CRI/A/63/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

MOTLALENTOA
MATSUMUNYANE Appellant

v.

REX

JUDGMENT

Delivered
by the Hon. Mr. Justice J.L. Kheola on the 21st day of April, 1986

The
appellant and one Thahanyane Tayob were charged with two counts which
read as follows

Count 1

"That the said accused are guilty of the crime of contravening
Section 6(1) (a) (i) read with (4) of Precious Stones Order
No.24 of
1970.

In that upon or between the 8th December, 1982 and the 19th January,
1983 and at or between Mokhotlong Reserve and Mofolaneng in
the
District of Mokhotlong, the said accused, each or other or all of
them did wrongfully, unlawfully and intentionally buy, deal
in or
receive by way of barter, pledge or otherwise, either as a principal
or agent, any rough or uncut diamonds without licence
or authority
issued in terms of this order to deal in two rough or uncut diamonds
as a buyer or seller.

ALTERNATIVELY

That the said accused are guilty of the crime of contravening Section
6(c) (J) read with (4) of Precious Stones Order of 1970.

2

In that upon or between the 8th December, 1982 and the 19th January,
1983 and at or between Mokhotlong Reserve and Mofolaneng in
the
District of Mokhotlong, the said accused each or other or all of them
did wrongfully, unlawfully and intentionally have in
their possession
power or control any rough or uncut diamonds, unless they are persons
exempted under paragraph (a) or (b).

COUNT II

That the said accused are guilty of the crime of theft.

In that, whereas upon or about the 8th December, 1982 the said
accused were employed by the Employment Bureau of Africa Limited
in
Mokhotlong as their representative, to pay over to Branches of the
Employment Bureau of Africa Limited in Mokhotlong and on
or about the
8th December, 1982 and at or near Lesotho Bank in Mokhotlong,
received into their possession from Lesotho Bank the
sum of
M15,000,00 the property of the Employment Bureau of Africa Limited,
which amount the accused because of their duty has to
pay over to
Branches of the Employment Bureau of Africa Limited in Mokhotlong,
yet the accused, not regarding duty to pay over
the said money to the
Branches of The Employment Bereau of Africa Limited in Mokhotlong,
but on the contrary did, on the 8th December,
1982 and at or near
Mokhotlong Reserve in the District of Mokhotlong the said accused did
wrongfully, unlawfully and intentionally
steal, appropriate and
convert the same money to their use."

The
appellant and his co-accused pleaded not guilty to both charges.
Evidence was led and at the end of the Crown case the co-accused
was
acquitted on both counts The appellant's application for discharge at
the end of the Crown case was apparently granted on count
1 and
refused on count 2. At the end of the trial he was found guilty of
the theft of R14.955 and sentenced to two years' imprisonment.
The
appeal is against both the conviction and sentence.

The
following facts are common cause

1. The
   appellant was a representative of Teba in Mokhotlong and charged
   with the responsibility of drawing money to" the tune
   of
   R20.000 to pay remittances submitted by miners,

   
   

2. On
   the 8th December, 1982 he drew a cheque for R15,000 at Lesotho Bank
   in Mokhotlong but he was charged a commission of R45 which
   reduced
   the amount to R14,955,

   
   

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3. No
   money was found in the cupboard or wardrobe when it was broken open,

   
   

4. The
   appellant unearthed a sum of R4,500 at his home while he was in
   police custody,

   
   

5. Two
   rough and uncut diamonds were found by the police in the possession
   of appellant's co-accused.

   
   

'Maliengoane
Letsela (P W 2) told the court that In November, 1982 the appellant
came to her at Letseng-la-Derai and asked her to
sell him some
diamonds. She told him that she had none but promised to get some for
him On the 7th December, 1982 the appellant
again came to her
inquiring if she had not yet got the diamonds. She told him that a
certain Vincent had diamonds and she promised
to bring them to
Mokhotlong on the following day. On the 8th December, 1982 she came
to Mokhotlong accompanied by Vincent, Vincent's
wife and one
'Maphilemon Sekhosana (P.W.3) They were travelling in the vehicle of
Vincent. When they came to Mokhotlong bus stop
Vincent gave her two
diamonds and told her that one weighed 10 carats and the other 5
carats The price of the two diamonds was
R10.000 From the bus stop
she was accompanied by P.W.3 Vincent and his wife remained at the bus
stop.

They
proceeded to the office of the appellant at Teba The appe-llant was
not in the office. On their way from the office they met
him at the
offices of the Rural Development P.W.2 told the appellant that she
had brought his parcel He took them to his house
where the two
diamonds were shown to him and their price was reported to him. He
left saying that he was going to the bank. After
a short while he
came back carrying a yellow envelope and opened it and emptied it of
its contents. She then noticed that the contents
were five bundles of
M10. The appe­llant told her that each bundle had notes amounting
to R2,000 and that the five bundles
made a total of R10,000. He put
the bundles back into the envelope and gave it to her. She gave him
the two diamonds They left
appellant's home and met Vincent at
Morojele's cafe. He instructed her to

4

take the
money to the vehicle She went to the vehicle followed by Vincent and
put the money in the vehicle.

They
returned to Letseng-la-Derai in Vincent's vehicle. Vincent gave her
two cases of beer as her reward.

The
evidence of P W.3 is substantially the same with that of P W 2 except
on two points she says that the envelope which contained
the money
was brown while P W.2 said it was yellow, she says that P W.2 gave
the envelope to Vincent at Morojele's shop while P.W
2 said she put
the envelope in the vehicle.

At the
trial the appellant elected to give a sworn statement which has been
summarized by the learned magistrate in the following
words which 1
regard to be a correct summary

"He testified that he drew a cheque for M15.000 less a
commission of R45 from the Lesotho Bank with the intention of
assisting
a trader who usually paid miners' remmittances at Tlokoenq
and often ran short of cash to pay the remittances. He called on the

trader who advised mm that he had encountered no problems in paying
the remmittances and advised him to make calls on Fridays not

Wednesdays. He arranged with the trader that he would visit him on
the 17th December, 1982.

He returned to his office and locked the money in a safe. On the 17th
December, 1982, he again drove to Tlokoeng and called on
the trader
who gave him the remmittances he had paid. Instead of reimbursing the
trader for the amount of paid remmittances, he
returned to nis office
and issued him a cheque and put the money back into the safe He said
his intention was to go to Tlokoeng
on the 24th December, 1982 But
before he drove to Tlokoeng he suddenly remembered that he had been
authorised by the head office
to entertain the staff with a party at
the Teba residence. He then removed the money from the vehicle and
locked it in a wardrobe
at the residence He also locked the house as
the party was going on and all the staff enjoyed the party to their
hearts' content
As the party was going on he arranged with the Clerk
called Tsehlana to see him before the party was over so that they
could lock
the the money in a safe at the Teba Offices, but he could
not find him when the party was over After the party dispersed he
went
to his home out in the country having in his possession the keys
for the wardrobe, safe and the house. He returned to work on the
27th
December, 1982 and discovered that the wardrobe key was missing and
that Tsehlana had not reported for duty as previously
arranged with
him He waited for Tsehlana and the Teba guests who were due to arrive
on that day at the residence until 5 p.m. in
vain. Me then decided to
go back to his home and came back to work the next day. He also found
the wardrobe key at his home

5

The next day he checked at the residence but found that the guests
had still not arrived. When he returned to the residence but
before
he arrived there, he met his girlfriend at the bus stop and the
latter asked him to take her half way. He then parked the
vehicle of
Teba at the residence and put the wardrobe key under a queen stove
after which he locked the house and returned to his
girl. He
accompanied her to Mapholaneng As he was waiting for transport to
Mokhotlong he drank beers and only managed to get transport
to
Mokhotleng at 8 pm. and arrived in Mokhotlong at 10 p m. He decided
to put up at the residence which he found lit and the generator
motor
was running. Nobody answered his knock but he observed that the
vehicle from the Republic of South Africa was parked outside.
He went
for further drinks at Tsehlana's place. Tsehlana also told him that
he guests he was expecting had arrived and he (Tsehlana)
had opened
for them with a duplicate key

Tsehlana also told him that the manager from Maseru would be cominq
to Mokhotlong the next day and wanted to be met at the airfield.
On
the 29th December, 1982 the accused went to the residence and asked
one of the guests to give him the keys for the vehicle from
the room
in which he had slept and he did so. He did not look for the wardrobe
key even though he was aware that the residence
was occupied by
strangers. In the evening of the same day he decided to go to the
residence to remove the money from the wardrobe,
but he found that
the guests were no longer there and he returned to his home. On the
30th December, 1982, he again checked the
residence for the guests
but found that they were still not there. He sought the advice of one
Khabole as to what he should do
as he had kept some articles at the
residence and the quests were no longer available Khabele advised him
to wait for them. He
left the message with the engine operator
requesting the guests to see him before they left and they did
promise to see him but
never showed up.

Later when he called at the residence he found the key entrusted to
the guests in the kitchen door hole and the guests themselves
were
not there. He looked for the wardrobe key but could not find It until
he decided to write a letter to his manager in Maseru
expressing fear
that as the key of the wardrobe was missing he was not sure that the
money was still available in the wardrows.
P.W.4 flew to Mokhotlong
and forcibly opened the wardrobe but found no money "

The
learned magistrate found that the explanation given by the appellant
was far from being reasonably possibly true. He found that
it was
totally false and rejected it. His findings are being challenged on a
number of grounds. Mr. Pheko, counsel for the appellant
submitted
that the learned magistrate erred in finding that the appellant gave
P.W.2 in the presence of P.W.3 a sum of R10.000
in as much as neither
of these witnesses was certain as to the amount received. Although
the

6

money was
not counted note by note, the appellant told the witnesses that each
of the five bundles, which the witnesses saw consisted
of M10 notes
which amounted to M2 000. The witnesses saw that the bundles were
each made up of M10 notes. In my view the learned
magistrate was
justified to come to the conclusion that the five bundles of M10
amounted to M10 000 and that in a way the money
was counted in the
presence of the two witnesses.

It was
also submitted that the learned magistrate erred in holding the
evidence of P.W 3 as satisfactory corroboration of accomplice

evidence (P.W 2) in as much as such evidence did not implicate the
appellant in the commission of the offence of which he was convicted.

I am not sure that P W.2 was an accomplice as far as the theft of
Teba's money was concerned. She did not take any part in the

withdrawing of the money from the bank When the appellant told them
that he was going to the bank, he did not disclose that he
was going
to withdraw Teba's money and use it in the purchase of the diamonds.
The witnesses must have thought that the appellant
was going to
withdraw from his own savings. I agree with the submission that as
far as the sale of diamonds is concerned P.W.2
and P.W 3 were
accomplices and it is highly unlikely that P.W 3 did not know the
purpose of,their mission to Mokhotlong The learned
magistrate was
well aware of the dangers of relying on the uncorroborated evidence
of an accomplice and approached it with the
necessary caution.

The
evidence of P W 2 and P.W.3 is corroborated by a number of
independent pieces of evidence or what one may call circumstantial

evidence On the 8th December, 1982 the appellant drew a cheque for
M15 000 and withdrew that amount from the account of Teba at
Lesotho
Bank. Out of this amount he accounted for only R45 which was deducted
by the Bank as commission. The withdrawal of M14.955
on the 8th
December, 1982 tends to corroborate the evidence of P W.2 and P.W.3
in showing that on that day the appellant had more
than R10,000 which
is the

7

money he
gave to P.W 2.

Another
piece of evidence which tends to corroborate the evidence of P W.2
and P.W.3 is the unearthing of R4.500 by the appellant
on the 14th
January, 1983.The appellant's explanation that he usually keeps his
money in a hole covered With a stone and bundles
of wood is nothing
other than a fanciful story which cannot be believed by any
reasonable man. The pointing out of the money after
the appellant had
been assaulted by the police during their investigations is
admissible in terms of Section 229 (2) of the Criminal
Procedure and
Evidence Act 1981; The point I am trying to emphasize here is that it
was not a mere coincidence that on the 8th
December, 1982 the
appellant had R10.000 and again on the 14th January, 1983 he had
R4,500. He had all these monies after he had
withdrawn Teba's money
amounting to R15.000. Why should the appellant suddenly have an
amount of R14,500 after he had withdrawn
Teba's money amounting to
R15,000?

Another
piece of evidence which tends to corroborate the evidence of P W.2
and P.W.3 is that on the 19th January, 1983 Nkitsing
Moletsane
(P.W.8) railed at the home of Thamahanyane Tayob accompanied by the
appellant. He asked Tayob to give him the diamonds
sold to him by the
appellant. Without any hesitation Tayob produced two diamonds which
were later identified by P.W.2 as the diamonds
given to her by
Vincent and which were subsequently sold to the appellant. P W.8 must
have qone to the home of layob as a result
of the explanation given
by the appellant

When he
dug out R4,500 the appellant is reported to have said that that was
part of Teba's money. This statement is inadmissible
because it was a
confession made to a policeman which had to be recorded by a
magistrate However, there is no indication that the
learned
magistrate relied on that piece of evidence. He relied on the
pointing out of R4,500

8

Mr Pheko
further submitted that the learned magistrate erred in not giving a
thought to the possibility that P.W.2 in particular
and P.W.3 might
have been unduly influenced by the police by some threats or actual
violence in the light of the assaults the appellant
was subjected to
by the police. The court a quo was not entitled to speculate, not a
single question was put to P W.2 and P.W 3
that they were assaulted
or influenced in any way to implicate the appellant falsely P W 2 is
related to the appellant and it was
revealed in evidence that prior
to this case they had never had any quarrel. There is practically no
possibility that the two witnesses
were ever assaulted or unduly
influenced by the police to implicate the appellant falsely.

The
learned magistrate rejected the explanation of the appellant and came
to the conclusion that it was false beyond any reasonable
doubt. I
have not been persuaded that he was wrong. The appellant withdrew the
money in question for the purpose of reimbursing
a trader at Tlokoeng
who had, on behalf of Teba, paid some miners their remittances He
alleges that on the 8th December, 1982 he
took the money to Tlokoeng
but found that the trader did not have any shortage in his payments.
I do not know what this means If
the trader had made any payments on
behalf of leba why did the appellant not reimburse him there and
then. The appellant alleges
that it was agreed that he should come to
Tlokoeng on the 17th December, 1982. He took the money back to his
office and locked
it in the safe. He alleges that on the 11th he
again went to Tlokoeng and the trader gave him the remittances he had
paid. Instead
of reimbursing the trader there and then he decided to
take the money back to Mokhotlong and issued a cheque for the
remittances
paid by the trader. There was no reason why the appellant
could not pay the trader in cash if money was still in his possession

The truth is that on the 8th and the 17th when he went to Tlokoeng,
he had already given the money to P.W 2 and had no

9

cash at
all. There was no reason why he could not have paid the trader in
cash as he had withdrawn the money for that very purpose.

It is
also not probable that the appellant would have decided to keep that
large amount of money in a wooden wardrobe in a house
in which he did
not live and in which there were visitors he did not know. He had a
safe in his office in which he alleges that
he had been keeping the
money during his journeys between Mokhotlong and Tlokoeng. I am
convinced that the explanation of the appellant
was correctly found
to be false beyond any reasonable doubt.

The
appeal is dismissed

J.L.
KHEOLA

JUDGE.

21st
April, 1986.

For
Appellant - Mr Pheko

For Crown
- Mrs Bosiu.