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Mosielele v The State (C.A. No. 52/86) [1986] BWCA 25 (13 December 1986)
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IN THE COURT OF APPEAL
HELD AT LOBATSE
C.A. No. 52/86
In the matter between -
DENNIS KALAOTE MOSIELELE
Appellant/
Applicant and
THE STATE
Respondent
CORAM:
MAISELS, P, AGUDA and VAN WINSEN, J J A.
FOR APPLICANT: MR PILANE FOR THE STATE: MR SKELEMANI
JUDGMENT MAISELS, P. The applicant was convicted in the magistrate's court of a contravention of section 32 4 of the Penal Code, it being alleged that the applicant, without lawful excuse, knowing or having reason to believe a motor vehicle to have been stolen or unlawfully obtained outside Botswana, had in his
possession the said motor vehicle. The motor vehicle in question was a Nissan 4X4. There was an alternative charge which it is not necessary to consider as the applicant was found guilty on the main charge.
The sentence imposed by the magistrate was one of three years' imprisonment, the whole of which was suspended for three years on the condition
2.
that the applicant committed no other offence of which theft or fraud or dishonesty is an element during the period of suspension.
In addition, he was fined P4,000 or, in default of payment, to undergo twelve months' imprisonment. His appeal against the conviction to the High Court was dismissed.
With regard to the alternative of twelve months' imprisonment in default of payment of the fine, Barrington-Jones, J, altered the period of twelve months to six months.
Before I leave this topic I think I ought to say that if indeed the applicant was found guilty, so far from regarding the fact that he was a Member of Parliament and a prominent businessman as mitigating factors, I would have thought that, if anything, they were aggravating factors. Barrington-Jones, J, refused to grant leave to appeal to this court.
The present matter comes before us by way of an application for leave to appeal under section 36 of the Court of Appeal Act, Chapter 04:01. In addition there was an application for leave to remit the matter to the magistrate's court in order that allegedly fresh evidence could be
led /
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led. This application was correctly opposed by Mr Skelemani.
The next morning, i.e. 13th December, Mr Pilane who appeared for the applicant withdrew the application for a remittal to the magistrate to hear fresh evidence. There was in any event no merit in it. Counsel was invited to deal with the application for leave to appeal as if
leave was granted. As the full record of the proceedings in the magistrate's court and the High Court, was before us, the merits of the case could be considered so that if the application for leave to appeal was granted, the court would be able to deal with the appeal itself. Leave to appeal will not be granted unless there are reasonable prospects of success on appeal. It
is necessary therefore to consider the facts before us.
That the motor vehicle in question was stolen outside of Botswana, is beyond question. It was also established beyond question that the chassis number and the engine number were tampered with and altered. There is also no doubt that the applicant was found in possession of this motor vehicle in December 1984 and January 1985. It was stolen from its owner in South Africa
on 9th
November /
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November 1984. The applicant brought it into Botswana on 13th November 1984. His evidence was that he had gone to Mafikeng in November 1984 as a result of a message he received from a Mr Tlhabi, who conducts the business known as "Uncle Lips Scrapyard", which deals in new and second-hand cars, and whose address is given as Box 511, Mafikeng on a document, Exhibit PH at p155(a) of the record, to which I shall presently refer. Mafikeng is, of course, in Bophuthatswana. He had apparently been in touch with this gentleman,
Mr Tlhadi, at some earlier date where he was shown certain vehicles, none of which suited his requirements. Mr Tlhadi, according to the applicant, required a deposit of P1,000 from the applicant as a token of his bona fides to purchase a vehicle which
would suit him through the efforts of Mr Tlhadi. The applicant says that he paid Mr Tlhadi R1,0 00 and was given a receipt for it. This receipt is Exhibit PH to which I have referred. It is described by Barrington-Jones, J, as "a very crude
document written in manuscript on line paper and which recites 'I lean money from Mr D K Mosielele the sum of R1 000'." The name there mentioned is, of course, that of the applicant. Underneath this phrase there appear two undecipherable signatures, the document is undated and it is
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impressed with the stamp of Uncle Lips Scrapyard. Apparently the word "lean" should be "loan. It was said by the applicant that this was a receipt and was indeed a deposit
in advance for the vehicle which was to be obtained for him by Mr Tlhadi. The magistrate correctly rejected the possibility that the applicant, being a businessman and a Member of Parliament, could possibly have regarded this piece of paper as a receipt. It is also clear that the vehicle was not purchased
from Tlhadi but from a mysterious person who never appeared, a Mr Solomon Mokoena.
Certain documents were produced which are allegedly signed by Mokoena, but whether there ever was a Mokoena is shrouded in mystery.
The applicant's evidence was that upon delivery of the vehicle to him in Mafikeng in November he paid R2 00 0 and that upon delivery of certain documents to his wife in his absence by two unidentified persons, she paid those persons in cash R6,000, making a total of R9,000. No receipt was produced for either of the payments
of R2,000 and R6,0 00 alleged to have been paid. His evidence therefore was that he had purchased the vehicle
in /
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in good faith from the mysterious Mr Mokoena as a result of an introduction by Mr Tlhadi.
I should perhaps here mention that by opening the bonnet of the motor vehicle in question it could plainly be seen that the engine and chassis numbers had been altered. The applicant apparently has a number of motor vehicles and one would have thought that at some time or another he would have examined the motor vehicle, certainly before he made any payments which he said he did, to look at the engine. If he had done so, and one must
assume that he would in the ordinary event have, it would have been apparent to him, to put it at its lowest, that there was something wrong somewhere. But the applicant's explanation of the payment of the P9,0 00 is not in accord with what Detective Sub-Inspector Yanyala says the applicant told him.
According to Mr Yanyala, having received certain information, he saw the applicant and inspected the vehicle. The applicant told him that the vehicle was brought to him at his home by a certain gentleman from South Africa so that the applicant could purchase it. Mr Yanyala found that the engine and chassis numbers had been tampered with. He also found a piece of paper in the ashtray of
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the vehicle with the inscription OKE.63320. The applicant told him that these were the registration numbers of the vehicle that were on the numberplates on the vehicle. When asked for the numberplates, according to Mr Yanyala's evidence, the applicant told him that the man who brought the vehicle had gone back to South Africa with it. Furthermore, according to this witness, the applicant told him that he had paid P5,000 in cash and that there was an outstanding balance on the
purchase in the sum of P9,000. He was asked for a receipt against which he paid for the vehicle. He said he was not given a receipt but he produced a piece of paper which is Exhibit PH, to which I have already referred. A large
number of papers were produced at a later date. Nearly all of them were forgeries. The witness also stated that the applicant told
him when he saw him in December 1984 that he would arrange to get the person who sold the vehicle to him and have him arrested, and also get his P5,000 back.
The witness wanted to take the vehicle which was at that time at the applicant's house to the police station, but the applicant stated that if it were taken there it would be seenby
the man who sold the vehicle to him and that person
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bearing the numbers YBA.81272. These are supposed to have been numbers for plates issued in Botswana. It was conclusively proved at the trial that no such number plates were ever issued in Botswana.
Mr Pilane, realising that unless he could show that Mr Yanyala's evidence was false, the applicant's prospects of success were slender in the light of the forged documents, the absence
of any evidence from Mr Thladi and Mr Mokoena (assuming, of course, that there really was a Mr Mokoena). Mr Pilane thereupon launched an attack on Mr Yanyala's evidence in an endeavour to show that this evidence was unreliable.
I can only say that, in my opinion, not one of the points he made is of any substance at all. On the contrary, I am completely satisfied that Mr Yanyala's evidence was correctly accepted by the trial magistrate. The person who in my judgment gave false evidence is the applicant. I have not the slightest doubt that the applicant well knew that the vehicle was stolen,
that he was correctly found guilty by the magistrate, that his appeal to the High Court was rightly dismissed and that Barrington-Jones, J, very
properly /
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properly refused to grant the applicant leave to appeal,
It follows from what I have said that the applicant has no prospects of success on appeal and his application is dismissed.
I A MAISELS
PRESIDENT
I AGREE:
T A AGUDA
JUDGE OF APPEAL
I AGREE
L DE V VAN WINSEN
JUDGE OF APPEAL.
13 December 1986.
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