CRI/T/104/99
IN THE HIGH COURT OF LESOTHO

In
the matter between:

REX
v

1. JULIA MAPHAMOTSE LEBINA

2. MAJAKATHATA LEBINA

JUDGMENT

Delivered by the Honourable Mr Justice WCM Maqutu on the
23rd day of August, 2001

The two accused Charge sheet was as follows:

The accused

ARE GUILTY OF 24 COUNTS OF THE CRIME OF

THEFT, ALTERNATIVELY, FRAUD

GENERAL PREAMBLE

WHEREAS, at all times relevant to this indictment:

1. The Compulsory Savings Act 26 of 1974 ("the
Act")

2
provided for the following:

1.1 The deduction of an amount equal to 5% from
the
salary of a civil servant in the employ of the
Government
of Lesotho ("the Government");

1.2 such funds deducted were to be paid into a
special
savings account in the name of each
individual civil servant by
the Accountant-
General of the Government; and

1.3 Such amounts could only be withdrawn after
five
years had elapsed from the date of the first
deduction;

2. 
   Compulsory Savings Order 18 of 1992 ("the
   Order")
   amended the Act to provide that all deductions
   and
   interest would be repayable to each civil servant after
   three
   years had elapsed from the date of the first
   deduction;

   
   

3. 
   Early withdrawals were allowed where the participant
   to
   the Compulsory Savings Scheme ("the Scheme")
   passed
   away, was female and married, became ill or
   infirm, retired or
   resigned from the civil service;

   
   

3

4. The Scheme was compulsory for civil servants
and
voluntary for employees of parastatals;

AND
WHEREAS:

5. No separate bank accounts were opened for
each
individual participant and all contributions were paid
into
a single bank account while The Treasury
Department
of the Government ("the Treasury")
maintained a
separate ledger, recording the amounts due
to participants;

6.. Contributions by civil servants were automatically
deducted from their salaries and updated in the records of the
Compulsory Savings
Department ("the Department");

7. Contributions from employees of parastatals were paid
over to the Scheme by cheque, drawn on the bank account of the
relevant parastatal,
and accompanied by a contributors' list. The
Scheme's records are then manually updated in the Computer
Department, and which updated
information is verified by the
Department;

4

8. The following procedure was performed in the
payment of claims:

1. 
   All claims, whether arising automatically after
   three
   years or entered manually, are verified by
   the Department;

   
   

2. 
   The Department then compiles a list of claims
   which
   is then inputted in the Department's
   records by personnel
   of the Computer
   Department;

   
   

3. 
   A transaction listing is printed and reviewed by
   the
   Department.

   
   

4. 
   Subsequent to such review, the relevant cheques

   
   

are printed in the Computer Department; and

8.5 The printed cheques are then returned to the
Department
for review and despatch to the
Government
Departments and parastatals where the claimants
are
employed.

AND
WHEREAS

/....

5

9. Accused 1 was an accountant in the Department
where
she acted as senior accountant from September 1992 to
August
1993. She had the responsibilities of a
supervisor in
the Department which included the
following duties:

1. 
   The training of junior officers;

   
   

2. 
   The verification of the correctness of
   information
   relating to transactions of the Scheme;

   
   

3. 
   The authorisation for production of Scheme cheques;
   and

   
   

4. 
   The maintenance of the Scheme's cheque
   register.

   
   

10. Accused 2 was related in marriage to Accused 1
and
conducted a business styled "Downtown Cafe".

AND
WHEREAS

11. The Accused, where Accused 1 directly and accused
2
through the medium of Accused 1, procured cheques
from the
Scheme payable to the names of persons not

A...

6
entitled to receive payment from the Scheme; and

12.
Having:

1. 
   Handed the said cheques to such persons, or
   persons
   other than the payees, who, after having
   deposited the said
   cheques into their bank
   accounts where they were met with
   payment by
   the Government, returned funds to Accused 1;
   and/or

   
   

2. 
   Deposited the said cheques into her own bank
   account
   where they were met with payment by
   the Government; and/or

   
   

3. 
   handed the said cheques to Accused 2 who
   deposited
   the said cheques into the business
   account of the entity styled
   "Downtown Cafe"
   where they were met with payment by
   the
   Government; and/or

   
   

4. 
   Were party to a scheme to obtain cheques from
   the
   Scheme, deposit such cheques into their own
   banking accounts, or
   the banking accounts of

   
   

others and obtaining the monies and/or proceeds /....

7

There from

THE ACCUSED ARE THEREFORE GUILTY OF TWENTY FOUR
COUNTS OF THE CRIME OF THEFT

IN THAT upon or about the dates mentioned in column 3 of
Annexure "A" hereto, and at or near Maseru in the district
of Maseru,
the said accused did unlawfully and intentionally steal
the amounts of money mentioned in column 4 of Annexure "A"
hereto
by means of cheques with details mentioned in columns 2 to 5
of Annexure "A" hereto, the property of, or in the
possession
of the Government of Lesotho and/or the Central Bank of
Lesotho.

ALTERNATIVELY, THE ACCUSED ARE GUILTY OF TWENTY FOUR
COUNTS OF FRAUD.

IN THAT upon or about the dates asset out in column 3 of
Annexure A the accused, in a joint scheme as alleged herein-before,
did unlawfully,
falsely and with the intent to defraud, to the actual
or potential prejudice of the Government of Lesotho and/or the
Central Bank
and/or the employees of the Government of Lesotho and/or
the contributors to the Compulsory Savings Scheme ("the said
prejudiced
parties") with the prejudice as referred to in column
4 of Annexure A represent to the said prejudiced parties that:

8

1. The individuals are referred to in column 5 of
Annexure A
were members of the Compulsory Savings Scheme; and/or

2. Such individuals had contributed to the Compulsory
Savings
Scheme; and/or

3. Such individual's names appeared on the contributors
list;
and/or

4. Such individuals were entitled to payments from the
Scheme
in terms of the provisions of the Scheme as set out
herein
before; and/or

5. Such individuals were entitled to receive the monies
and
cheques as referred to in columns 2 and 4 of Annexure A
and/or

6. Such individuals did receive the full amount and the
cheques
as referred to in columns 2 and 4 of Annexure A

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1 2 3 4 5

Count no.

Chq no. Chq date Amount Payee

1. 
   60931 15-Feb-91 5,945.42 TJ Masebekoa

   
   

2. 
   63767 31-Jul-91 7,372.10 M Shale

   
   

3. 
   66486 19-Feb-92 7,404.32 N Moleko

   
   

4. 
   66485 19-Feb-92 7,285.17 N Masilo

   
   

5. 
   67351 4-May-92 6,635.68 M Sofeng

   
   

6. 
   67409 19-May-92 6,154.15 M Marabe

   
   

7. 
   68054 16-Jun-92 7,662.68 F Manong

   
   

8. 
   68144 25-Jun-92 6,596.32 M Khaile

   
   

9. 
   68343 7-Jul-92 11,365.74 T Mota

   
   

10. 
    68668 24-Jul-92 8,807.67 A Ramotsei

    
    

11. 
    69174 14-Aug-92 9,546.28 M Maofane

    
    

12. 
    69175 14-Aug-92 8,652.75 L Sekope

    
    

13. 
    74333 14-Sep-92 8,859.85 E Manong

    
    

14. 
    74334 14-Sep-92 10,120.09 M Mohapi

    
    

15. 
    76023 21-Dec-92 10,511.75 M Letuka

    
    

16. 
    67044 8-Apr-92 8,102.84 L Mofola

    
    

17. 
    76023 21-Dec-92 10,254.10 M Malefane

    
    

18. 
    59624 10-Oct-91 8,042.70 M Masuku

    
    

19. 
    61342 25-Mar-91 7,778.09 C Potsane

    
    

20. 
    69177 14-Aug-92 10,327.22 M Masuku

    
    

21. 
    60350 28-Dec-90 5,806.51 M Mapetla

    
    

22. 
    60836 4-Feb-91 6,604.02 A Khoabane

    
    

23. 
    600098 19-Nov-90 7,971.17 R Matsepe
    14
    66719 5-Mar-92 8,541.34 K Ramotsei

    
    

196,347.96

Both accused pleased not guilty of all charges.

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Admissions were made in terms of Section 273 of Act 9 of
1981 (i.e. The Criminal Procedure and Evidence Act of 1981):

1. "It is admitted that the individuals as referred
to in
column 2 of Schedule "A" were not in the employ of
the
entities as referred to in column 3 of Schedule "A".

2. It is further admitted that the individuals as
referred to
in column 2 of Schedule "A" were not
contributors to
the compulsory savings scheme and therefore could
not
benefit from a repayment or claim lodged at the
compulsory
savings scheme as referred to in column 4
of Schedule "A"
".

PW1 Tseliso Mosebekoa, duly sworn, was declared as an
accomplice and was warned of his legal position.

Tseliso Mosebekoa (PW1), duly sworn, said he did work on
Accused 2's butchery and charged M1700.00 for installing electricity
in it.
Accused 2 sent him to the place of work of Accused 1. Accused
1, the wife of Accused 2, gave him a cheque of M5945.42 drawn in the
name of Mosebekoa J dated 19/2/1991. PW1 went to deposit it in his
savings account at the Lesotho Building Finance Corporation on
Accused 1's instructions. In terms of their agreement PW1 withdrew
M2155 and gave it to Accused 1 who gave him M1700.00. PW1 was
asked
to withdraw

11

another M2000.00 and give it to Accused 1, this PW1
reluctantly did. PW1 was told, by Accused, 1 M1700.00 was an advance
payment for
work to be done. PW1 fitted a new cistern for the toilet.

PW1 told the court that he was not in the compulsory
savings scheme. He had not right to money in the compulsory savings
scheme. The
compulsory savings cheque was handed in as Exhibit A.

In cross-examination PW1 conceded that he did not tell
the police the truth about the amount he got. PW1 did not agree with
the accused
on the way their house is and on the work done on it. To
a suggestion that PW1 did not work for the accused, PW1 insisted that
he
did. In re-examination PW1 said before Accused 1 advised him to
open a bank account. PW1 said he did not have a bank account. Accused
1 had even threatened him if he made a statement to the police. PW1
told the court that he reported this to the police.

PW2 an accomplice was Khomo Ramatsei who gave evidence
to the effect that Accused 1 was his maternal aunt. The cheque on
page 54 which
was later marked Exhibit J was given to him by Accused
1 between 1992 and 1993. They were to share the proceeds. It was for
the sum
of M8807.67. PW2 needed the money. PW2 signed at the back of
the cheque. PW2 put it in his savings account. PW2 said he does not
remember exactly how they shared but he did give Accused 1 her share.

12

PW3 (warned as an accomplice) was N. Masuku. Duly sworn
she said during 1990 she had worked at the Ministry of Agriculture.
PW3 said
she knows Accused 1 and her husband Accused 2. Accused 1 was
part of her family. The parents of this witness had brought up
Accused
1. Accused I had handed her a cheque of M8,042.70 on or about
the 10^th October 1990 and she had signed at the back of
the cheque. PW3 got about half the money and Accused 1 the other half
according to
their agreement. This cheque was later marked Exhibit R.
PW3 also got a cheque of M10,327-72 from Accused 1. She kept half the
money
and Accused I got the other half by agreement. This cheque was
later marked Exhibit T. PW3 told the court that she had not earned
that money. When this happened she had long got her compulsory
savings money to which she was entitled. She did suspect it was wrong
for her to have these two cheques.

Cross-examination showed accused would deny giving PW3
those cheques.

PW4 P. Potsane was the next Crown witness to give sworn
testimony that she was warned as she is an accomplice. She told the
court
that Accused 1 was brought up in his family. Accused 1's father
had been working in the Masuku family when he died. PW4 gave evidence
about a cheque of M5,806.51 which was handed to her by Accused 1.
Accused 1 had brought her the cheque. This cheque was later marked
Exhibit U. The cheque was deposited in PW4's account. PW4 gave
Accused 1 half the amount and kept the other half for herself.

A...

13

Cross-examination revealed PW4's daughter was also
involved in this cheque fraud. PW4 said she did not know. It appeared
the late
husband of PW4 had also been involved but PW4 did not know
this. It was said Accused 1 would deny giving PW4 the cheque, PW4
insisted
that Accused 1 had given her the cheque.

The Crown had called Mapeete Setala (also accomplice) as
the fifth witness( PW5) and she gave sworn testimony. PW5 told the
court
that she

was a friend of PW and had been so since 1980. PW5 said

she worked in Government revenue collection. She had
handed to Accused 1 a bundle of cheques which included a cheque of
M6604.02.
At that time she was still using her maiden surname. PW5
had financial problems and asked for help. Accused 1 brought her this
cheque.
She was to give Accused 1 about M3000-00 or M4000-00 out of
the money - she could not remember the exact amount. She kept to
their
agreement. PW5 knew what she was doing is wrong.

Under cross-examination, it was indicated that Accused 1
would deny giving PW5 the cheque. PW5 said she did.

Duly sworn PW6 Makholulu Anna Pholo said she was a
Senior Auditor. In 1994 she had audited the compulsory savings
scheme. It was a
special assignment from the Auditor General. PW6 was
given a few cheques and told to go to the Treasury. She was referred
to the
Financial Controller of the Treasury by the Accountant General
at the Treasury. PW6

14

was referred to the reconciliation department because
she did not have enough information. She ended up in the Compulsory
Savings
Department where she was referred to Accused 1 and one Mrs
Mosetse. PW6 asked for the register of compulsory savings cheques.
Both
of them said it did not exist. Mr Mokhoabane, who used to work
in that department, said the register existed and produced it.

PW6 then asked for a list of contributors from Accused 1
and she gave them to her. PW6 perused everything and wrote a report
which
appears on page 32 to 42 of the bundle of documents given to
the court as a file. A total of M907,455-15 had been irregularly paid
out of the compulsory savings fund. Five (5) people were involved in
this irregular practice, one of them was Accused 1. The owners
of the
funds were supposed to have signed the register for their cheques.
PW6 studied the procedures of how cheques were written,
kept at the
Computer Centre and sent to the Compulsory Savings Division of the
Treasury. She got possession of the list of cheques
from the Computer
Centre and different registers that were kept for Government
parastatals and Government Departments. In the register
for
parastatals that PW6 got from Mr Mokhoabane, all people who were
issued with cheques were listed. In this list Accused 1 had
signed
for some cheques. This register got lost during investigation. PW6
identified the following cheques in the file compiled for
the court:

Exhibit A on page 45

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15

Exhibit B on page 46 Exhibit C on page 47 Exhibit D on
page 48 Exhibit E on page 49 Exhibit F on page 50 Exhibit G on page
51 Exhibit
H on page 52 Exhibit I on page 53 Exhibit J on page 54
Exhibit K on page 55 Exhibit L on page 56 Exhibit M on page 57
Exhibit N on
page 58 Exhibit O on page 59 Exhibit P on page 60
Exhibit Q on page 61 Exhibit R on page 62 Exhibit S on page 63
Exhibit T on page
64 Exhibit U on page 65 Exhibit V on page 66
Exhibit W on page 70 Exhibit X on page 71

A
number of cheques had been deposited in the bank account of

A...

16

Down Town Cafe in the Standard Bank in Account Number
027042260761. These were:

Exhibit B on page 46 Exhibit C on page 47 Exhibit D on
page 48 Exhibit E on page 49 Exhibit F on page 50 Exhibit G on page
51 Exhibit
H on page 52 Exhibit I on page 53 Exhibit K on page 55
Exhibit L on page 56 Exhibit M on page 57 Exhibit N on page 58
Exhibit O on
page 59 Exhibit P on page 60

This bank account Number 027042260761 belonged to
Accused 2, the husband of Accused 1. PW6 reported her findings to the
Auditor General.

Under cross-examination PW6 said she was told that the
bank account belonged to Accused 1. PW6 noted that Accused 1 would
deny. She
hid the register for parastatals. What PW6 insisted on was
that Accused

1 claimed she did not know what she was talking about.

>

A...

17

The next sworn testimony was that of PW7 Malesiamo
Motsoasele. She said she did not work at the Compulsory Savings
Scheme, but she
was asked to compile information on how it worked. It
was Accused 1 who told her how the scheme works. Accused 1 was a
Grade 8 supervisor
in charge of other officers. PW7 described how
claims were made and cheques drawn which were eventually handed to
Accused 1 as supervisor
in the Compulsory Savings Section. When that
happened, the cheques would be registered. The cheques would then be
picked up by the
payee or by a person authorised by the payee. PW7
said she took Accused 1's word on procedure.

Cross-examined, PW7 said cheques were signed by a
machine. When the cheque was ready, the person authorised to sign for
the cheques
from the compulsory savings Department would collect and
sign for the cheques.

PW8 was Rantelali Matsepe (another accomplice who was
duly warned). He gave evidence on oath. He told the court that his
signature
appears on Exhibit W which is a cheque drawn in his favour.
He had approached Motseoa Potsane about his financial problem.
Motseoa
Potsane went to the Treasury and brought a cheque of
M7,971.17 Exhibit W, already written R. Matsepe which were his names.
PW8 deposited
it and withdrew M5000-00 and took it to Motseoa
Potsane. There was no lawful reason for receiving that cheque. It was
Government
money.

((((PW4)))) Motseoa Potsane was recalled and gave the
following

18

sworn testimony. PW9 told the court that she knew
Accused 1 wanted people to write cheques in their names and share the
proceeds.
Accused 1 made the cheque in PW8's name. The agreement PW9
made with PW4 was that PW8 would get the cheque through PW4. PW8
delivered
Accused 1's share of the money which PW4 handed to Accused
1.

In cross-examination PW4 said PW8 did not know Accused
1. PW4 says Accused 1 gave her the cheque even if Accused 1 might not
have
created the cheque. There were difference between PW4's evidence
and the statement she made to the police. She said it was because
she
was frightened. She conceded she lied before the police to avoid
going to prison.

The Crown then called Inspector Tsita as the 9th witness
PW9. He gave sworn testimony to the effect that in July 1994 the
Department
of Treasury lodged a complaint to the police. PW9 got
files of parastatals and cheques and found they had been deposited in
certain
banks. Among the bank statements of accounts he got were
Exhibit 2 in respect of 027042260741 which appears on page 11 to 21
of the
file. The savings banks books involved marked Ex.AA appeared
on pages 24 to 31.

PW9 got explanations from Accused 1. Then he went to
Accused 2, who was the owner of Down Town bank account. Accused 2
would cash
them for friends and co-workers of Accused 1. He reduced
the explanation in writing and Accused 2 signed it. This was not
introduced
in evidence as

19 inadmissible as it dealt with Accused 1, the wife of
Accused 2.

In cross-examination PW9 denied handling Accused 2
roughly. PW9 claimed to be even a friend of Accused 2. He added that
he does not
even know how Accused 2 was arrested as he PW9 had been
transferred.

The Crown closed its evidence.

The Defence put Accused 2 as its sole witness to give
sworn testimony.

Accused 2 duly sworn told the court that Accused 1 had
three children. Accused 2 said he went as far as Form 2. The police
arrested
him in June 1995 alleging he had stolen government money. He
described his ordeal at the police station. Accused 2 said the
Government
cheques that were in his account were from customers. He
changed cheques if customers bought for at least M100.00. The police
said
Accused 2 was lying he had been given these cheques by his wife
Accused 1.

Accused 2 said he changed cheques if a customer bought
for at least M1 00.00. If the cheque was for a lot o money say about
M8,000-00,
he would ask the customer to come the following day. In
the meantime he would go to the bank so that he could have the money
the
following day when the customer came. He would deposit the cheque
and withdraw the change. Accused 2 denied PW1 Mosebekoa did any
work
for him.

A...

20

In cross-examination Accused 2 admitted his business
account was Down Town Cafe. Accused 2 said he makes M5000-00 per
month. He did
not keep any records. He made M500.00 or more a day.
Accused 2 said he is not sure what his profit is per day. He does not
make much
profit because there are many cafes. He stopped trading
because there was too much pilfering.

Accused 2 in answering further questions said he did not
know the section of the Treasury where Accused 1 worked.

The M5000-00 that he made per month included his profit.
It was possible that strangers would leave cheques with him until he
obtained
changes. Accused 2 did not know why people preferred to
change cheques of up to M10 000-00 at his place. When Accused 2 was
asked
about specific amounts that were deposited but accompanied by
no withdrawals the following day, Accused 2 said he kept a float of
up to M8000-00 in the house. It could be risky to keep such an amount
in the house but he was not aware of this at the time. It had
never
happened he gave a person M7000-00 all at once. When he was referred
to the 16^th March 1992, Accused 2 said, this must have
happened.

Accused 2 said he did not know what happened between his
wife and the witnesses who claimed they took cheques from her.
Accused 2
asked about the payment of taxes, replied that he had never
paid tax. There were cheques on which he had not sought the identity
document such as a passport from the holder of the cheque. The fact
that these people were not

21

legally entitled to these cheques as PW6 had shown was
unknown to him. Accused 2 denied that these cheques that were
deposited in
his account were from his wife. Accused 2 said these
cheques were signed by holders at the back in his presence. In
respect of the
Cheque Exhibit C, Accused 2 had signed at the bank
under the printed name of NTSOAKI MOLEKO, Accused 2 said he did this
at the suggestion
of the bank.

It is for the police to find these thieves, although it
did come to his mind to find them to exonerate himself of these
charges. Accused
2 told the court the police took his deposit book
and cheque book and left. PW1 might speak about him and Accused 1 to
shield the
actual perpetrator.

In re-examination, Accused 2 said sources of money for
cashing cheques were trading account, savings account and the float
in the
house. Strangers changed their cheques at supermarkets and
other trading concerns.

Evaluation of evidence

It is not disputed that the cheques Exhibits A to X were
Government of Lesotho cheques that were paying the people named on
them monies
from the compulsory savings scheme. It is also not
disputed that none of the 24 people (in favour of whom these cheques
were drawn)
were entitled to funds from the compulsory savings
scheme. It is not disputed that these cheques were drawn fraudulently
in a scheme
to steal money from the compulsory savings fund that
Government had set-up for depositors.

>

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22

The accused are charged because the Crown seeks to prove
that they were involved in the fraudulent drawing of these cheques or
in
the receipt of these monies knowing them to be stolen.

In respect of Accused 1, there is evidence that she was
a supervisor in charge of other officers in the Compulsory Savings
Department
at the Treasury. PW1 Tseliso Mosebekoa told the court
Accused 1 gave him a cheque of M5945.42 when he was not a contributor
to the
Compulsory Savings Scheme on or about 15/02/91. This cheque,
which PW1 deposited in his savings account, is Exhibit A. PW1 says he
withdrew part of the money and gave it to Accused 1. PW2 Augustinus
Ramotsei also says Accused 1 gave him a cheque of M8807.67 Exhibit
J
which he deposited in his account and another cheque of M8541.34
which he deposited in his account. PW2 further testified that
he
retained a portion of the money and gave a portion of the money to
Accused 1. PW3 Maseboko Masuku also says she was given the
cheques
Exhibits R and T respectively in the amounts of M8042.70 and
M10827.22. PW3 further told the court that she kept for herself
about
half those amounts and gave the rest to Accused 1.

Accused 1 did not go into the witness box to rebut this
evidence. She also did not rebut the evidence of PW4 who told the
court that
Accused 1 gave her a cheque of M5806.51 Exhibit U. PW4
cashed the cheque and kept half of the money and gave Accused 1 half
of the
money. PW4 approached Accused 1 to draw a cheque for PW8 for
the amount of M7971.17 Exhibit W. PW4 got the cheque Exhibit W and
gave
it to PW8. PW8 deposited the cheque and withdrew a portion of
the money according

23

to PW4's instructions, which money PW4 gave to Accused
1. Mapeete Setala PW5 similarly was given a cheque Exhibit V by
Accused 1 for
the sum of M6604.02, this cheque was in her maiden
surname. PW5 deposited the cheque and gave Accused 1 about half the
money.

Consequently Accused 1 has not gone into the witness box
to contest the evidence of PW1, PW2, PW3, PW4, PW5 and PW8 in respect
of
counts 1, 10, 18, 20, 21, 22,.... It goes without saying that
Accused 1 had a prima facie case to answer as she was not only one
of
the people who were Government Officials dealing with Compulsory
Savings funds but had definite allegations of criminal conduct
levelled against her.

It is beyond question that all the abovementioned
witnesses are accomplices. Consequently this court should caution
itself against
convicting on the evidence of accomplices. See Rex v
Ncanana 1948(4) SA 399 AD at pages 405 to 406 Schreiner JA said the
risk of
wrongful conviction is reduced where the accused does not
give evidence in rebuttal. Yet the need for corroboration (if it can
be
found) remains especially where there is only one accomplice
giving evidence to each criminal episode. For this reason in Rex v
Viljoen
1947(2) SA 56 AD at pages 63 to 64 and S v Gokool 1965(3) SA
461 at page 479 E to 480 C courts have held that individual counts of
the same criminal conduct which have been executed in the same manner
within a certain period by the same offender against the same
type of
victim, have the effect of corroborating each other.

A...

24

In this case Accused 1 (from the evidence before me) was
in the Compulsory Savings Department of the Treasury. Five witnesses
say
she caused cheques to be drawn in their names fraudulently to
steal funds from the Compulsory Savings Fund. In return she got a
share
of the money they collected. The offence being the same and the
modus operandi used by Accused 1 also being the same these
accomplices
of Accused 1 in these offences corroborate each other.

The next portion of the case involves the cheques that
were deposited in the bank account of Down Town Cafe - Account Number
027/04/22607/61.
The manager of this Down Town Cafe was Accused 2,
the husband of Accused 1. A statement made before the police by
Accused 2, which
was deemed to be evidence against his wife Accused
1, was excluded on the grounds that it might amount to the Crown
making the husband
give evidence against her. In S v Groesbeak &
Ander 1969(4) S A 683 it was held that in a case where a husband is
charged jointly
with his wife, the wife's evidence is not admissible
against the husband. She may enter into the witness box and give
evidence in
her own defence, but this cannot affect the protection
the law offers her husband and vice versa. Further more Accused 2 was
claiming
it was taken under duress and in dubious circumstances. The
court did not have to investigate the merits of Accused 2's
allegations.
It was conceded by the crown that this statement was
inadmissible.

There are the following cheques that were deposited by
Accused 2 in

25

I noted that there were several cheques in the file or
bundle which were not made the subject of these proceedings. But
these cheques
had been deposited in the bank account of Down Town
Cafe.

26

Cross-examination and a scrutiny of the bank statements
revealed that these cheques were not deposited and money withdrawn to
give
the people cash, who bought from the cafe for at least M100.00,
the following day. But Accused 2 had alleged that was what was
supposed
to happen. The turnover was said to be M5000-00 per month,
later this was described as profit. At one stage Accused 2 said he
kept
a float of M5000.00 in the house. This amount was increased as
Accused 2 found it difficult to justify the fact that cheques were
deposited but money was not withdrawn the following day to give to
the people who brought the cheques.

It became clear that these cheques were brought by
someone whenever the bank account of Accused 2 was in need of funds.
Whoever brought
them is immaterial because Accused 2 was aware that
he was not entitled to the money. I therefore reject Accused 2's
claim that he
changed the cheques for customers. The bank statements
contradict this assertion. It was clear to me that Accused 2 was
telling lies.

The problem I have is what to convict the accused of.

Verdict

There was fraud in the process of furthering a theft.
Stand up Accused.

I find Accused 1 guilty of theft in respect of counts 1,
10, 18,

20,21,22.

27

I find Accused 2 guilty of theft in respect of counts 2,
4, 5, 6, 7,8,9, 11, 12, 13, 14 and 16.

My two Assessors agree.

W.C.M MAQUTU
JUDGE

For the Crown : Miss N Nku
For the
accused : Mr B Sooknanan