CRI/A/6/05

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MOTLATSI
BOROTHO APPELLANT

AND

REX
RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G. N. Mofolo On the 20th day of
September, 2005

The
matter has come to this Court by way of Appeal. The appellant was
convicted in the Magistrate's Court for the District of Maseru
where
the appellant and 2 others were charged of the crime of Theft it
being alleged that each, both or all of them did intentionally
steal
500 litres of diesel, the property or in the lawful possession of the
manager of Total.

The
accused had all pleaded not guilty to the charge and the Crown having
led evidence accused 1 and accused 3 the appellant had
been convicted
and sentenced to M4,000.00 or 2 years accused 2 was acquitted.

It is
against the judgment and sentence of the Court a quo that the
appellant has appealed to this Court against his conviction
and
sentence.

In his
grounds of appeal the appellant has complained:

1. The
   Learned Chief Magistrate erred and misdirected herself by admitting
   the uncorroborated evidence of P.W.I SECHABA MAPHIKE when
   he says he
   saw Appellant at the scene of crime with his vehicle on the date in
   question.

   
   

2. The
   Learned Chief Magistrate erred and misdirected herself in rejecting
   the evidence of Appellant when he says he was not at the
   scene of
   crime on the date in question.

   
   

3. The
   sentence by the said Chief Magistrate of the forfeiture of
   Appellant's vehicle is excessive raises a sense of shock, regard

   being had to the offence charged, the value of Diesel alleged to
   have been stolen and the value of the vehicle in question.

   
   

4. The
   Learned Magistrate erred and misdirected herself in failing to
   assist the unrepresented Appellant on his mitigating factors

   including his personal circumstances.

   
   

As for
the first ground of appeal above, which it is true that in some cases
corroboration is the norm, but our own law countenances
evidence of a

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single,
competent and credible witness (vide Criminal Procedure and Evidence
Act, 1981 section 238 (1) of course P.w.l is a competent
witness the
only question being whether he was credible.

In this
case the Crown called three (3) witnesses namely P.w. 1 Sechaba
Maphike, P.W.2 Tpr. Lesaoana and P.W.3 Nkuatsana. P.W.2
was no more
than an investigator in the case and P.W.3 an area manager of Grey
Security and incidents that took place at total
Depot were reported
to him so that like P.W.2 he did not have firsthand knowledge. He
has, however, testified that according to
their books some diesel was
found missing. As to what exactly transpired at the depot does not
know leaving P.W.I as the only person
who was present at the time the
crime was committed and it seems to me both the Crown and Defence are
in agreement that the Learned
Magistrate convicted on the single
evidence of P.W.I. In defence of the court's judgment the Crown has
submitted before me in their
heads of argument that "the Chief
Magistrate did not misdirect herself in admitting the uncorroborated
evidence of P.W.1".
The Crown has gone further to submit "any
Court may convict any person of any alleged against him in the charge
on the single
evidence of any competent and credible witness."
As I have remarked above, the only question is whether P.W.I passes
as a
credible witness.

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While it
was P.w.l's evidence that "we all inspected the area and we felt
that the tanks for diesel machine was not "being
proof that it
had just been used." I also asked about the seal of the gate —
and A1 could not tell us where the seal
was. By "we" and
"us" P.W.I clearly meant a Van Starden and Nkuatsana
(P.W.3) and Van Wyk - see p.4 of the
Record of Proceedings lines 5
from the top of the page. And yet it was P.W.3's evidence that "A1
could not explain to me how
and who cut the seals off." An
important omission in and we felt that the tank for diesel machine
was hot" being proof
that it had just been used. It was also
P.W. 1' s evidence that he was called by a policeman and while there
"A1 explained
to us how to temper with the machines such that
they are able to steal the products in the machine without the
machine being able
to record —" clearly this was
confession to the police and irregular. Nor was this all. P.W.I has
testified" we
inspected he said machine in the absence of A1 and
indeed we discovered that the machines had been tempered with."
This is
also irregular for an inspection cannot be made in the
absence of a suspect or accused.

A2's
cross-examination of P.W.I was a damming indictment on P.W.I and
reduced what was lest of P.W.I's credibility to shreds. On
page 9 of
the Record of Proceedings the witness had been asked which statement
was

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correct,
the one that he saw the car lights when he was about 300 yards inside
the depot and the one that realizing the gates were
open he went to
the police for help; A had then wanted to know which of the two
statements, the one he gave in writing to his bosses
and the one he
made in Court and the witness had replied the right one was that he
made in Court.

It was
put to him he made different statements and he denied. And now the
crunch:

Q.: "If they are not different, you have explained to Court that
you went to the police because you saw a blue van being pumped
with
diesel just outside the yard of the depot but in your written
statement you said that you went to the police because you saw
the
lights of a car inside the depot yard and you realized the gates were
opened? Which is the correct position, that which you
told the Court
or that which you made to your bosses in writing?

The
witness had said the right statement is the one he told the Court.

Q: Does that mean that the statement before you is incorrect?

A: Yes.

What
emerges from the two clearly conflicting statements is that while in
his statement (presumably to his bosses on reporting)
P.W. 1 said he
went to the police because he saw the lights of a car inside the
depot yard and realized the gates were open, in
Court P.W.I said he
went to the police because he saw a blue van being pumped with diesel
just outside the yard of the depot.

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With
respect, the two statements are diametrically different. The one
suggests a vehicle inside the depot and strong suspicion of
a crime
being committed. The other one suggests a vehicle inside the depot
yard. Question may be asked, why did P.W.I make this
two conflicting
statements? Clearly the first was made to impress his bosses with
falsehood. In the premises, does a witness who
makes a statement to
impress a credible witness? Even if this is not the case, either one
or the other of the two statements is
true and the other not true. In
the event, does a witness who makes a false statement credible.

I have no
doubt that when the learned magistrate acquitted A it was because the
Court found P.W.I not to be a credible witness.
If P.W.I was not a
credible witness in respect of A , how could he be a credible witness
in respect of A1 and A3 in the same set
of facts? Much has been made
of whether P.W.I positively identified the diesel stolen or the
vehicle that carried the goods. In
this Court's view, P.W.l's
evidence was in material respect conflicting and mutually destructive
and the Court could not rely on
it for a conviction.

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In the
premises the appeal is upheld and both the conviction and sentence of
the Court a quo is set aside.

I am,
however, worried by the condition of A1 is to be brought before this
Court to prosecute his appeal with a reasonable time
if he so wishes.
Otherwise A3 is to be released from detention and the forfeited
vehicle released to him.

G.N.MOFOLO

JUDGE

For the
Appellant: Mr. Chobokoane

For the
Crown: Mr. Seatile

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