IN THE HIGH COURT OF LESOTHO
In the Appeal of:
TSEBO MPHAHAMA Appellant v
Delivered by the Honourable Acting Judge, Mr. Justice
M.L. Lehohla, on the 4th day of August, 1986.
On 4th August, 1986, the above appeal was scheduled for
hearing before me. The appeal was upheld the Crown having indicated
its submissions and heads of argument that it did not oppose
the appeal against both conviction and sentence.
The Appellant was charged in the Court a quo with
the crime of fraud, it being alleged that "Upon or about 30th
day of November, 1982 and at or near Passport Office in the
of Maseru, the said accused did unlawfully and with intent to
defraud, misrepresent to various Passport officials that a
Seboka Mokuena was one Lethena Mokuena and by means of the said
misrepresentation was issued with a passport to the prejudice
Lesotho Government, whereas the said accused at the time she made the
said misrepresentation well knew the said Seboka Mokuena
The Crown called five witnesses three of whom i.e. P.W.I
Moshoeshoe Molapo, P.W.3 'Mamotebang Moeketsi and P.W.4 Taane Phakisi
working at the Pitso Ground Passport Office where Appellant was
working at the alleged time of the commission of the offence charged.
P.W. Makori Makakole was the Assistant Manager (Manageress) attached
to the Passport Office headquarters. P.W.5 Sgnt. Mohlahatsa
investigating officer into the alleged offence.
At the close of the Crown case an application was made
for the discharge of the accused on the grounds that she hadn't a
case to answer.
The learned Magistrate in her ruling found that the
Crown had established a prima facie case, and thus turned down
Through accused's Counsel the defence
thereupon closed its case and led no evidence in rebuttal of whatever
material or factors the
prima facie case was based.
The accused was consequently convicted as charged and
sentenced to three months' imprisonment. It was against both
sentence that an appeal was noted by Mr. Nthethe on
behalf of the Appellant.
The appeal is based on the grounds that the Court a quo
(a) erred in holding that the offence of fraud had been proved beyond
(b) misdirected itself in holding that the"document
is the evidence of what it is" despite the fact that the offence
and that (c) the 3 months' imprisonment without the
option of a fine is shocking.
The facts in brief indicate that P.W.I with the
persuasion of the Appellant authorised the taking of passport sized
photos for the
benefit of Lethana MOkuena who had lost his passport.
This occurred despite P.W.1's protests that she would not take the
such photos because as it was after 3.00 p.m. and the
cashier had closed she would not be able to hand the money to the
appears the Appellant undertook to take the money with a
promise to pay it the following day to circumvent the obstacle
by P.W.1. The following day P.W.I was not able to balance
books for moneys received the previous
day in respect of Lethena Mokuena's passport. On
loss/forms which had to be compiled in the event of
processing documents relating to lost passports P.W.1
discovered that a green page 1 was clipped onto Lethena's forms. She
the photos on the loss report forms with the green passport
page 1 and discovered that the photos shown did not relate to the
person i.e. Lethena. While the photos on the loss report form
reflected the likeness or picture and names of Lethena Mokuena, the
photo on the green page 1 bearing Lethena Mokuena's names bore the
picture of Seboka Mokuena.
It appears, and this is common cause, Appellant had
issued the passprot bearing Seboka Mokuena's name to Lethena MOkuena
glaring differences in pictures of these Mokuenas who are
known to P.W.1 as brothers.
While under cross-examination this witness asserted that
before shooting photos, what she considered first was to be satisfied
there is an authorised application form and money ready for
payment by the applicant, she departed from her stand and conceded
she shoots photos when she sees a coupon shown to her by
counsel. To the question:-
"I put it to you that you are not telling the truth
that you only consider whether the form has been authorised before
issue a photo-graph .? She replied:
I admit it is not true, because there are exceptional
cases as I have stated above."
This concession made by P.W.1 is on all fours withCrown
Counsel's submission in respect of Appellant's lackof strict
adherence to conventional practices, that asMr. Lenono put it,
"Although the conduct of the Appellantwas not procedural, as
a matter of practical conveniencesuch conduct has in certain
similar cases been adopted,indeed authorised." This is
further fortified by P.W.4'sanswer to the question at Page 33
that "Looking at thingsI believe accused issued this
passport without followingthe procedure ?" which was "yes".
ft has been clear to me from the evidence given that
Appellant had charged M3 for Lethena's passport. Exhibit "A"
5807 shows clearly that if Appellant had intended to "sell"
the passport to Lethena for the amount charged i.e. M3 she
have required Letheoa to pay that money into Revenue Office. On Page
33 P.W.4 in reply
to the question "Can you say Government has lost
as a result of the issuing of this Passport ?"
From the concessions made by the rest of Crown witnesses
under cross examination I am left with no doubt that Appellant's act
a wrong photo onto a right passport was an act of
technical indiscretion for which she should at worst have been
who was accused's principal at the Pitso Ground
Passport Office bears this out at Page 34 where she was asked in
Appellant's obvious mistake in authorising a loss
affidavit on to it. The text is as follows:
"But I thought you said you didn't know ifshe
pasted the photos ? Yes.
What did you do ? I reported to the
police. What did you want the police to
do ....? Reprimand her. Had she gone
out of your control ...? Not that much.
Did you ever take administrative measures ...?
No. Why ? Because I thought this case
was one which I could not only do so. (sic)
Do you realise that you could have done so .... ? Yes."
One more factor in favour of the accused in so far as it
negatives any criminal intent on her part is the absence of any legal
on the part of Seboka Mokuena to obtain his own passport
using his own names. Nowhere in the case for the Crown has it been
that because of the known fear that in his own right
Seboka Mokuena could
not obtain a passport,accused's involvement in the
matter was calculated to circumvent any such disability. It has not
that Seboka Mokuena's application for a passport would
be turned down on some lawful cause shown. It is thus impossible to
any criminal intent to accused. The existence of evidence
showing that accused knew that Seboka could not lawfully apply for
hold a passport would be an indication of b guilty knowledge on
the part of the accused, and from that factor criminal intent could
be imputed to her intervention and involvement in the matter. This
absence is in itself fatal to the case for the Crown, The existence
of all other factors pointing to the fact that she processed the
application forms and finally issued the passport to Seboka Mokuena
merely shows that she was remiss in her duty. While on the one hand
remissness is a reprehensible form of conduct, on the other hand
conduct does not merit being visited with full vigour of criminal
conviction and consequent sentence.
It has been amply shown that it was no unusual thing
in accused's department to employ short cut methods such as using the
instead of transporting records from the three centres i.e.
district, central and border post offices kith the result that
concerned never bore date stamps and requisite markings by
appropriate personnel in relevant offices. I learn this irregular
is resorted to in the name of speed and "in the case
where the customer comes in need of an urgent help." Page 16.
To illustrate the foregoing I wish to refer to
the text on Pages 37 and 38 of the record. In this
instance accused's Counsel was trying to high-light not only the
existence of irregularities
as they apply to the passport office
generally but also the extent to which it is general knowledge that
they are condoned in the
name of making short
work of pressures which are ever-present in the
situation. To illustrate this he referred to an
for a passport in respect of one Makalo John Matebesi.
He asked P.W.2:
"Looking at it can you say it was reported
at Central or Local Passport Office ?
At Central Passport Office.
Why . ? Because it bears a date stamp
for Central Passport Office.
Which means I am not wrong that it was authorised by
Central Passport Office ...? You are right.
Is it not right that Regina's form hasno date
stamp ? It is right.
Am I right that it is therefore not
authorised by Central Office ?
You are right.
Where was it authorised ? At Pitso Ground.
Are you at this juncture aware that forms
are authorised at Pitso Ground Passport Office...?
Does it sometimes happen that an authority is
sought from Central Office by telephone ...? Yes.
Will you agree that if authority is
sought by telephone a loss report form will
not bear a date stamp for Central Office ?
Looking at that form one can conclude that
authority was never sought from Central Office ?
Are we agreed that it might be authorised as
inRegina's case or by telephone ? Yes.
Is it common cause that photos on item A and onPage
1A are dissimilar ? Yes.
accused have deliberately made this mistake ...?
I don't know.
It is a possible mistake ......? Yes."
Even if accused showed some shortcomings in some parts
of the record what appears on Page 20 vitiates them.
It was also submitted to me by the Crown that in the
written Reasons for Judgment the learned Magistrate found as a proven
page 6) that "accused failed
to check closely the photos .., without comparing
them with the ones pasted onto the loss report forms"
but did not say she found it as a proven fact that Appellant thereby
to defraud anyone. POLAO LETSI vs. R 1974-75 LLR. 54.
The onus is always on the Crown to prove beyond
reasonable doubt the charge preferred against the accused. In the
absence of a prima
facie case established by the Crown the fact that
accused chooses not to give evidence does not entitle the Court to
return a verdict
of guilty against him, because a priori in
such a situation there
would be nothing for him to answer except to run the
risk of being convicted out of his own mouth. Whereas if a prima
facie case exists
against the accused at the close of the Crown case
and accused in exercise of his right to do so refrains from rebutting
implicating him then such prima facie case becomes
I am satisfied that the Appellant's appeal ought to
ACTING JUDGE 18.8.86.
For the Appellant : Mr. Nthethe For the Respondent :
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