HIGH COURT OF LESOTHO
RAMMONENG FIRST ACCUSED (Al)
MABOLOKA SECOND ACCUSED (A2)
by the Honourable Mr. Justice T. Monapathi on the 9th day of
: Mr. M. Lenono
Accused : Mr. T. Mahlakeng
Assessor : Mr. G M Motsamai
trial commenced on the 16th October 1995 until the 30th May 2002. In
the two dates Mr. L. Pheko the original defence Counsel died "may
his soul rest in peace" and Gentleman Assessor Mr. S. T. Sekhesa
fell off due to illness. On the 5th January 1993 the matter had
started as a summary trial. During the testimony of PW 1 therein the
proceedings were stopped and then turned into a Preparatory
Examination (PE) that ended on the 19th March 1993.
Accused are charged with three counts of the crime of Fraud and were
also charged in the alternative with three counts of the crime of
Theft By False Pretences. Both Accused pleaded not guilty to the
charges involved three (3) amounts of money from hand written (as
against typed in) cheques allegedly drawn by officers of Lesotho
Government in the Treasury Department on three occasions that is: on
or about the 14th June 1991, in M14,363.30, upon or about the 16th
day of July 1991, in M14,688.96 and upon or about 15th August 1991 in
M18,646.63. The total amount of money drawn as alleged was therefore
a sum of M47,678.86.
No.l Tsebo Andreas Rammoneng (Al) was at all material times a civil
servant in the Ministry of Finance, in the Department of Treasury at
Maseru. He was a desk officer responsible for the Ministry of Water,
also referred to as WEMIN in short. It also included the Ministry of
Agriculture as one of the source ministries.
duties as such involved receiving documents from and as prepared by
relevant ministries for payment to persons or bodies mentioned in
those documents for services rendered to those ministries and/or
monies or funds for which certain persons were entitled as shown in
the respective vouchers.
check that the documents so surrendered were proper in all necessary
respects. That they were passed or forwarded in accordance with the
right procedures. Then he would cause them to be passed to the
relevant authorities or fellow officers for further processing and
for payment. He would then collect and register the respective
payment cheques when ready. And then ensure that those cheques are
subsequently dispatched to their respective ministries where they
would be finally collected by their payees as entitlement for reasons
cheques would be paid into banks such as the Standard Bank. Those
payees would invariably sign in a register of the Treasury department
a ledger called Exhibit "F" before this Court for receipt
of the cheques. Evidence
this Court was that for receipt of the questionable cheques Al was
the one who signed for and registered them even if it was after the
dates when they were executed. This late registration was not the
norm. It was due to the circumstance that will unravel in the cause
of the evidence as stated by Crown witnesses.
No.2 Maboloka Maboloka (A2) was formerly a Civil Servant in the
Ministry of Agriculture, having joined the service in 1975. He later
resigned in August 1989. He never rejoined the Civil Service
time of the alleged offence A2 was in the employ of the Lesotho
National Insurance Group
Second Accused was alleged to have received and deposited into his
Current Account with Lesotho Bank Number 0360003802 the said sums of
alleged that the three cheques were fraudulently issued out on the
basis of equally invalid and dishonest payment vouchers on each of
the three occasions. The three payment vouchers were signed out as
number 70/102688,70/102914 and 70/101190 respectively.
the office of the DPP by Crown Attorney (Mr. Lenono). And
subsequently the record and exhibits were referred to the office of
the Chief Magistrate. This is to the extent in which the matter put
simply because there was a dispute about the movement of the
the Chief Magistrate reported to the Crown Attorney Mr. Lenono, who
was the Acting Director of Public Prosecutions the disappearance from
the custody of the Court Officers exhibits B C D from the collection
of exhibits from the PE record. Crown Attorney supplied the Clerk of
Court with copies of the missing exhibits. Mr. Lenono became PW 13 in
these proceedings and testified to support the last mentioned state
of the facts. This was naturally not without dispute.
be subject of a debate whether the exhibits supplied by Mr. Lenono
were those from the exhibits filed and marked by the Chief Magistrate
or they could be copies of the same documents copied after they were
unmarked and filed before the holding of the PE. A number of
objections and the rulings indicate that disputes about those
exhibits in this proceedings occupied a great deal of the Court's
important, at this stage, to make reference to, is that it was not
denied that at the beginning of this proceedings of the loss (after
the close of the PE) of the three relevant payment vouchers and three
relevant cheques which in possession of the office of Senior Clerk of
Court at the Magistrates' Court Maseru. Consequently an application
was made by the crown for admission of the three (3) cheques and the
three payment vouchers as secondary evidence after a "diligent
search". See Appendix 1 (Ruling of the 12th December 1995)
pursuit of the above application three witnesses were put in by the
Crown namely: the late Mr. L Mapetla - Chief Magistrate (PW 1), Miss
N. Makhele (PW 2) and Miss M Ntoi (PW 3) both of the staff of the
Clerk of Court, Magistrates' Court, Maseru. On the 12th day of
December 1993 -I made a ruling that I would allow the three (3)
photostat copies of payment vouchers and the three photostat copies
of the cheques as secondary evidence to be allowed and tested in the
ordinary way. See "Appendix I".
evidence of the following witnesses at the PE was allowed, and the
depositions read into the recording machine, as evidence. This was
done by consent with the late Attorney Mr. Pheko in terms of Section
273(1) of the CP&E.. That is the evidence of: PW 3, PW4, PW5,
PW6, PW7, PW14 and PW16. At the
trial PW 13 had since passed away.
following witnesses gave oral evidence including the Crown Counsel
Mr. Lenono (as PW 13). After that was close of the Crown case.
Accused thereafter testified on their own behalf as DW 1 (Al) and DW
2 (A2) respectively.
PW3 was a
lady who worked as a teller at the Lesotho Bank branch at Industrial
Area. She also dealt with advances at the material time. She knew Al
by sight and knew A2 very well. A2 was the bank's customer and went
to the bank regularly and had a current account number 0360003802.
Refreshing her memory from exhibits "I" and "J"
she said on the 17th August 1991 a Lesotho Government cheque was
deposited in the current account of A2 in the amount of Ml 8,646.63,
A2 having presented a deposit slip and the cheque for checking by the
witness. The accountant had been one Mr. Lekhooa Pitso (PW5 at PE).
The cheque was presented by A2 in person.
cheque number was 101190 and the payee was A2 himself. The witness
became suspicious about the cheque because on the previous month A2
had presented a similar cheque which also stated that it was a salary
cheque. The cheque had been marked "Imprest Account". The
witness stamped the cheque
as "Teller 1", 17/08/91 Lesotho Bank Industrial. She had
been teller "1" at that time. She testified that the cheque
No. 102914 for Ml4,668.96 was also previously presented for
depositing by A2 on 18/07/91 to her. She recognized the cheque as
exhibit "C". The cheque was handled by Mr. Pitso from that
time. The witness made a statement to the police about the cheque.
worked as an Accountant with PW3 who was a teller at Lesotho Bank
Industrial Area Branch at the material time. He knew A2 but not Al.
A2 was a customer at the witness' said branch of the bank. On or
about the 17th August 1991 PW3 brought for the witness attention a
cheque drawn in favour of A2. It was a government cheque in the
amount of M18,646.63. A2 had deposited the cheque into his current
account. PW3's suspicion was brought to attention of the witness. The
cheque was also too large. He shared the same suspicion with PW 3. He
decided that the cheque be deposited in the account but no
withdrawals should be made before it was cleared. The witness made a
photostat copy of the cheque deposited by A2 before it could be
referred to Standard Bank for clearance. One copy of the cheque was
the one which he made and presented in Court at the PE as exhibit
"A". Exhibit "A" is obviously a copy of exhibit
"B". As said before this witness' deposition was admitted.
about the 19th August 1991 A2 came back to PW 4's bank and presented
his personal cheque with which he wanted to withdraw M6,645.00. The
cheque was referred to the witness by another teller. The witness
told the teller to inform A2 that he should come later as the cheque
was to be cleared first. The witness could not remember the number of
the cheque presented by A2. At the PE he recognized the cheque
Exhibit "E" as the one which was drawn by A2 having been
presented and referred to the witness. The number of the cheque had
been 209622 of the account number 036000 3802 which is A2's account.
The cheque had been presented to teller Number 5.
result of the events in the last paragraph the witness (PW4) phoned
the Treasury department of Lesotho Government and there contacted Mr.
Zwane (PW6 at the PE) who was the Accountant General of Lesotho
Government. Having asked Mr. Zwane about the cheque payment
(presumably the cheque deposited) to A2 Mr. Zwane gave the witness a
report. The witness and Mr. Zwane agreed that the police should be
brought into the picture immediately.
Zwane's officers brought three copies of payment vouchers including
Exhibit "D". All the vouchers were in the name of A2 as the
payee. One was issued in June and the other in July 1991. A reference
to the bank statement of the
June 1991 could not be found in the original document therefor. But a
photostat copy (certified by the Bank Manager) was found. It showed
that a cheque in the amount of M14,363.30 was deposited into the A2's
account on the 19th July 1991.
witness had the original document of the second statement. This one
showed that a cheque of M14,668.96 was deposited into the current
account of A2 on the 18th July 1991. It also showed that A2 had
withdrawn all the money deposited in June and July 1991. Only the
money deposited with Exhibit "D" had not been spent. The
witness handed the personal cheque of A2 to the police. He also
handed over the photocopy of exhibit "D" to the police. He
also recognized Exhibit "A". At the PE he handed in the
bank statements relating to the account of A2 in evidence. The
certified photocopy of 29th June 1991 relating to Exhibit "B"
was marked Exhibit "I" and the statement of the 30th
September 1991 relating to Exhibit "D" was marked exhibit
"H" at the PE
PW5 was a
lady who worked at Standard Bank as a cash custodian at the material
time. In 1991 she was in charge of current accounts. She testified
that cheques which are issued by their banks are fetched by them
(bank officers) from the Central Bank. They also handle cheques
issued by other banks for reference.
cheques referred to the witness's employer bank are checked against
bank from which they come.
witness testified further to say that when satisfied that all
cheques-have been accounted for they are impressed with the Standard
Bank date stamp at the back of each cheque. Thereafter the cheque is
passed to the department which verifies that the cheque has been paid
from the correct account and thereafter the cheque is stamped "paid"
on the face of it. If it has in fact been paid the stamp "paid"
signified that the bank which submitted the cheque has been paid and
the transaction is over. Thereafter the cheque will be returned to
the drawer with his statement. A cheque issued by Lesotho Government
will be returned to the Treasury Department. Clearance mean that the
cheque has been sent to the bank where the customer has an account to
ascertain if the customer is still in funds.
witness (PW5) was handed cheque number 102688 (Exh "B")
which came from Lesotho Government Imprest Account which is no.
027022/70261. This cheque was deposited at Lesotho Bank on the 19th
June 1991 and was cleared at Standard Bank on 20th June 1991. It was
initialled to indicate that the signatures were correct and the
cheque is cancelled by drawing a line across it. The cheque no 102688
was dated the 18th June 1991 and was to be paid from the said Imprest
It was a salary payable to M J Maboloka in the sum of M 14,363.30 and
signed. The cheque had been considered complete and regular.
cheque which was handed to the witness (PW5) was Exhibit "C"
at the PE being cheque no. 102914. It was from the office of the
Financial Controller of the Treasury Department and was destined for
the Maseru Branch of the Standard Bank. It bore the same account as
the previous one. The payee was M Maboloka in the sum of M14,668.96.
It was signed by two people. The cheque was received by the witness'
bank on the 19th July 1991 having left the Lesotho Bank on the
previous day as the date stamp showed. The relative signatures had
been verified and the cheque cancelled. The cheque had been passed as
complete and regular and funds therefor had been paid.
cheque was Exhibit "D" over which the witness (PW5)
testified similarly as with the two previous ones. It bore the same
account number as the other two it being a Standard Bank Chartered
Bank cheque of Lesotho Government like the others. It paid J M
Maboloka as the others of which the payees were M J Maboloka and M
Maboloka respectively. It was not suggested that the payee shown on
the three cheques was none other than A2. The cheque left Lesotho
Bank on the 17th August 1991 and arrived at the witness bank on 20th
1991. It was in the amount of M18,646.63. The signatures had been
verified and the cheque had been collected. It bore the witness's
bank's date stamp. This proved that it had been accepted as complete
and regular. This cheque like the other two others proved that they
had all been paid from the Lesotho Government account.
been James Lehlohonolo Zwane the then Accountant-General of Lesotho
Government. As such there was a good reason why his admitted evidence
turned out to be more elaborate. He knew both accused. He knew A1 as
a worker in the Salaries Section of the Treasury Department. He knew
A2 by sight. Officers such as Al were allotted different ministries
(desks) which they served.
witness had testified that the document which entitled a retired or
reinstated officer to payment is the casualty return and a
letter from the Public Service Commission authorizing employment. If
the officer concerned had been interdicted the Public Service
Commission issues out a letter of re-instatement which should be
supported by a casualty return from the ministry. I noted that none
of the witnesses including the Accused spoke of the existence of such
a casualty return. Not that it caused the questionable transactions.
witness went on to testify that the payment voucher is prepared after
the casualty return and the letter of employment has been received
and are attached to the payment voucher. The payment voucher is the
document authorizing payment. The payment voucher has to show the
name of the payee, the description of service and has to be
authorized by the person who has the authority in the ministry. The
voucher has to show from which vote it has to be paid. The person who
prepares the voucher has to sign his name and the authorizing officer
signs and puts the date stamp of his ministry.
as PW 6 testified when the prepared voucher arrives at the Salaries
Section the person handling it has to check whether all the
supporting documents are present and whether the voucher has been
properly signed. If the documents that should accompany the voucher
are lacking one has to check the file of the person to be paid to see
if they are not there. If the documents are in the file but do not
appear on the voucher, the person handling the voucher has to call
the person who prepared it to come and quote them on the voucher. If
the documents are not seen the voucher is queried and is thereupon
returned to the ministry from which it emanate with a request for
furnishing of proper particulars.
payment voucher is not in order the person checking it has to verify
and sign it. Thereafter the voucher may be passed to the head of the
Salaries Section. The head of the Salaries Section has to cross-check
the voucher and only if it is properly done that he may sign it and
pass it for payment. He will then put the line stamp marked "passed
for payment." In the absence of the head of the section one
senior officer to the checker can also cross-check the voucher and
pass it for payment.
witness had further testified that after the above process a voucher
is passed to another section where cheques are prepared. If the
cheque is needed urgently a hand written cheque is made out. If it is
not urgent it will go through a computer. There is a distinction
therefore between handwritten and typed in cheques. The hand written
cheque is written by one person and then taken to two people who are
authorized to sign Government cheques. The two people, who are
authorized to sign cheques, will check the cheque against payment
voucher and sign it. The signatories will sign separately in their
offices. The voucher records the number of the cheque and will bear
the number. The officer who prepares the cheque notes the number of
the cheque on the voucher. The number of the voucher is preceded by
the account number. The Lesotho Government cheque requires no stamp
because is written Lesotho Government cheque. The Imprest Account is
procedure was further outlined as follows: After the cheque has been
signed for the officer from the Salaries Section enters the cheque
into a register which shows the date, the payee, the amount. A space
is left for a person who receives the cheque to write his name and
sign the section from which it comes. In the Salaries Section there
is yet another register in which the cheque is entered and the
officer of the ministry has to sign for it before he receives the
cheque. No officers or payees are allowed to fetch their own cheques
from the Treasury Department except through their ministries. But in
exceptional circumstances the head of a department may deviate from
this procedure. The practice of making hand written cheques was no
longer allowed under any circumstances because it had become prone to
witness confirmed that in 1991 he received a telephone message from
PW4 about a certain cheque. Whereupon he called for the cheque's
counterfoil and the voucher which supported the cheque. The
counterfoil and the voucher tallied. The file of the payee was called
for. When the file and the voucher was checked it was found that the
voucher stated that the payee was being re-instated but there was no
letter authorizing it from the Public Service. There was not even a
letter from the ministry i.e. a casualty return. The witness
concluded that the voucher was irregular by reason of lack of these
witness, on the basis of his strong suspicion of irregularities,
back PW 4
and informed him to hold the cheque. He also wrote to the police to
inform of this development. Before then he had checked if there were
other cheques which were irregular in the manner described. Two
cheques of that kind were discovered. All of them including the one
that was originally being investigated were payable to Mr. Maboloka.
The payment voucher with respect to the other two cheques were found
not to be supported by casualty returns nor letters of authority from
the Public Service Department. The vouchers and the cheques were
handed over to PW1. As the witness further stated even the third
cheque had been charged on Lesotho Government account at Standard
Bank and had been deposited it into A2's account. A2's account had
been credited with the amount of Exhibit "D".
witness went on further and stated as follows: Exhibit "B"
was the cheque no. 102688 of the 18th June 1991 which he found to be
irregular together with its voucher. It showed the payee as M.J.
Maboloka. It was in the amount of M14,636.30. It was received by T A
Rammoneng (Al) from the Salaries Section. He had signed with his
signature which the witness is familiar with. Al had also checked the
voucher. Exhibit "D" which is cheque no 1011190 of 16th
August 1991 and its voucher was irregular in the manner previously
described. The payee
cheque was J Maboloka. It was in the sum of M18,646.68. It was
from the Salaries Section on the 16th August 1991.
summary of PW 6 testimony was therefore as follows. It first went
about the relevant procedure at the Treasury. He was alerted by PW 4
from Lesotho Bank about cheque in exhibit "D". He launched
an investigation as a result.
he looked into the file of the person who was allegedly being paid
(A2). There was no letter authorizing his re-instatement by the
Public Service Ministry nor was there a casualty return.
there were no other cheques that had previously been paid in similar
circumstances to A2.
all the cheques namely nos. 102688 for M14,363.30, 102914 for
M14,668.96 and 101190 for M18,646.68 had been charged on Lesotho
Government account and the Lesotho Government had been debited with
A2's account had been credited.
the above cheques with the corresponding payment vouchers were
irregular and lastly the Treasury Official who received the cheque
was Al from the Salaries Section whose signature the witness
identified as the checker of all those documents by reason of his
familiarity with it.
attitude of the Accused to the testimony of witnesses who later
testified orally indicated to me that the weight of this evidence of
Mr. Zwane which was admitted as said before was seriously
underestimated by the Defence. The impact and the weight of this
evidence can only be shown by its summary as recorded above.
PW7 was a
gentleman who worked at the Ministry of Public Service and previously
worked as a Chief Personnel Officer where he dealt mostly with the
employment of government employees. It was from 1989 to April 1992.
He knew that every civil servant had a file. He still had access to
those files even at the time he testified before the Court even
though he had been transferred to another government post.
witness testified that he knew both accused. He used to play draft
with A1 whom he knew to be working at the Treasury Department. He
knew A2 in his
life. A2 resigned from the civil service in 1989 but his personal
file was still there. He asked leave of Court to peruse from A2's
file which he had in his possession and he read from it.
revealed that A2 had been employed by Lesotho Government on the 1st
November 1975 as a Livestock Assistant in the Ministry of
Agriculture. He was later seconded to the defunct Thaba Bosiu
Project. In July 1977 he returned to the Ministry of Agriculture as a
mechanical supervisor. On the 26th June 1988 A2 wrote a letter to the
Public Service Ministry in which he tendered his resignation due to
ill-health. His letter was replied to on the 19th October 1989. His
resignation was accepted. He was thanked for his loyal service.
casualty returns were issued in respect of A2's resignation. The
first one, No. 18710 of the 6th November 1989 showed that A2 resigned
as from the lst August 1989. This meant that A2 had resigned as from
the date shown in the casualty return. According to the witness'
testimony A2 was never reinstated in any capacity in the Lesotho
Government. Otherwise this would be shown in the file. The second
casualty return, namely No. 24919 which was dated the 2nd August 1989
had the effect of stopping his salary from that date.
but one witness whose evidence was admitted was PW14 a lady who
worked at the Treasury Department where Al and PW6 worked. Of the two
Accused she knew Al only. She assumed duty in 1979. At the time of
testifying before the Court she had been an accountant.
she was accountant in the Salaries Section where Al also worked. She
was authorized to pass vouchers for payment. In June 1991 Al had
brought a payment voucher and asked the witness to pass for payment.
It was in the witness's office. The witness thought the voucher was
from the Ministry of Agriculture. She passed the voucher for payment
because Al had checked the voucher. The witness thought the payee was
J M Maboloka.
witness was shown Exhibit "B" which she recognized as the
voucher she passed for payment because it bore her signature. The
witness did not remember Al's signature. Neither did she know the
signature of the person who compiled the cheque. She had passed the
voucher for payment because it was checked, compiled and had the
folio number and the date stamp of the ministry of Lesotho
that the value of PW 14's evidence was to connect Al with Exhibit
witness whose evidence was admitted by consent was that of PW 16 at
the PE. This gentleman worked at the Treasury Department as Financial
Controller. In 1991 he was acting Chief Accountant. He had the
authority to counter-sign cheques. The others with whom he had such
authority were Mrs Motsamai, Mrs Motsoasele, Mr. Kolobe, Mr Zwane and
accused before Court he only knew Al. The witness knew that Al used
to work in the Salaries Section of the Treasury. He had had
infrequent contacts with Al. Even then it was only on personal basis.
shown Exhibit "C" which is a cheque no. 102914 the witness
was able to recognize his own signature on the cheque. It was dated
the 16th July 1991 and belonged to the No. 7 account of Lesotho
Government. The cheque was counter-signed by Mr. Mothibeli. The
voucher accompanying the cheque had been brought to the witness by
Mr. Peko. The witness neither co-signed exhibit "B" nor
Exhibit "D" The witness's duty was to check that the names
and the amounts of the vouchers corresponded with those on the
cheques. After signing the cheque he gave it to Mrs Peko to
with Crown Counsel that the above deposition constituted not only
uncontroverted pieces of evidence against the Accused but admitted
facts in the evidence of this trial. The issues of fact found to have
been proved consequently, before the Court, I could not ignore. That
is why I alluded to the weight brought about by the fact that those
facts were not challenged.
peripheral dispute surrounding the disappearance of the three (3)
original cheques and their respective vouchers became a recurrent
theme as evidenced by Appendix I (the ruling of the 12th December
1995) and other three rulings which followed. The purpose of the
investigations as aforesaid was primarily to find out whether it
would be proper and permissible to put in photostat copies of the
cheques and vouchers as secondary evidence of the lost originals. To
that extent it requires a fuller summary of the evidence of PW 1, PW
2 and PW 3 even though the rulings would be more enlightening when
they are visited. An apposite remark would be that the objections
about admission of the documents became so long drawn and tiring that
one was constantly reminded of the American legislative stratagem
called filibustering that is "obstruction of progress"
albeit for a purpose. The following summary of the three witnesses is
PW 1 was
the late Chief Magistrate LS Mapetla. He presided over the PE. He
testified that the cheques and payment vouchers handed in and marked
as exhibits were all original except one photostat copy of a cheque
no. 101190 for Ml8,646.63 which was handed in in its photostat copy
form and marked "A" and in its original form attached to
its accompanying payment vouchers, jointly marked exhibit "D".
also the original cheque no. 102688 which tallied with payment
voucher No. 70/102688 for M14,363.30. There was also Original Cheque
No.102911 which tallied with Voucher No. 70/102194 for M14,668.96 for
M J Maboloka. And lastly Cheque No 101190 which tallied with Voucher
No 70/102914 for Ml8,646.13 for J Maboloka.
personal cheque (of Mr. Maboloka) exhibit "E" and the
Cheques register exhibit "F" were also handed in.
close of the PE, PW 1 said the exhibits were all put in a brown
envelope and together with the record of proceedings sent to the
office of the Director of Public Prosecutions. The record and
annexures were brought back but Mr. Mapetla was later informed of the
disappearance of the cheques and the
from the lot. He ordered for a diligent search of the missing things
from all relevant and possible places to no avail. He informed
forthwith Crown Attorney (Mr. Lenono). Office of the Crown Attorney
provided the office of the Clerk of Court with photostat copies of
the missing documents. Copies of the documents were shown to the
witness. He was able to identify them.
Ntlhoboi Makhele was a Senior Copy Typist in the Chief Magistrate's
office. She remembered giving the original cheques and their
accompanying original payment vouchers to the office of her assistant
to go and cause photostat copying of the said documents either at the
Justice Ministry Headquarters or at the High Court offices. This had
been done in the past. The witness then went on leave. On her return
she found that the exhibits in question were missing. She informed PW
1 who ordered for a search.
PW 3 was
'Makatleho Ntoi. She was Office Assistant in the Chief Magistrate's
office. She admitted being given an envelope by PW 2 containing
certain exhibits which were to be photostat copied. She put the
envelope on a desk in the Senior Clerk of Court's office and went on
an errant to one lawyer's office. On her return she had forgotten
about the envelope until she was asked about it by PW 2 a week later.
The original cheques and their respective payment vouchers
never recovered. The other exhibits remained available.
evidence of these three witnesses the Crown asked to hand in and
refer to the copies of the missing cheques and payment vouchers. This
was objected by defence on the ground that the cheques and vouchers
had to be properly handed in.
Court made a ruling on the 12th December 1995 that the photocopies of
cheques and payment vouchers "may be put in as secondary
evidence and will be tested as to their testimonial value in the
stage (after the ruling) and onwards the photostat copies of cheques
and payment vouchers were used. They were marked as follows:
"ID 1" were cheque and payment voucher 70/102688 for
M14,363.30. Secondly "ID 2" were cheque and payment voucher
70/102914 for M14,688.96. And thirdly "ID 3" were cheque
and payment voucher 70/101190 for M18,646.63.
of the myriad of objections was that Mr. Lenono ended up testifying
correct as to the role he played in making copies of the cheques and
vouchers and "the circumstances and originals of the documents".
See Appendix II (Ruling of the 19th April 2001). He ended up putting
in exhibits "B" "C" and "D"
respectively which corresponded with "ID 1", "ID 2"
and "ID 3" above.
Fourth witness to give oral evidence was Mr. Samuel Mokitimi who
stayed at Ha Mabote. He knew both Accused. They were his friends with
whom he engaged in the social activity of card playing at a place
called "Metro Cash and Carry" where they often met. He
testified that he knew where the Accused worked and where they
stayed. He had visited them at their places of residence on many
occasion followed by two others he visited A2 at his home at Lower
Seoli on the outskirts of Maseru. He was with Al and A2 when the
three of them took off from the place where they played cards. A2 was
in possession of his briefcase from which he took out certain
brought out pinkish forms from other documents. These were
accompanied by white papers. One pink document was attached to a
white one underneath in order to make a carbon copy and these were
placed on a table.
were rubber date stamp impressions on the pink papers which he
impression was already made although the documents were otherwise
printed forms that were blank. The witness then said A2 took out a
white paper which had information in it.
the witness to transcribe the information from the white paper on to
the pinkish form in a manner that resulted in a filled out form as
shown and identified as "ID1". "ID1" is a
photostat copy of a payment voucher dated 14th June 1991. On two
other occasions on the following months the procedure was repeated at
the home of A2 in the presence of Al and here the production of "ID2"
and "ID3" resulting in vouchers dated 16th July 1991 and
16th August 1991.
witness said he did not ask nor was there an explanation given to him
about the purpose of these transactions. This, as I found, was
difficult to believe as being inherently improbable. It is reasonable
to suspect that the witness stood to benefit from this transaction.
At the least he should have suspected that something was wrong and
yet he was prepared to go on with the process. To the extent that Al
and A2 were the witness's friends that is more of a reason why the
Accused could only be less than candid about the nature of the
white paper produced by A2 the witness then proceeded to fill out on
different occasions on each form the information falling under
Ministry, Department, pay to: address, description of service and
R.C. Except that the vouchers are for payment of MJ, M,J Maboloka,
payment of salary, w.e.f. the officer is re-instated, the information
and the money figures and the dates differ in the different forms.
witness stated that the writings on the paper were "not his own
writing" but "was similar to his own writing." "This
was not the original document" on which he wrote. That the
production of the original would have made the witness "more
positive". However the witness said the writing looked like his
own writing. This is one of the aspects over which the witness was
not being truthful.
correct that at the PE the witness testified that "accused 2
produced a white paper and wrote on it and "asked me to
transcribe what he had written on it." He was taxed by the
Defence Counsel about the absence of similarity of the statement to
what he deposed to before the Court. He stuck to the latter version.
I did not think he was convincing in his explanation as to why there
was a difference. But he was clear that the information he
transcribed on to the pink document was the one given to him by A2.
Except that the witness may have not
the words "w.e.f." which is a shortened form for "with
effect from it was clear to me that he understood all the remarks in
the payment voucher.
I did not
believe this witness that he did not see the words "Lesotho
Government" on top of payment voucher on the form. Even if he
did not he must have understood that that the documents were payment
vouchers of Lesotho Government even judging from all other
information contained in the form or forms themselves. Indeed he may
have forgotten the contents of the vouchers including the figures but
certainly not because it was in English. He must have known the
purpose of the transaction and most probably was given the report as
may have been necessary or was to be expected. On each occasion when
the forms were presented for filling by A2 there was already date
stamp impressions on the forms. On each occasion the three friends
would go back to their meeting place at "Metro Cash and Carry"
evidence of this witness I believed that sure foundation of a scheme
was hatched and fortified. What remained was its execution in the
offices of the Treasury Department.
second witness whose evidence was not admitted by consent was PW5
Petlane who had retired in June 1991 from the Ministry of Agriculture
which A2 vacated by way of resignation due to ill-health in 1989. To
his knowledge A2 was never re-instated into his Ministry after that
retirement. He worked under the Crops Department where the witness
was director. During the month of June he was on leave pending
retirement. In no material way was his evidence challenged. It
established that A2 retired and left the said ministry for good.
PW 6 was
Richard Thabang Letsoela. In 1991 the witness was in the Ministry of
Agriculture - Crops Division and a department called TOU. He worked
with A2 who left his job permanently in July 1989 on his own
volition. It was by way of resignation on the ground of ill-health.
A2 never rejoined the Ministry thereafter. PW 5's evidence is
corroborated by this witness's testimony that A2 was no longer
employee of the Ministry of Agriculture in 1991 and could never have
been re-instated into the Ministry of Agriculture. The witness'
evidence was not disputed,
became Maseiphemo Monnapula. In 1991 the witness worked in the Water
Affairs Department in the Accounts section. With reference to exhibit
"C" payment voucher she noted the following: The Department
voucher number was
unstated. This was irregular. Furthermore the stamp used by her
office on vouchers was the "Accounts" stamp not the stamp
appearing on exhibit "C". The latter was for use by the
"Administration" section for their purposes only. The use
of the stamp intended for use on Accounts documents was unusual and
could only have been irregular unless it was authorized which it was
witness did not know of any Mr. Maboloka who was to be re-instated in
their Ministry. There had never (to her knowledge) been a Mr.
Maboloka who previously worked in their department.
witness was shown the original of cheque no. 102914 in the Crown
Attorney's office when she was interviewed as a witness. She denied
knowledge of the cheque. This was the same as she testified with
respect to the cheque in exhibit "D".
concluded that the Crown established proof that A2 could not have
been employee of the Department and furthermore there could not have
been any justification for payment of government funds in favour of a
Mr. Maboloka. There was absolutely no credible challenge to this
evidence. Naturally A2 would seek to (as he did) distance himself
from any association to the witness' department by
way of a
PW 8 was
Mr Bruno Tseliso Sekoli. He was the Principal Meteorologist in the
Ministry of Natural Resources in the Water Affairs Department. The
witness said he had never worked with either of the Accused though he
knew them in their private lives. He had been a fellow student in the
High School with A2.
witness was shown the signatures of authorising officers on payment
vouchers in exhibits "C" and "D". He said they
were forgeries of his own signature because he had not signed on the
documents. He knew of no legitimate transaction in relation to
payment of Mr Maboloka. The latter had never been an employee in the
witness' Department. He was shown the original vouchers some time in
1991 or 1992. He still denied knowledge of those signatures.
PW 9 was
Mrs Matseliso Francina Ntereke. She testified that in 1991 she was
Accountant in the Treasury Department. She assisted Mrs Mqedlana. The
witness was referred to exhibit "C" which was a voucher
dated 16th July 1991. She recalled that Al brought it to her to pass
for payment. She had to process the papers because Mrs Mqedlana was
absent. The voucher had no accompanying documents. She however signed
it believing they were on Al's desk and he had
checked them. She signed the voucher and gave it back to Al.
relation to exhibit "D" again the voucher had been brought
to the witness to sign as her superior Mrs Mqedlana was once more
absent. She accordingly signed and thereafter handed back the
documents to Al who then left. No reason was suggested why the
witness would falsely implicate Al.
witness recognized her own signature on both documents. She did not
know the signature of Al. This witness was a truthful witness whose
testimony was unshaken.
PW 10 was
Mrs Malehlohonolo Peko. The witness testified that in 1991 she worked
at the Treasury Department where she was Acting Senior Accountant.
witness said she was familiar with Al's handwriting and signature.
She used to see Al entering cheques in the cheques register in the
examination section. This he did in cheque register which was
exhibited as "F".
witness was made to read from page 233, 249, 250, and 270 of exhibit
"F". These were pages in which Al (as the witness
testified) made entries in
of payment vouchers and cheques in exhibit "B" "C"
from page 233-34 of exhibit that not only did the signature following
Rammoneng TA appear in relation to voucher 70/102688 MJ Maboloka.
This appeared on five other occasions (to payees) to wit LADB,
Lesotho Bank, LBFC, Standard Bank and Barclays Bank. In all these the
writings are similar and the signature is the same. Why would the
entry where MJ Maboloka was concerned attract a denial and why not in
others? Even if all the entries or signatures were denied, as Al
ultimately did, what would a credible explanation be for the alleged
scheming, contriving or trickery against A1? What would be the motive
question go to entry voucher 70/102914, amount Ml4,668.96, on
16/07/91 where the writing "Rammoneng" is similar although
the signature is admittedly not quite similar to those on page 234
but exactly like "TAR".
251 (16/07/91) of the register the following scenario is found. Five
cheques to five different payee banks appear to have been signed for
by "Rammoneng" and the signature is something like "TAR".
The payee and signature are similar to what one finds on page 249-50.
Furthermore one has to look at page 173-74 (16/08/91) in relation to
payee J Maboloka, voucher
M18,646.63. The name is "Rammoneng" and the signature is
page 252. On this page 273-74 there are other payee besides MJ
Maboloka. The same name appears and the same signature appears. Why
is this coincidence other than indication of one person at work. The
entries are similar in name and signature except only with regard to
what is found (signature) on page 250.
it was without doubt that it was the same person who made the entries
on the mentioned pages in the register. Other credible pieces of
evidence went on to point out that it was Al who uplifted the cheques
shown in the register and which are being questioned in this
proceedings. As I said in the beginning of the judgment where certain
inferences have to be drawn as a matter of common sense some
conclusions may appear to be inherently probable. It is the testimony
of these witnesses which must be believed in the face of a denial
which is inherently improbable and palpably false such as that of Al.
issues of uplifted cheques as a matter of serious probability, cannot
be separated from that of admitted evidence of prepared vouchers
presented by Al for issue of cheques by Rathaba (PW 16) having been
passed on to her by Mrs Peko (PW 10). Again see the evidence of Mrs
Lemeke (PW 14) about exhibit "B" voucher.
evidence which was admitted about receipt of prepared voucher
emanating from Al has become overwhelming. These were the vouchers
which brought about the cheques. Why would Al suddenly lose contact
with the cheques. I had to conclude as irresistible inference that it
is true that Al was seen entering cheques in the register. I did not
find any reason why the witness ought to be disbelieved. Nor was
PW 11 was
Mrs 'Mateboho Motsamai. She testified that in 1991 she was Financial
Controller at the Treasury Department. She knew Al very well. Her
duties included counter-signing handwritten cheques. She stated that
she countersigned the cheque in exhibit "B" of the amount
of M14,363.30. She did not deal with the cheque in exhibit "C".
She countersigned the cheque in exhibit "D". She recalled
specifically that Al came into her office and asked her to sign the
voucher as the cheque in relation thereto had to be treated as urgent
as the owner had been on interdiction and was pestering A1. She
complied because she became convinced that the matter deserved urgent
attention. Moreover she had at that time felt satisfied that the
supporting vouchers were good.
PW 12 was
a member of Lesotho Mounted Police Service No. 5954 Sgt Nkune. He was
the investigating officer in this case. On the 20th September 1991
went, following a report, to the Industrial branch of Lesotho Bank.
by other officers and staff from the office of the Accountant
General. Nkune was shown the original cheque payable to A2 for the
amount of Ml 8,646.63. He was also given a copy of a cheque at
Lesotho Bank which he handed in in Court at the PE and it was marked
exhibit "A". As it later was explained exhibit "A"
was copy of the original cheque exhibited as "D".
during the course of his investigations Nkune received from the
Treasury Department the following: three (3) original cheques, three
(3) vouchers supporting the cheques, a cheques register and a
personal cheque belonging to A2. Mr. Nkune testified that the
personal cheque was about M6,000.00 and was about to withdraw funds
when this was stalled. These were marked as exhibits at the PE. In
this Court Mr. Nkune made reference to his knowledge of the documents
and that he himself had kept copied in the police docket at one time
and had even made copies of the cheques and vouchers as a precaution
against loss of originals.
the docket once disappeared when Mr. Nkune was on leave, at one time,
he was ordered to rebuild it. He was able to do so successfully
because the exhibits were stored separately and safely. His testimony
about the knowledge and possession of the documents was or would be
confirmed by Treasury
and a bank official Mr. Pitso (PW 13). But he said he later took
possession of the original documents from Mr. Zwane when he was
proceeding with investigations. It was three original payment
vouchers and three cheques.
able to identify copies of the cheques and vouchers. While he had
been able to put in those as exhibits at the PE he was not able to do
that in this Court because of the objection made by Defence Counsel.
This is shown more fully in the Appendix II (Ruling of the 28th June
2000). The ruling included a declaration that Mr. Lenono, Crown
Counsel, was the person best positioned to hand in the photostat copy
exhibits because ".......it is not unheard of for a public
prosecutor to act as a witness on some occasions."
was able then to hand in all other exhibits except "B", "C"
and "D". These were exhibits "A" "E"
(A2's bank deposit slips), "F" (cheques register). "G"
(A2's Bank statement) "H" (A2's Bank statement). Exhibits
"B", "C" and "D" were to be handed in
by Mr. Lenono, Crown Counsel in accordance with my ruling in Appendix
III (4th September 2000).
bank deposit slips are instructive in what they show which is as
follows. The one dated the 18th July 1991 is of A2's bank account no.
amount of Ml4,668.96 which cheque amount was from Lesotho Government.
This deposit is undoubtedly in the same amount as in cheque and
voucher exhibit "C".
second bank deposit slip is of the 17th August 1991 of the said bank
account of A2 in the amount of M18,646.63 which was of a cheque
amount from Lesotho Government. This deposit is undoubtedly in the
same amount as in cheque and voucher exhibit "D".
already commented about the cheques register elsewhere in this
judgment as implicating Al who had on more than three occasions
uplifted cheques which he signed for including, as I concluded, the
cheques subject of the charges before this Court.
statement of A2's said account of the 29th June 1991 (exhibit "G")
shows a cheque deposit of M14,363.30 made on the 19th June 1991. This
deposit is undoubtedly in the same amount as in cheque and voucher
statement of A2's said account of the 30th September 1991 (exhibit
"H") showed a cheque deposit of M14,668.96 of the 18th July
1991 and a cheque
of M18,464.63 of the 17th August 1991. Refer to vouchers and cheques
exhibits "C" and "D" respectively.
useful to digress for a moment. As said earlier in the judgment it
was the attitude of defence Counsel to stretch the proceedings by way
of repeated objections. This was once more demonstrated in the midst
of the evidence of Mr. Nkune. The exchange between the Court and
Counsel in this instance took about a tapeful of recording. This once
more did not augur well for early completion of the proceedings.
conclude that these bank documents which pertain to A2's bank account
show a clear connection between the three vouchers and cheques
subject of the charge in this proceedings and A2 through his bank
account and a transaction involving those cheques whose origins was
unquestionably either fraudulent or a result of theft by false
Court would further conclude that a relationship is established
through these transactions between the author or authors of vouchers
and cheques who had intention to defraud or steal. It is A1 who could
have had that intention to the extent that he is said by clear and
credible evidence to have dealt with the
documents while in the Treasury Department.
nefarious relationship can now best seen between Al and A2 if the
cheques referred to above are the cheques which came from the
Treasury Department. A2 has to tell a convincing story as to how he
came by those three (3) cheques which went into his account.
"E" was A2's cheque of the 19th August 1991 which sought to
draw funds and benefit from the rich deposits of funds in A2's
account. The Crown contended that A2 sought to benefit by way of
theft. Unquestionably A2 had become greatly enriched.
concluded that Nkune had had possession of the documents exhibited in
the course of his investigations. Most importantly he received those
from the officials of the Treasury Department and others from the
bank officials of the Industrial branch of Lesotho Bank. He confirmed
that following reports from the said officials he attended at the
Treasury Department and at the Lesotho Bank where the subject of
criminal investigations concerning A1 and A2's conduct were reported
more fully to him including handing over to him of documents and
exhibits shown in the above paragraphs. To reiterate Mr Nkune knew
and he had even handed them in as exhibits at the PE. In addition he
had a reasonable suspicion that the accused were liable as charged
having also confronted them.
Lekhooa Pitso who was PW 4 at the PE whose evidence had been admitted
in the proceedings was "recalled". It will be remembered
that Mr Pitso was Accountant at Industrial branch of Lesotho Bank
where A2 kept his account. Mr. Pitso's evidence can only be read in
conjunction with PW 3 who was bank teller who alerted Mr. Pitso to
some suspicious circumstances about withdrawal of a cheque and then
to the state of A2's account.
result of PW 3's report the witness said he mounted an investigation
into A2's account including on the day of A2's depositing of August
1991 cheque because it was a second cheque of a large amount before
that teller. That cheque was also too large for a salary cheque. His
further investigation revealed a third similar cheques before a
the cheques the witness had photostat copied when the original cheque
was referred to the Standard Bank (drawer bank). Accountant General
(PW 6 at PE) was also contacted about the suspicious cheque deposits.
cheque was given to Mr. Nkune (PW 12) the policeman. Mr Pitso
recalled it was exhibit "A". He had instructed the teller
to make photostat copy of the cheque.
witness said withdrawals had not been made because they were
questioned; There had not been any regular withdrawals by A2. The
size of the deposits had aroused suspicion on the part of the bank.
Even if such were arrear salary cheque deposits they were still too
witness would not be particular of the date of the cheques or
deposits. He recalls it was on more than one occasion when he had to
scrutinize the transaction. One of the deposits could have been that
of the 18 July 1991 if he was not mistaken as it may have been what
he said at the PE.
not see how the evidence of this witness could be doubted as being
truthful and without any motive to deceive. It went as much as to
confirm the transactions in A2's account of large amounts of money in
three cheque deposits which have become questionable in these charges
before this Court. Incidentally A2 admitted that he received the
cheques through the post much against evidence suggesting that those
kind of payments could never be delivered through the post.
before one has to inquire about the connection between the deposits
in A2's said bank account and the questionable transactions in the
Treasury Department, if not before, about which the witnesses
testified against Al who admitted to have been an Accounts Assistant
at the Treasury and accordingly member of staff. Not forgetting of
course the proved coincidences and the undesirability of admitting
from them of "fanciful possibilities". See Miller v The
Minister of Pensions (supra).
already spoken extensively about the problem of the disappearance of
exhibits as after the completion of the PE. And the various
objections from defence Counsel which resulted in my various rulings
more particularly the one that lead to my declaring that Mr. Lenono
would be a competent witness. He ended up being a witness.
Lenono ended up being called as PW 14 by this Court. So he testified
about the fact that he himself had presented copies of cheques and
vouchers which had been exhibited at the PE which was presided by the
late Chief Magistrate: When the PE was completed he was then Acting
Director of Public Prosecutions as already recorded elsewhere in this
testified that he received proceedings and exhibits of the PE record
in his capacity as aforesaid. He then himself unassisted made
photostat copies of the exhibits which included a copy of a cheque,
original cheques and vouchers which had been called ID 1, ID 2, ID 3
and ID 4.
Lenono alluded to the PE having been completed on the 19th April 1994
when then all the exhibits except one were in their original forms.
That was a cheque which was marked "A" which was copy of
exhibit "B" together with its payment voucher. Another
cheque and accompanying voucher was put in marked "C". The
last lot was a cheque and accompanying voucher marked "D".
end of the PE all the proceedings and exhibits were sent to the
office of the Director of Public Prosecutions who was in the person
of the witness himself who was then acting in that position. This was
the normal procedure in order to enable the Director of Public
Prosecutions to decide the charged to prepare or other necessary
steps. The witness then decided to indict on the 11th May 1995.
PE record was put in his possession Mr. Lenono as he testified he
made photostat copies of ID 1, ID 2, ID 3 and ID 4. It was after
taking the steps
he sent back the record of proceedings to the Chief Magistrate where
the record would be typed until same would be sent over to the
Registrar of the High Court.
Lenono continued to testify it was after some time when he himself
made inquiries about the state of the record. It was after about
three months when he was informed that the original payment vouchers
and cheques had gone missing. Mr. Lenono said he consequently made
copies of payment vouchers and cheques. It was after an unsuccessful
search for the missing documents by the Chief Magistrate and his
made those copies the record was typed out. The made out copies
including the exhibit "A" were sent to the High Court.
Lenono added that it had not been his first time to photostat copies
the said missing documents. He had done that even after the police
had sent over the docket after investigations. This he himself did as
a security measure. He kept those copies which he also used in
appeared to have introduced a measure of confusion was an
created by Mr. Lenono. It was that he could not have been too certain
whether what he copied back to the magistrate were those copies which
he made before the PE proceedings were refused as against those which
were marked by the Chief Magistrate having dealt with them at the PE.
But what was redeeming was that Mr. Lenono consistently referred to
that: "The photocopies I used were those used after completion
of the PE". That is why the cheques (including exhibit "A"
in the magistrate's own pen) were demonstrably marked by the
magistrate : Mr. Lenono conceded that the documents were not
certified nor authenticated in no other way except that he would (as
other witnesses previously did) vouch for their source as copies of
their original documents which were not traced even after a diligent
search, as reported to him.
copies shown to the Court were those "already marked by the
magistrate" which were handed in by Mr. Lenono as exhibits as
follows: ID 1 became exhibit "B". ID 2 became exhibit "C".
ID 3 became exhibit "D". ID 4 became exhibit "A".
after the well tuned cross examination by Mr. Mahlakeng Mr. Lenono
proved straightforward honest and without any motive to deceive on
any aspect. Significantly the evidence of PW 1, PW 2 and PW 3 were
corroborated in its
That the exhibits emanated from the lost original PE documents became
true and proved without a shadow of doubt. To reiterate the photostat
copies of the cheques did even show the marking by the late Chief
Magistrate. These exhibits were accordingly correctly put into the
proceedings as good exhibits and evidence in these proceedings.
closed its case. The two accused each testified on his own behalf.
admitted that he was Assistant Accountant at the Treasury Department
at the material time. His responsibility was to ensure that salaries
of staff from those ministries of his "desk" had been paid
correctly to keep their records. He also had to ensure that the
cheques have been released from the computers so that he may forward
them to respective ministries.
as he testified that cheques were ever delivered but were collected
from the Treasury Department. Furthermore the ledger book would not
show that he himself uplifted any cheques in the process of
delivering any cheques as this was not the practice by members of
staff such as himself.
coincidence is inexplicable that PW 10 would testify that she was
able to specifically recall that Al collected the August 1991 cheque
exhibit "D". Furthermore PW 10 said under cross examination
that when the cheque was queried at the Bank the Accountant General
was phoned and consequently he and Mrs Lerotholi attended on A1. They
found that the cheques were not signed for in the register. That
despite cheque had been collected and deposited by A1 on the 16th
August 1991. Al was called to sign on the 19th August 1991 or 20th
not matter which of the two last mentioned dates was correct. All it
underlined was that not only was it expected that Al would sign in
the register upon or after uplifting the cheque. It indicates that
all knew that it was Al who uplifted the cheque. That is why he was
called to belatedly sign in the register. It was thought he had
neglected to sign. Al may have been unhappy or feeling under a lot of
pressure to sign. What was important was that he was indicated as the
person who uplifted the cheque including exhibit "D"PW 10
was unshaken in his testimony throughout. I concluded so.
knew Al's signature. Al's signature was identified in the cheques
register. I was satisfied that his signature, taking into account
that it was known,
identified. There was therefore no need to have sought to lead
further evidence purportedly in conformity with section 232 of the
Al testified besides the denial of preparing for vouchers and
uplifting the cheques were that at the PE exhibit "B" was
never shown to him. He made issue about carbon copies supporting the
original payment vouchers including the absence of carbon copies and
the order of such copies by the colour scheme.
further denied that he was shown exhibit "C" at the PE.
Neither had he been shown exhibit "D" at the PE. That the
signature in exhibit "F" (cheque register) were not his.
When he was shown the register on the 20th August 1991 as he
testified he had already had wind of or received a report from one
Litsabako Tsepe about the register or suspicious cheque. This led him
to initially resist signing for receipt or uplifting of the cheques
in the register. Al was not able to show the reason for alleged bias,
prejudice or ulterior motive for having fingered him for the alleged
wrong doing. Why would so much effort be expended to bringing about
such an array of solid facts against A1 ? He caused fraud, which he
perpetrated, of government cheques and theft by false pretences of
government funds. He should not have done that or allowed others to
do. See Nthati v Rex
LLR 35 at page 40.
have I pointed at factors that made the Crown's evidence against this
witness to be overwhelmingly proved, this accused's story or
explanation may never possibly reasonably be true. The Accused
neither had a defence. His case was demonstrably false and inherently
improbable as to be rejected as false beyond a reasonable doubt. See
remarks of Ramodibedi JA in Rex v Lepoqo Seoehla Molapo 1997-98 LLR
208 at 287. As shown throughout in this case Al defence was all
denials of every aspect of the Crown's evidence. He did not succeed.
testimony was dismally lacklustre He said that he resigned from the
Government in 1989 and on resignation he was entitled to some
terminal benefits. His benefits were not paid immediately. He
received the first cheque in respect of leave pay. In 1991-1992 he
received cheques in respect of his gratuity. He had no idea of the
exact amount he was supposed to receive. Indeed this ought not to be
believed as being most improbable.
statement has or is supposed to have the following significant
meaning. That although he (A2) personally received cheques for leave
pay and gratuity since he did not know the total which was supposed
to be paid out to him
not surprised if he continued to be paid further and further by
cheques through the post. He thought he was entitled to receive the
admitted that he was holder of the account no. 36000802 which was
credited on the occasions as shown by the bank statements which were
exhibited including deposit slips. He had attempted to withdraw from
his bank deposit but was arrested. I would resist any conclusion or
suggestion that A2 took nor care to investigate nor that he was
reckless to have received further cheques. He was obviously lying.
The more probable scenario is that he was part of an agreement to
receive unlawful cheques in the name of retirement benefits or
gratuity. He said he received the cheques by post. Even if one chose
to believe that such cheques were sent out through the post (which I
did not) still the story is unbelievable even as a mistake except
that the situation was contrived and had become an unlawful scheme.
harked back usual note that at the PE all the exhibits "B",
"C" and "D" were not shown to him. Even if they
were not (about which no inference or conclusion was suggested to me
by Counsel) what has one to say about overwhelming evidence that
cheques were put into his bank account whose entitlement to the
cheque was not beyond reproach but that it was proved to be
illicit and intentional. A2 participated in the wrongdoing with Al or
has benefited as per payments made into his account assisted by his
partner in crime.
safely, as I hereby do, conclude in the same way to A2's explanation
as have done with regard to Al, by rejecting the same as false beyond
a reasonable doubt.
Court observed with curiosity the alacrity and extent to which the
defence would deal with peripheral issues. The Crown correctly
submitted that it had proved it beyond a reasonable doubt that the
two Accused persons had defrauded the Lesotho Government in the total
sum of M47,678.89 which money they did steal.
also spoke about the extraordinary length of time it took the Court
to complete the proceedings, he stated that the Crown was not
accountable for this delay as it submitted. I agreed that a scrutiny
of the record would show that over ninety per-cent of the
postponements were attributed to the defence. Counsel cited the case
of Sekonyela and Others v Rex 1981(1) LLR 41 in particular the
Courts' remark page 45 which was that:
"When a trial drags on for an inordinate length of time that is
bound to affect the sentence finally to be imposed on the accused
from Sankatana Masupha v Regina 1963-66 HCTLR 102 at 104. As Counsel
submitted finally in that connection the Court was being urged not to
be too eager to take the lengthy trial period in favour of the
accused person in this particular case, when the Accused persons
themselves were the cause of the delay. I may come back to this
considering that the funds which were illicitly interfered with Mr.
Lenono quoted Delvis Faro and Another 1980(1) LLR 147 at where Court
".......It is the primary duty of every Court in this land to
land to make their determination to discourage any idea that the
Government property can be stolen with impunity.
The Courts in this country are determined to punish severely anyone
who steal Government property. Lesotho is a poor country and has of
necessity to borrow money from donors. If the little help will
receive is not used for the purpose for which it was meant but finds
its way into the pockets of individual officers, then very soon this
country will find it increasingly difficult to raise any loans."
considered the totality of the Crown evidence and that the two
Accused's stories could only be false beyond a reasonable doubt I
could only conclude that the Crown did prove its case beyond a
reasonable doubt. In
the Crown evidence being:
That payment voucher No. 70/102688 was received and presented by Al
at the Treasury, resulting in the drawing of cheque No. 102688 for
M14,363.30 payable to A2.
this cheque No. 102688 was paid into A2's account at Lesotho Bank
Industrial Branch on 19/06/91.
from that deposit, A2 made several cash withdrawals per his personal
cheques numbers 209606/7/8 and 9.
Al received and presented payment voucher No. 70/102914 to the
payment authorising officials at Treasury, resulting in he making of
cheque No. 102914 in the amount of R14,668.96 in favour of A2.
this cheque No. 102914 was paid into A2's account by A2 himself on
from that deposit A2 made several withdrawals per his personal
cheque numbers 209613/-21.
Al received and presented payment vouchers No. 70/101190 to the
payment authorising officials at the Treasury, resulting in the
making of cheque No. 101190 in the amount of M18,646.63 in favour of
this cheque No. 102914 was deposited into A2's account by A2 himself
from that deposit A2 attempted to draw an amount of M6,645.00 per
his personal cheque number 209622 but was arrested before he could
that the Crown bears the onus of proof beyond a reasonable doubt of
all the elements of the crime. This Crown has successfully
defined as the unlawful and intentional making of a misrepresentation
which caused actual prejudice or which is potentially prejudicial to
another. See The Law of South Africa, Vol.6 page 288 Joubert et al.
See also South African Criminal Law and Procedure Vol.3 4th edition
JRL Milton, at page 702. The essential elements of fraud which must
in each case be proved are unlawfulness, making of a
misrepresentation, intention to defraud and causing of prejudice.
other hand Theft By False Pretence is committed when a person
unlawfully and intentionally abstain a corporal thing or property in
commercio from another, without the latter's consent, by means of a
false representation. Mr. Mahlakeng referred me to The Law of South
Africa Vol.6 page 302, Joubert et
respectfully in agreement that beginning from the first meeting of
the two Accused and Mokitimi (PW 4) until when encashment of the
personal cheques of A2 or presentation thereof the crime of fraud
which is the main offence in the first three counts had been
committed by the Accused for which I find them guilty as charged.
1. (a) Exhibits "A", "B", "C", "D",
"E", "G", "H", "I", "J"
destroyed by police.
(b) Exhibit "F" to be sent back to the Treasury Department.
(c) "Unmarked" Cheque Register, specimen signature form
(16th April 1991) Salary Adjustment Voucher (07/05/91) - to be sent
to the Treasury Department.
2. Lesotho Bank would be advised to close Account No. 360003802 M J
Maboloka in accordance with its regulations.
by the Honourable Mr. Justice T. Monapathi on the 26th day of
already found the two Accused guilty of Fraud, as charged, on the 9th
Accused have testified in mitigation of their sentences on the 16th
September and on the 18th September 2002. They have most wisely also
testified under oath as to their personal circumstances. These were
quite revealing and weighty as the record will bear out.
also been told by Mr. Lenono that the two accused have no previous
convictions despite that the present convictions involve quite a
serious offence. I agreed with respect. Indeed Cullinan AJ said in
Rex v Masupha Ephaim Sole 4th June 2002 (unreported) at page 5:
"To apply those dicta to the present case I take into account
the fact that the Accused is a first offender but as Baker J observed
in S v Van Der Westhuizen 1974(4) SA 61 (C) at 64 referring to S v
Victor 1970(1) SA 427 (A). There is no rule that a first offender
should not be sent to gaol and is entitled to a suspended sentence."
Clearly there cannot be such a rule, much depends on the
circumstances of the case, and in particular the gravity of the
offence." (My emphasis)
regard I refer to my biting comments in my main judgment about theft
of government funds. In this case it was M28,000.00 that had been
actually siphoned from the Treasury Department of Lesotho Government
when the fraud itself involved M47.678.86.
case of Nthati v Rex 1981(1) LLR 35 at 40 a reference to sentence
suggests an attitude of the Court in proper cases. That is to say
in the courts have often said that thefts by public servants should
be severely dealt with. I normally impose a custodial sentence unless
there are very cogent reasons to do otherwise." (My emphasis)
this in my mind when I sentenced the two Accused persons.
Lenono has rightly observed that this case has taken a long time to
resolve finally and that it could not be laid at the door of Crown
most of the time but on the attitude of defence Counsel in raising a
myriad objections most of the time. Much as I found fault with the
substance of the objections which resulted in four written rulings
that I made, I would nevertheless commend both Counsel namely the
late Mr. Pheko and Mr. Mahlakeng for the aggression with which they
defended their clients. One misses moments like that in Court
nowadays. With these remarks and others which I have already noted in
I am merely remarking and I note that the spectre of conviction or
has been hanging over the heads of the Accused since they first knew
that they stood charged with these offences about ten years ago.
the aspect of delay could be the issue of disappearance of the
exhibits after the completion of the PE which was regrettable and not
good for the reputation of our Courts. All in all the trial took a
long time to complete and this would certainly redound to Accused
under normal circumstances.
come to the task at hand which was not an easy one. It is to start by
saying that sentencing an accused person has to serve a purpose.
There must be:
"aims for punishment in the sense that the following headings
describe the result that will hopefully be achieved by means of the
punishment imposed. In this context one should also try to ascertain,
in advance, exactly which aims may realistically be achieved by means
Sentencing DP Van der Merve at 310-311. The learned author endorses
the "popular view that the ultimate aim of punishment is
probably to protect the community against crime". He cites
"Direct prevention the example of which is imprisonment amongst
others". He outlines the indirect prevention which consists of
persuading the offender to cease his criminal activities ultimately
by means of the different methods. See also Rex v Masupha Ephraim
8, citing S v Rabbie 1975(4) SA 855(A) and S v Banda and Others
well known methods which the learned author speaks about are
retribution, deterrence and rehabilitation. The two last methods find
favour in modern penology and the latter being more popular and
emphasized. This theory virtually saying that direct prevention by
imprisonment is only effective if it conduces to rehabilitation of
the offender. At the end of the scale being that an offender would be
imprisoned for a long period or given a death penalty where the
likelihood of rehabilitation does not suggest itself because the
offender is incorrigible or a serious crime has been committed and
the society deserved a certain kind of protection by "dispatching"
punishing convicted offenders the Court considers the following
interests: The nature of the crime, the kind or person of the
offender and the interests of the community on a kind of a balancing
scale. As Mr. Lenono correctly submitted the punishment of the
offender while taking proper heed of the seriousness of the offence
should not miss the greater interest of the community in seeing to it
that the offenders are punished deservedly and demonstrably in
relation to the seriousness of the offence. It is because such
criminality and conduct is an affront to the society itself. I
low sentences or too harsh sentences are imposed for a misconduct
that affects the perception of the community as being nonsensical and
that itself affects the reputation of the Courts in the eyes of the
public. This was noted.
attracted by learned Acting Justice Mr. B.P. Cullinan in Rex v
Ephraim Masupha Sole (supra) where he warns against anger on the part
of the. Court or the Court exaggerating the seriousness (of a
garguantuan proportions) of a crime above all else and the learned
Judge said at page 5:
"However the denunciatively motive description of the crime
although accurate, should not be allowed to transgress all other
considerations in arriving at a just and balanced sentence. As was
said by this Court in S v Kumalo 1973(3) SA 697 (A) at p. 698-AB
"punishment should fit the criminal as well as the crime, be
fair to society and be balanced with a measure of mercy according to
circumstances ......... The last of these elements is sometimes
learned Judge then dealt with what properly should be the view of and
the xercise of mercy. This I have taken into account. This I agree
with and I accept it as a pertinent warning in most circumstances
where a serious crime has been committed.
As I have
said each Accused adduced evidence in mitigation of sentence starting
with Al Mr. Rammoneng who is 46 years of age. Mr. Rammoneng is
married with three (3) children. It is a total of five dependents he
fends for. One
was released from hospital he still was unable to move and walk about
without use of calipers and leather and steel contraption that
support the upper body and align with the lower limbs so that he can
walk about or become upright. He even would always need a stick for
some necessary support. The long and short of it is without the shoes
calipers and leather straps the Accused is completely immobile.
crucial factor which Accused pointed out would be the difficulty of
putting on the contraptions. The Accused has to be assisted. He has
to be seated on a bed not on the ground or flat surface. He needs
someone to assist him most suitably a family member.
Rammoneng accepted that he was aware that he had committed a serious
offence. He ended up admitting that he was the cause of government's
loss of funds although he may have denied it at the pre-conviction
stage of the trial. He showed remorse and contrition.
the personal circumstances of this Accused which have influenced one
to impose the kind of sentence that I imposed. I however took heed of
the warning by Cullinan AJ in R v Masupha Ephraim Sole (supra) at
page 8 where he approached the question of mercy and that "....
it is an element of justice
and generated pus. The pus and other fetid substances had to be
drained for the whole year.
In 1987 a
second operation was effected to clear up the pus and accumulated
liquids in the lung cavity. The liquids stopped for only six months
but recommenced necessitating use of a drainage pipe.
another operation was effected at the back to seek to treat the
problem. The pus problem stopped.
however had to attend on medical check-ups every three months to
date. His condition is seriously affected by cold weathers and he has
to be putting on heavy clothing all the time. If he comes across cold
bout of the weather the liquids accumulate again in the lung cavity.
He has then to be accommodated in hospital to treat the problem. The
two major operations have rendered the Accused fragile and weak.
Doctors advised that he must always put on warm clothing even on hot
his doctor advised that he has pneumonia. He has to attend on those
checkups. He contributes to a medial scheme through his employer. The
medical attention is seriously necessary to maintain or else his
Because its delay was being scandalous I had to exercise great
patience than I ever did before. It should be the last. During the
trial one assessor (Mr. Sekhesa) fell off.
the opportunity to thank Mr. Lenono for his patience. Not that I
exclude the other Counsel. If there was no exercise of patience and
tenacity such as Mr. Lenono exhibited despite a lot of problems and
pressures (on Mr. Lenono) the case might well have collapsed in the
end. Some practitioners are quietly gifted in things that are rarely
Court was touched because of the people who are involved in this
case. That unwittingly brings the pleasure in the end why the case
was worth pursuing. At the end the Accused accepted th at they had
done the crime and admitted that they were sorry for their act.
Indeed both did not similarly open up for confession but I was
settled in my mind that Mr. Maboloka was more ready of the two to
have shown remorse. He even offered to attempt to pay off the money
stolen from government. In any event he will be bound to do something
about the funds.
people to prison is not an easy task when one looks at the conditions
of overcrowding unsanitary conditions and alleged conditions of
and sometimes rape of new inmates. It is the extent to which mankind
degraded. This must be well documented somewhere else.
claim that prison does not work as it does not reform criminals. But
it does protect the public at least while offenders are behind bars.
As said before prisons are intended to punish, rehabilitate and
deter. Perhaps it is time to reflect on where the emphasis should
come. What is certain as they profess is that as a deterrent prisons
are not working. The account however misses the point that the modern
orientation of prison is to put in place structures and broad
policies for rehabilitation. It would be unfair therefore to condemn
the institution wholesale.
personal circumstances of the Accused have dictated or rather
influenced the sentences I ended up imposing. They are as follows:
Accused are each sentenced to :
Count I 7
years imprisonment Count II 7 years imprisonment Count III 7 years
sentences are to run concurrently but they are however suspended for
the following conditions:
Accused shall not be convicted, during the period of suspension, for
any offence involving dishonesty.
Accused shall, during the period of suspension, pay back to
Government the sum of M28,000.00 by which Government was defrauded.
shall not be without prejudice to the Government electing to execute
for payment of the M28,000.00 on the strength of the judgment in
terms of the Criminal Procedure and Evidence Act 1981 for the balance
of the funds which may not have been paid during the 3 years period.
I am fully aware of the effect of government electing to execute
earlier. I have taken note of it in its effect on the sentences.
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