CRI\T\75\89 IN THE HIGH COURT OF LESOTHO
the matter of :
PETER KENENE MAHASE JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
7th day of July, 1992
The accused pleaded not guilty to six charges of (a)
forgery and (b) uttering in the main counts, as well as to six other
of theft in the alternative counts.
In the six main counts it is charged that during the
period extending from 26th January, 1987 to 21st January 1988 and in
of his employment in the Lesotho diplomatic service as
Third Secretary otherwise known as Accountant the accused on six
occasions forged and uttered certain documents or
instruments referred to as transfer orders.
The charges set out that the transfer orders relating to
each of the counts referred to in the indictment state that as a
the forgeries and utterings the Lesotho Mission to the
European Economic Community was defrauded of the sums of money made
of in the indictment. Otherwise each respective sum
so mentioned is alternatively charged as theft allegedly
committed by the accused.
In the first count the amount of 88,602 Belgian francs
was altered to read 188,602 Belgian Francs making a difference of
Francs which at the then prevailing exchange rate was
equal to M5,458-00 when converted.
In the next count the amount of 91,467 Belgian Francs
was altered into 391,467 Belgian Francs making a difference of
Francs which at the then prevailing exchange rate was
equal to M16,145 when converted.
Next after the above count it is reflected that an
amount of 93,055 Belgian Francs was altered into 293,055 Belgian
a difference of 200,000 Belgian Francs which at the
then prevailing exchange rate converted to M10,753-91.
Next after the above count it is reflected that an
amount of 89,313 Belgian Francs was altered into 289,313 Belgian
a difference of 200,000 Belgian Francs which at the
then prevailing rate converted to M11,050-52.
Next after the above count it is reflected that an
amount of 87,489 Belgian Francs was altered into 187,489 Belgian
making a difference of 100,000 Belgian Francs which
according to the exchange rate prevailing then converted to
Finally it is reflected that an amount of 93,778 Belgian
Francs was altered into 393,778 Belgian Francs making a difference of
Belgian Francs which at the then prevailing exchange rate
converted into M16,592-47.
The Crown indicated that in count l(a) Transfer Order
Exhibit "M" was forged in the amount of 100,000 B.F. The
relating to 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.
In count 3(a) the accused is alleged to have forged
Exhibit "Q" on 25th May 1987 in the amount of 300,000
Other Exhibits relating to this count are Exhibits
"P" "C" "AC" and "S"/ Count
that the accused offered, uttered and put off Exhibit
"Q" on 25th May 1987. It is alternatively charged that he
this amount on the day in question.
Suffice it to briefly say in count 5 Exhibit "T"
for the amount 200,000 Belgian Francs relates to Exhibits "D"
"E" "AD" and "U". The relevant date to
this count is 23rd July 1987.
Exhibit "V" in count 7 relates to Exhibits "F"
"G" and "W". The specific amount and date
thereto are 200,000 Belgian Francs and 28th October 1987
Exhibit "Z" in count 11 relates to Exhibits
"J" "K" "AA" and "BB". The
amount and date are 300,000 Belgian Francs and 21st January
The Crown led the evidence of PW1 Captain Mokhele of the
Royal Lesotho Mounted Police stationed in Maseru Central Police
attached to the C.I.D. PW1 testified that after
receiving information from PW2 Mr. Khoeli Motebang, he launched
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.
PW1 later confronted the accused with payment couchers,
sub-Accountant's cash book pages, transfer orders, abstracts or daily
and journals. He told the Court that the accused
acknowledged these documents. He further said the accused, in
exercise of his
right to silence when called upon to make an
explanation regarding these, intimated that he would
make an explanation in Court if charged.
PW1 was cross-examined and it came to surface that PW1
had put to the accused a charge of fraud which is not the charge
against him in any of the indictments before Court, It
also surfaced that the caution PW1 says he advanced to the accused
given after the accused had committed himself as to the
knowledge of the documents referred to above.
PW1 testified that he had to date been in the police
force for upwards of twenty three years yet when asked the following
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.
Why 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
But when you approached him you already regarded himas
a suspect ? Yes.
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"
I can only indicate in passing that there is everything
wrong with that.
From the evidence gathered from PW2, PW3 Mrs. Mothepu
PW4 Miss Limpho Sekoli and in part PW6 Mr. Tsoanamatsie who was the
Ambassador in Brussels; E.E.C. at the time, it appears that
during the period extending from January 1987 to 1988 the accused's
control and management of finances at theLesotho
Mission to E.E.C. under the supervisionof PW6;
preparation of paper work relating to payment
of the Lesotho Mission's monthly salaries including his
With 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
heads of arguments at page 7 outlined as follows :
- The accused would initiate preparation of payment
couchers and transfer orders. The payment voucher would include and
payee (b) duty station (c) the salary and Foreign Service
allowance and children's allowance if there were any children.
Simultaneously with the preparation of the payment
voucher the accused would also prepare a transfer order or form to
the bank i.e.(BBL) the Bank of Brussels to effect
payment into . the account of the payee and debit the account of the
The Lesotho Mission to the EEC used a Banking Account
number 310-0384495-73 005-0-000 during the period January 1987 to
It is important to note that according to practice
adopted between the Lesotho Mission and the Bank in Brussels where
Mission maintained this Banking Account, a payment
voucher is produced in triplicate whereas a transfer form is in
reproduced at the same time with the original
without use of a carbon paper commonly used in other
transactions to produce a carbon copy.
After preparing these documents the third Secretary to
the Mission would append his signature on both a transfer order and a
voucher. He would then bring both these sets of documents to
the Ambassador or the Counsellor in the absence of the Ambassador for
cross-checking, authorization signified by the latter's appending his
or her own signature in turn if the documents were in order.
It was the role of the Ambassador or failing him that of
the Counsellor to check and satisfy himself as to the payee and the
reason for payment. The reason would be either one or
all of the following; to wit, salary, Foreign Service Allowance
One of the most important functions discharged by the
Ambassador or his deputy in this regard would be to ascertain that
is a justifiable charge to the Government. To enable him
to do this he would rely on the narrations appearing on both the
voucher and the transfer form to see if they substantially
bear the relevant information in all material
respects. Failing this the Ambassador would not
authorise the payment; and would if necessary call the third
secretary for explanation.
Should the Ambassador not be satisfied
with the explanation or if the documents are faulty he would order
that these should be done
all over again. Otherwise if he is
satisfied he would append his signature thereby authorising payment
in respect of any of the
purposes shown above including such other
purposes as per diem allowances tour imprests, or authorised
purchase of equipment.
Usually the Ambassador's signature would be appended on
top left hand corner of the transfer form, while in respect of the
voucher it would be appended in the space provided for the
purpose towards the middle.
When both these documents have been signed they would be
sent back to the third secretary who would take the transfer order
the bank which would effect payment. The bank would credit
the beneficiary's account and debit that of the remitter. The bank
keep the original copy of the transfer order and return the
duplicate copy to the accused whose duty it was to keep it for record
A few days thereafter the bank would provide the Embassy
with a statement reflecting the transactions previously effected and
amounts involved in debiting the Mission;s account.
It has been elicited from the witnesses for the Crown
that almost daily; abstracts would be sent by the Bank to the
abstracts would go direct to the accused's office.
The accused's duty would be to compile and prepare
monthly returns using payment vouchers and sub-Accountant's cash book
all payments for the month are reflected together with
payment vouchers' numbers accompanying such payments.
The monthly returns would then be sent to Treasury via
the Ministry of Foreign Affairs. The Treasury would, before posting
returns to the computer ensure that the payment vouchers,
cash book pages and the bank statements balanced.
But if these didn't balance then there wouldn't be any
The evidence of PW3 Mrs Mothepu shows that when PW6 Mr.
Tsoanamatsie the Ambassador was away on a conference in Geneva she
the Ambassador's functions at the Lesotho Mission to the
EEC in July 1987. She told the Court that the accused prepared his
and other allowances for that month. PW3 testified that she
authorised payment relating to these items -see Exhibit D the payment
voucher for 93 055 Belgian Francs bearing PW3's authorization given
on 23 July 1987.
PW3 testified that when Exhibit D was brought to her for
authorization it was accompanied by Exhibit "T" the
She told the Court that she checked that the name of
the person to be paid appeared on both documents, and that the
on Exhibit "D" also appeared on Exhibit
"T" and that the amounts on both these exhibits were the
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
the two documents borne different narrations as they do now she would
not and could not have authorised them for further processing
eventual payment as they stood.
PW3 stated that it was not the practice either at the
Brussels Mission or in the Lesotho Civil Service to club together
and Tour Imprest" in one and the same document.
She tenaciously asserted that if there ever arose need for "tour
to be authorised then a separate supporting payment
voucher would have had to be prepared.
PW3 further testified that on looking at Exhibits "T"
"D" and "E" the additional narration i.e. "Tour
Imprest" had not been accounted for anywhere in that there
wasn't any payment voucher accompanying it. She further said in
event during the month in question she never authorised any
transaction relating to "Tour Imprest" payable to the
Nor was she aware of any document that required to be
signed by PW6 the Ambassador relating to the accused's "Tour
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",
had had occasion to inspect that original which the bank
could not release.
She based her assertion on the fact that the bank used
to require that there be two signatures on a transfer order, and that
transfer order bore only one signature the bank would not honour
such a transfer order.
PW6's evidence is to the effect that during the period
January 1987 to January 1988 he was the Lesotho Ambassador to the
duties 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 and
PW6 stated that the accused's duty was to prepare
and salaries for the Lesotho Mission staff in Brussels.
He referred to Exhibit "L", a duplicate copy of the
and made an observation in his testimony that there
was some erasure on Exhibit "L". This erasure appears
before the first
figure 8 in the total figure 88 602 appearing in
PW6 stated that narrations appearing on the two
documents i.e. Exhibits "L" and "A" were
different. Exhibit "A"
payment voucher number 85. PW6 testified that he
authorised the transaction appearing in Exhibit "A" and
that when he so authorised Exhibit "A" there
was no narration styled "PLUS TAX REFUND" appearing in
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 to him
the 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"
PW6 also testified that he signed Exhibits "P"
(payment voucher No. 78) and "Q" the transfer order at the
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
ampersand sign "&"or plus sign "+" followed
He further stated that if Exhibit "Q" had any
such narration clubbed together with salary and foreign service
and children's allowance he would not have authorised this
document as it is contrary to provisions of Financial Regulations.
The Court was told by PW6 that he signed both Exhibits
"F" a payment voucher No.87 and "V", a Transfer
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
He stated that when he authorised Exhibit "V"
there was no figure "2" appearing now before 89,313 BF. He
that if the documents "V" and "F" were
different as to the amounts reflected in either he would not have
or passed them for payment.
PW6 further said he signed Exhibits "H", a
payment voucher No.69 and "X" a Transfer Order. He
when he signed these documents the sums and narrations
reflected on both of them were the same. He said if there were
on these documents at the time these were brought to
him for attention and signature he would have declined signing them;
rather have returned them to be redone. He was emphatic
Regulations do not permit that salary foreign service
allowance and other modes of payment be clubbed together with "Tax
He went 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
case as at the time he
signed the exhibits in question. He asserted that if at
that time there were any such discrepancies he would not have
or signed these documents.
It is important to note that the transfer orders
referred to above appear to be photo copies. An important feature of
each is that
each has been certified a true copy by the Bank Brussels
Lambert under the hands of V. Cavrot and H. Van De Wiele. An
why originals could not be furnished to this Court was
given by PW3 and PW2.
It is 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.
PW4 Miss Limpho Sekoli testified that she joined the
Treasury as an Accountant in April 1987. She was charged with the
of checking accounts of various Embassies and
preparing them for posting them to the computer centre. The Lesotho
from Brussels fell to her lot. Her office used to
receive payment vouchers, bank statements, reconciliation statements
She testified that in the day to day and month to month
routine of her service at the Treasury she noticed that payment
show 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
with the amount in the cash book.
She also stated that in the proper upkeep of accounts
bank reconciliation statement has to accord with the
balances of the bank and Embassy. She told the Court that it would
be the accused's
duty to see to it that these requirements are
She testified that at the time she joined the Treasury
the Brussels account had been kept aside because it was incomplete.
this discrepancy she put a call through to the accused in
Brussels to remind him of this. Thereupon the accused made a promise
send the balance of the missing bank statement. She said that she
kept reminding the accused about this rather disturbing state
affairs until she called PW2 at Foreign Affairs Ministry. She later
came to realise that there was a discrepancy between the
the cash book and the bank statement. It occurred to her finally
that the difference
between the bank statement and the balance in the cash
book was. accounted for on no other hypothesis than in the third
salary and other allowances.
She testified and the Court's attention was drawn to the
fact that she scribbled her discoveries in pencil on some of the bank
Her comments in that regard served as a guide to her
immediate boss one Mrs Motsoasele. As a result of the discrepancies
spotted, she and PW2 were assigned the duty to go and inspect
the books of account in the Lesotho Mission to the European Economic
Community (EEC) in Brussels. When setting out for Brussels for this
purpose she and PW2 had in their possession Exhibits "AC"
"AD" and "AE".
She and PW2 found a copy of Exhibit "L" in the
office of the third secretary relating to the month January 1987.
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
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"
She told the Court that she and her company made a
thorough inspection of the original copies of these documents and
that the photocopies exhibited before Court now
compare flesh and fell with the originals she had
inspected. Needless to repeat the Bank of Brussels could not release
copies to her and PW2.
However PW4 and PW2 were able to seize from the Bank in
Brussels exhibits "AA" and "N" which are Bank
in 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
by J. Cavrot and J. Vogellier) certified a true copy of
the journal and "BB" also a green copy certified a true
of the journal by H. Van de Wiele and J. Cavrot.
PW4 testified that she and PW2 examined the original
copies of these exhibits and on comparison noticed that they
corresponded very well with one another. The Bank did
them seize the originals.
In their attempt to see how the discrepancies occurred
PW4 and PW2 inspected exhibits "L" "M" "N"
"A" and "B". PW4 said that she and
her team mate noticed that Exhibit "A" a payment
voucher No.85 and Exhibit'"B", the
sub-Accountant's cash book correspond in that the amounts and the
on them are the same. However Exhibits "H"
and "A" differ materially as to narrations and amounts.
The 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
of an instruction given in Exhibit "M" the
Transfer Order, Exhibit "O" the journal shows that on
Mission's account was debited and an equal amount
credited to the accused's account. To put it in another manner the
310-0384495-73 005-0-000 was debited in the amount
of 188 602 BF.
If this was a coincidence a repetition of similar
coincidences on no less than three other occasions would exercise a
in a different way. See for instance the amount 391
467 BF in Exhibit "AC" and compare the accused's credit in
amount in Exhibit "S" read with Exhibit "Q"
and Exhibit "P" the payment voucher bearing only 91 467
The same goes for Exhibits "U" and "X".
PW4 testified that Exhibits "M" and "A"
are prepared at the same time and ought to have had the same
i.e. the amounts ought to be equal and the narrations
correspond. She reiterated her standpoint that it is
neither the practice not is it normal in accounting to lump together
Foreign Service allowance and Tax Refund in one and the same
document, namely the Transfer Order. She indicated that the
narration "Tax Refund" on Exhibit "M"
was not accounted for anywhere by way of a payment voucher which
should accompany and support it. She accordingly pointed
out that as a result of the departure from the normal
practice the Lesotho Government lost 100 000 BF.
The evidence of PW4 has adequately brought to surface
that by embarking on the procedure, outlined above in respect of
and the accompanying documents, repeated in
Exhibits "Q" "T" "V" "X" and
their 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
the difference of 200 000 BF converting to M10 753-91
represented a loss to the Lesotho Government and credit to the
In October 1987 the difference of 200 000 BF
converting to M11 050-52 resulted in a loss to the Lesotho Government
credit 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
Lesotho Government and credit to the accused's account.
In January 1988 the Lesotho Government by similar means suffered a
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 Court.
all Crown witnesses who gave evidence before this Court
were thoroughly and closely cross-examined. Of these I formed the
that only PW1 and PW2 were to some extent unhinged. PW1
seemed not clear what the charge facing the accused is. But that
understanding was dispelled by the form in which the Director
of Public Prosecutions framed the indictment. He further betrayed
lack of appreciation of the importance of the Judges' Rules. However
abundance of authority shows that important as they are the
Rules are rules of administrative procedure whose full force can be
brought into play where an accused person is unduly taken
of by a
cunning peace officer, through application of unfair
means such as cajoling an accused to his prejudice or using threats
to his detriment.
In 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
respects he was corroborated by the consistent and well
delivered evidence of PW3 and PW4 and to some extent that of PW6.
instances where the evidence of PW2 conflicted with that
of PW4. For instance at the stage where PW2 gave the impression that
documents he referred to were examined side by side with
photocopies already produced in Brussels whereas PW4 said they saw
and then certified copies were delivered afterwards.
PW4 was adamant that the accused's Account had been
credited with the amounts appearing on various journals exhibited
Court. She stated that unless something to the contrary
is submitted or shown by the accused himself, the position disclosed
the various journals remains a true reflection of what the Bank in
Brussels(BBL) did to both the Lesotho Mission's Account
and the accused's. Thus shifting the evidential burden
to the accused. She stated that since she had no cause to doubt the
contained in the journals she did not find it necessary
to go beyond the exhibits in issue. Had she any doubts she would
further and qualified her statement by saying that such a
step is of very rare occurrence. She further stated that Although
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
saying that journals are similar in international institutions like
banks. She vehemently stated that Abstracts are merely supportive
documents, supporting journals with regard to transactions in
PW5 Mr. Gerard Muzart was called to explain certain
French words appearing in the documents before Court. The overall
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
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
PW4 testified that the accused said he didn't know all
of the documents she and PW2 were looking for in the course of their
PW2 testified that he is familiar with the accused's
handwriting and signature. He testified that the handwriting and
he was referred to in the payment vouchers and the
transfer orders were the accused's
At the close of the Crown case the accused exercised his
right not to give or call any evidence to rebut the case
for the Crown.
It thus remains to consider whether the Crown has
discharged the onus cast on it and proved its case beyond reasonable
Accordingly 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 whether the defence has demolished the
prosecution's case and
finally whether the photocopies of Exhibits
"M" "Q" "O" "AC" "S"
"AD" "U" "V" "W"
"X" "AE" "Y" "Z" "AA"
and "SB" are conclusively admissible in this case.
The truth of the matter is that during the period under
consideration the accused was employed in the civil
service as an Accountant in the Lesotho Mission to EEC performing
to earlier in this judgment.
Evidence showed that the accused was the only person
charged with the duties in question. Evidence further showed that
documents relating to finances were in his custody and
that he was required to keep them safely. Indeed there was some
to whether the abstracts went via someone before reaching
the 3rd secretary. PW6 said they went straight to the 3rd secretary.
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
accused by lying against him that way.
During the period under consideration the accused was
responsible for preparing monthly returns for onward transmission to
Affairs and the Treasury.
Mr. 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.
Evidence has shown that no other person besides the
was responsible for initiating the transactions relating
to his salary and other personal emoluments for the months covered by
It is important to note that the evidence stands
unchallenged that the accused effected the initial step in the
preparation of documents
"A" "L" "M"
and "B". It has not been disputed that Exhibits "M"
were brought 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
Further that the amounts appearing in both
documents were the same.
Mr. 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
instruction styled "Plus Tax Refund"
Indeed the respective account numbers of the Lesotho
Mission and that of the accused have not been denounced.
Although it appears that in Exhibit "M" the
Mission's Account was debited by an amount equal to the amount
credited to the
accused's Account the tenor of the cross-examination
was that what is borne out in the journal should not necessarily lead
conclusion that because credit is equal to debit the money
involved is the same because it was suggested that Banks make
However Mr. Thetsane submitted that it is not in
that Exhibits "A" and "M" are
materially different now, whereas
at the time these documents were placed before PW6 this
The Crown further submitted that the observation that
there appears some erasure on the duplicate copy of Exhibit "L"
not been challenged by the defence.
The Court observes that the erasure on Exhibit "L"
seems to have been effected on the spot which coincides with the
"1" that precedes 88 602 in Exhibit "M".
Mr. Thetsane further submitted that it has not
been disputed that the handwriting and signature appearing in
Exhibits "A" and "M"
are the accused's.
It 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.
The defence sought to contend that Exhibit "O"
is not a journal because it is written in a language unknown to PW2
It was further contended that even if it is a journal it
cannot be conclusively proved that the accused's account was credited
sums of money reflected. The same would apply to Exhibits "S"
"U" "Y" "BB" and "W"
The Crown contended that it had demonstrated prima
facie that the accused's account had been credited with the
various amounts appearing on Exhibits "S" "U" "Y"
"BB" "W" and "O" and in so contending
sought to shift the evidential burden to the accused to show
production of his bank statements relating to these transactions that
his account had not been credited with the amounts referred
failing this then the Crown's evidence should be viewed as conclusive
on this aspect. The Crown demurred at the fact that
cross-examination in respect of all the transactions was geared
towards showing that the Financial Regulations were
complied with by PW6 and his deputy who authorised various payment
vouchers exhibited before Court. The Crown very
that there was no strict compliance with the regulations by PM6 and
sought to rely on this witness's explanation about the
peculiarity of hardships that the Brussels Mission was faced with
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
instructions appearing in Exhibits "L" "M"
"Q" "V" "T" "Z" and "X"
have not been accounted for anywhere by means of payment vouchers
accompanying them. No accounting for these instructions appears
Exhibits "B" "C" "G" "E" "K"
and "I" which are the Sub-Accountant's
cash book pages.
Mr. Pheko 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
the Bank in Brussels should hold the originals open for
inspection it could similarly order production of those originals to
the best evidence rule in terms of Section 247 of Criminal
Procedure and Evidence Act 1981. He contended that
Exhibit "AB" the affidavit by DEVRIRNDT and
Willy Josis went far beyond the limits of section 245 of our Criminal
and Evidence and urged that strict compliance with the Law
must be observed. He submitted that ordinarily talking of an
no two people can swear to one affidavit and when one
refers to matters within his knowledge be regarded to be referring to
within the co-deponent's knowledge. I agree.
Referring to PW4 Mr. Pheko submitted that when
she talks of a Cash Book she does not refer to all entries but pages
dealing with salary and 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
He made mention of the fact that under his
cross-examination PW4 was put to task to say what other documents she
looked at to ascertain
if there was a difference but was told that
only documents PW4 handed in were the ones she looked at. He further
neither PW2 nor PW4 told the Court that they examined
all payment vouchers to see if narrations they said were irregular
by some other payment vouchers - so he invited the
Court to draw a proper inference in regard to a failure to produce
is not unavailable. He suggested that it was an easy
task to have looked at Cash Books, other payment vouchers, all of
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.
Mr. Pheko pointed out that even while in Brussels
PW4 realised that payment reflected was not confined to salary for it
also related to Tour
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.
He further pointed out that PW2 and others who were
making investigations in Brussels did not tell the accused that they
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
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 as
prima 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 Lesotho Government
suffered prejudice or loss. "Hence their
saying information in Transfer Order must be identical
with one in the Payment Voucher"
The Court was referred to head 2.1(e) where it is
pointed out that PW2 disclosed for the first time under
cross-examination that the
Accountant General gave him verbal
instructions to pass the monthly returns to the Treasury without
checking them. This is very
accurate. 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
A further conflict between PW2 and PW4 and PW3 was
further brought to surface at page 5 paragraph h regarding when
copies of the original
transfer orders and journals were given by the
Bank. I have earlier referred to this conflict.
Mr. Pheko laid much store by the fact that for a
minimum of two years that PW6 served in Brussels as Ambassador no
query was raised regarding
documents from there because books
balanced and monthly returns were prepared and passed as in order.
out that Regulation 2001 requires that all losses of
Government money must be reported immediately to the Principal
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 beyond credence that PW6 who did not comply with
provisions of Regulation 607 should wish the Court to believe that he
payment vouchers in detail even though he did not initial the
entry Vote Book notwithstanding the provision in the Financial
that he should do so by ensuring "that the voucher
has been properly completed in all respects and that all
certificates have been correctly signed".
He invited the Court to come to the understanding why
PW6 should wish to pass the buck: that he has an interest in the
he fears that he could be surcharged in terms of the
onerous responsibility imposed on the Chief Accounting Officer by
Regulations. He reiterated his submission about inferences
to be drawn in respect of a party who despite having available
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
Court should be wary of the risk of convicting the wrong person.
PW3's interest is said to
consist in the fact that she is the one who discovered
It was submitted that if indeed there was direct
evidence that the accused added certain figures then the Crown would
not ask that
inferences be drawn. By way of illustrating that
evidence in this case was circumstantial the Court was referred to
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 and partly circumstantial.
It was further submitted that the observation in regard
to PW6 applied equally to PW3 in that no direct evidence shows that
account was credited with the numerous differences. It
was also submitted that there were no suspicious circumstances in
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
notwithstanding that it has all the Vote Books it cannot be
said the only inference to be drawn is of guilt.
It was argued that there is a suggestion by the Crown
the accused's election to exercise his right not to give
is an independent item to rely on as proving guilt.
This deliberative impression was discounted by making a submission
that the point
has not been reached where to expect the accused to
give an explanation regarding his doing what ordinarily is not to be
is in regard to the weight to be given by Court to
refraining from giving evidence. It was submitted that the accused
from the inspection team.
The Court was referred to the indictment where the crime
of forgery charged was regarded as posing some problem. In this
intention was to defraud (someone) resulting in prejudice
actual or potential. It was stated that it is not clear whether the
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 Government.
It was submitted that the proper reading of the
indictment suggests that the Transfer Order was falsely instructing
the bank to transfer
money 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.
The Court was referred to R. vs Muller 1953(2) SA
TPD 146 at
148 where forgery is defined and motive of the appellant
was looked into. There it appeared the intention was to induce a
store assistant. Prejudice was not to the bottle store
assistant but the writer of the note who required liquor from the
It was submitted that nothing in the indictment shows
that the Lesotho Government acted upon the representation. It was
pointed out that evidence only shows that the government
suffered either actual or potential prejudice.
I have considered the authorities referred to on behalf
of the accused and found them very instructive; and I wholly endorse
statement of the law.
I have also had regard to Mr. Thetsane's
submission that if no incidence of onus or evidential burden moved
from one point of the scale of 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 reasonable doubt does not mean proof beyond
shadow of doubt. It is thus not without cause that much regard is
had to the statement of the law that it is quite unrealistic
to have regard to the realms of conjecture when a sound
and common sense solution for the problem exists.
I accept the Crown's submission that there is no need to
include details in an indictment which can be adequately taken care
evidence. Indeed on a murder charge it is enough that an
accused person is told in the indictment that he is charged with the
killing of X at Y place at about Z time. The method how the
killing was effected would sufficiently be left to evidence.
then with the charge of Forgery. Thus the Crown in this
case went a step further to say that a figure "1" was
certain figures. Indeed in Abel Bushman's case the
appellant had been charged with fraud while the 1st charge had been
false pretences. The Crown withdrew the 1st charge and
proceeded with the charge of Fraud. The convictions were confirmed
The central thing to guard against is whether an accused
person doesn't suffer prejudice, or whether he wouldn't suffer
or whether he wouldn't have conducted his defence
differently but for the alteration. Thus I don't think it makes any
that the Crown never said it sought to amend its charges.
Section 246 of our Criminal Procedure and Evidence
relates to affidavits and nothing else. In the instant case PW2 and
went to the Mission and the bank made their discoveries
which they orally testified to before Court. Indeed an affidavit is
evidence in place of oral one. That section covers people
who in certain instances have not examined originals but copies.
I have not been persuaded that the Crown witnesses in
respect of whom caution has been urged have any ulterior motives
like any other dispassionate witness they would like to
see justice done.
It is important to note that forgery is a species of
fraud and is not fraud proper.
It was submitted for the defence that the Crown has not
proved misrepresentation but a distinction is made in the case of
terms of which the Court is urged to make a distinction
between fraud in the ordinary sense and fraud in forgery. Thus the
submitted that the fraudulent act in this case was wilful
perversion of the true substance of documents. I don't think it can
be argued that the Court should baulk at considering the
matter one way or the other on the grounds that it is not shown who
been defrauded between the Bank and the Government. Common sense
dictates that funds being dealt with in
case belong to the Government of Lesotho.
It was argued for the defence that it was not shown that
the accused was not entitled to the various sums with regard to theft
in the alternative. But Hepworth's authority is very much
relevant regarding the point that a criminal trial is not a game
one side is entitled to take advantage of an omission made by
the other side.
Regarding exhibits which were referred to without being
formally admitted the Court's ruling is that they are admitted and
part of the record in these proceedings.
The Court formed an opinion at the close of the Crown
case that a sufficiently strong prima facie case existed to warrant
answer. What I mean is that standing on its own the
Crown case was enough to secure the accused's conviction.
In a criminal case it is important to establish motive
the offence committed. In the instant case the only form
motive I have been able to discern is self-enrichment
The accused is accordingly found guilty in the six main
and therefore acquitted in the six alternative charges.
My assessors agree.
JUDGE 7th July, 1992
JUDGMENT ON SENTENCE
The Court has been addressed on behalf of the accused
that he was arrested in 1987 and since April 1988 has been on half
position was clarified for the Court that where public
funds are appropriated or an offence involving damage or loss to
property the conviction shall have the effect of a civil
Judgment for the payment of money and shall be enforced in the same
as any other judgment for the payment of money in a civil
court. See Section 322 of the Criminal Procedure and Evidence Act
On the 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
such neglect or fault a public officer, the public revenue or
public stores have sustained loss or damage, or improper payments of
public moneys have been made and if, within 21 days an explanation
satisfactory to him is not furnished with regard to such apparent
neglect or fault, the Principal Secretary may, with the approval of
the Minister, surcharge against the said person the amount which
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
may be, or such lesser amount as the Principal
Secretary may, with the approval of the Minister,
Section 31(1) of the above Order gives the Accountant
General wide powers for the recovery of the surcharge
salary, pension or any amount owed to such person by the
Government until the full amount has been recovered.
The Crown 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
his family at heart. But again one asks oneself whether
in its reserves the law makes no accommodation for the phrase :
angel" and if it does, in what circumstances is the
notion embraced in such phrase given expression regard being had to
fact that the Crown told the Court that the accused has no
previous convictions. The Court cannot ignore that this would serve
a strong mitigating factor for a man who has gone past the midday
of his life without a blemish on his character.
The Court has a duty to pay regard to the fact that the
impending trial which resulted in bitter consequences for the
accused has been hanging over his head for a
considerably long time since 1987 to date.
The views of Mofokeng J in Mojela's case are of
great importance where the learned judge said that it would be wrong
for an accused person to 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
conviction should evoke completely different considerations regarding
the personal circumstances of the accused.
Authorities are legion in this regard and point all to
the necessity to view the accused's circumstances in a new light and
factors affecting him very carefully. Paramount among such
considerations is the caution not to resort to imprisonment where
forms of punishment could fit the crime committed without
thereby compromising the accused's chances of reform and ability to
to deterrence. Hence the plausibility of the attitude in
such circumstances to favour the merits of suspension wholly or in
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
of principle in sentencing.
suspended sentence is of advantage to the delinquent in that if
he behaves well then he will not serve the suspended
sentence imposed on him. It also serves as a deterrent for the
refrain from wrongdoing for fear that the sentence
hanging over his head will descend in full force over him.
Having had consideration of all the above it is
importantnot to ignore the enormity of the wrong occasioned to
society.Nor indeed the position of trust the accused occupied
when theMission's funds were placed in his hands and yet he has
But on 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
certainly be dismissed from employment following the
conviction secured in the main trial and that in the trail of such
will follow forfeiture of his gratuity and all terminal
My reference to South African Criminal Law and
Procedure Vol. II by Hunt brings me to the realisation that
although each offence where forgery and uttering are charges charged
should carry a distinct sentence yet for purposes of
having such sentences served the convictions should be
considered as one. In other words they should, as a matter of law
no choice in the Court, run concurrently.
Much as the persuasion to let a first offender avoid
imprisonment which it is feared might contaminate him, has merit;
thus by implication
the preferred form of punishment being perhaps a
fine and suspension of a sentence or part thereof, the difficulty
arises in the
situation where there are more counts than one and
alternative forms of sentences which are to run concurrently when
served are fines.
To 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 -
"In count 1 each was sentenced to pay a fine of M50
serve a term of 5 months' imprisonment.
In Count II the sentence imposed on each accused
was that of M70 or serve seven months' imprisonment in
default of payment of the fine.
The order made by the learned magistrate was that the
sentences in both counts are to run concurrently.
This is what involved my intervention based on section
301(2) of the Criminal Procedure and Evidence 1981 which reads :
'The punishment under this section , when consisting of
imprisonment shall commence the once after the expiration, setting
or remission of the other, in such order as the Court
may direct unless the court directs
that such punishment shall run concurrently'
Significantly the above section confines itself to
imprisonment as a form of punishment and makes no mention of any fine
It is therefore wrong to order under this section that
sentences in the form of fines imposed in two or more counts should
There is no section in the law that suggests that
sentences in the form of fines can run concurrently. It would seem
an order to that effect has no legal basis. The fact
that it is only in respect of prison terms that the relevant section
that sentences may run concurrently shows that it is not
envisaged that any other form of sentence - to wit punishment with
- can also run concurrently.
Kheola A 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'
I most heartily agree with this exposition of the law by
A quick look at South African case law throughout ages
abundantly shows illogical consequences which flow from adopting the
followed by the Court below....
See Rex vs Sitebe 1934 AD 56, R. vs Sitole
1955(1) P.H.H. 84 (N) and R. vs Keizer 19654) SA 204"
In Sitebe 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 15
days' 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
be ordered to run concurrently with a fine on another
count, to impose an appropriate fine on each count and then add a
the total sentence in respect of both counts shall not
exceed the sentence imposed on each count"
In Mohapi 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 maximum
punishment which may be imposed for one offence
differs from another".
Significantly 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.
The Court is aware that crimes of forgery and uttering
including theft are not included in the schedule of crimes where
of sentence or even alternative sentence with fine is
excluded. This is so irrespective of the amount involved. This is
significance. See CRI\A\54\87 Khoto Rakobuoa vs R
With all this plethora of authority in mind the perineal
saying holds good to date that is is much easier to
than to 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 Malie decided 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.
Just a brief explanation why this case has had to be
called once more:
On Wednesday 8th July 1992 and about twenty minutes
after sentence had been delivered and at the time when none of the
nor any of my assessors were on the premises the
Court discovered that there was some irregularity the effect of which
would be prejudicial
to the accused. Not only that but would tend to
go against the proper principles which the Court strained in the
judgment on sentence
Accordingly 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 before the
following day and because
on Friday I had a medical appointment for a close member
of my family in Bloemfontein, this matter should be heard on Monday
July which 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
in session today. I suggested he could ask someone to substitute
The Court 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.
It should be recalled that in the first 5 of the counts
in which the Court imposed prison terms a set of two sentences in
those counts were to run concurrently. The over-all effect
of the sentences suspended in each of those counts would lead to
or even 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 of
imposed though suspended
in the respective counts. Worse still is the more
probable likelihood that in such an event he would have had to serve
a total of
nine years because he would have had to serve the first
suspended sentence followed by the next suspended sentence at the
of the first and proceed to serve the next following each
last sentence until he has come to the fifth of the counts he was
under. All this because in part sentences were ordered to
run concurrently in individual counts instead of ordering that for
of sentence the separate convictions in separate counts are
to be treated as one; and further in part because periods of
were treated separately. But All
To put all this right then the proper order is as
follows :-Sentences in Counts 1, 3, 5, 7, and 9 are expunged from the
the following imposed in their stead:
In Count l(a): Sentence: 1 year's imprisonment
(b): " : 1 year's imprisonment sentences to
be treated as one.
In Count 3(a): Sentence: 4 years' imprisonment
(b): " : 4 years's imprisonment sentences to
be treated as one
In Count 5(a): Sentence: 18 months' imprisonment (b):
" : 18 months' imprisonment sentences to be treated as one
In Count 7(a): Sentence: 18 months's imprisonment (b):
" : 18 months' imprisonment sentences to be treated as one
In Count 9(a): Sentence: 1 year's imprisonment (b): "
: 1 year's imprisonment sentences to be treated as one.
The sentences in Counts 1, 3,5,7 and 9 are to run
concurrently. The entire sentences are suspended for 3 years on
the accused is not convicted of a crime of which
dishonesty is an element committed during the period of the
On Count 11(a) sentence: M10 000 (b) " : M10
For purposes of execution of the sentence in this Count
fines imposed in (a) and (b) are to be treated as one.
The accused is allowed till 28th August 1992 to effect
payment of the fine failing which he should come before Court for
of a suitable jail sentence.
The effect of this then is that should the accused
commit any act of dishonesty during the period of suspension he would
serve a total
of 4 years' imprisonment inside which are subsumed
all other lesser prison terms which run concurrently
Otherwise the sentence in the 6th Count which is
numbered Count 11 remains unaffected by the above correction.
JUDGE 13th July, 1992
For Crown : Messrs Thetsane and Sakoane For Defence:
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
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Ugandan Law (ULII)
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Commonwealth Countries' Law
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