Van Der Merwe and Another v R (C of A (CRI) No.2 of 2001 )

Media Neutral Citation: 
[2002] LSHC 9
Judgment Date: 
11 April, 2002

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C of A (CRI) No.2 of 2001

IN THE COURT OF APPEAL OF LESOTHO


In the matter between:


ANDREAS VAN DER MERWE First Appellant

MOKHERANE TSATSANYANE Second Appellant

and

REX Respondent


HELD AT MASERU


Coram: Ramodibedi JA

Grosskopf JA

Melunsky AJA


SUMMARY OF JUDGMENT


The two appellants were convicted of theft. They were both found to be in possession of a recently stolen motor vehicle with knowledge of the theft. Seeing that theft is a continuing crime they were both correctly found guilty of theft and their appeal against conviction was dismissed.


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They were both sentenced to 6 years imprisonment of which half was suspended. This Court found that there was no merit in the appeal against sentence.


C of A (CRI) No,2 of 2001

IN THE COURT OF APPEAL OF LESOTHO


In the matter between:


ANDREAS VAN DER MERWE First Appellant

MOKHERANE TSATSANYANE Second Appellant

and

REX Respondent


HELD AT MASERU


Coram: Ramodibedi JA

Grosskopf JA

Melunsky AJA


JUDGMENT


GROSSKOPF JA :


The two appellants were charged, together with one other accused, with two counts of murder and one count of robbery. Their co-accused was convicted on ail three counts but the two appellants were acquitted on the two murder


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counts and convicted only of theft on the robbery count. The two appellants were each sentenced to 6 years' imprisonment of which half was suspended on certain conditions. The appellants appeal against their convictions and sentences.


It is not in dispute that on 21 June 1995 two government employees were robbed of a government motor vehicle, a silver-grey Volkswagen Jetta ("the Jetta") in which they had been travelling, and that they were both shot dead. Shortly thereafter the two appellants received the Jetta into their possession. They were eventually convicted of theft of the Jetta.


The stolen Jetta was initially brought to the home of the witness Litseko Julius Mosoeu (PW 1) during the evening of 21 June 1995 by two men who told him that it was a stolen vehicle. PW 1 had previously been employed by the Lesotho Defence Force. The witness Moeletsi Challa (DW2), who was known to PW 1 as a priest, arrived at the home of PW 1 the next evening to discuss "church matters" with him. DW 2 saw the Jetta and asked PW 1 whose car it was, whereupon PW 1 told him that the Jetta was a stolen car. PW 1 then asked DW 2 whether he could help him find a place where they could hide the Jetta. DW 2 suggested that they should go and discuss it with the first appellant (appellant 1) who told them that the Jetta could be taken to 'Mamokhutsoane's


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place where he stayed. Appellant 1 then arranged for the Jetta to be parked in 'Mamokhutsoane's garage.


This witness Andreas Makuebu (PW 6) was in the company of appellant 1 and DW 2 when the Jetta was taken to 'Mamokhutsoane's place. Shortly thereafter he heard it being announced over the radio that the police were looking for a Jetta similar to the one parked in 'Mamokhutsoane's place. PW 6 then went to appellant 1 and told him what he had heard about the Jetta. He also advised appellant 1 to return the Jetta to the people who had brought it to him. Counsel for appellant 1 did not challenge this evidence in cross-examination.


The evidence of the second appellant (appellant 2) is that appellant 1 had approached him with a request to repair a car for him. The father of appellant 2 had a workshop where cars were being repaired, but appellant 1 asked him not to take the car to his father's workshop because he still owed the father money. He was afraid that the father might impound the car. There was, however, no need to be afraid because the father was away for a week and they knew it. In the end the doors of the Jetta were actually repaired in the father's workshop during his absence.


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Appellant 1 took appellant 2 to the garage in Lithoteng where the Jetta was parked. Appellant 2 objected to working in that garage because it was too dark to do any repair work there. Appellant 2 decided to take the Jetta to the house of 'Makabi Kabi (PW 8) in Maseru West and to leave the Jetta in her garage "because there were lights there". However, the doors of the Jetta were removed in that garage without using electric lights and while the garage door remained closed at all times.


The witness Tankiso Mokhobatau (PW 7) was employed by PW 8. She knew appellant 2 since he was a frequent visitor at the home of PW 8. PW 7 told the Court a quo that appellant 2 arrived at the home of PW 8 towards the evening on a Wednesday in June. PW 8 was away in Durban at the time. PW 7 opened the door for appellant 1 who told her that he was coming to leave "his car" there. She saw that it was a grey Jetta. It is common cause that it was the stolen Jetta. The following day PW 7 heard voices in the garage. According to her evidence the garage door was closed. She opened the garage door and found appellant 1, appellant 2 and a third person, whom she called Khosi, in the garage. It is common cause that this third person was in fact the witness Thabang Lentjeka (PW 15). PW 7 also noticed a car door leaning against the garage wall. It is her evidence that the Jetta remained in the garage for a couple of days until the police arrived at the home of PW 8 on the Monday morning. She told the police


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that the Jetta was brought there by appellant 2 who said that it was "his car".


PW 8 testified that she had gone to Durban in June 1995 and that on her return PW 7 told her that appellant 2 had parked a car in her garage. PW 8 knew appellant 2 as the son of her political colleagues but she denied that there had been any prior arrangement that he could park a car in her garage. She asked appellant 2 to remove his vehicle from her garage, but despite her requests the Jetta remained in her garage until the Monday morning when the police arrived at her home. According to PW 8 the police asked appellant 2 whose car it was and he said it was his. This evidence was not challenged in cross-examination or disputed by appellant 2 in the course of his evidence.


Appellant 1 decided not to give evidence. It had however been put by counsel on his behalf, when it was proposed that an inspection in loco be held on the premises of PW 8 that he had never been there before. That was certainly not true. PW 8 saw him being brought to the premises on that Monday morning. PW 15 testified that appellant 1 was one of the persons who was in the closed garage when the Jetta's doors were being removed. It was put to PW 15 in cross-examination that appellant 1 was not there, but PW 15 was adamant that he was. Appellant 2 also said that appellant 1 had previously been to the premises. It would seem that appellant 1 tried to distance himself from the premises of PW


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8, but without success.


Phillip Masoabi (PW 9) used to be a lance sergeant attached to the robbery and car theft squad of the Lesotho Mounted Police. He told the Court a quo that appellant 2 handed him amongst other things three keys of the Jetta and a car door with a hole in it. He said there were blood stains on both front seats of the Jetta and a spent bullet on the mat on the driver's side. He found two further spent bullets on the floor of the garage. The blood stains, spent bullets and bullet hole in the car door must have been observed by the appellants while the Jetta was in their possession.


PW 9 further told the Court a quo that appellant 1 had admitted having seen blood in the Jetta. Appellant 1 further told PW 9 that DW 2 and a soldier (probably PW 1) had asked him to keep the Jetta and try and sell it. According to PW 9 appellant 1 was aware of the fact that the Jetta had been taken from someone by force.


The witness PW 15 worked as a panel beater for the father of appellant 2. Appellants 1 and 2 took him to a garage which was opened by appellant 2. In the garage was the Jetta. Appellant 2 told PW 15 to repair the doors on the right hand side of the Jetta. The rear door had a hole in it which appeared to him to


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have been made by a sharp instrument. Appellant 2 explained to him that those doors "were hit by a gate". PW 15 detected a pungent smell in the Jetta but appellant 2 would not allow him to open the garage door. Appellant 1 was sitting against the inside wall of the garage reading a newspaper while appellant 2 was pressing the witness to get the work done. According to PW 15 appellant 1 at one stage went to the front of the Jetta "and came back with a number plate."


Appellant 2, unlike appellant 1, did give evidence. He told the Court a quo that appellant 1 approached him and asked him to repair a friend's vehicle which he (appellant 1) was supposed to repair. The reason why appellant 1 could not do it himself was because he allegedly had to go to Quthing. We know that appellant 1 was actually present in the garage of PW 8 in Maseru and that he did not go to Quthing. We further know that neither appellant 1 nor appellant 2 did any repair work on the Jetta but that they got PW 15 to do it.


According to appellant 2 appellant 1 had told him "that it appears as if the vehicle had collided with a tree or a pole on the right hand side". Appellant 2 remarked " I could believe that it had hit against a tree". It will be recalled, however, that appellant 2 had explained to PW 15 that the doors of the Jetta "were hit by a gate". With the spent bullets in the Jetta it must have been


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obvious what had caused the damage.


Appellant 2 did not agree with everything that PW 15 said, but the Court a quo in my view rightly preferred the evidence of PW 15.


1 have given a short summary of the evidence implicating the two appellants. Against that background 1 intent dealing first with the appeal of appellant 1 against his conviction. Despite the strong evidence implicating him in the commission of the crime appellant 1 preferred not to testify. It appears that he assisted the initial perpetrators of the crime in finding a place to hide the Jetta, which to his knowledge was a stolen vehicle. He was warned by PW 6, who heard the report over the radio, to return the stolen Jetta to the persons who in the first place had asked him to hide it. He failed to do so and instead, with the assistance of appellant 2, found a new hiding place for the Jetta.


Theft is a continuing crime and the theft continues to be committed as long as the stolen property remains in the possession of the thief or somebody who acts on behalf of such a person with knowledge of the theft. By his conduct in assisting the thief the person assisting becomes guilty of theft (cf Rex v Von Elling 1945 AD 234 at 246-7). In my view appellant 1 is guilty of theft and his appeal against conviction ought to be dismissed.


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The position of appellant 2 is hardly any better. I agree with the learned judge in the Court a quo that appellant 2 removed the Jetta from Lithoteng under cover of darkness with the view to hide it in the garage of PW 8. The explanation of appellant 2 as to why the Jetta could not be taken to his father's workshop but had to be dismantled in the enclosed garage of PW 8 has been shown to be false. It is the credible evidence of both PW 7 and PW 15 that the two appellants and PW 15 worked on the Jetta while the garage door remained closed, notwithstanding the pungent smell and lack of light in the garage. The bullet hole in the door of the Jetta, the spent bullets in the Jetta and the blood on the seats must have raised the suspicion of appellant 2. His assertion, particularly to the police on the Monday, that the Jetta belonged to him was false. It certainly does not support his defence that he was merely repairing a vehicle that had probably been involved in a collision and that he was doing it as a professional panel beater at a fee for appellant 1. It was held in Rex v Bhardu 1945 AD 813 at 822-3:


"If a person proved to have been in possession of recently stolen goods gives such an unacceptable explanation, that may be taken into serious account in finding it proved that he had received them with guilty knowledge; Rex v Nxumalo (1939, A.D., at p.587). The principle is that, if he had received the goods innocently, he might be expected in the ordinary course to be able to account for their possession; Rex v du Plessis (1944, A.D., at p.319). In exactly the same way, in my opinion, and on the same principle, if a person who has dealt with recently stolen goods - who, as here, has arranged a storage place for them and has transported them to that


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place for the thief - gives an explanation which has been rejected, that may be taken into serious account in finding that he has dealt with them with guilty knowledge."


(See further Joseph Maqaphalla and Mokone Lelimo v Rex 1971-1973 L.L.R. 39 at 42B.)

All of this in my view clearly shows that appellant 2 was in possession of recently stolen goods with guilty knowledge. The act of appellant 2 in knowingly assisting the thief by hiding the Jetta and by making arrangements to repair the Jetta, made him guilty of the crime of theft (cf Von Elling's case supra at 246-7).


I am therefore of the view that appellant 2's appeal against conviction should be dismissed.


Both appellants have appealed against the sentence imposed on them. I am not persuaded that there is any merit in the appeal against sentence.


The following order is accordingly made:


The appeal of appellant 1 against his conviction and sentence is dismissed.


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The appeal of appellant 2 against his conviction and sentence is dismissed. Dated at Maseru this 11th day of April 2002


F H GROSSKOPF

JUDGE OF APPEAL


I agree


M M RAMODIBEDI

JUDGE OF APPEAL


I agree


L MELUNSKY

ACTING JUDGE OF APPEAL


For the First Appellant: Adv. N K Lesuthu

For the Second Appellant: Adv. G S Mdhluli

For the Respondent: Adv. L N Maqutu - Moorosi