstruct, hinder or interfere a Police Officer to wit
Sec. Lt. Ntoi when performing his duty.

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Count 4

The said accused is charged with the crime of C/S 10(2) of Act No. 8
of 1981.

In that
upon or about 1st of July, 1983, and at or near T.Y. Reserve in the
district of Berea, the said accused did wrongfully and
unlawfully
drive or found in possession of a motor vehicle (combi) bearing
registration number other than that issued by a registering
authority
for such vehicle to wit a combi D 1165.

Count 5

The said accused is charged with the crime of C/S 15(1) of Road
Traffic Act No. 8 of 1981.

In that
upon or about the 1st July, 1983, and at or near Ramonaheng in T.Y.
Reserve in the district of Berea, upon a Public road
(Leabua High)
did wrongfully drive or found in possession of a motor vehicle
(combi) D 1165 upon the said public road which its
chassis or engine
number or other identification mark has been oblitrated or tempered
with.

He was
found guilty on all five counts and was sentenced to pay total fine
of M1170 or to undergo imprisonment for 15 months. This
appeal is
mainly against conviction and the sentence is questioned only, I
assume, in the event of the main appeal not succeeding.

It was
alleged by the Crown that on the 24th day of December 1983 and at or
near T.Y. Reserve, the accused, drove a motor vehicle
D 1165 while
the said vehicle was not licenced pursuant bo the provisions of the
Road Traffic Act and while that same vehicle was
not insured in
accordance with the provisions of Motor Vehicle Insurance Order No.
18 of 1974.

It was
also alleged on count 111 that on that day he had also wrongfully
obstructed, hindered or interfered with a police officer
by refusing
to stop the said vehicle he was driving when being so ordered by one
Second Lieutenant Ntoi. The main defence advanced
by the

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appellant
through his attorney Mr. C.M. Masoebi was that the appellant was not
the driver of the vehicle on that day but was a mere
passenger. He
stated that Leronti Lerata was the driver of the vehicle. The
appellant therefore does not deny that the vehicle
was unlicenced and
uninsured according to law.

One very
surprising feature of this case is that this Leronti Lerata was
served with the summons on the 10th of March 1984 - this
summons
specifically alleged that Leronti had driven vehicle D 1165 whilst
the same was unlicenced and uninsured according to
law and that he
had obstructed and hindered police officer when performing his duty.
The appellant, so it appears, was also later
served with summons with
similar allegations on the 23rd March 1984. According to PW.1 Second
Lieutenant Ntoi, he indeed saw the
appellant, Leronti Lerata and Tefo
Lerata in the vehicle D 1165. But the crucial question is - has the
Crown proved beyond reasonable
doubt that it was, in fact, the
appellant and not Leronti who was driving the vehicle that day? Why
was Leronti firstly charged
with having been the driver? Why was he
not called to give evidence for the prosecution? All these questions
leave one with that
turking doubt that would exist in the mind of a
reasonable man. The evidence of police officer Ntoi is that of a
single witness
and has to be satisfactory in all material respects
before it can be relied upon.

I
therefore find that it was not proved beyond reasonable doubt that
the appellant was the driver of D 1165 and therefore the convictions

on counts one, two and three cannot be supported and must therefore
be set

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aside.
Only one person can be a "driver" for the purposes of the
law.

The Crown
Counsel, Mrs. Bosiu from the onset, conceded that conviction under
count V could not stand and rightly so because it was
not proved
beyond reasonable doubt that the appellant, in whose possession the
said vehicle was found, did know or could have known
that the chassis
and engine number had been tampered with (See section 15(1)(b) of
Road Traffic Act). The appellant was not the
owner of the vehicle nor
had any interest in the vehicle but it belonged to Leronti Lerata.
The conviction and sentence on this
count are also set aside.

This
leaves us with count IV. Wherein the appellant was charged with
having driven or been found in possession of a vehicle bearing

registration numbers other than those issued by the registering
authority -contrary to section 10(2) of the Road Traffic Act.
According to this section, mere possession of such a vehicle creates
an offence unless the possessor satisfies the Court on a balance
of
probabilities - that the motor vehicle in question was left on his
premises without his consent or knowledge. The appellant
does not
deny that on the 1st July 1983, the said vehicle was found on his
premises with irregular number plates. It had been left
under his
care by Leronti, therefore it was there with his consent, and the
subsection does not therefore avail him. Mr. Masoabi
contended that a
form of mens rea was necessary but I am of the view that a proper
interpretation of the section does not import

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such
meaning. The accused was rightly convicted under count IV. The
appellant was sentenced to pay M500.00 or undergo 10 months'

imprisonment.

Regarding
this sentence I am however of the view that since Leronti Lerata was
not called, it is not clear as to the circumstances
under which the
said vehicle came to have been placed under the appellant's care.
According to Monyane Makhetha PW.3, he sold an
B 20 yellow combi with
a white top to Leronti and its registration number was D 1165. It so
appears that this vehicle was involved
in an accident, and Leronti
transferred, one can safely assume, the numbers D 1165 to another
Combi which the appellant was found
driving on the 1st July 1983.
This was the combi which was suspected by police to be stolen
property. The blameworthiness of the
appellant in this regard has not
been ascertained beyond doubt but the section 10(2) makes him liable.
I therefore am of the view
that a salutary sentence would meet the
interests of justice. The sentence on this count is altered to read
as follows:

"M50.00 or 2 months' imprisonment."

ACTING
JUDGE

10th
June, 1985.

For the
appellant : Mr. Masoabi

For the
Crown : Mrs. Bosiu.