THE HIGH COURT OF LESOTHO
In the Matter of :
1. AARON MOTLATSI TS'OSANE 2. KHETHANG MOTSOENE
J U D G M E N T
Delivered by the Hon. Mr. Justice B.K. Molai on the
1st day of March, 1990,
The two accused are summarily charged with the crime of
Faud alternatively Theft, on the following allagations
"Upon or about the 30th day of July, 1987 and at or
near Maseru in the district of Maseru, the said accused, one or each
of them did unlawfully and with intent to defraud,
misrepresent to the Lesotho Bank that a sum M20,D00 had been properly
into the savings account of the first accused, the said
Aaron Motlatsi T9'osane, account No. 2000805 2 which said account was
at the main branch of the Lesotho Bank, and did thereby
cause the officials of Lesotho Bank to credit the said accoutre of
accused with the sum of M20 000 from which funds the first
accused be entitled to make withdrawals for his benefit, and the said
accused did by means of the said misrepresentation induce the Lesotho
Bank, to its loss and prejudice, to allow the said first accused
2 / from his ......
from his savings account the sum of
M10,00 whereas the said accused, when they made the
aforesaid misrepresentation well knew that no proper and genuine
deposit in the
sum of M20,000 had been made into the account of the
first accused and that he was not Entitled to make withdrawals from
account utilising the sum of M20,000.00 which had been
fraudulently deposited into the savings account of the first accused;
thus the said accused did commit the crime of
"Upon or about the 30th July, 1987 and at or near
Maseru in the district of Maseru, the said accused one or each or
them, did unlawfully and intentionally steal from the Lesotho
Bank, the sum of M20,000 the property or in the lawful
possession of the Lesotho Bank."
When they were put to them the accused pleaded not
guilty to both the main and the alternative charges.
Ten (10) witnesses were called to testify in support of the crown
defence called no witnesses to testify on behalf of the
accused. However, No. 1 accused himself gave evidence on oath in his
whilst N.o. 2 accused elected to remain silent and closed his
case without saying anything.
At the commencement of this trial only No. 1 accused had
a legal representative viz. Mr. T. Mda . No.2 accused appeared in
and informed the court that he had expected to be represented
by Mr. Mda who, however, told the that the former had not briefed
3/ It was ............
It was only during the cross-examination of P.W.4,
'Mampahi Moorosi, that Mr. Mda told the court that he had been
and was, therefore, prepared to represent No. 2
accused as well.
It may, perhaps, be convenient to mention at this
juncture, that in the course of his evidence P.W.1, Maitse Molai,
from certain documents includes ding a computer
report which had clearly not been prepaved by him. I was
asked by the crown counsel to look at the computer report. I,
however, declined to do so and pointed out that I was not prepared
look into documents which were ant exhibits or handed in as such by
In my view, it could never be overemphasised that the
task of this court would be made much easier if witnesses were called
sequence to testify in a trial. To that effect an attempt
should be made to call first the witnesses who were campstent to hand
in exhibits to which other witnesses would refer. Failure to do so,
would be bound to end up in the court looking at matters that
might turn to be irrelevant with the resultant accusation then its
influenced by such irrelevant matters.
I was, however, subsequently surprised to receive, from
the Attorney-General, a letter criticising me, so to speak, for the
I have followed on this issue,, The letter was copied to
the Chief Justice and Mr. Mda, counsel for No.1 accused. No
copy was adressed to Wo. 2 accused who was not legally represented
at the time.
4/ I must say ...........
I must say in all the years I have been on the I have
never seen a judicial officer, who is. presiding a court case, being
an extra-judicial letter cri-ticising the manner in which he
is conducting the case. If the Attorney-General were of the opinion
that there was anything irregular in the way in which the case was
being conducted, he ought to know what remedy was available to
Crown counsel and accordingly advise him. I find it totally
unacceptable for a letter of this nature to be addressed to
judicial officer, especially behind the back of No. 2 accused
who was, at the time, not legally represented in this case.
Having said that much, I shall now proceed to deal with
the merits of the case. Briefly stated, the evident heard by the
that of P.W.10, Rubina Osman, who testified that she was
employed by the Lesotho Blank and attached to the Savings Account
of the Bank as a savings Account check clerk. On 31st
July, 1987 she was checking the posting journal when she found that
of M20, 000 had been credited into the savings account No.
2000805216 of one Aaron Motlatsi Ts'osane (A1) but there. was no
covering it. The transaction appeared to have been
computerised on 30th July, 1987 by clerk No. 185 in the Data control
of the bank.
P.W.10 then want to enquire from clerk No. 185 as to
what had happened to the voucher for the M20,000. 5he and clerk No.
the letter's computer print out or "tally" and
found that the voucher for the M20,000 had originated from the
5/ of the ........
of the bank . An enquiry from the accountant in the
Exchange Department of the bank revealed that the debit
voucher for the M20,000 was also missing. On. checking
computer machine in the savings account department of
the Bank, P.W.10 found that an amount of M10,000 had
been withdrawn from the savings account No. 2000805216
on the same day, 31st July, 1987. On the instructions
Bank Manager, P.W.10 caused the remaining balance in the
savings account No 2000805216 to be freezed immediately
and kept in her custody, together with the posting
journal which she handed in as exhibit J in her evidence
In her evidence P .W .5 , Thembile Dingiswayo, told the
court that since 1986 she had been employed by the Lesotho Bank as a
in the Data Department of the Bank. Her official number in the
bank was 185. As a clerk in her department her duties included,
inter alia, punching (computerising) vouchers made by various
departments of the for
On 30th July, 1987 she was punching vouchers from other
departments of the bank when No. 2 accused who was one of the
clerks in the Foreign Exhange Department of the bank brought to her a
bundle of vouchers from that department
for punching. When he handed
over the vouchers No. 2 accused told her (P.W.5) to punch them
quickly as one of his customers was
waiting and wanted to withdraw
money. In reply P.W.5 told No. 2 accused that she was unable to do
so as she was busy punching vouchers
she had earlier received from
6 / of the .........
of the bank. However, No. 2 accused kept on coming to
her desk and asking that his vouchers be punched quickly.
When at about 2 p.m. on 30th July, 1987 she broke for
lunch, P.W.5 had already started punching the bundle of vouchers
Wo. 2 accused. She left the vouchers together with other
vouchers from various departments of the bank and went for her lunch.
At about 3 p.m. on the same day, 30th July, 1987, she returned to
her desk and continued punching the vouchers she had left when
broke for lunch. She then took all the vouchers she had punched to
the photocopying room. After she had photocopied them
the photocopies in a cabinet in the down control department and
despatched the originals to various departments of their
P.W.5 confirmed the evidence of P.W.10 that on the
following day, 31at July, 1987, the latter came to her and enquired
about the missing
voucher for the amount of M20,000 which had
apparently been credited into a certain savings account number on the
prevous day, 30th
July, 1987 P.W.5 then checked her computer print
out or "tally" (Exh F) for the previous day, 30th July,
1987 and found
that she had, indeed, punched transaction (Mo. 143 by
which an amount of M20,000 from manufacturers Hanova Trust Company
No. 9089050001 was to be credited into the savings account
No0 2000805216 belonging to No.1 accused. The voucher
covering that transaction had originated from the Foreign Exchange
but was not amongst the original vouchers that were in the
possession of P.W.10.
7/ Thinking that .........
Thinking that she might have inadvertently
dispatched it to a wrong department P.W.5 looked far the
missing voucher in the current and other departments of the Bank, but
to no avail. She then looked for its copy in the cabinet where
photocopies were kept in the Data Control Departments There was
trace of it. She ultimately asked for and inspected all the
passbooks currently used to draw out vouchers in the Foreign Exhange
Department of the Bank. Again there was no trace of the missing
In the course of her inspection of the passbooks it came
to the notice of P.W.5 that the clerks who used them were each
a set of three (3) passbooks at a time. Whilst the
other clerks had submitted all their sets of three (3) passbooks No.
had submitted only two (Passbooks), P.W.5 pointed out that
anomally to the Foreign Exchange Department.
On the following day, 1st August, 1987, No. 2 accused
was off duty but his third passbook (Exh B) was handed over to P.W.5
Sub-Accountant, one Mr. Makara who is, however, allegedly
furthering his studies abroad and could not, therefore, be called as
witness in this trial. It is significant that P.W.5 was
cross-examined by the defence counsel on this point and she told the
(under cross-examination) that according to him, Mr. Makare had
found exhibit B hidden in one of No. 2 accused's desk drawers. By
cross examining the witness on it the defence counsel made a point
which was otherwise inadmissible hearsay, admissible evidence.,
8/ It is.......
It is, perhaps, convenient to mention at this stage that
Exh B is the stationery used in the drawing out
of vouchers in the Foreign Exchange Department. It is in
form of a booklet. Each page or voucher thereof is
numbered and in triplicate. The first, second) and third copies of
are, respectively, pink, yellow and white in colour. In
drawing out a voucher, either a pink, or a yellow page is used,
on whether the transaction is for a debit or credit. The
unite page is a, carbon copy that always remains in exh B together
either the pink or the yellow page, again depending on whether
the transaction was for either debit or credit.
Dn examining Exhibit B, P.W.5 noticed that on page 133
68 thereof a voucher was drawn out to debit the manufacture Hanova
account No. 908905 0001 in the amount of £6034-81 (at
the rate of 331.4105) which was the equivalent of M19,999-99 or
to a whole number. The account number to be
credited with the amount of M20,000 was not disclosed.
However, the whole transaction was cancelled and three copies of
voucher 13368 remained in Exh 8.
As the transaction on voucher 13368 debiting the
manufacturers Hanova Trust Company Account No. 908905 0001 with the
M20,000, in sterling had been cancelled. P.W.5
expected it to be repeated on voucher 13369 or any other subsequent
voucher in Exh
B. It was not. Instead she noticed that on voucher
13369 only the white copy remained in Exh B i.e. neither the pink nor
copy remained. According to the white carbon copy of
voucher 13369 in Exh B. the transaction was crediting a
certain account No. 90900052027
9/ with the .........
with the amount of M62-57. P.10.5, therefore] expected
to Find the yellow debit page of voucher 13369 remaining in Exh B,
with the white carbon copy. It was not there. She looked
for the missing copies i.e. the pink and the yellow copies, of
13369 in all departments of the Bank. She found, in the
General Account Department only the credit (yellow) copy (Exh G)
trace of the debit ( Pink ) copy of voucher 13369 of Exh B.
In her evidence P.W.4, 'Mampabi Moorosi, told the court
that she was the Accountant in the Foreign Exchange Department of the
She remembered that on 31st July. 1937 P.W.10 showed her a
computer report according to which
on 30th July, 1967 an amount of M20,000 had been debited
from the manufacturere Hanova Trust Company account No. 9089050001
into the savings account number 2000805 215 belonging to
No. 1 accused . The relevant vouchers which had emanated from
the Foreign Exchange Department and ought to have accompanied the
transaction was, however
P.W.4 immediately mounted an investigation on the matter
by checking through the passbooks used in the Foreign Exchange
but found no trace of the missing voucher. On the
following day she was not on duty. However later in the day she went
to her office
to find out if the missing voucher had been traced.
It had not. She was however, shown Exh B - a passbook used by No. 2
who was one of the clerks in the Foreign Exchange Department
and under her general supervision.
10/ P.W.4 confirmed .........
P.W.4 confirmed the evidence of P.W.5 that the
examination of Exh B revesled that at page 1336B thereof a voucher
was, on 30th July,
1987, prepared and cancelled debiting the
manufacturers Hanova Trust Company Account No. 9089050001 in the sum
of £6034-81 at the
rate of 331.4105 per £100 - which, converted
into Maluti currency amounted to M19,999-99 or M20.000 rounded up to
a whole number.
According to the message recorded on page 13358 of
Exh B the instruction to debit manufacturers Hanova Taus. Company
9039050001 was communicated through a telex dated 29th
P.W.4 further told the court that as she worked with No.
2 accused in the same department she was positive that the
Exh B, particularly on voucher 133 68 thereof, was
that of No. 2 accused. She too testified that as the transection on
had been cancelled she expected No., 2 accused to have
repeated it on the following voucher 13369 of Exh 8. The transaction
however, not repeated thereon or any other subsequent voudcher
According to P.W.4 the procedure followed in her
department was that every telex message received was photo copied
before it could
be handed to the clerks for action. The photocopies
of such telexes were kept in a file in the Foreign Exchange
Department to maintain
a record. After she had found that according
to voucher 13368 in exh B the instruction to debit manufacturers
Company Account No. 9089050001 with the equivalent of
M20,000 was by a telex, P.W.4 went to look for a copy of the telex
in the telex room. No such telex copy could be found.
11/ She then .......
She then waited for the arrival of the monthly statement
(Exh A) from Manufacturers Hanova Trust Company to see if Lesotho
indeed, credited with the amount of £6034.81. When it
eventually arrived the statement reflected no such transaction.
P.W.4 confirmed the evidence of P.W.10 that on
the instructions of the Bank Manager the funds in No. 1 accused's
savings account No. 2000805
216 from which an amount of M10.000 had
already been withdrawn were freezed
In her testimony P.W.8, Kamohelo Mahooane;, told the
court that in July, 1987 she was a clerk attached to the inquiry
section of the
savings account department of the bank. As such her
duties included making entries in the customers' savings account
crediting customers' savings account books and up dating
them. She recalled that, an 31st July, 1987 No. 1 accused
came to her counter and handed over his savings account book asking
her to check if some money had
been deposited into his account No.
2000805 216 P.W.8 checked on the computer and found that No. 1
accused' savings account had,
indeed, been credited with the amount
of M20,000 on the previous day, 30th July, 1987. When she asked him
where the funds came
from, No. 1 accused replied that he was, in fact
expecting money from two sources that he was unable to disclose.
However, as she
was satisfied, from the computer screen that No. 1
accused's account had been credited with the M20,000, P.W.8 up dated
account book by making an entry of the M20,000.00 and the
balance becams M20,098. She handed the savings account book back to
1 accused who then left her counter
12/ In her ........
In her evidence, P.W.9, Lebohang Putsoane, told the
court that in July, 1987 she was already a teller in the savings
of the Bank, On 31st July, 1987
she mas an duty at counter Wo«6 when she served No. 1
accused who was withdrawing a huge amount of M10,000 from his savings
No: 2000805216 - No.1 accused handed over his
savings account book (Exh 2) together with duly completed withdrawal
slip (Exh D) . When she checked in both the savings
account book and the computer machine. P.W.9 found that an amount of
M20,000 had been credited into No. 1 accused's
savings account No.
2000805216 on the previous day, 30th July, 1987 and there was a
balance of M20,098. The account had, therefore,
sufficient funds and
she accordingly paid No. 1 accused the amount of M10,000 which he put
into his brief case (Exh 3) and left.
The money was paid in R50
Shortly thereafter, P.W.9 heard P.W.4 enquiring about a
customer who had withdrawn an amount of M10,000, She reported that
just served No.1 accused who had withdrawn M10,000. The
withdrawal slip with which she had served No.1 accused was taken to
Bank Manager whilst she herself was subsequently told to go and
make a statement at the Maseru C.I.D.
P.W.7, Ida Phafane, testified that in July, 1987 she was
already a check clerk in the Foreign Exchange Department of the Sank,
the immediate supervision of both the Accountant (P.W.4 and the
Sub-Accountant (Mr. Makara). As such her duties included, inter
13/ checking the .......
checking the clerks in her department to ensure that
everything was done correctly.
According to P.W.7 the clerks in the Foreign Exchange
Department were at the material time, Miss Phakisi. Miss Makhalanyane
.2 accused. They were each issued with a set of three(3)
passbooks to carry out their work. She conceded, however that there
at the time a four tin
clerk viz. Malipondo Kokoana who had recently been
employed by the Bank. She was not even sure that, as a new arrival.
was at the time already authorised to use a pand
In her evidence P.W.7 confirmed that on 31st July . 1987
there was an information received from P.W.10 that a voucher for a
involving an amount of M20,000 from the Foreign Exchange
Department was missing. Following the information P.W.7 collected
that were currently used by all the clerks in her
department and checked through them to find if there were any voucher
of the transaction involving the M20,000.00 There was no
trace of any such voucher.
According to P.W.7 all the current passbooks were
normally kept by the clerks in their shelves or cubicles from where
them. From the shelves of Miss Phakisi and Miss
Makhalanyane she found and collected all their said of three(3)
No. 2 accused's shelf or she, however, found and
collected only two passbooks. She herself looked for No. 2.
accused's third passbook
in the department but all in vain.
14/ However, ........
However, on the following day, 1st August, 1987 another
passbook (Exh B) was brought to her by Mr. Makara, the Sub-Accountant
for reasons already explained in his judgment, could not be
called as a witness in this trial. P.W.7 also assured the court that
as she worked with No.2 accused in the same department and was the
one supervising his work she knew his handwriting very well.
she inspected Exh. B she had no difficulty, therefore, in
identifying the handwriting therein as that of No. 2 accused.
According to her, P.W.7 noticed that at page 1336B of
Exh B. a voucher was prepared and then cancelled oy No. 2 accused.
in that transaction purported to have been telegraphic
and related to a transfer of the equivalence of M20,000, in sterling,
Manufacturers Hanova Trust Company Account Number 9089050001.
As the transaction had been cancelled in voucher 13368, P.W.7
it to be repeated in the next fallowing voucher 13369 or any
other subsequent voucher in Exh B. It was not
However, P.W.7 noticed an anomally in voucher 13369.
According to the white carbon copy on Exh No.2 accused had drawn out
debiting a savings account No. 9090052027 with an amount of
M62.57. She told the court that, granted the transaction made in
13369 was for a debit only, the yellow creditcopy ought to
have remained unused in Exh B. It was, however missing together with
the yellow copy and only the white carbon copy remained.
When a search for the two copies (i.e. the
and the yellow copies) that had apparently been removed from voucher
13369 of Exh B was made, only the pink copy
15 / by which ........
by which savings account No. 9090052027 was being
debited in the amount of M62-57 could be found in the storeroom.
confirmed by P.W.6, Motebaog Masike, who told the court that
he was the person in-charge of this storeroom at the Lesotho Bank.
He handed the pink copy of voucher 13369 as Exh G and assured the
court that there was no trace of the yellow (credit) copy thereof
P.W.7 checked the computer report (Exh C) from the
computer centre and found that there was transaction No. 143, by
which the amount
of M20,000 was, indeed, transferred from account
Number 9089050001 into the savings account Number
2000805216 . As it was obvious from voucher 13368 of
Exh 3 that it was No. 2 accused who had handled a transaction in
which he was
telegraphically authorised to debit manufacturers Hanova
Trust Company account Number 908905 0001 in the equivalance of
in Sterling, P.W.7 proceeded to check in the telex room of
the Foreign Exchange Department for a telex that supported such
She checked through the manufacturers Hanova Trust
Company file kept in the Foreign Exchange Departments. There was no
In case there was a misfiling, she also checked through
all. the other files in the department but all to no avail. When
the Bank statement (Exh A) from Manufactures Hanova Trust
Company arrived she too went through it and found that nowhere did it
that it was debited in the amount M20,000 or its equivalence
In his evidence P.W.1, Maitse Moloi, told the court that
he was the Bank Manager at the Lesotho Bank in Maseru and his bank
1 6/ Hanova
Hanova Trust Company in England. His evidence
corrobroated, in as far as it is relevant, that of P.W.4,5, 7 and 10.
told the court
that when neither the telex message nor the voucher
supporting the transaction by which the amount of M20.000 was
credited into No.
1 accused's savings account Number 2000805 216
from munufacturers Hanova Trust Company Account Number 9089050001
could be traced,
he sus-pected theft and consequently reported the
matter to the polices
P.W.3, D/Sgt, Rantsatsi confirmed that on 31st. July
1987 he received, from P.W.1, a report as a result of which he
D/Tpr Sekamo to commence investigations
The evidencs of P.W.2 was to the effect that at about 2
p. m. on 1st August, 1987 he proceeded to the horns of No. 1 accused
Thamae here in Maseru. He found him not in and left
a message that on his arrival No. 1 accused should report himself at
Later on the same day, 1st August, 1987 No. 1 accused
duly reported to P.W.2 at the C.I.D. where he was
interrugated by W/O Tomana, P/W Ntane, P.W.3 and P.W.2
himself. Following his interrogation No. 1 accused took the police
officers to his house at Upper Thamae where he produced
an amount of
M3.800-00 together with his savings account book and passport.
He gave the articles to P.W.2 who in turn handed
them over to P.W.3
for custody. The police officers returned to their office together
with No. 1 accused. The next day and following
the informetion of
Wo. 1 accused, P.W.2 proceeded to Lesotho Bank where he found Wo. 2
accused. He took him
17/ to the C.I.D......
to the C.I.D. where he confronted him with No. 1
accused. Following the explanation of No.2 accused P.W.2 proceeded
to No.1 accused's brother, Moahe Tsosane, at the village
of Upper Thamae. On the way to the village , P.W.2 met Moshe
took him to the C.I.D. where he confronted him with the
two accused. In the presence of the accused, Moshe gave an
took P.W.2 and P.W.3 to his home where he produced
and handed over to the police officere an amount of M2,400 which had
in a sofer. The police officers took possession of the
money and returned cc their office together with Moshe Tsosane.
Moshe was cautioned and charged jointly with the two accused
the charge against him was later dropped on the directives of the
of the Director of Public Prosecutions.
As it has already been pointed out earlier, at the end
of the case for the prosectuion, No.2 accused elected to remain
silent and close his case without testifying in his defence. There
is, however, an unchallenged evidence, adduced by the crown,
effect that on 30th July, 1937 No.1 accused's savings account No.
2000805216 was credited in the amount of M20.000 from Manufacturers
Hanova Trust. Company Account No. 908905 0001. The voucher
supporting that transaction had emanated from the Foreign Exchange
in which No.2 accused was one of the clerks. He was,
indeed the clerk who, on 30th July, 1987, brought a bundle of
the Foreign Exchange Department to P.W.5 in the Data
Control Department for punching or computerising. After he had
vouchers to the Data Control Department No.2 accused
kept on pestering P.U.5 that she should quickly computerise them.
18 / From her
From her computer print out or "Tally";(Exh F)
P.W.5 was positive that she had, on 30th July, 1987, punched a
by which the Foreign Exchange Department was debiting
Manufacturers Hanava Trust Company account Number 90895D001 with the
of M20,000 which was to be credited into No. 1 accused's
savings account No. 2000805216. The voucher supporting that
had, however, disppeared after the transaction had been
computerised and could not be traced anywhere in the bank.
As there is no doubt that the transaction by which the
M20,000 was transferred from Manufacturers Hanova Trust Company
9089050001 into No. 1 accused's savings account No.
2000605 216 had emanated from the Foreign Exchange Department of the
question for the determination of the court is whether or
not No.2 accused is the clerk who drew out the voucher which
supported the transaction.
In this regard there is, an unchallenged evidence that
when all the passbooks currently used in the Foreign Exchange
the bank were checked, it was found that in his
passbook (Exh a) No.2 accused had drawn out 13368 by which he
purported there was a telex message dated 29th July, 1987
transfer of the equivalance or M20,000, in Sterling, from
Manufacturers Hanova Trust Company Account No. 9089050001.
accused cancelled the transaction on voucher 13368. But as it
appeared there was a telex message dated 29th July, 1987 authorising
the transaction, that transaction ought to have been repeated
voucher 13369 which had misterioualy a credit; page missing
19/ The transaction ......
The transaction was, however, neither repeated on
voucher. 133 69 of Exh B nor any subsequent voucher thereof. The
message of 29th July, 1987 authorising the
transaction could not be traced in the bank nor could the statement
Hanova Trust Company reflect the equlvalancs of
M20,000, Sterling ,which was to be transferred through the Foreign
of the Lesotho Bank.
Although Na.2 accused had cancelled the transaction on
voucher 13368 it is to be observed that the amount of M20,000 or its
in Sterling, was nonetheless purportedly transferred
from Manufacturers Hanova Trust Company Account Number 9089050001
accused's savings Account No. 2000805216. As voucher 13369
of the Exh B was the only voucher with a missing page, it seems
to infer that the missing page in voucher 13365 was
sureptitiously used to draw out the voucher which supported the
the M20,000. On the evidence No.2 accused was
the only clerk in the Foreign Exchange Department who used Exh B.
Indeed, he is the
only clerk from that department who, on 30th July,
1987, took vouchers to P.W.5 in the Data Control Department. That
I am of the view that the answer to the question, I have
earlier posted, viz. whether or not No.2 accused is the clerk who
the voucher in support of the transaction by which the
M20,000 was transferred from Manufacturers Hanova Trust Company into
accused's savings account must be in the affirmative.
20/ Coming now .........
Coming now to No.1 accused, he testified in his defence
and conceded that on 30th July, 1987 he was already operating savings
Wo.2000805216 with the Lesotho Bank here in Maseru. The
account was on that day credited in the amount of M20,000,
In an attempt to explain how his savings account came to
be credited with the M20,000, No.1 accused told the court that prior
July, 1987 he was emmployed by Avis Rent-A-Car, a company
dealing with the hiring of vehicles to people, especially tourists,
this country Whilst working at Avis Rent-A-Car he met three
tourists from overseas, who were interested in given him,money which
he needed to build flats for renting. Although he wrote their
particulars in his diary No.1 accused no longer remembered the names
and addresses of the three tourists as that was an old affair. He
only remembered one of the tourists as just "David"
later returned to Lesotho and lived in the village of Mohalalitoe
here in Maseru. He, however, did not know whether or not "David"
mas still living in the village of Mohalalitoe.
On 31st July, 1587 No.1 accused went to the
bank to withdraw M20 from his savings account No. 2000805216
which admittedly had a balance of only M98 . When he presented his
book, passport and the completed withdrawal slip to
the teller, the latter asked him whether he was expecting money from
In reply No.1 accused explained that he was not sure if
any of the people (Tourists) he was expecting money from had sent it.
teller then handed back all his documents
21 / saying
saying his savings account book did not balance and
required up dating. For that reason the teller referred him to
presumably the inquiry desk. He complied
When he left the inquiry desk, Wo. 1 accused inspected
and found that his savings account book had been credited in the
M20,0"0a giving him a balance of M20,098. He
immediately distroyed the withdrawal slip he had previously completed
amount of M20 and prepared another ana (Exh D) by which he
demanded payment of M10,000.00 After it had been paid to him he put
M10,000 in a brief case and left the bank.
As his wife who usually kept his money was not at at
home, No.1 accused took MB , 000 to his younger brother, Moshe, for
Out of the M6 ,000 that remained with him he kept
M3,800 in his wardrobe and took the balance to a casino where he and
carelessly squandered it on gambling machines and drinks
on the night of the same day .
It is significant that No.1 accused does not know the
names of the tourists who allegedly promised him financial
indeed, does he know the Overseas countries of
their origin. It is, however, worth mentioning, in this regard, that
until the commencement
?f this trial, on 7th June, 1989, No.1
accused was on bail If it were true that be had noted the
particulars of the trouriats in his old diary, No.1 accused had,
therefore, ample time to look for the diary which could
produced in support of his story. No such diary has,
22/ however, ......
however, been produced and Wo. 1 accused merely
contended himself with saying he did not know if his wife had
destroyed the diary
as this was an old affair.
There is no doubt in my mind that No.1 accused's
story that he was promised money by some unknown
tourists has no truth and it would have been a waste of time for the
crown to follow
it. I accordingly reject it as false.
Although he cold the court that when he came
to the bank on 31st July, 1987 he wanted to withdraw the
amount of M20 but a teller refused to serve him and instead referred
to the inquiry desk to have his savings account book up dated,
No.1 accused himself testified that he did not know the teller nor,
indeed, could he identify her if an identification parade were to be
It may, perhaps, be mentioned at this stage the1!;
P.W.9, a teller at the savings account department of the bank,
testified that where it was found that a customer's savings account
book required up dating, the procedure followed at the bank was that
the teller would first serve such customer and then refer him
inquiry desk for the up dating of his book. Her evidence was, in
th3t regard, corroborated by P.W.8, a clerk at the inquiry
evidence of both P.W.8 and P.W.9 did not, therefore, support No.1
accused's story that when, on 31st July, 1987 he came
to the bank to
withdraw the amount of M20 a tells?: he could not even know refused
to pay him the M20 and instead referred him to
the inquiry desk to
have his savings account book up dated.
23/ Assuming ........
Assuming, for the sake of argument, the correctnase of
his story that when, on 31st July, 1987, he came to the bank No.1
to withdraw only M20 from his savings account which
admittedly had, even before it was credited in the amount of M20,000,
of M98, I find it incredible that instead of paying him the
small amount of M20 the unnamed teller would have referred him to the
inquiry desk thus causing him the trouble of having to cue in the
line for the second time.
In my view, what is sensible is the crown evidence that
in the morning of 31st July, 1987 No.1 accused came to the bank, went
to the inquiry desk and verified that his savings account
Number 2000805216 had been credited in the amount of M20,000 which
duly entered in his savings account book. Only then did No.1
accused prepare the withdrawal slip for M10,000 and went to P.W.9,
the teller who, on the basis of the entry made by P.W.8 in his
savings account book. paid him the money. No.1 accused never
a withdrawal slip (for M20) which, as he wants this court to
believe, he later destroyed- The haste in which, the moment he
that the huge amount of M20,D00 had been deposited into his
No.1 accused withdrew M10,000 and squandered part
thereof, leaves no doubt in my mind that he knew that the money had
not been lawfully
acquired or deposited into his savings
Although in his testimony No.1 accused denied that,
apart from casually seeing him at the bank, he knew No.2
24 / accused
accused, there was ample circumstantial evidence
indicating that he did know him and in his denial he was therefore.
not being honest
with this court. No.2 accused had for example, on
30th July, 1967 caused M20,000 to be deposited into No.1 accused's
No. 2000805216. In the morning of the next day, 31st
July, 1967, No.1 accused was already at the bank where he verified
money had, in fact, been paid into his savings account. He
immediately withdrew M10,000 of which he carelessly spent part on
machines and drinks at a Casino during the night of the same
day. Indeed, P.W.2, whose evidence I can think of no,good reason to
doubt, told the court that it was on the information given by No.2
accused that he and other police officers started looking for
Ts'osane who was admittedly keeping another portion of the M10,000
that No. 1 accused had withdrawn from. the bank on 31st July,
Pram the foregoing, I am of the view that prior to 30th
July, 1987 the two accused did not only know each other very well but
designed a scheme whereby No.2 accused was to fraudulently cause
to be deposited into accused 1's savings account No. 2000805216
which the latter would withdraw. I simply do not see how No.2
accused could have known and deposited money into, No.1 accused's
savings account No. 2000805215 unless the latter had furnished him
with the account number for the purpose of carrying out their
In pursuit of their fraudulent scheme No.2 accused
purported there was a telex message dated 29th July, 1987 authorising
Hanova Trust Company account
No. 9089050001 to be debited in the amount of M20,000,
in Sterling. To that effect he prepared a voucher on the strength of
P.W.5 computerised transaction 143 which was purportedly
crediting No.1 accused's savings account No. 2000805216 in the amount
M20,000 from manufacturers Hanova Trust company account Wo. 908905
0001. On the basis of the computerised transaction 143 No. 1
accused's Savings account No. 2000805216 was, indeed, credited in the
amount of M20.000 from which he withdrew M10,000-00.
As it has been pointed out earlier, there was never a
telex message authorising the drawing out of the voucher in support
143 which was computerised by P.W.5. Assuming the
correctneas of my finding that the telex message never existed it
must be accepted
that the voucher drawn out by No.2 accused in
support of transaction 143 was a misrepresentation or a wilful
perversion of the truth
obviously made with intent to defraud the
bank. Indeed, acting on the misrepresentation of the accused, the
officials at the Lesotho
Bank did credit No. 1 accused's savings
account No. 2000805216 in the amount of M20,000 to the prejudice of
the bank. Again, assuming
the correctness of my finding that the
two accused acted together or aided each other in the execution of
this unlawful act, it must
be accepted that they are, on the well
known principle of common purpose, equally liable.
In the result, I am satisfied that, taking the evidence
as a whole, the offence against which they stand charged in the main
has been proved beyond reasonable dubt
26 / I would
I would, in the circumstances, find both accused guilty
charged in the main charge.
Both my assessers agree.
SENTENCE : Accused 1 - 6 years imprisonment Accused
2-7 years imprisonment
It is ordered that the M10.000 which is the balance
remaining in A1's Savings Account book, the amount that A1 produced
from a wardrobe
in his house and the amount that was hidden in, and
taken from Moshe's sofa must all be returned to Lesotho Bank. A1's
book together with its lawful balance of M98-00 must
be returned to him after the necessary adjustments have been made
B.K. MOLAI JUDGE
15th May, 1990.
For Crown : Mr. Thetsane For Defence : Mda.
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