IN THE HIGH COURT OF LESOTHO
In thE Appeal of:
ELIAS MOTHESELE THULO Appellant
ELIAS MOTHESELE THULO Appellant
REASONS FOR JUDGEMENT
Delivered by the Honourable Mr Justice F.X. Rooney on the 20th February 1980
The appellant was charged in a Subordinate Court as fallows:-"That the said accused is charged with the crime of Fraud.
In that upon or about the 14th January, 1977 and at or near Metro Wholesale in the district of Maseru, the said accused did unlawfully and with intent thereby to defraud misrepresent to the Manager of Metro Wholesale that it was accused's honest believe that certain cheques to wit four in number dated:-
(3) 28-2-77 drawn by the said accused in favour of Metro Wholesale on the Standard Bank and Lesotho Bank for the sum of R4,196-64 were good and available cheques and would be met on presentation at the said Manager of Metro Wholesale his loss and Prejudice, to supply him (accused) with goods valued at R4,196-64 or there abouts, whereas the accused, when he made the aforesaid misrepresentation, well knew that the cheques were not good and available cheques and would not be met on presentation at the said bank and thus accused did commit the crime of Fraud,"
The charge was badly drafted in a number of respects. Having alleged the presentation of four cheques it gave particulars of only three. Two of these were said to have been dated after 14th January 1977, the date upon which the fraud was alleged to have been committed. This suggested that at least two of the cheques were post dated or alternatively different frauds were committed on different dates.
At the trial the appellant was represented by counsel who took no exception to the charge as framed. The appellant was found guilty as charged, which in view of the patent
- 2 -
ambiguities in the charge was an unsatisfactory verdict. The defence raised at the trial was that the appellant had signed blank cheques and given them to his wife who completed and tendered them in payment of goods purchased or in replacement of cheques previously dishonoured. He also claimed to have had the right to overdraw his accounts with the banks concerned. The magistrate rejected both these explanations and on the evidence before him he was quite right in so doing. As the magistrate's attention was directed to these issues, he overlooked the nature of the crime of fraud itself and did not apply his mind to the circumstances in which the cheques were presented and the necessity of proving that the appellant made a representation which he knew to be false in order to obtain possession of goods supplied to him.
Fraud consists in unlawfully making, with intent to
defraud, a misrepresentation which causes actual prejudice
or which is potentially prejudicial to another. (South African Criminal Law and Procedure, Hunt, Volume II 714). In general the misrepresentation must be as to an existing fact as the criminal law does not punish people who break promises. However, it is well established that where a person issues a cheque, whether post dated or not, well knowing that the cheque would not be met on presentation and thereby occasions prejudice to another, he is guilty of fraud. R. v. Deetlefs 1953 (1) S.A. 418. But it is for the Crown to prove by evidence that when he presented the cheque the accused well knew it would not be met.
In the present case on the 14th January 1977 a cheque for R3828-64 was given by the appellant to Metro Lesotho in payment of goods purchased by him on that date. It
was drawn on the/....
- 3 -
was drawn on the Mohale's Hoek branch of the Standard Bank. It reached the bank on 20th January. On that date the appellant's account was in credit to the extent of R741-62 only and the cheque was referred to drawer. Although the accountant at the Standard Bank was called as a witness, she was not asked to produce a bank state- ment covering the appellants account for the month of January 1977. This would have reflected the state of the appellant's account during the relevant period. It was not therefore proved affirmatively that at the time he gave the cheque to Metro Lesotho, the appellant had no reasonable prospect of meeting it from available funds when it was presented and that he was aware of this at the relevant time. Furthermore, it was admitted that during the month of January 1977 the appellant deposited money in his account at Mohale's Hoek, but, the amount and nature of these deposits was not revealed. The appellant's evidence to the effect that he had unlimited overdraft facilities at the bank at Mohale's Hoek, however unlikely, was not contradicted by any evidence led by the Crown.
The appellant drew two cheques for R1934-12 cents each on the 25th and 28th February. These were drawn on the Lesotho Bank, Maseru and were made payable to cash or bearer. Together they totalled R3,868-24 and were issued to replace the previously dishonoured cheque. These cheques were not paid as there were insufficient funds in the appellant's account to meet them. The evidence shows they were given to an employee of Metro Lesotho. But, they did not cause Metro any further
prejudice and they/....
- 4 -
prejudice and they could not therefore form the basis of a charge of fraud. Similarly, a cheque for R368-00 issued by the appellant on the 25th February 1979 and given to an employee of Metro in payment of an account for goods supplied at an earlier date, did not occasion prejudice in respect of the goods already purchased on credit.
It is not unlikely that had relevent evidence been led at the trial the conviction could have been sustained. This was a serious case involving a large sum of money and it should not have been entrusted to a local public prosecutor.
On the 12th February 1980 for the above reasons I
set aside the conviction and sentence imposed upon the
appellant and ordered that the appeal fee be returned
20th February, 1980
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law