IN THE HIGH COURT OF LESOTHO In the Appeal
MAMPOI MAJARA Appellant
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
14th day of August, 1989.
The appellant appeared before the magistrate's Court in
Maseru, on a charge of forgery.
It was alleged in the charge sheet that for a period
falling between December 1984 and September 1985 the appellant while
at the Treasury did unlawfully, falsely and with intent to
defraud the Government of Lesotho, forge an instrument in writing,
the pay sheets covering the above named period, by including
in the pay sheets and forging the supposed signatures to
indicate that the respective owners of the names reflected received
wages while in fact no monies were paid to nor received
by owners of the names shown during the period in question.
The appellant was convicted by the court below and
sentenced to an imprisonment term of 12 months suspended
for 3 years on conditions set out in the judgment of
The magistrate also ordered that the accused should pay
back to the Treasury the money i.e. M2268.28 alleged to have been
the appellant to fictitious persons. The order went further
to say she should pay this by M200.00 monthly instalments with effect
The accused noted an appeal to this Court on the
1. The learned magistrate erred in placing theburden
of proof on the accused to satisfy thecourt as to the existence
or whereabouts of
L. Matsoso, J. Rankae, M. Matsoso and J. Matsoso in the
light of the finding by the learned magistrate that the Crown has not
that Malineo Jacenta Matsoso (P.W.2) and Lehlohonolo Matsoso
(P.W.4) are M. Matsoso and L. Matsoso mentioned in the charge sheet.
2. The learned magistrate erred in finding theaccused
guilty of forgery of the signaturesappearing against the names of
L. Matsoso,M. Rankae, M. Matsoso and J. Matsoso in theabsence
of the finding that M. Matsoso andL. Matsoso were Malineo Jacenta
Matsoso andLehlohonolo Matsoso respectively,
3. The learned magistrate erred in holding that the
accused should have been acquainted with all the persons she was
into account the number of persons she was paying from
The learned magistrate should have held that theCrown
has not proved beyond doubt that the namesL. Matsoso, M. Rankae,
M. Matsoso and J. Matsosohave not been supplied to the accused
by theoffice of the personnel and the learned magistrateshould
have given the benefit of the doubt to theaccused.
The learned magistrate erred in holding thatthe pay
sheets were forged in as much as theinsertion of the names of L.
Matsoso, M. Rankae,M. Matsoso and J. Matsoso on otherwise
properpay sheets in respect of the names of otherpayees does
not make the whole pay sheet aforgery. The learned magistrate
ought to haveheld that a document is not false merely becauseit
contains false statements.
6. The learned magistrate ought to have held thatif
L. Matsoso, M. Rankae, M. Matsoso and J.Matsoso were fictitious
persons the accused
could therefore not be guilty of forging signatures of
fictitious persons and the best conviction could have been guilty of
7. The conviction is against the weight of evidence.
The appellant is employed by the Lesotho Government as
an accounts clerk in the Treasury.
It appears that for the period covered by the charge
sheet her work involved effecting payments to daily paid employees.
By their nature this category of employees are birds of
the passage who peep and go. It is thus imposing an unreasonable
the accounts' clerk to expect her to know every one of them
even if only facially. They come from various Ministries and they do
not come into contact with the accounts' clerk daily. Even those who
remain for considerable periods in the employ of the Lesotho
Government do only come into contact with her on pay days which occur
once a month.
In order for this accounts' clerk to know who to pay she
is supplied with lists of names emanating from personnel officers
In the instant case the appellant was supplied with
lists of names from the office of P.W.3 'Mamohlakana Molapo.
P.W.3 testified before the court below that at the time
She was called to throw some light as to discrepancies which
in the payment of some alleged fictitious persons, she was
no longer working as Principal Personnel Officer 11 as the head of
P.W.3 denied any knowledge, though, of three names of
what turned out to be fictitious persons brought to her attention,
She knew the name of Lehlohonolo Matsoso only. But it
was shown Lehlohonolo did not receive the money-purportedly paid out
name. In any event he stopped being paid as a daily paid
employee in October 1984 when he joined permanent staff in the
of Justice where he had since been paid by cheque.
P.V.3 testified that her office supplies lists of names
of daily paid employees to the office of the appellant who also
instructions to effect payments.
It appears to be the regrettable weakness in the system
employed that the office of P.W.3 does not keep a corresponding copy
names supplied to the office of the appellant. Such a record
is supposedly kept by the appellant. For all it is worth, while it
is plausible that instructions to pay the listed employees are in
written form, the instruction to terminate employment of the people
listed is given either verbally or by use of a telephone. It is
possible to either intentionaly or accidentally breach these
if they are not written.
The crown was not able to say if having used the
information reflected in the lists the accused in preparing the pay
contain the names of so-called fictitious people has any
obligation to keep such lists and not either to destroy them or
of them in any manner she deems fit afterwards.
In my judgment the greatest weakness in this system
consists in the fact that the office supplying the appellant with
does not keep corresponding lists nor does it require her
to initial such copies while she retains the originals that require
It is not unlikely therefore that anybody having wind of
the fact that the appellant is in possession of
names dependent on which he would be entitled to receive
money if he signs across any of those names appearing in the
wage sheets, could do so and get away with it. Hence the
observation that the measure of its strength is the weakest link in a
It has often been held that where the court in order to
arrive at a conclusion it has to make inferences, the inference so
be the only one in the circumstances. It appears
that this requirement cannot be satisfied if possibilities exist that
else might have supplied the list that contained fictitious
names or that people who knew of the existence of the fictitious so
urged those working in league with them to go and claim the
moneys from the appellant and actually append fictitious signatures
fictitious names appearing on the wage sheets.
Another test is whether the appellant's claim to benefit
of doubt is consistent with her innocence and not outweighed by
of the case, or whether it is based on solid foundation
therefore not on sheer fanciful considerations and mere speculation.
The facts of this case show that her claim to benefit of
doubt consists with the crown's failure to produce a list
the one allegedly furnished to the appellant. If
such a list had been produced, no doubt the appellant would be hard
put to it to
explain the source from which she obtained additional
names to those supplied by Personnel Office. It would be advisable
the receiver of the list in appellant's office should always
initial both the original and the corresponding copy kept by
office. Otherwise these loopholes in the system of
financial management in the Government will always be taken advantage
of by unscrupulous
It seems to me therefore that although strong and
reasonable suspicion exists that the appellant is the culprit who
forged the names
and pocketed the proceeds payable to non-existent
persons the evidence upon which she was convicted was not conclusive.
- 6 -
corresponding list it is difficult to check accused's
story against that of the prosecution. She says she received the
list of payees'
names from personnel office. The personnel office
does not produce the copy of the list it provided her with. She does
to prove her innocence. The onus is on the crown to
establish her guilt. This it has not done.
It is our law that anybody facing any criminal charge
must have the case against him or her proved beyond a reasonable
is not unreasonable to entertain the view that someone
else and not necessarily the accused exploited or could exploit the
reflected in the financial procedures adopted both in the
accused's office and that of the Principal Personnel Officer. May it
noted that I do not agree with ground 5 of appeal: Any tampering
(in writing or by erasure) with contents of an instrument for
of deceit renders the whole document forged.
The case itself shows lack of proper supervision and
appalling laxity in the management of finances in the respective
It was not proved that the forging of the fictitious
signatures was effected by the appellant. Yet, if there was a list
kept by the
crown serving as a replica of the one forwarded to the
appellant, then by inference the appellant would reasonably be
account for the forgery made manifest by what purport to
be signatures of persons answering to the names appearing on her wage
Her failure to account in that event would justify a
conclusion that she forged the signatures in order to make it appear
signatories received the moneys which she and no one else
The fact that what purport to be Rankae's and Matsoso's
signatures differ from time to time on occasions they appear on
wage sheets is of no consequence because, short of
satisfactory proof that the signatures were feigned by the appellant
her with their forgery.
At page 9 Morolong P.W.1 whose evidence was largely
satisfactory in so far as he mounted the initial investigation, and
be familiar with the appellant's handwriting, conceded the
point made in the above paragraph and also conceded under
that the fact that there was the name Matsoso and
his or her purported signature did not mean that a person by that
name never came
to sign for the money.
He conceded further that there are no frequent
"feed-backs" between the paying office, the personnel
office and his own
office whose business it is to check and see to it
that no fictitious persons are paid out of public funds. He did not
know if his
predecessor made any such checks. It is thus abundantly
clear that his office failed therefore to follow the financial
properly. He was man enough, though, to concede this
The accused was therefore given benefit of doubt,
acquitted and discharged.
JUDGE. 14th August, 1989.
For Appellant : Mr. Matsau For Respondent : Mr.
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