HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 7th day of July, 1992
accused pleaded not guilty to six charges of (a) forgery and (b)
uttering in the main counts, as well as to six other charges
in the alternative counts.
six main counts it is charged that during the period extending from
26th January, 1987 to 21st January 1988 and in the course
employment in the Lesotho diplomatic service as Third Secretary
otherwise known as Accountant the accused on six separate
forged and uttered certain documents or instruments referred to as
charges set out that the transfer orders relating to each of the
counts referred to in the indictment state that as a result
forgeries and utterings the Lesotho Mission to the European Economic
Community was defrauded of the sums of money made mention
of in the
indictment. Otherwise each respective sum
mentioned is alternatively charged as theft allegedly committed by
first count the amount of 88,602 Belgian francs was altered to read
188,602 Belgian Francs making a difference of 100,000
which at the then prevailing exchange rate was equal to M5,458-00
next count the amount of 91,467 Belgian Francs was altered into
391,467 Belgian Francs making a difference of 300,000 Belgian
which at the then prevailing exchange rate was equal to M16,145 when
after the above count it is reflected that an amount of 93,055
Belgian Francs was altered into 293,055 Belgian Francs making
difference of 200,000 Belgian Francs which at the then prevailing
exchange rate converted to M10,753-91.
after the above count it is reflected that an amount of 89,313
Belgian Francs was altered into 289,313 Belgian Francs making
difference of 200,000 Belgian Francs which at the then prevailing
rate converted to M11,050-52.
after the above count it is reflected that an amount of 87,489
Belgian Francs was altered into 187,489 Belgian Francs
difference of 100,000 Belgian Francs which according to the exchange
rate prevailing then converted to M5,637-01.
it is reflected that an amount of 93,778 Belgian Francs was altered
into 393,778 Belgian Francs making a difference of 300,000
Francs which at the then prevailing exchange rate converted into
indicated that in count l(a) Transfer Order Exhibit "M" was
forged in the amount of 100,000 B.F. The other Exhibits
this count are Exhibits "L", a duplicate of Exhibit "M"
"A" "B" "N"
and "0". In count
Kb) the Crown alleges that the accused offered, uttered and put off
the transfer order Exhibit "M"
on the 26th January 1987.
Count 2 alternatively to Count 1 charges that on the day in question
the accused stole the 100,000 Belgian
Francs or M5,458-00 the
property of the Lesotho Government.
3(a) the accused is alleged to have forged Exhibit "Q" on
25th May 1987 in the amount of 300,000 Belgian Francs.
relating to this count are Exhibits "P" "C" "AC"
and "S"/ Count 3(b) alleges
that the accused offered,
uttered and put off Exhibit "Q" on 25th May 1987. It is
alternatively charged that he stole
this amount on the day in
it to briefly say in count 5 Exhibit "T" for the amount
200,000 Belgian Francs relates to Exhibits "D"
"AD" and "U". The relevant date to this count is
23rd July 1987.
"V" in count 7 relates to Exhibits "F" "G"
and "W". The specific amount and date
relevant thereto are
200,000 Belgian Francs and 28th October 1987 respectively.
"Z" in count 11 relates to Exhibits "J" "K"
"AA" and "BB". The relevant
amount and date are
300,000 Belgian Francs and 21st January 1988 respectively.
led the evidence of PW1 Captain Mokhele of the Royal Lesotho Mounted
Police stationed in Maseru Central Police Station
and attached to the
C.I.D. PW1 testified that after receiving information from PW2 Mr.
Khoeli Motebang, he launched investigations
into this case. During
this exercise he seized payment vouchers and sub-Accountant's cash
book pages relating to each of the counts
in this proceeding.
confronted the accused with payment couchers, sub-Accountant's cash
book pages, transfer orders, abstracts or daily statements
journals. He told the Court that the accused acknowledged these
documents. He further said the accused, in exercise of his
silence when called upon to make an
regarding these, intimated that he would make an explanation in Court
cross-examined and it came to surface that PW1 had put to the accused
a charge of fraud which is not the charge preferred
against him in
any of the indictments before Court, It also surfaced that the
caution PW1 says he advanced to the accused was only
given after the
accused had committed himself as to the knowledge of the documents
referred to above.
testified that he had to date been in the police force for upwards of
twenty three years yet when asked the following questions
he gave the
following answers under cross-examination :
"So you wanted the accused to commit himself as to his knowledge
before you warned him....? Not to commit himself.
didn't you caution him first....? No way could I caution him for he
might have known(by) then.
You only cautioned him after he said he knew these papers...? Yes.
But when you approached him you already regarded him as a
So you can only caution a suspect if he knows the papers.....? If
they passed through his hands he would know them.
You had to find if the suspect knew the papers before you could
caution him......? All I wanted to know is if he knew them.
(The question was repeated and he answered : 'Yes')
And you found nothing wrong with that.....? Nothing"
only indicate in passing that there is everything wrong with that.
evidence gathered from PW2, PW3 Mrs. Mothepu PW4 Miss Limpho Sekoli
and in part PW6 Mr. Tsoanamatsie who was the Lesotho
Brussels; E.E.C. at the time, it appears that during the period
extending from January 1987 to 1988 the accused's
duties entailed -
and management of finances at the Lesotho Mission to E.E.C. under
the supervision of PW6;
of paper work relating to payment of the Lesotho Mission's monthly
salaries including his own.
regard to the procedure relating to the above payments I wish to rely
on the summary for such procedure as stated in the Crown's
arguments at page 7 outlined as follows :
accused would initiate preparation of payment couchers and transfer
orders. The payment voucher would include and contain
(a) payee (b)
duty station (c) the salary and Foreign Service allowance and
children's allowance if there were any children.
with the preparation of the payment voucher the accused would also
prepare a transfer order or form to enable
i.e.(BBL) the Bank of Brussels to effect payment into . the account
of the payee and debit the account of the Embassy.
Lesotho Mission to the EEC used a Banking Account number
310-0384495-73 005-0-000 during the period January 1987 to January
important to note that according to practice adopted between the
Lesotho Mission and the Bank in Brussels where the Lesotho
maintained this Banking Account, a payment voucher is produced in
triplicate whereas a transfer form is in duplicate and
the same time with the original without use of a carbon paper
commonly used in other transactions to produce a carbon
preparing these documents the third Secretary to the Mission would
append his signature on both a transfer order and a payment
He would then bring both these sets of documents to the Ambassador or
the Counsellor in the absence of the Ambassador
authorization signified by the latter's appending his or her own
signature in turn if the documents were in
the role of the Ambassador or failing him that of the Counsellor to
check and satisfy himself as to the payee and the
for payment. The reason would be either one or all of the following;
to wit, salary, Foreign Service Allowance and\or Children's
the most important functions discharged by the Ambassador or his
deputy in this regard would be to ascertain that the payment
justifiable charge to the Government. To enable him to do this he
would rely on the narrations appearing on both the payment
and the transfer form to see if they substantially bear the relevant
information in all material
Failing this the Ambassador would not authorise the payment; and
would if necessary call the third secretary for explanation.
the Ambassador not be satisfied with the explanation or if the
documents are faulty he would order that these should be
over again. Otherwise if he is satisfied he would append his
signature thereby authorising payment in respect of any of
purposes shown above including such other purposes as per diem
allowances tour imprests, or authorised purchase of equipment.
the Ambassador's signature would be appended on top left hand corner
of the transfer form, while in respect of the payment
would be appended in the space provided for the purpose towards the
these documents have been signed they would be sent back to the third
secretary who would take the transfer order only
to the bank which
would effect payment. The bank would credit the beneficiary's account
and debit that of the remitter. The bank
would keep the original copy
of the transfer order and return the duplicate copy to the accused
whose duty it was to keep it for
days thereafter the bank would provide the Embassy with a statement
reflecting the transactions previously effected and the
involved in debiting the Mission;s account.
been elicited from the witnesses for the Crown that almost daily;
abstracts would be sent by the Bank to the Mission. These
would go direct to the accused's office.
accused's duty would be to compile and prepare monthly returns using
payment vouchers and sub-Accountant's cash book in which
for the month are reflected together with payment vouchers' numbers
accompanying such payments.
monthly returns would then be sent to Treasury via the Ministry of
Foreign Affairs. The Treasury would, before posting the monthly
returns to the computer ensure that the payment vouchers, cash book
pages and the bank statements balanced.
these didn't balance then there wouldn't be any posting done.
evidence of PW3 Mrs Mothepu shows that when PW6 Mr. Tsoanamatsie the
Ambassador was away on a conference in Geneva she discharged
Ambassador's functions at the Lesotho Mission to the EEC in July
1987. She told the Court that the accused prepared his salary
other allowances for that month. PW3 testified that she authorised
payment relating to these items -see Exhibit D the payment
for 93 055 Belgian Francs bearing PW3's authorization given on 23
testified that when Exhibit D was brought to her for authorization it
was accompanied by Exhibit "T" the Transfer
Order. She told
the Court that she checked that the name of the person to be paid
appeared on both documents, and that the narration
Exhibit "D" also appeared on Exhibit "T" and that
the amounts on both these exhibits were the
same. Thus she appended
her signature on each of these exhibits one after the other on the
same occasion. She vehemently swore
that the" additional
narration i,e. "And Tour Imprest" was not there when she
signed Exhibit "T". She
told the Court that had the two
documents borne different narrations as they do now she would not and
could not have authorised
them for further processing and eventual
payment as they stood.
stated that it was not the practice either at the Brussels Mission or
in the Lesotho Civil Service to club together "Salary
Imprest" in one and the same document. She tenaciously asserted
that if there ever arose need for "tour imprest"
authorised then a separate supporting payment voucher would have had
to be prepared.
further testified that on looking at Exhibits "T" "D"
and "E" the additional narration i.e. "Tour
had not been accounted for anywhere in that there wasn't any payment
voucher accompanying it. She further said in
any event during the
month in question she never authorised any transaction relating to
"Tour Imprest" payable to the
accused. Nor was she aware of
any document that required to be signed by PW6 the Ambassador
relating to the accused's "Tour
Imprest" before PW6 left
for Geneva. She indicated that even though her signature does not
appear on Exhibit "T"
which is a photocopy of the original
she was unyielding in her statement that her signature did appear on
the original of Exhibit
"T", for she had had occasion to
inspect that original which the bank could not release.
her assertion on the fact that the bank used to require that there be
two signatures on a transfer order, and that if
a transfer order bore
only one signature the bank would not honour such a transfer order.
evidence is to the effect that during the period January 1987 to
January 1988 he was the Lesotho Ambassador to the EEC. His
entailed the proper control and management of public funds in
accordance with Financial Regulations, 1973. He exercised
and overall authority in the Mission where the accused discharged his
functions and duties as an Accountant who managed
stated that the accused's duty was to prepare payments and salaries
for the Lesotho Mission staff in Brussels. He referred to
"L", a duplicate copy of the transfer order and made an
observation in his testimony that there was some erasure
"L". This erasure appears before the first figure 8 in the
total figure 88 602 appearing in Exhibit "L".
stated that narrations appearing on the two documents i.e. Exhibits
"L" and "A" were different. Exhibit
is a payment voucher number 85. PW6 testified that he authorised the
transaction appearing in Exhibit "A"
and further stated
that when he so authorised Exhibit "A" there was no
narration styled "PLUS TAX REFUND" appearing
"M". He further stated that Exhibit "M" the
transfer order bears his signature. He explained that
when he signed
Exhibit "M" a copy of the original transfer order, there
was no figure "1" before the figure
88,602. He testified
that if exhibits "L" and "M" had been presented
form in which they now appear i.e. with the additional
"Plus Tax Refund" he would not have signed them for such
would be contrary to provisions of Financial Regulations.
stated that he would not have signed Exhibits "M" and "L"
because they did not agree with the payment
voucher Exhibit "A"
testified that he signed Exhibits "P" (payment voucher No.
78) and "Q" the transfer order at the same
time. He said
when he signed Exhibit "Q" there was no figure "3"
before the figure 91467 BF. He emphatically
stated that at the time
when he authorised Exhibit "Q" there was no additional
narration or instruction in the shape
of the ampersand sign "&"or
plus sign "+" followed by "Advancement".
further stated that if Exhibit "Q" had any such narration
clubbed together with salary and foreign service allowance
children's allowance he would not have authorised this document as it
is contrary to provisions of Financial Regulations.
was told by PW6 that he signed both Exhibits "F" a payment
voucher No.87 and "V", a Transfer Order.
He said that when
he signed these each of them bore the sum 89,313 BF the narrations
borne on each being identical to the one on
that when he authorised Exhibit "V" there was no figure "2"
appearing now before 89,313 BF. He testified
that if the documents
"V" and "F" were different as to the amounts
reflected in either he would not have authorised
or passed them for
further said he signed Exhibits "H", a payment voucher
No.69 and "X" a Transfer Order. He testified that
signed these documents the sums and narrations reflected on both of
them were the same. He said if there were discrepancies
documents at the time these were brought to him for attention and
signature he would have declined signing them; but would
returned them to be redone. He was emphatic that Financial
do not permit that salary foreign service allowance and other modes
of payment be clubbed together with "Tax Refund".
further to show that he signed Exhibits "J", a payment
voucher No.64 and "Z" a Transfer Order. He said
when he did
so there were no discrepancies as to amounts and narrations reflected
in either. He however realised that presently
there are some
discrepancies between these two documents in that "Exhibit "Z"
now bears an additional narration
namely "Plus Tour Imprest",
and further that a figure "3" appears before the figure 93
778. He stressed that
this was not the case as at the time he
the exhibits in question. He asserted that if at that time there were
any such discrepancies he would not have authorised
or signed these
important to note that the transfer orders referred to above appear
to be photo copies. An important feature of each is that
been certified a true copy by the Bank Brussels Lambert under the
hands of V. Cavrot and H. Van De Wiele. An explanation
could not be furnished to this Court was given by PW3 and PW2.
important also to note that PW6 stated on oath that relations between
him and the accused have been harmonious during the
period covered by
the indictments to date. He assured the Court that he bore the
accused no ill-will at all.
Limpho Sekoli testified that she joined the Treasury as an Accountant
in April 1987. She was charged with the responsibility
accounts of various Embassies and preparing them for posting them to
the computer centre. The Lesotho Mission accounts
from Brussels fell
to her lot. Her office used to receive payment vouchers, bank
statements, reconciliation statements and cash
testified that in the day to day and month to month routine of her
service at the Treasury she noticed that payment vouchers
all payments effected in any given month and that the same
information borne in the payment vouchers would appear in
book. She also noticed that the bank statement would show the amount
of money paid by the bank. Normally this amount would
tally with the
amount in the cash book.
stated that in the proper upkeep of accounts the bank reconciliation
statement has to accord with the balances of the bank
She told the Court that it would be the accused's duty to see to it
that these requirements are satisfied.
testified that at the time she joined the Treasury the Brussels
account had been kept aside because it was incomplete. Following
discrepancy she put a call through to the accused in Brussels to
remind him of this. Thereupon the accused made a promise
to send the
balance of the missing bank statement. She said that she kept
reminding the accused about this rather disturbing state
until she called PW2 at Foreign Affairs Ministry. She later came to
realise that there was a discrepancy between the
balance in the cash
book and the bank statement. It occurred to her finally that the
the bank statement and the balance in the cash book was. accounted
for on no other hypothesis than in the third Secretary's
testified and the Court's attention was drawn to the fact that she
scribbled her discoveries in pencil on some of the bank statements.
Her comments in that regard served as a guide to her immediate boss
one Mrs Motsoasele. As a result of the discrepancies she had
she and PW2 were assigned the duty to go and inspect the books of
account in the Lesotho Mission to the European Economic
(EEC) in Brussels. When setting out for Brussels for this purpose she
and PW2 had in their possession Exhibits "AC"
PW2 found a copy of Exhibit "L" in the office of the third
secretary relating to the month January 1987. She told
the Court that
the accused when asked where the other copies of Transfer Orders were
he said he did not know. Thus PW4 and PW2
decided to go to the bank
where they were favoured with the original copies of transfer orders
i.e, original copies of Exhibits
"M" "L" "Q"
"T" "V" "X" and "Z".
the Court that she and her company made a thorough inspection of the
original copies of these documents and testified further
photocopies exhibited before Court now
flesh and fell with the originals she had inspected. Needless to
repeat the Bank of Brussels could not release the. original
her and PW2.
PW4 and PW2 were able to seize from the Bank in Brussels exhibits
"AA" and "N" which are Bank Abstracts
duplicate original forms. They also seized Exhibits "O" a
green certified copy (certified by J.Cavrot and H. van de
the original journal, "S" a green copy (certified by the
two persons referred to above) certified as true copy
of the original
journal, "W" a photocopy, (certified true by the two
persons above) of the original, "Y" a
green copy (certified
by J. Cavrot and J. Vogellier) certified a true copy of the journal
and "BB" also a green copy
certified a true original of the
journal by H. Van de Wiele and J. Cavrot.
testified that she and PW2 examined the original copies of these
exhibits and on comparison noticed that they corresponded very
with one another. The Bank did not let them seize the originals.
attempt to see how the discrepancies occurred PW4 and PW2 inspected
exhibits "L" "M" "N"
and "B". PW4 said that she and her team mate noticed that
Exhibit "A" a payment
No.85 and Exhibit'"B", the sub-Accountant's cash book
correspond in that the amounts and the narrations appearing
are the same. However Exhibits "H" and "A" differ
materially as to narrations and amounts.
Abstract Exhibit "N" shows that on 27-1-(87) the Mission's
account was debited in the amount of 188 602 BF as a result
instruction given in Exhibit "M" the Transfer Order,
Exhibit "O" the journal shows that on 27-1-87 the
account was debited and an equal amount credited to the accused's
account. To put it in another manner the Mission's
310-0384495-73 005-0-000 was debited in the amount of 188 602 BF.
was a coincidence a repetition of similar coincidences on no less
than three other occasions would exercise a thinking mind
different way. See for instance the amount 391 467 BF in Exhibit "AC"
and compare the accused's credit in the same
amount in Exhibit "S"
read with Exhibit "Q" and Exhibit "P" the payment
voucher bearing only 91 467
BF. The same goes for Exhibits "U"
testified that Exhibits "M" and "A" are prepared
at the same time and ought to have had the same information
throughout i.e. the amounts ought to be equal and the narrations
She reiterated her standpoint that it is neither the practice not is
it normal in accounting to lump together salary,
allowance and Tax Refund in one and the same document, namely the
Transfer Order. She indicated that the additional
Refund" on Exhibit "M" was not accounted for anywhere
by way of a payment voucher which necessarily
should accompany and
support it. She accordingly pointed out that as a result of the
departure from the normal practice the Lesotho
Government lost 100
evidence of PW4 has adequately brought to surface that by embarking
on the procedure, outlined above in respect of Exhibit "L"
and the accompanying documents, repeated in Exhibits "Q"
"T" "V" "X" and "Z"
respective accompanying documents an arbitrary figure would be placed
before a figure reflected on a payment voucher
thus enhancing the
amount payable to the third Secretary's account considerably, with
the result that in January 1987 the difference
in the amounts
appearing in the payment voucher and in the Transfer Order was 100
000 BF converting to M5 458 at the then going
rates credited to the
accused's account and representing a loss of equal amount to the
Lesotho Government. In May 1987 the difference
of 300 000 BF
converting to M16 145 represented a loss to the Lesotho Government
and credit to the accused's account. In July 1987
difference of 200 000 BF converting to M10 753-91 represented a loss
to the Lesotho Government and credit to the accused's account.
October 1987 the difference of 200 000 BF converting to M11 050-52
resulted in a loss to the Lesotho Government and represented
to the accused's account. In November 1987 the difference of 100 000
BF converting to M5 637-01 resulted in a loss to the
Government and credit to the accused's account. In January 1988 the
Lesotho Government by similar means suffered a loss
of 300 000 BF
converting to M16 592-47 at the then obtaining rate of exchange and
that amount represented credit to the accused's
account in the Bank
of Brussels on the evidence of records and documents before this
witnesses who gave evidence before this Court were thoroughly and
closely cross-examined. Of these I formed the impression
PW1 and PW2 were to some extent unhinged. PW1 seemed not clear what
the charge facing the accused is. But that lack of
dispelled by the form in which the Director of Public Prosecutions
framed the indictment. He further betrayed
a lack of appreciation of
the importance of the Judges' Rules. However abundance of authority
shows that important as they are
the Judges' Rules are rules of
administrative procedure whose full force can be brought into play
where an accused person is unduly
taken advantage of by a
peace officer, through application of unfair means such as cajoling
an accused to his prejudice or using threats to his
this case it is in evidence that when the accused stated that he
would give his explanations in Court if requested
PW1 desisted from
interrogating him. PW2's testimony was muddled by his tendency to be
verbose and to fence with questions put
to him with the result that
in the middle or at the end of his meaningless verbiage it would
become apparent that he had not understood
the question put to him.
Otherwise in the material
he was corroborated by the consistent and well delivered evidence of
PW3 and PW4 and to some extent that of PW6. There
where the evidence of PW2 conflicted with that of PW4. For instance
at the stage where PW2 gave the impression that
all documents he
referred to were examined side by side with photocopies already
produced in Brussels whereas PW4 said they saw
the originals and then
certified copies were delivered afterwards.
adamant that the accused's Account had been credited with the amounts
appearing on various journals exhibited before this
Court. She stated
that unless something to the contrary is submitted or shown by the
accused himself, the position disclosed by
the various journals
remains a true reflection of what the Bank in Brussels(BBL) did to
both the Lesotho Mission's Account
accused's. Thus shifting the evidential burden to the accused. She
stated that since she had no cause to doubt the information
in the journals she did not find it necessary to go beyond the
exhibits in issue. Had she any doubts she would have gone
qualified her statement by saying that such a step is of very rare
occurrence. She further stated that Although the
journals are written
partly in French and partly in English and some of the expressions
therein are not translated into English
she could adequately
interpret the relevant information which is in English into the
accounts language. She buttressed her assertion
by saying that
journals are similar in international institutions like banks. She
vehemently stated that Abstracts are merely supportive
supporting journals with regard to transactions in question.
Gerard Muzart was called to explain certain French words appearing in
the documents before Court. The overall impression
I got from his
task was that it in no way detracted from PW4's interpretation of
contents of documents she dealt with. I must however
confess that I
don't know French thus it is possible that I could be hoodwinked by
someone who deliberately wishes to do so. But
I have not gained the
impression that anyone attempted that in this Court.
testified that the accused said he didn't know all of the documents
she and PW2 were looking for in the course of their inspection.
testified that he is familiar with the accused's handwriting and
signature. He testified that the handwriting and signatures
referred to in the payment vouchers and the transfer orders were the
accused's At the close of the Crown case the accused
right not to give or call any evidence to rebut the case for the
remains to consider whether the Crown has discharged the onus cast on
it and proved its case beyond reasonable doubt.
Mr. Thetsane for the Crown proposed to tackle this aspect of the
matter by inviting the Court to find whether standing
on its own the
prosecution's case has established prima facie that the offences
charged have been committed by the accused; further
defence has demolished the prosecution's case and finally whether the
photocopies of Exhibits "M" "Q"
"AC" "S" "T" "AD" "U"
"V" "W" "X"
"Z" "AA" and "SB" are conclusively
admissible in this case.
of the matter is that during the period under consideration the
accused was employed in the civil service as an Accountant
Lesotho Mission to EEC performing functions referred to earlier in
showed that the accused was the only person charged with the duties
in question. Evidence further showed that all documents
finances were in his custody and that he was required to keep them
safely. Indeed there was some dispute as to whether
went via someone before reaching the 3rd secretary. PW6 said they
went straight to the 3rd secretary. The question
therefore would be
whether to believe PW6 on this. But as already stated PW6 said he and
the accused are on good terms. Nothing
in this proceeding tended to
gainsay that. There should be no reason why PW6 would elect to
tarnish his good relations with the
accused by lying against him that
the period under consideration the accused was responsible for
preparing monthly returns for onward transmission to Foreign
and the Treasury.
Thetsane submitted that it is not in dispute that the accused
effected preparation of these monthly returns under the supervision
of the Ambassador who is the Chief Accounting Officer in terms of the
Financial Regulations 1973.
has shown that no other person besides the accused was responsible
for initiating the transactions relating to his salary
personal emoluments for the months covered by the various counts.
important to note that the evidence stands unchallenged that the
accused effected the initial step in the preparation of documents
"L" "M" and "B". It has not been
disputed that Exhibits "M" and "A"
simultaneously to PW6 for authorization. There was no dispute that
when these documents were brought to PW6 by the
accused they were
substantially similar in that the narration appearing in Exhibit "A"
also appeared in Exhibit "M".
Further that the amounts
appearing in both documents were the same.
Thetsane submitted that when brought to PW6 for signature Exhibit "M"
did not bear the figure "1" before
the amount 88 602
therefore as it stands now after the Lesotho Government's Account had
been debited Exhibit "M" shows
an excess of 100 000 BF. He
further submitted that there hasn't been any dispute that when
brought to PW6 Exhibit "M"
bore no additional instruction
styled "Plus Tax Refund"
the respective account numbers of the Lesotho Mission and that of the
accused have not been denounced.
it appears that in Exhibit "M" the Mission's Account was
debited by an amount equal to the amount credited to
Account the tenor of the cross-examination was that what is borne out
in the journal should not necessarily lead
to the conclusion that
because credit is equal to debit the money involved is the same
because it was suggested that Banks make
Mr. Thetsane submitted that it is not in dispute that Exhibits "A"
and "M" are materially different
now, whereas at the time
these documents were placed before PW6 this was not the case.
further submitted that the observation that there appears some
erasure on the duplicate copy of Exhibit "L"
has not been
challenged by the defence.
observes that the erasure on Exhibit "L" seems to have been
effected on the spot which coincides with the figure
that precedes 88 602 in Exhibit "M".
Thetsane further submitted that it has not been disputed that the
handwriting and signature appearing in Exhibits "A"
are the accused's.
appears that the method of operation in the commission of the
offences charged is the same. Thus treatment of one count in detail
would apply to all others.
defence sought to contend that Exhibit "O" is not a journal
because it is written in a language unknown to PW2 and
PW4, It was
further contended that even if it is a journal it cannot be
conclusively proved that the accused's account was credited
of money reflected. The same would apply to Exhibits "S"
"U" "Y" "BB" and "W"
contended that it had demonstrated prima facie that the accused's
account had been credited with the various amounts appearing
Exhibits "S" "U" "Y" "BB" "W"
and "O" and in so contending sought
to shift the evidential
burden to the accused to show by production of his bank statements
relating to these transactions that
his account had not been credited
with the amounts referred to. Thus failing this then the Crown's
evidence should be viewed as
conclusive on this aspect. The Crown
demurred at the fact that the defence's cross-examination in respect
of all the transactions
was geared towards showing that the Financial
Regulations were not strictly complied with by PW6 and his deputy who
various payment vouchers exhibited before Court. The Crown
very properly conceded that there was no strict compliance with the
regulations by PM6 and
rely on this witness's explanation about the peculiarity of hardships
that the Brussels Mission was faced with i.e. shortage
of staff etc.
the Crown was quick to point out that the accused is not charged with
contravention of Financial Regulations but
criminal offences. The
Crown indicated further that the various payment vouchers serve as a
guide in this case the main thing
being that additional instructions
appearing in Exhibits "L" "M" "Q" "V"
"Z" and "X" have not been accounted
for anywhere by means of payment vouchers accompanying them. No
for these instructions appears in Exhibits "B"
"C" "G" "E" "K" and "I"
which are the Sub-Accountant's cash book pages.
relying on Financial Regulations contended that no evidence shows
from whom the accused learnt the job. He emphasised
that handing over
is required by the Financial Regulations. He contended that Transfer
Orders are not a mode of payment as they
are not envisaged as such in
the Financial Regulations 1973. He submitted that inasmuch as this
Court had earlier ordered that
in terms of our Criminal Procedure and
Evidence the Bank in Brussels should hold the originals open for
inspection it could similarly
order production of those originals to
satisfy the best evidence rule in terms of Section 247 of Criminal
Procedure and Evidence
Act 1981. He contended that
"AB" the affidavit by DEVRIRNDT and Willy Josis went far
beyond the limits of section 245 of our Criminal Procedure
Evidence and urged that strict compliance with the Law must be
observed. He submitted that ordinarily talking of an affidavit
people can swear to one affidavit and when one refers to matters
within his knowledge be regarded to be referring to matter's
the co-deponent's knowledge. I agree.
to PW4 Mr. Pheko submitted that when she talks of a Cash Book she
does not refer to all entries but pages dealing with
Foreign Service Allowance. He said PW4 looked at an Abstract at
random and said she noticed the difference namely that
she saw 88
etc. instead of 188 etc.
mention of the fact that under his cross-examination PW4 was put to
task to say what other documents she looked at to ascertain
was a difference but was told that only documents PW4 handed in were
the ones she looked at. He further submitted that
neither PW2 nor PW4
told the Court that they examined all payment vouchers to see if
narrations they said were irregular were supported
by some other
payment vouchers - so he invited the Court to draw a proper inference
in regard to a failure to produce evidence
that is not unavailable.
He suggested that it was an easy task to have looked at Cash Books,
other payment vouchers, all of them
and finally the Vote Book.
expressed his appreciation of the fact that PW4 did not bother
looking for Transfer Orders in Lesotho for these are only available
in Brussels; though he expressed his surprise that these Transfer
Orders were not sent to Lesotho like any other documents if indeed
they are accountable documents.
pointed out that even while in Brussels PW4 realised that payment
reflected was not confined to salary for it also related
Imprest etc. He further stated that the indictment does not complain
about additional narrations. In this regard he referred
the Court to
paragraph 1.7 at page 3 of his well spelt out heads.
further pointed out that PW2 and others who were making
investigations in Brussels did not tell the accused that they were
to the Bank or what they were going to do; and further that
when making their report they never told him of it. Thus, he contends
that if the Crown think the accused was to guess this at all they are
labouring under a misconception of the law to regard this
facie case which should be conclusive. He submitted that "Tax
Refund", "Tour Imprest etc" were referred
to as salary
overpayments. He pointed out that PW4 said the differences were
accounted for in the accused's salary and that the
suffered prejudice or loss. "Hence their
information in Transfer Order must be identical with one in the
was referred to head 2.1(e) where it is pointed out that PW2
disclosed for the first time under cross-examination that
Accountant General gave him verbal instructions to pass the monthly
returns to the Treasury without checking them. This is
But as I stated earlier if the defence was on a look out for a lame
duck or a crow to pluck PW2 is their man. Indeed
it is true that what
PW2 said immediately above is in conflict with what he said in his
evidence-in-chief for it was never his
evidence that in relation to
other months the documents were present, only the missing ones were
these ones he was looking for.
conflict between PW2 and PW4 and PW3 was further brought to surface
at page 5 paragraph h regarding when copies of the
orders and journals were given by the Bank. I have earlier referred
to this conflict.
laid much store by the fact that for a minimum of two years that PW6
served in Brussels as Ambassador no query was raised
documents from there because books balanced and monthly returns were
prepared and passed as in order. He pointed
Regulation 2001 requires that all losses of Government money must be
reported immediately to the Principal Secretary Finance
yet to PW6's
knowledge no such report was made either by himself or any other
person for the books balanced - Mr. Pheko found it
that PW6 who did not comply with provisions of Regulation 607 should
wish the Court to believe that he checked
payment vouchers in detail
even though he did not initial the entry Vote Book notwithstanding
the provision in the Financial Regulations
that he should do so by
ensuring "that the voucher has been properly completed in all
respects and that all appropriate certificates
have been correctly
invited the Court to come to the understanding why PW6 should wish to
pass the buck: that he has an interest in the matter for
that he could be surcharged in terms of the onerous responsibility
imposed on the Chief Accounting Officer by Financial
reiterated his submission about inferences to be drawn in respect of
a party who despite having available evidence
simply withholds it
from the Court. This was in relation to the submission that the Vote
Book is there but was not produced. He
urged that PW2, PW3 and PW4's
evidence should like that of PW6 be looked at with caution for they
are interested parties and that
the Court should be wary of the risk
of convicting the wrong person. PW3's interest is said to
in the fact that she is the one who discovered discrepancies.
submitted that if indeed there was direct evidence that the accused
added certain figures then the Crown would not ask that
drawn. By way of illustrating that evidence in this case was
circumstantial the Court was referred to PW6's evidence
that he was
making certain deductions.
But if I
understood the submission of the Crown properly and indeed the
evidence led the evidence in this case is partly direct
further submitted that the observation in regard to PW6 applied
equally to PW3 in that no direct evidence shows that the
account was credited with the numerous differences. It was also
submitted that there were no suspicious circumstances
in regard to
the period under review; and that on the facts of this case where the
Crown has not established in what order payment
is to be effected
notwithstanding that it has all the Vote Books it cannot be said the
only inference to be drawn is of guilt.
argued that there is a suggestion by the Crown that the accused's
election to exercise his right not to give evidence
independent item to rely on as proving guilt. This deliberative
impression was discounted by making a submission that the
not been reached where to expect the accused to give an explanation
regarding his doing what ordinarily is not to be
done. This is in
regard to the weight to be given by Court to refraining from giving
evidence. It was submitted that the accused
hid nothing from the
was referred to the indictment where the crime of forgery charged was
regarded as posing some problem. In this charge
the intention was to
defraud (someone) resulting in prejudice actual or potential. It was
stated that it is not clear whether the
party liable to be defrauded
is the Bank of Brussels or the Lesotho Government. As for prejudice
it was submitted that clearly
this was prejudice to the Lesotho
submitted that the proper reading of the indictment suggests that the
Transfer Order was falsely instructing the bank to
from one account to the other. Thus it was suggested that it appears
the intention to defraud was directed to the
Bank because the
document was presented to the Bank to act on and which this act
resulted in prejudice to the Lesotho Government.
was referred to R. vs Muller 1953(2) SA TPD 146 at
forgery is defined and motive of the appellant was looked into. There
it appeared the intention was to induce a bottle
Prejudice was not to the bottle store assistant but the writer of the
note who required liquor from the bottle
submitted that nothing in the indictment shows that the Lesotho
Government acted upon the representation. It was grudgingly
out that evidence only shows that the government suffered either
actual or potential prejudice.
considered the authorities referred to on behalf of the accused and
found them very instructive; and I wholly endorse their
also had regard to Mr. Thetsane's submission that if no incidence of
onus or evidential burden moved from one point of the
justice to another no accused person would be convicted. I should not
be understood to mean that at any stage in a criminal
trial the onus
to prove the guilt of an accused person shifts from the Crown to an
accused person. Far from it. Indeed proof beyond
does not mean proof beyond a shadow of doubt. It is thus not without
cause that much regard is had to the statement
of the law that it is
regard to the realms of conjecture when a sound and common sense
solution for the problem exists.
the Crown's submission that there is no need to include details in an
indictment which can be adequately taken care of
in evidence. Indeed
on a murder charge it is enough that an accused person is told in the
indictment that he is charged with the
unlawful killing of X at Y
place at about Z time. The method how the killing was effected would
sufficiently be left to evidence.
Likewise then with the charge of
Forgery. Thus the Crown in this case went a step further to say that
a figure "1" was
placed before certain figures. Indeed in
Abel Bushman's case the appellant had been charged with fraud while
the 1st charge had
been theft by false pretences. The Crown withdrew
the 1st charge and proceeded with the charge of Fraud. The
convictions were confirmed
on appeal. The central thing to guard
against is whether an accused person doesn't suffer prejudice, or
whether he wouldn't suffer
prejudice, or whether he wouldn't have
conducted his defence differently but for the alteration. Thus I
don't think it makes any
difference that the Crown never said it
sought to amend its charges.
246 of our Criminal Procedure and Evidence relates to affidavits and
nothing else. In the instant case PW2 and PW4
the Mission and the bank made their discoveries which they orally
testified to before Court. Indeed an affidavit is written
place of oral one. That section covers people who in certain
instances have not examined originals but copies.
not been persuaded that the Crown witnesses in respect of whom
caution has been urged have any ulterior motives besides that
any other dispassionate witness they would like to see justice done.
important to note that forgery is a species of fraud and is not fraud
submitted for the defence that the Crown has not proved
misrepresentation but a distinction is made in the case of Hymans
terms of which the Court is urged to make a distinction between fraud
in the ordinary sense and fraud in forgery. Thus the Crown
that the fraudulent act in this case was wilful perversion of the
true substance of documents. I don't think it can seriously
that the Court should baulk at considering the matter one way or the
other on the grounds that it is not shown who has
between the Bank and the Government. Common sense dictates that funds
being dealt with in
belong to the Government of Lesotho.
argued for the defence that it was not shown that the accused was not
entitled to the various sums with regard to theft charges
alternative. But Hepworth's authority is very much relevant regarding
the point that a criminal trial is not a game where
one side is
entitled to take advantage of an omission made by the other side.
exhibits which were referred to without being formally admitted the
Court's ruling is that they are admitted and thus
form part of the
record in these proceedings.
formed an opinion at the close of the Crown case that a sufficiently
strong prima facie case existed to warrant the accused's
I mean is that standing on its own the Crown case was enough to
secure the accused's conviction.
criminal case it is important to establish motive for the offence
committed. In the instant case the only form of motive I
able to discern is self-enrichment by dishonest means.
accused is accordingly found guilty in the six main
and therefore acquitted in the six alternative charges.
has been addressed on behalf of the accused that he was arrested in
1987 and since April 1988 has been on half pay. The
clarified for the Court that where public funds are appropriated or
an offence involving damage or loss to Government
conviction shall have the effect of a civil Judgment for the payment
of money and shall be enforced in the same manner
as any other
judgment for the payment of money in a civil court. See Section 322
of the Criminal Procedure and Evidence Act 1981.
other hand Section 30 of the Finance Order 1988 provides that -
"If it appears to the Principal Secretary that by reason of the
neglect or fault of any person who is or was at the time of
neglect or fault a public officer, the public revenue or public
stores have sustained loss or damage, or improper payments
moneys have been made and if, within 21 days an explanation
satisfactory to him is not furnished with regard to such
neglect or fault, the Principal Secretary may, with the approval of
the Minister, surcharge against the said person the
appears to him to be the loss suffered by Lesotho or the value of the
property lost or damaged or the amount improperly
paid, as the case
may be, or such lesser amount as the Principal Secretary may, with
the approval of the Minister, determine."
31(1) of the above Order gives the Accountant General wide powers for
the recovery of the surcharge from the
pension or any amount owed to such person by the Government until the
full amount has been recovered.
indicated that the accused is a first offender. The accused's
counsel's address to the Court in mitigation of sentence
is to the
effect that the accused is aged 50 and is married with two minor
children attending school at Machabeng High School,
an institution in
respect of which the Court takes judicial notice of the fact that
todate school fees there have risen to no less
than M5 200 per child
per year. Indeed it may be argued that the accused exercising his
sense of full responsibility as a parent
should have avoided falling
into the type of unwholesome temptation or habit that proceedings in
the trial indicated if he had
the best interests of his family at
heart. But again one asks oneself whether in its reserves the law
makes no accommodation for
the phrase : "fallen angel" and
if it does, in what circumstances is the notion embraced in such
phrase given expression
regard being had to the fact that the Crown
told the Court that the accused has no previous convictions. The
Court cannot ignore
that this would serve as a strong mitigating
factor for a man who has gone past the midday of his life without a
blemish on his
has a duty to pay regard to the fact that the impending trial which
resulted in bitter consequences for the
has been hanging over his head for a considerably long time since
1987 to date.
of Mofokeng J in Mojela's case are of great importance where the
learned judge said that it would be wrong for an accused
expect that just because he is a first offender he should be entitled
to a light sentence. But of even more importance
is the learned
judge's view that the procedure after conviction should evoke
completely different considerations regarding the
circumstances of the accused.
are legion in this regard and point all to the necessity to view the
accused's circumstances in a new light and weigh
him very carefully. Paramount among such considerations is the
caution not to resort to imprisonment where other
forms of punishment
could fit the crime committed without thereby compromising the
accused's chances of reform and ability to respond
Hence the plausibility of the attitude in such circumstances to
favour the merits of suspension wholly or in part
of the sentence to
be imposed. I am fully in agreement with the attitude adopted in
Peregah vs Rex 1944 NPD that the magistrate
who considered that a
suspended sentence is not a deterrent had misdirected himself on a
crucial and important matter of principle
suspended sentence is of advantage to the delinquent in that if he
behaves well then he will not serve the suspended sentence
him. It also serves as a deterrent for the delinquent to refrain from
wrongdoing for fear that the sentence hanging
over his head will
descend in full force over him.
consideration of all the above it is important not to ignore the
enormity of the wrong occasioned to society. Nor indeed
of trust the accused occupied when the Mission's funds were placed in
his hands and yet he has breached that trust.
the other hand the Court cannot ignore the certainty of pending or
probable application on the accused's assets of either
of the two
laws referred to at the beginning of this judgment. The Court is
fully conscious of the fact that the accused will most
dismissed from employment following the conviction secured in the
main trial and that in the trail of such dismissal
forfeiture of his gratuity and all terminal benefits etc.
reference to South African Criminal Law and Procedure Vol. II by Hunt
brings me to the realisation that although each offence
and uttering are charges charged each conviction should carry a
distinct sentence yet for purposes of
such sentences served the convictions should be considered as one. In
other words they should, as a matter of law that leaves
no choice in
the Court, run concurrently.
the persuasion to let a first offender avoid imprisonment which it is
feared might contaminate him, has merit; thus by implication
preferred form of punishment being perhaps a fine and suspension of a
sentence or part thereof, the difficulty arises in the
where there are more counts than one and alternative forms of
sentences which are to run concurrently when served are
illustrate this difficulty I wish to refer to Review Case No. 435\87
Rex v Lenyatsanq Sekhela and another unreported at page
1 where this
Court said -
count 1 each was sentenced to pay a fine of M50 or serve a term of 5
II the sentence imposed on each accused was that of M70 or serve
seven months' imprisonment in default of payment of the
made by the learned magistrate was that the sentences in both counts
are to run concurrently.
what involved my intervention based on section 301(2) of the Criminal
Procedure and Evidence 1981 which reads :
punishment under this section , when consisting of imprisonment shall
commence the once after the expiration, setting aside
remission of the other, in such order as the Court may direct unless
the court directs
punishment shall run concurrently'
the above section confines itself to imprisonment as a form of
punishment and makes no mention of any fine whatsoever.
therefore wrong to order under this section that sentences in the
form of fines imposed in two or more counts should run
no section in the law that suggests that sentences in the form of
fines can run concurrently. It would seem therefore that
an order to
that effect has no legal basis. The fact that it is only in respect
of prison terms that the relevant section stipulates
may run concurrently shows that it is not envisaged that any other
form of sentence - to wit punishment with fine
- can also run
C J as he then was said in Review Order No.4\87 Rex vs Poli
(unreported) at 2 :
'It is abundantly clear......... that it is only in respect of
sentences of imprisonment that the Court may order that the sentences
must run concurrently'
heartily agree with this exposition of the law by that judge.
look at South African case law throughout ages abundantly shows
illogical consequences which flow from adopting the procedure
followed by the Court below....
vs Sitebe 1934 AD 56, R. vs Sitole 1955(1) P.H.H. 84 (N) and R. vs
Keizer 19654) SA 204"
above it was held
"that as fines cannot 'run concurrently' the sentences should be
altered to read: on the first count a fine of 5 pounds or
imprisonment with hard labour and on the second count a fine of 5
pounds or 15 days' imprisonment with hard labour".
In R vs
Keizer above it was held that :
"It is not competent, in order to obviate the difficulty
occasioned by the fact that a sentence of a fine on one count cannot
be ordered to run concurrently with a fine on another count, to
impose an appropriate fine on each count and then add a proviso
the total sentence in respect of both counts shall not exceed the
sentence imposed on each count"
and others vs Rex 1981(1) LLR at 6 Rooney J said;
"It is clearly inappropriate to lump together different offences
for purposes of sentences when the type of punishment or
punishment which may be imposed for one offence differs from
in Sekhela above the Court in imposing sentence wholly suspended the
fine and the alternative gaol sentence in count
I and then imposed
the fine with alternative gaol sentence in count II to be served.
is aware that crimes of forgery and uttering including theft are not
included in the schedule of crimes where suspension
of sentence or
even alternative sentence with fine is excluded. This is so
irrespective of the amount involved. This is not without
significance. See CRI\A\54\87 Khoto Rakobuoa vs R (unreported).
this plethora of authority in mind the perineal saying holds good to
date that is is much easier to convict
impose an appropriate sentence in a Criminal Case. I regret that I
have not been able to lay my hands on the case Rex vs
by Jacobs C.J. as he then was. The case in its significant aspects
illustrated the Court's reluctance to impose a
prison sentence for
theft of vast sums of money on a white collar job holder who was also
a first offender.
brief explanation why this case has had to be called once more:
Wednesday 8th July 1992 and about twenty minutes after sentence had
been delivered and at the time when none of the parties concerned
any of my assessors were on the premises the Court discovered that
there was some irregularity the effect of which would be
to the accused. Not only that but would tend to go against the proper
principles which the Court strained in the judgment
on sentence to
the Court tried but to no avail to have the matter put right on the
same day. Mr. Sakoane was said to be at a meeting.
Mr. Pheko did call
back but was not able to reach me as I had gone for lunch when he did
so. When he ultimately reached me neither
the accused nor my
assessors were here. So I decided that, because there was no
certainty that one of my assessors would be reached
following day and because
I had a medical appointment for a close member of my family in
Bloemfontein, this matter should be heard on Monday 13th
is today. This was intimated to Mr. Sakoane on 9th i.e. Thursday and
he expressed his fear that the time and day would
clash with his
engagements before the Court of Appeal which is in session today. I
suggested he could ask someone to substitute
believes that as at the time it discovered the mistake alluded to
above it was not funtus officio hence its desperate
attempt to let as
far as possible all concerned to take note that the earliest possible
day to straighten the sentences passed
would be today.
be recalled that in the first 5 of the counts in which the Court
imposed prison terms a set of two sentences in each of
were to run concurrently. The over-all effect of the sentences
suspended in each of those counts would lead to confusion
excessive sentence in the event that the accused committed any
offence involving dishonesty during the various periods
suspension. That is not what the Court intended in passing sentence.
For instance it would not be clear whether the relevant
would be for him to serve a 1 year term, an 18 month term, another 18
month term, another 1 year term or the 4 year term
imposed though suspended
respective counts. Worse still is the more probable likelihood that
in such an event he would have had to serve a total of
because he would have had to serve the first suspended sentence
followed by the next suspended sentence at the expiration
first and proceed to serve the next following each last sentence
until he has come to the fifth of the counts he was convicted
All this because in part sentences were ordered to run concurrently
in individual counts instead of ordering that for purposes
sentence the separate convictions in separate counts are to be
treated as one; and further in part because periods of suspensions
were treated separately. But All that was wrong.
all this right then the proper order is as follows :-Sentences in
Counts 1, 3, 5, 7, and 9 are expunged from the record and
following imposed in their stead:
l(a): Sentence: 1 year's imprisonment
(b): " : 1 year's imprisonment sentences to be treated as one.
3(a): Sentence: 4 years' imprisonment
(b): " : 4 years's imprisonment sentences to be treated as one
5(a): Sentence: 18 months' imprisonment (b):
" : 18 months' imprisonment sentences to be treated as one
7(a): Sentence: 18 months's imprisonment (b):
" : 18 months' imprisonment sentences to be treated as one
9(a): Sentence: 1 year's imprisonment (b): " : 1 year's
imprisonment sentences to be treated as one.
sentences in Counts 1, 3,5,7 and 9 are to run concurrently. The
entire sentences are suspended for 3 years on condition that
accused is not convicted of a crime of which dishonesty is an element
committed during the period of the suspension.
11(a) sentence: M10 000 (b) " : M10 000 For purposes of
execution of the sentence in this Count fines imposed in (a)
are to be treated as one.
accused is allowed till 28th August 1992 to effect payment of the
fine failing which he should come before Court for consideration
suitable jail sentence.
effect of this then is that should the accused commit any act of
dishonesty during the period of suspension he would serve a
4 years' imprisonment inside which are subsumed all other lesser
prison terms which run concurrently with it.
the sentence in the 6th Count which is numbered Count 11 remains
unaffected by the above correction.
: Messrs Thetsane and Sakoane
Defence: Mr. Pheko
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