HIGH COURT OF LESOTHO
by the Hon. Mr Justice M L Lehohla on 13th September 2002.
accused Acres International Limited hereinafter referred to as Acres
indicted before the High Court on two counts of bribery.
I the Crown charges that: Acres is guilty of the crime of bribery
that over the period June 1991 to January 1998 Acres paid/transferred
493 168-28 into a Swiss Bank Account held by Zalisiwonga Mini Bam
(now deceased) who thereafter paid/transferred the said sum,
thereof, to Mr Sole which payment/transfer was made to Mr Sole in
circumstances as described in the
Preamble and more particularly in paragraph 22 above.
In Count 2 the Crown charged that Acres is guilty of the crime of
bribery in that over the period 31 January 1991 to 3 April 1991
188 255-48 into a Swiss Bank Account held by Margaret Bam, who
thereafter paid/transferred or was supposed to pay/transfer
sum, or part thereof, to Mr Sole which payment/transfer was made to
Mr Sole in circumstances as described in the Preamble
particularly in paragraph 21 above.
Preamble to the charges consists of 24 paragraphs. For purposes of
clarity it is deemed fruitful to extract and cite below the
paragraphs referred to in the two counts above.
22 mentioned in Count 1 makes reference to paragraphs 10, 11, 20 and
10 reads that:
" Mr Sole was a civil servant in the employ of the Lesotho
Government, and as such a state or public official:
11 reads that: 29 " While retaining his status as a civil
servant Mr Sole was seconded
LHDA as Chief Executive Officer
Paragraph 20 reads that:
"Margaret Bam as well as the aforementioned Zalisiwonga Mini Bam
were responsible for or involved in, as intermediaries, the
/transfer of funds from Acres to Mr Sole through Bank Account(s)
by them in Switzerland".
21 reads that:
"The counts of bribery referred to hereinafter relate to:
payments made by Acres -
21.1.1 to the mentioned intermediaries who in turn paid such monies
or part thereof over to Mr Sole into his Swiss Bank Account(s);
or 21.1.2 of monies or part thereof which were destined/intended for
benefit of Mr Sole in Lesotho, and or
21.2 Contracts which were -
21.2.1 to be executed in Lesotho by Acres, and/or 49 21.2.2 were
negotiated by or on behalf of Acres
with the LHDA in Lesotho, and/ or
21.2.3 were concluded by or on behalf of Acres
with the LHDA in Lesotho; and/or
21.2.4 contracts in respect of which Acres was to
benefit either in Lesotho or from the work it was to perform in
Variation orders and/or contractors claims arising out of
contracts referred to in paragraph 21.2 above, and/or
payments which were made or were to be made by the
LHDA to Acres pursuant to contracts between the LHDA and Acres, such
payments being made or initiated or authorised in Lesotho."
Finally paragraph 22 reads that "The payments referred to in
paragraphs 20 and 21 above were made in respect of action or
inaction by Mr Sole in his capacity as described in paragraphs 10 and
above and/ or were intended to influence Mr Sole in such capacity
and/or were intended to be utilised by the intermediaries as referred
to in paragraph 20 above for this purpose".
agreement with respective counsel the court entered a plea of not
for Acres with regard to both charges set out above.
Thereafter Mr Penzhorn SC for the Crown gave a lengthy and detailed
77 outline of the charge and explanation of evidence intended
adduced for the Crown in terms of Section 175 (1) of Criminal
Procedure and Evidence Act No7 of 1981.
the oral evidence that was led the Crown for purposes of establishing
case relied on the evidence of:
PW 1 TSEBANG PUTSOANE
85 PW 5
PW 6 JOHAN CLAASSENS
PW 7 JEAN ROUX
PW 8 CHARLES PUTSOANE
89 PW 9
PW10 UGO SYBRAND HIDDEMA
PW 11 PHILLIPUS D OPPERMAN
PW 12 MRS SENTSUOE MOHAU
93 PW 13
PW 14 MS SUSANNA RUDMAN
PW 15 LETLAFUOA MOLAPO
97 As for PW3 P J Lock and PW4 Ms A V Ramjee their evidence was
accidentally called because of an account operated in their
Bank branches by an entity whose name merely approximated
that of the Acres that now stands accused before this court.
that entity is entirely different from
101 the Acres that is before this court. This misfortune was
occasioned by the insistence in the law that bank books can only
produced on subpoena, in which case an error that could have been
discovered earlier than on the court day would invariably
discovered on the day of appearance of the witness bearing the bank
105 records thought mistakenly to be relevant by the party seeking
to rely on their contents.
On their part the defence adduced the evidence of:
109 DW 1
DW 2 CLIFFORD BROWN
DW 3 JEAN PAUL GOURDEAU
DW 4 JOHANNES MEYER
113 DW 5
DW 6 ERIC BURNETT
I have made a liberal use, as far as possible, of the summary ably
Mr Alkema SC in his handy set of written submissions and heads of
arguments regarding facts which are common cause between litigants or
least not seriously disputed. Otherwise I have also resorted to my
own devices as well as incorporating the Crown's version, as
possible, of what they
submitted as matters which are common cause. These are as follows:
1981 Acres was appointed as a sub- consultant to a Canadian company,
Delcanda, the main consultant in the
construction project of the Moshoeshoe Airport, Maseru.
Another subcontractor on the project was LESCON (PTY) LIMITED, a
company registered as such in Maseru. The managing director of
at the time was one Z M Bam,
South African citizen with permanent residence in Lesotho.
The airport project was completed towards the end of 1986.
During the period 1980 and 1986 Tony Russel, Acres'
corporate representative on the airport project, got to know Z
M Bam well, having worked closely with him on the project.
this period, the Lesotho Highlands Water Project
(LHWP) was established. The object and purpose of the
project was to provide water to RSA and hydro-electrical
power to the Kingdom of Lesotho.
The project was described in evidence and fittingly so as one
the biggest dam and hydro-electrical projects in the world.
To this end the RSA and the Government of Lesotho (GOL) signed a
Treaty commonly referred to as "the Treaty" in these
proceedings. The purpose of the Treaty is defined as follows
"The purpose of this treaty shall be to provide for the
establishment, implementation and maintenance of the project"
terms of Article 6(4) of the Treaty, GOL was charged with the duty
"........... The Lesotho Highlands Development Authority (LHDA)
autonomous statutory body under the Laws of the Kingdom of Lesotho in
accordance with the provisions of this Treaty."
LHDA was duly established by GOL in terms of Order No. 23 of 1986.
In terms of Article 7(1)of the Treaty, the LHDA
"........Shall have the responsibility for the implementation,
operation and maintenance of that part of the Project situated
in the Kingdom of Lesotho, in accordance with the provisions of this
Treaty, and shall be vested with all powers necessary for
discharge of such responsibilities".
such, the LHDA had the power, inter alia, to appoint consultants and
contractors to the Project, but always subject to the
the Treaty. In evidence, the LHDA was
169 often equated to "the Client". Be it noted that the
LHDA,throughout the project, concluded a vast number of contracts
with consultants/contractors estimated in number to verge on 500.
These contracts ranged from the appointment of financial
consultants such as chartered accountancy firms and
economists, to the appointment of environment experts to undertake
environmental impact studies, the appointment of engineering
consultants/contractors, to establish the
infrastructure of the project. Many of the engineering
(consultancy) contracts were of supervisory nature only.
the time in question the LHDA consisted of seven divisions:
Public Relations Division
Administration Division 185
and 7) the Capital Finance Division
Each Division had, at its head, a manager known as the Division
Manager. See the Organogram Exhibit "G" The managers
reported, in turn to the Chief Executive of the LHDA whose functions
duties are described in Article 7 of the Treaty, read with Order
of 1986. The Chief Executive at all relevant times was one E M Sole.
The Chief Executive, in turn, reported to the board of Directors
the LHDA established in terms of the Treaty and appointed in terms of
the initial stages of the project - pre-LHDA - an American
company known as TAMS, was awarded the contract as Study 201
Supervisor during the feasibility study phase of the LHWP. During
1986, TAMS was sole-sourced to submit proposals under Contract 19
(C 19), which made provision for technical assistance to the LHDA.
Effectively, this meant the provision of qualified professional staff
the structures of the LHDA, and more particularly the staffing of
various posts in the technical division of the LHDA.
sole-sourcing of a consultant must be distinguished from
the process known as competitive bidding. Under the process of
competitive bidding, the client invites a number of consultants
submit technical and financial proposals for the
services: the process is known in the industry as the short-
listing of firms. Under the process of sole-sourcing, only one
consultant is invited to submit proposals. If the proposal or tender
is found to be acceptable by the client, the procedure
thereafter remains the same, whether under a competitive
bidding system or under a sole-sourcing system. Such procedure
includes the technical and/or financial evaluation of
the proposal; and if found acceptable, an invitation to negotiate
contract; the negotiation process; the preparation of a
document known as a Memorandum of Understanding (MOU) based in
principle on the agreement reached during the negotiations; and
thereafter the preparation and signature of the
final contract, based on the MOU.
process of sole-sourcing is accepted in the engineering industry and
is internationally recognised; also by funding
agencies such as government institutions, the World Bank, the
European Union, and other commercial banks. The "Guidelines"
issued by the World Bank recognise the advantages of the
sole-sourcing process and describes the
circumstances under which it will be advisable to sole-source
a consultant/contractor in preference to open bidding system.
is also customary in engineering practice that if the proposals
237 of a
consultant who had been sole-sourced are found to be
unacceptable, he is excluded from invitation to once more submit
proposal when the process is changed to the
competitive bidding system; i e. ( He is not short-listed),
so happened that the proposals of TAMS under Contract -19 were found
to be unacceptable by the LHDA and the procedure was therefore
changed to a competitive bedding system.
Consequently TAMS was not invited to submit proposals. The
consultants invited by the LHDA to submit proposal were Acres,
Bechtel, Halcrow, and Snowy Mountain, Australia. The proposals of
Acres were ranked the highest by the LHDA, and
having completed the rest of the process referred to in
paragraph 7 above Contract 19 was awarded to Acres during April 1987.
By letter dated 28th April 1989, and in the course of the
operation of Contract 19, the Chief Executive, Sole advised Acres
that the LHDA had decided to sole-source Acres in respect of
65. Acres was accordingly advised in
accordance with the prevailing practice that,
" ........... should the technical proposal be judged
inadequate, or the
financial proposal be judged excessive, then LHDA intends to request
proposals from a short-list of consultants.(This short-list will not
your firm" The decision to sole-source was called in question by
the prosecution through PW15 and PW10.)
Contract 65, like Contract 19, provided technical assistance to
the LHDA. As such, Acres was required to provide professional
engineering staff to fill various line positions in Planning- and
-Design and Construction Division (formerly the
Technical Division of the LHDA). In the evidence before
court, Contract 65 was described as an extension of contract 19, save
that it carried more responsibilities. Whereas Contract 19
concerned primarily with the tender design, preparation
tender documents and tendering for the main construction
works, contract 65 included the provision of services relating to the
establishment and implementation of the construction contract
Katse Dam and the transfer Tunnel and Delivery
Tunnels lying South.
proposals in respect of Contract 65 were found to be
acceptable by the LHDA, and it was invited to the negotiation
process. Having gone through the process of negotiations, a
MOU was prepared which formed the basis of a contract and
which contract was eventually signed by the parties on 21 February
1991 in Maseru. Acres continued to render services 285 under
65 until November 1999.
the end of 1988 Z M Bam left Lesotho to take up employment with
Botswana Housing Corporation in Botswana.
was to remain there until February 1991.
Sole told Acres that it would be invited on a sole-sourced basis, to
put in a proposal for the continuation of services
April 1989, Acres contacted Z M Bam and proceeded to
negotiate with him over a period of 18 months a representative
agreement in respect of the new contract i.e. contract 65, which
first mooted after a trip to Canada by Sole in March.
Sole had issued a letter of intent on 24 July 1990 Acres then
started to mobilize, with Sole authorising that mobilization
undertaking to pay Acres, on 14th August
took place despite that contract 65 had not yet been signed. Matters
of such importance as the fact that Acres' fee
not yet even been agreed, had not been ironed out when
this occurred. This was followed by Acres claiming an advance payment
under the unsigned contract in September 1990. Nor was the
of taxation finalised when this
authority was given to mobilize.
September 1990 Sole travelled to Canada.
On 23rd November 1990 Acres signed a representative
agreement with an entity called ACPM whose address was given as that
of a bank in Geneva.
On 28th November Witherell, an employee of Acres on contract
with the LHDA, authorised the payment to Acres of its advance under
the unsigned contract on behalf of the LHDA.
On 29th November 1990 the Maloti portion of the advance i.e
M250 000-00 was paid to Acres and on 4th January 1991 the
Canadian Dollar portion, CAD 1 160 000-00 i.e 1.16 million Canadian
dollars was paid. 325
28th January 1990 Acres paid Z M Bam (Not ACPM) CAD 180 000-00
On 21st February 1991 Sole signed contract 65 on behalf of the
LHDA as indicated in paragraph 13 above.
payments from Acres went to Z M Bam and he 333 proceeded to share
this money on a 60/40% basis with 60%
going to Sole.
arrangement endured until after Sole lost his court 337 challenge
against his dismissal in January 1997, whereafter
Acres reduced its payments to Z M Bam to approximately 40% of what it
had been paying up to then. These payments now Z M Bam did
with Sole. Acres then ceased
paying altogether when Z M Bam died in 1999.
monies paid by Z M Bam to Sole were paid into an 345 account in
Switzerland from which account Sole then fed an
account in Ladybrand from which account he in turn transferred funds
to his account in Maseru. All this is summarised in exhibit
All this was not challenged. 349
the same time as he was receiving these funds from Acres and in turn
paying a portion over to Sole, Z M Bam was also receiving
other contractors/consultants, namely
Germany, ABB Sweden, Lahmeyer, Lahmeyer
MacDonald Consortium and Dumez, and also in respect of these payments
he shared the proceeds with Sole. This was also done through
bank accounts with Sole also being
evidence also shows Z M Bam's accounts in Switzerland being used
almost exclusively for the receipt of monies from
contractors/consultants and the transfer of portions
thereof to Sole.
before Acres finally left the project, an indictment was
served on it and also on a number of other
consultants/contractors. In the Indictment Acres was charged with two
counts of bribery it being alleged in the first account that
the period June 1991 to January 1998 Acres paid an
amount of CAD 493 061-60 into the Swiss band account of Z
M Bam who thereafter transferred the said sum, or part thereof, to
Sole. In the second count, it is alleged that Acres paid an
CAD 180 825-48 into the Swiss bank account of M
Bam, the wife of Z M Bam, who thereafter transferred the
said sum to Z M Bam. Because there is no direct evidence that Z M Bam
transferred this money to Sole, the Crown relies on inferences
may be relied on to show from proved facts that
moneys arising under this transaction landed in Sole's
respect of both counts, it is alleged that the aforesaid 381
payments were made by Acres with the intention to pay bribe
moneys to Sole, and that the accounts of Z M Bam and M M
Bam were only used as conduits to make payments to Sole. It
is alleged by the prosecution that Acres used M M Bam and Z
Bam as intermediaries to make payments to Sole. It is
therefore alleged that, in respect of both counts, Acres committed
the crime of bribery.
Acres says that it had appointed ACPM of which Z M Bam
was the proprietor to act as Acres' representative in Lesotho. Acres
goes further to say the alleged payments to ACPM were in strict
accordance with the representative agreement. Acres
asserts that it has no knowledge that Z M Bam made payments
to Sole and denies that it intended payments it made to ACPM to be
made over by Z M Bam to Sole, It thus pleaded not guilty to
charges of bribery in the two counts.
need to appoint agents by foreign company operating on foreign
shores is recognised by various Government agencies, the Canadian
Government and international funding agencies
as the European Union and the World Bank.
document purporting to set out the terms of an agreement
between the parties was signed by Hare and Rynard on behalf of Acres
and by Z M Bam on behalf of ACPM. 405
only real issue before court is whether or not Acres, when paying Z
M Bam, intended for him to share the money with Sole or,
actually so intending, whether it was reckless as
whether this occurred or not.
its defence Acres put up a "representative agreement." The
main issue canvassed in the evidence was whether this
agreement was genuine or not.
payments made by ACRES to ACPM appear to have been made on the dates
and in the amounts referred to in Exhibit "L"
which is the document that also appears in Exhibit "C"
15 section 7 pages 42 through 44 - The entries on Exhibit
"L"correspond substantially with the financial reports
by PW7 (Jean Roux). DW6 (Burnett) and PW7 are in
agreement that the differences are minor and are attributable to
banking costs and charges; and such factors as short delays
caused by banking clearance procedure from the date of
deposit to the date the transaction is reflected on the bank
statement. On the face of it DW6 and PW7 are agreed on the
correctness of such payments.
The admissions contained in Exhibit "B" including the plea
explanation Exhibit "A", the actual payments reflected
Exhibit "L", contents of Volume 15 part 7 shown in pages 42
through 44 and the factual background against which
these payments were made are not in issue.
In fact Acres admits even certain additional payments not recorded in
Swiss Bank accounts. Here reference is to Z M Bam's Nedbank Accounts
437 shown and recorded at Page 697 lines 11 to 19 read with Volume 6
page 1467 as well as the 40% payments to Z M Bam in Switzerland
January 1997. Exhibit
"L" shows this too.
is common cause that Acres actually used LHDA money it received to
Z M Bam. See record of proceedings pages 2 lines 12 to 16 and 5.
lines 11 to 13.
The documentary evidence collected in Exhibit "C " is
placed before court 445 by consent of the parties to this trial
on the basis that what is contained therein speaks for itself.
The Swiss Bank records contained in Volumes 10 to 14 are before court
in 449 terms of section 246 of the Criminal Procedure and
Act No.7 of 1981. Needless to say in terms of this section the
entries in the bank records:
"shall be prima facie proof........of matters, transactions and
accounts recorded in the accounting records"
453 Because there was no dispute about the payments, it can safely
be noted that they in fact are admitted. To that extent then
Prima facie proof has converted into conclusive proof.
Furthermore, the other bank records relating to Acres, Z M Bam,
Sole, both in South Africa and Lesotho are not in dispute. Exhibits
H, J, N, O, R, through V, X and Y are clear proof of this.
benefit to be reaped from admission of these records is that their
contents are as a matter of course admitted in so far as they show
the LHDA also paid Acres in Lesotho - as shown in
Exhibit "U" page 41 - the advance of M250 000-00. It also
paid Z M Bam in Lesotho (through LESCON, via Lahmeyer).
had bank accounts in Lesotho as shown in Exhibits "R",
"T",and "O" as well as in South Africa as
and "Y" show.
in fact paid Z M Bam in South Africa as Exhibit "C" at
1467 of Volume 6 shows.
Bam also had accounts in South Africa as shown in Exhibits "H"
and "J", as well as in Lesotho surviving
LESCON as Exhibit "V" shows.
also had bank accounts in Lesotho as shown by Exhibits
Mr Penzhorn submits that all payments could have easily been effected
locally as opposed to in Switzerland. It seems to me that no common
sense counter to this submission would carry the day. In fact
further logical development of 485 this submission seems unassailable
in its bold but truly penetrating if devastating implication
these payments been legitimate it is inconceivable that they would
have been effected in Switzerland.
major factor that has remained unassailable resulting from the above
that the payments in Switzerland to Lesotho and South African
residents contravened these two countries' Exchange Control
REGARDING CORPORATE LIABILITY
Our section 338 of the Criminal Procedure and Evidence is based on
the old provision in the 1917 South African Act. As regards
present South African
497 section 332 the following passage appears in the South African
Criminal Law and Procedure Volume 1 by Burchell and Hunt (1983)
Page 395 reading
" Being an artificial persona, a corporation cannot itself
501 commit an actus reus or entertain mens rea. It follows that
acorporation can be penalized for crimes committed only by its
agents or servants. In a sense, therefore, when criminal liability is
imposed upon a corporate body, it is vicarious.
However, the criminal responsibility of natural persons, in
truth it rests upon the imputation to the corporation of the crimes
of persons acting on its behalf, rather than upon vicarious
responsibility. Their acts and states of mind are the
company's acts and states of mind and it is held liable, not for
the acts of its servant, but for what are deemed to be its own acts."
Page 397 the following passage merits citation:
"It will be seen that section 332(1) removes the obstacle to
fixing criminal liability upon a legal Persona that since it
mind it could not be found guilty of a crime requiring mens
rea. In terms of the subsection where a corporation is charged with
such a crime the mens rea of the director or servant who committed
the crime will be imputed to the corporation." .......
Section 332 (1) expressly renders corporate body liable where,
committing the crime, the director or servant acted beyond his powers
or duties but while 'furthering or endeavouring to further
interests of the corporation. Liability under the
section, therefore, extends beyond the normal limits of
vicarious responsibility where "the principal or master is
liable only if the agents or servants acted within the scope of
authority or employment"
It follows first that a corporate body can be convicted of virtually
any crime requiring mens rea. In R vs Bennett and Co.(Pty)
TPD 194 the company was for instance convicted of culpable homicide.
The fact that what the
533 servant does was expressly forbidden by the company makes no
difference provided that in doing so he sought to further the
interests of the company.
For this reason I am inclined to the submission made by Mr Penzhorn
537 provided that Acres' money was used, the intention of that
firm's employees when paying the money to Z M Bam is the intention
ascribed to Acres. If they intended the money or part of it to be
paid to Sole or if they were reckless as to whether or not this
happened, Acres would have so intended either in the form of dolus
541 directus or dolus eventualis whatever the case may be. It cannot
be overemphasised that there is no presumption against
The only thing being that the intentions is ascribed to it.
should be regarded as now trite that the present form of citation of
company as the accused in its own name is perfectly correct following
the sound ruling by Cullinan AJ on 6th March 2001 in Rex
It should also be noted that the same judge, for very sound reasons
I would take the cue from his ruling does not agree with Burchell and
Hunt where these learned authors say in bribery there necessarily
to be a quid pro quo. I
553 share the learned Judge's view that it is enough that money was
received for purposes of favour. Whether the Bribee reneged
afterwards is irrelevant. One thing to keep in mind is that it is of
vital importance to note that in bribery unlike in other forms
crime where the victim of an offence is the complainant or is the
557 deceased, the participants in the unlawful transaction are both
culprits. They are both beneficiaries thus making the detection
this form of crime difficult to make, and the prosecution a very
arduous task. That is why I agree with the soundness of the
does not insist on production of proof that the Bribee gave such
561 and such a benefit in return for what he received from the
briber. Thus it is enough for the Crown to only prove payment and
receipt with the requisite intent without the need to prove actual
crown has accordingly set out to state that the only possible reason
Acres would have wanted to pay Sole was in order to have him look
favourably towards Acres in the context of its contractual
with the LHDA. The Crown maintains that the fact that
Sole accepted this money is evidence proving
existence of an agreement to this effect; further that this in turn
bribery. If in the assessment of material laid for evaluation before
this court the points raised are borne out in evidence then
I am in
no doubt that the Crown's contentions would pass muster. The Crown
cleared the decks for action by stating 573 that whatever
Sole did or
did not do thereafter for Acres is irrelevant. Even if he did his
duty he, as well as Acres, still committed bribery.
FORMS BACKGROUND TO THE PAYMENTS
It is important to have background knowledge of what the instant case
seems to be all about.
First as the record shows at page 35 lines 18 to 23 Sole was the
Chief 581 Executive of the LHDA at the relevant time forming
/constituting the framework of this case. He was at all relevant
times also a public official as mentioned at pages 89 lines 3 to
line 1. He and two others namely Acres and Z M Bam are the role
players who came together in the context of the water project.
Acres is a company registered in Canada and was an external company
in Lesotho involved previously when they were engaged in the
contract in about 1982. It is here that Acres worked alongside Z M
Bam as part of Delcanda. 589
Acres then bid for TAC-1 i.e contract 19 and were successful. The
was awarded after a competitive bidding process.
Under TAC-1 Acres was closely involved with the running of the LHDA.
As shown earlier they were involved in the setting up of the LHDA
whose engineering component was primarily staffed by Acres engineers.
Acres' involvement with the LHDA scaled the dizzy heights of that
597 instance Jonker was the assistant to the Chief Executive of the
LHDA as shown in volume 1 page 55. Thereafter his position
by another Acres' man Witherell from 1st October, 1989. See Volume 1
pp 387 and 392.
Witherell's appointment was under a separate contract i.e. Contract
dealt with his own contract on behalf of the LHDA. Pages 305, 384 and
387 bear this out in Volume 1.
Under this contract Witherell had wide powers within the LHDA. See
Volume 1 pages 389 to 400. Documentation before this court shows him
dealing with contractors on behalf of the LHDA as indicated
1 pages 404 to 407. In Sole's absence Witherell was entitled to
authorise payments to contractors.
evidence at Page 471 lines 1 to 12 furnishes proof of this. He even
authorised payments to Acres who were his employers. See Volume 9
pages 189, 193, 296 and 271. This followed instances where he
signed Acres' invoices on behalf of Acres itself.
The close involvement of Witherell in the LHDA management appears
variously from the evidence and in some instances it is illustrated
by the minutes of various management meetings all attended by him. As
assistant to the Chief
617 Executive both Jonker and Witherell must have had a close
working relationships with Sole. In fact Brown admitted this saying
that Sole and Witherell even socialised.
documents before Court also show Acres personnel working with
contractors on behalf of the LHDA as exemplified by Brown in Volume 1
pages 171 to 179. The Acres personnel dealt with their own
on behalf of the LHDA as was the case when they dealt with contract
19 shown in Volume 2 page
As repeatedly mentioned in this judgement it was in 1989 towards the
beginning thereof when it was decided that Acres should continue
as contract 65. See Volume 1 page 146.
The first draft of Request for Proposals (RFP) was issued in March
shown in Volume 1 pages 121 to 133. Correspondence followed. The RFP
was given to Acres in January 1990. In April 1990 Acres' proposal
Volume 1 pages 310 to 374.
Witherell then dealt with contract 65 as at 23rd May 1990. Volume 1
page 303. At that time he had specifically been appointed as
agent in Lesotho
637 i.e on 18th May 1990. See Volume 1 page 380. He was at the time
also a signatory on behalf of the LHDA. In fact, by May 1990
Witherell had been in Lesotho for a considerable period of time. As
early as 14th October 1987 he, along with Jonker and Hare were
signatories to Acres' bank account with Barclays Lesotho in terms
account number 811 000 485 as reflected in Exhibit "U".
The signing of the MOU on 19 May 1990 meant that contract 65 was
basically in place, so Acres mobilised. It placed its people in
LHDA under the
645 proposed contract, as from August 1st, 1990. Sole's letter is on
record to substantiate this fact. This came after Sole had
letter of intent dated 28th July 1990. As will be shown in more
detail later Acres personnel occupied line positions within
See Appendix B to Contract 65.
All this was done without the approval of the LHDA board, JPTC or
Bank. In this galley it remains questionable whether there is any
validity in the alleged strict approval processes and the proposition
that Sole couldn't really do
653 anything to assist the LHDA. See pages 408 line 10 to 409 line
5. C/f the requirement that approval must be in writing. Page
lines 15 to 16 and pages 238 lines 23 to 239/ line 12 in relation to
the line of authority regarding menage
and pages 239 line 12 to 242
657 to 2
as to everything being open, transparent and negotiated.
On top of all this sight should not be lost of the way Willet was
by Sole; followed by what amounted to Sole virtually trailing his
coat tails in that
Hare whispered his protest against this to Makhakhe who intimated it
Sole, Hare suffered the same fate as Willet for daring to question
unwarranted, high-handed and totally unreasonable action.
According to Acres' High Court summons against the LHDA the
in respect of contract 65 was reached orally on 28th March 1990 and
put into effect on 1st August 1990. Volume 2 page 296. The
is how could it come about that a company of Acres' World stature
could conclude a contract of this
magnitude by only word of mouth.
Taken against the background that what has not been done is that Sole
not signed and therefore Acres' are out on a limb as of 23rd November
1990, then the words of Cullinan AJ become very relevant
appear at page 203 of Sole
As from August 1990 Acres claimed payments from the LHDA. See Volume
pages 134 and 139 to 140. 677
Many of the payment certificates were in fact signed by Witherell,
on behalf of Acres but also on behalf of the LHDA. All this then
need for Z M Bam's assistance in facilitating payments. PW5 (Sophia
681 testified that Z M Bam never assisted in this regard; and I
believe her. As a matter
of fact she had no idea that Z M Bam was Acres' agent. See page 477
lines 14 to
15 of the record of proceedings.
Although contract 65 was sole-sourced, Sole warned Acres on 1st
1990 that the LHDA would look to other bidders and exclude Acres if
negotiations were not successful. Volume 1 page 303 read with
stands to reason that in this galley Acres would have had every
reason to want to keep Sole well disposed
689 towards them. Oiling his palm could not be put past his ruling
passion that bribery
has stood him in good stead in a number of occasions including where
a case of brandy offered to a Minister would secure him what
wanted from the particular Minister. More distinct reference to that
On 16th August 1990 the World Bank indicated that it had no objection
the LHDA entering into the new contract with Acres. See Volume 1 page
401. By this time that the World Bank gave signification
non-objection, Acres was
already working on the new contract.
TAC-2 was signed some six months later i.e. on 21st February 1991.
was done without the necessary World Bank approval which was only
March 1991. See Volume 8 Page 192. Needless to say the JPTC had not
approved nor in fact known as Meyer came to testify later on this
corroborating Letlafuoa Molapo's evidence.
accordingly accept the Crown's submission that none of the major
milestones leading up to the conclusion of contract 65 were reached
with the requisite prior approval in writing. See page 231
to 16 of the record.
OF THIS CASE
An outstanding feature of this case is that it is based on
evidence. There is no direct evidence to show that Acres concluded a
bribe agreement with Sole. Should there be any such conclusion
to be inferred from the evidence as a whole.
Another feature of circumstantial evidence is that it is more cogent
compelling in many instances in its probative value than direct
717 example, evidence of identification by a finger print would be
reliable than the direct evidence of a witness who identified the
accused as the
person he saw. See S vs Shabalala 1966(2) SA 297 A at 299C.
Penzhorn took issue with Counsel for the defence against the latter's
attempt to take individual witnesses' evidence separately and subject
it to a test whether that evidence standing alone can lead
only inference that incriminates the accused. Mr Penzhorn therefore
urged that the correct approach
725 is to hear all the evidence and find from it if the totality of
that evidence points in the direction of guilt. I agree with
Mr Alkema relies heavily on the famous case of R vs Blom, 1939 AD 188
202 to 303 where it is succinctly stated that:
"In reasoning by inference there are two cardinal rules of logic
which cannot be ignored:
The inference sought to be drawn must be consistent
with all the proved facts. If it is not, the inference cannot be
The proved facts should be such that they exclude every
reasonable inference from them save the one sought to be drawn. If
they do not exclude other reasonable inferences, then there
must be a
doubt whether the
inference sought to be drawn is correct."
Learned Counsel urged that a distinction should be made between
inferences validly drawn on the one hand and conjecture speculation
and various forms of
on the other hand.
Applying the dictum in Blom and paying particular heed to the caution
immediately above Learned Counsel submitted that the inference that
749 payments to Sole pursuant to an offer to bribe is not consistent
with the evidence
of the representative agreement. Next he submitted that the evidence
representative agreement and the payments made by Acres to ACPM/Bam
thereunder, exclude the inference that the payments were made
terms of an offer
Assuming the accuracy of the propositions made above Mr Alkema
submitted that the inferences which the Crown seeks to draw, are
757 conjecture and speculation, and not on the proved facts before
this court. I hasten
to state that the reasoning he has adopted would only follow provided
representative agreement is found to be valid by this court.
it to say any inference that the Court should draw from the
circumstantial evidence must be the only reasonable one in the
circumstances and it must be consistent with all proved facts as
understand the underlying rationale in Blom above to be. Otherwise
reference to S vs Setsetse 1981 (3) SA 353 at
to 370 C would suffice in underscoring the principle involved.
The court in going about the exercise advocated by the authorities
dealing with a case involving circumstantial evidence is alert to the
Govan vs Skidmore 1952 (1) SA 732 (N) at C- D where an illustration
application of the principle involved indicates that the approach in
is distinct from that in civil ones in the sense that in civil ones
the inference need only be the most probable among any number
Suffice it to say the question of circumstantial evidence which is a
feature in this case along with that of accused's silence
testimony will be revisited after the assessment and evaluation of
evidence in this case which is
777 based on protracted facts which necessarily therefore lead to
the judgment being a long one in an endeavour to treat as many
facts canvassed as possible and accord them their due significance.
Apart from the oral testimony that PW1 T. Putsoane gave, he relied
submitted his written statement handed in and received in evidence
marked Exhibit D.
court learnt from PWl's evidence that he is an engineer by profession
and is presently employed by a firm of consulting Engineers known as
Africon which has an office in Maseru where PW1 is based.
PWl's involvement with the Lesotho Highlands Water Project "LHDA"
short, dates back to 1985/86 when he was then employed by the
Ministry of Works
as a Senior Road Design Engineer.
1987 he was involved in assisting the Lesotho Highlands Development
Authority (LHDA) in reviewing the design of the Northern and Southern
Access Roads consisting of connection routes from Pitseng
and Katse to Thaba-Tseka. He also assisted the LHDA in setting up the
Southern Access Road Task
797 Team (SARTT) which was the departmental construction unit
charged with upgrading the Southern Access Road.
This witness testified that after resigning from the Civil service he
801 LHDA as senior engineer responsible for road infrastructure
projects in 1987. He indicated that during the following year
LHDA mushroomed and grew to
dimensions never known before. This was the time when some civil
as Masupha Sole were seconded to the LHDA by their departments in the
It is the view of this witness that there was a perception that
created problems in the event that the department concerned could
809 employees from the LHDA at will and without regard to the
disruption that this
practice could impose on the LHDA training programmes. In 1990 PW1
became principal engineer and his duties were no different
813 from his duties in the previous position of a civil engineer
which was the capacity he first joined the LHDA in.
But in 1991 he was promoted to the position of Infrastructure
817 this capacity he reported to the Deputy Chief Executive in the
Engineering and Construction section headed at the time by Mr
It was during this time that Phase 1A was coming to an end and Phase
821 was coming into operation. PW1 was in charge of both these
operations i.e. the phasing out of Phase 1A and the introduction
Phase 1B. These are nothing but major infrastructure contracts
relating to the respective Phases mentioned above.
825 PW1 continued working as Principal Engineer until 1994 when he
was appointed Acting Chief Executive thus replacing the Chief
Executive Officer Masupha Sole who was then suspended from office.
remained in that position until 1996 when the new Chief Executive Mr
Marumo was appointed to that position. Thereupon PW1 became Deputy
Chief Executive (Environment).
left the LHDA in 1997 and joined Africon which is the organisation
where he has remained to date.
For purposes of completion it is important to mention that LHWP
837 of 4 main Phases. The two most important of which are Phases 1A
and 1B. Phase 1A embraces the construction of the Katse Dam,
hydro-power, the transfer tunnels and the delivery tunnels. Phase 1B
involves the Matsoku diversion
Mohale dam and the Mohale -Katse inter-connecting tunnel.
The construction component of Phase 1A commenced in 1991, while the
construction of the hydro-power component commenced in around
845 not disputed that delivery of water to South Africa was
accomplished in 1998 even though by then PW1 was with Africon having
left the LHDA the previous year. The planning stage of Phase 1B
commenced in 1992 and came into physical effect much later, the
construction works having commenced in 1997 and 849 scheduled to
deliver water in 2004/2005.
PW1 led the court to a new topic namely the process leading up to the
of contracts. This is a process which at the end of the day brought
to the court's attention the enormous power wielded by the
Executive in the award of huge
853 contracts entered into on behalf of the LHDA on the one hand and
the contracting parties wishing to do business with the LHDA
other hand. These could be contractors or consulting companies such
as Acres which is a company in point. In this vein the
gained an inkling of the operation of Consultants'
857 agents in general and the operation of Z M Bam as Acres's agent
in particular. In this regard the relationship between a Consulting
Company and its agent is
governed by what is called a representative agreement. More of that
861 PW1 indicated that the decision whether or not pre-qualification
of tenderers would be required would at the end of the day
the Chief Executive.
The next stage is that of evaluation of tenders. This evaluation is
865 by the evaluation committee consisting of LHDA members appointed
by the Chief
Executive. However should the complexity and nature of the contract
service of outside specialists in the evaluation committee, then in
terms of the
requirements imposed by the financial regulations, such person/s
would either be
directly appointed by the Chief Executive or be recommended for such
appointment to the LHDA Board by the Chief Executive. Of importance
again is the fact that the evaluation committee reports to
Executive who in turn decides what and who to recommend to the Board.
PW1 highlighted the fact that tenders are ranked in order of
preference. The highest tenderer being the one to be recommended by
the chief Executive in the normal course of events. This does not
detract from the fact that he nonetheless
877 has the final decision in determining which tenderer to
recommend. Then the Board would give its approval which would take
the form of authorising the Chief Executive to enter into
negotiations with the successful tenderer. It is important to note
the actual negotiations would be conducted by a negotiating
881 which itself has been appointed by the Chief Executive. If
negotiations are not successful then the next tenderer in line
be approached and negotiations commenced with him.
negotiations are successful the gist of essential details is recorded
the Memorandum of Understanding (MOU). This document sets out the
manner in which the contract is to be executed. The contract
is to be signed by the Chief Executive on behalf of the LHDA. This
authority would have been derived
889 by the Chief Executive from the principle that, the LHDA would
have in the first
place given him the authority to enter into negotiations with the
Of importance is to note that although the "MOU" can vary
the scope of work it
nonetheless cannot vary the tender itself.
PW1 stressed that in respect of large construction contracts
would be engaged by the LHDA to supervise the contractors on behalf
LHDA. In this regard reference here is to engineering consultants.
PW1 gave as examples of firms which were involved as consultants
supervising contractors on behalf of the LHDA, such firms as Joint
Highlands Infrastructure Consultants, Lahmeyer, the Consortium of
901 MacDonald, Sogreah (a firm of French Consultants) and local
consultants such as
ABC meaning Association of Basotho Consultants of which LESCON was a
specific reference to LESCON PW1 mentioned that Local Engineers
were involved in consultancy contracts. He indicated that with regard
to big consultancy contracts there was a requirement that
percentage of the consultancy work be done by South African firms
while the rest of the work would
done by firms selected by Lesotho. Lesotho was thus at large to
international firms other than South African firms, save that a
certain percentage i.e 10% or 15% would consist of local consultancy
firms from Lesotho. This in effect is how ABC and LESCON came into
PW1 testified that he first met Masupha Sole in 1981 when PW1
returned from his studies in India. He had contact with him again
from 1987 onwards.
917 PW1 was quick to inform the court that Sole was very influential.
He stressed that the effect of his influence derived from
that Sole had set up the LHDA organisation and was responsible for
the filling in of posts by most of the people who worked
LHDA. PW1 made a point of indicating to the
921 court that Sole, even after he had left the LHDA, still exerted
or had influence on that organisation. Incidentally PW8 Charles
Putsoane corroborated this aspect of the matter to the full. The
submission of Mr Penzhorn for the Crown is indeed apt based as
on unassailable evidence that it was through the Chief Executive that
925 matters in respect of which the JPTC and the World Bank had to
concur were channelled and if he wanted to block them he could.
these bodies largely acted on recommendation emanating from him. This
influence remained even after his dismissal in October
1995. I accept
the conclusion that clearly, having built up
LHDA as the two Putsoanes have testified, there would
have been considerable loyalty owed to Masupha Sole. The testimony of
PW1 to the effect that Sole clearly favoured Acres has had
court an added impetus on it therefore.
PW1 testified that he knew the late Z M Bam. He knew him as an
and also as the Managing Director of LESCON. As indicated earlier
LESCON is Lesotho Consulting Engineers.
PW1 worked with Z M Bam in the early 1980's when the latter was
for the Ministry of Works, Roads Branch for whom the two did some
LESCON was involved as a subcontractor in road projects between
941 Bridge and Katse. LESCON was subcontracted for Construction
Contract LHDA 13 and the supervision contract LHDA contract 16.
other contracts wereConstruction Contract LHDA 104 and supervision
Contract LHDA 17.
consultants to whom LESCON was subcontracted were Sogreah, Coyne
et Bellier in the first section and HIC - BCOM in the second.
PW1 was involved directly with Contracts 17 and 104 on behalf of the
949 LHDA. It should be borne in mind that Contract 17 was the
in respect of contract 104. In the capacity set out above PW1 was the
Engineer within the LHDA and the Sub-consultant was LESCON. In this
sense PW1 worked with Z M Bam.
PW1 in brief pointed out that during his employment with the LHDA
first as a senior engineer, next as infrastructure Manager, also
Acting Chief Executive and finally as Deputy Chief Executive he
worked with Acres personnel.
957 He explained that Acres provided technical assistance to the
LHDA. He elaborated that Acres personnel occupied line positions
within the LHDA in the engineering division. He concluded by laying
great stress on the fact that Acres personnel in the capacity
pointed out "were actually part and parcel of the LHDA. They
961 acted similar to every other employee of the LHDA." See
page 169 of the typed record; lines 16 - 17.
Needless to say the Acres personnel within the LHDA were housed in
office building as the LHDA.
Of senior Acres people that PW1 knew and who filled positions in the
LHDA, PW1 mentioned Mr Jonker who became the assistant to the Chief
Executive. The other one was Mr Witherell who initially was the
engineer and later became the technical manager and ended up as
Assistant Chief Executive finally. PW1 next referred to Mr Brown
occupied the position of Mr Witherell as Design Engineer when the
latter vacated that position. He later
973 became technical manager and Design Manager in tandem when the
Technical Division was further divided into two divisions.
PW1 testified that he worked closely together with Mr Jonker, Mr
He however did not know DW1 Mr Hare nor did he know or work together
with Mr Reinhardt both of whom came to occupy senior positions
behalf of Acres.
PW1 told the court that he knew nothing about a firm called
Associated Consultants and Project Managers (ACPM) as a
for whoever working in Lesotho for the LHDA or
otherwise. In fact he never got to know of
985 such a firm. He however knows and has known the wife of Z M
Bam namely Mrs Margaret Bam. But he did not know that she was
way involved in the Water Project. Nor did he get to know Z M Bam
being a representative of Acres or representing the interests
Acres on the Water Project. PW1 only got to know for
989 the first time that this was the case or said to be the case
during the course of this
instant litigation. I accept as true PW1 's professed lack of
knowledge set out above.
I may just take a brief pause here and reflect that indeed PW 1 has
993 been demonstrated to have been an important member of the LHDA
organisation whose career there culminated in his being appointed
Acting Chief Executive for two years spanning the years 1994 and
1996. Z M Bam as evidence showed used to go to see Masupha
the latter's office at LHDA. Yet not once does
997 Z M Bam go to that office in regard to, presumably, his function
as someone looking after the interests of Acres in the LHDA
is there. The ACPM regarding which evidence later showed that it is
no different in essence from Z M Bam, is unknown to
as important a
man as PW1 who for two years was Acting
1001 Chief Executive for the LHDA; apart from having been a senior
member of that organisation for years before. I am constrained
indicate that it is too early a stage to come to any conclusions but
nonetheless a nagging feeling is not misplaced even at
stage that unless a deliberate effort was made to keep this
1005 away from PW1 in his capacity as the Acting Chief Executive of
the LHDA he surely would have easily come by it as, on the
it did not seem to be that inaccessible to Sole regard being had to
the totality of evidence heard in this case.
This becomes even more poignant when consideration is had of the
when PW1 was working on contract 104 and LESCON was a sub-consultant
Acres technical personnel would have been and indeed were
with PW1 in the supervision of that contract. These were Jonker and
Witherell who worked in the
1013 division that reported to the Chief Executive. Yet strangely
indeed none of them nor anybody for that matter from Acres ever
mentioned to PW1 that they had a relationship with Z M Bam or that
Acres had one with him other than Z M Bam's sub-consultancy
regarding LESCON. It should not be overlooked that PW1 's
1017 assertion that, when he was the Acting Chief Executive from
1994 to 1996, he at that stage worked closely with Acres people
as the Deputy Chief Executive, was never assailed nor was there any
need for it to be assailed because to me it has a distinct
truth to it.
PW1 told the court that when he was Acting Chief Executive for the
period spanning 1994 and 1996 he used to have meetings with
people. Various problems were discussed in these meetings relating to
the Project. Meetings were
1025 of various types. For instance there were technical management
meetings, management meetings and project co-ordination meetings
which even outside consultants participated and reported to the LHDA.
Yet at none of any such meetings where PW1 participated
mentioned by any of the Acres people to
1029 the LHDA that Z M Bam was an agent for Acres. I find this very
to say the least.
Going further in his evidence PW1 indicated that Acres was contracted
1033 consultants under contract 65 which in effect was an extension
of services rendered by Acres under contract 19. What this
was that there would now be more personnel and some positions would
be upgraded. With regard to Mr Witherell the court
was told that
under contract 64 he became Acting Assistant to the Chief
1037 Executive, and that later became Deputy Chief Executive,
(Environment and Public Affairs)
PW1 reiterated that Acres' contracts were administered within the
1041 executive level. He further emphasised that the Acres personnel
remained very close to the Chief Executive, "worked
with the Chief Executive" he added. See page 173 of the typed
was PW1's further evidence that Basotho Engineers in order to get
senior positions in the LHDA had to be trained by Acres as
counterpart Basotho staff so that ultimately they could take over.
Asked to explain the meaning of a sole-sourced contract which is a
that was ascribed to contract 65 earlier and how such a contract
works, P W1 simply stated that a sole-sourced contract is one
only one contractor or consultant is invited to submit a proposal and
then the contract is negotiated. He indicated that
1053 there are problems associated with a sole-sourced contract.
Asked to elaborate he indicated that in a sole-sourced contract
is no competition, and that consequently the contractor or consultant
can actually put whatever price he wishes.
PW1 thus pointed out that there were problems that he knew of and
which were experienced with regard to the promotion of Acres
and the bringing in of Basotho Personnel or engineers to take over
Acres positions. PW1 in this
1061 regard pointed out that some Acres people who had been in
contract 19 were promoted to higher positions yet the expertise
experience did not warrant that. PW1 said also that there was little
or no training undertaken by Acres people for the betterment
local counterparts. He named Mr Lightfoot as a person
1065 perceived to have been promoted above his capabilities. PW1
demurred at the fact that Mr Lightfoot was promoted to a position
a principal engineer in the face of Basotho candidates who were
better qualified than he was for that position because in the
place he was not even a qualified engineer.
The court was favoured with Exhibit "D2" a document
constituting contents of the minutes of the meeting held between
Basotho Engineers and the Chief Executive Masupha Sole on 14th, 15th
and 16th February 1994. At this meeting the
1073 engineers including PW1 whose statement was handed in marked
Exhibit "D" raised their concerns with the Chief Executive.
The major problems entailed in these concerns related to Acres. These
had to do with the fact that Acres was not providing the
service that they were supposed to. Acres was providing
1077 none whatsoever. One other concern was the unsavoury closeness
Acres seemed to be enjoying with the Chief Executive. The
engineers in the LHDA felt that this closeness was to their exclusion
and therefore their detriment. The visible and unwholesome
consequence of the closeness referred to above was, according
1081 to PW1, that Acres personnel were seen to be "extended"
without the Basotho engineers being given the anticipated
responsibility. The end result was that, because the Basotho
engineers were offered no training, any hope of them actually ever
taking up the eagerly desired positions would remain only a
PW1 informed the court that the outcome of the meeting referred to
above was that the minutes thereof were distributed to the Government
of Lesotho delegation to the joint Permanent Technical Commission
(JPTC). The Chief
1089 Executive Masupha Sole who was furnished with the copy of these
minutes was not
happy with them at all.
A point of major significance that PW1 raised in his oral evidence
1093 there is no record of LHDA being involved with a firm called
Associated Consu ltants and Project Managers (ACPM). He stressed
utter lack of knowledge of such a firm. Thus he confessed to court
that it had been a matter of great surprise to him when
earlier shown a document entitled a
1097 representative agreement between Acres and ACPM dated 23rd
November 1990, during consultations with Crown Counsel when preparing
for this case. In all the above evidence by PW1 the court found no
trace or suggestion of an attempt to mislead it or conceal the
He went on to indicate that reading from the representative agreement
referred to above Z M Bam is shown as going to (i) perform
certain functions outlined therein, namely look after Acres'
interests, (ii) help Acres secure
1105 a contract, (iii)make Acres known in Lesotho and so on. Yet it
was the unchallenged and indeed unshakeable evidence of PW1
while he was in the LHDA he was not aware of Z M Bam ever performing
such duties for Acres.
Asked if Acres would have been in need of such duties as outlined in
representative agreement including, among others, providing political
intelligence, PWl's well-thought out and logical answer was
as far as I was concerned they would not have had any such need,
seeing that they were integrated in the LHDA.
1113 Their top man was......closest to the Chief Executive and at a
working level. We worked in the same offices with them. We
facilities that the LHDA provided." See pages 179 and 180 lines
22 onwards and 1 respectively. Needless to say
Acres' top man
referred to in the abstracted quotation was none other than Mr
In paragraph 23 of Exhibit D, PW1 buttresses the needlessness of Z M
Bam's services as Acres' agent by pointing out that as at
23rdNovember 1990 negotiations
1121 relating to contract 65 had been concluded and that this
contract was in effect in place and in that sense was in Acres'
He elaborates in very lucid terms that the Acres' personnel who had
been engaged in contract 19 largely continued under contract
throws more and more clarity on the point he is trying to make by
1125 illustrating that by the lst August 1989, which was an
effective date for contract 65 to take off additional Acres' staff
had been mobilised in Lesotho for purposes of contract 65. Thus all
that remained to be done, in essence, was for the contract
signed. PW1 thus rams the point home by stating that it is in this
1129 that he finds it strange that Z M Bam would have been engaged
in respect of any
of the services, referred to earlier. The court finds it difficult to
sentiments in this regard as merely fanciful. Thus the court
concludes that if Z M Bam had any such role to fulfil as set out in
the representative agreement on behalf
1133 of Acres PW1 would certainly and necessarily have known about
it. After all PW1 knew Z M Bam as a local engineer involved
LESCON and ABC. I do not see what could have obscured him from
knowing about Z M Bam being Acres' local agent regard being
the fact that PW1 had during a considerable length of
1137 time been an infrastructure manager, later he occupied a
position of influence and confluence of all matters which could
affect the LHDA without catching the attention of the Acting Chief
Executive that he was for two years, bearing in mind also
working relationship with Mr Witherell.
It is simply mystifying that people such as PW5 Mrs Sophie Mohapi,
and JPTC people such as PW6 Johan Classens and PW10 Ugo Hiddema
nothing about it. Indeed one feels compelled to come to the view that
this sits Acres' rather
1145 ill in view of their avowed and proclaimed policy as a company
to avoid secrecy because they are alive to the fact that secrecy
generally betokens underhand dealing, suspicion and therefore deceit
indicated that with respect to TAC 2 which otherwise is known as
contract 65 the effective date was 1st August 1990. He indicated that
marked the moment from which Acres started mobilising with respect to
With regard to the extensions of Acres personnel PW1 testifies that
these extensions in order to be effective required the approval
the Chief Executive.
With reference to Exhibit D a graphic illustration of contracts with
Acres and payments by LHDA to Acres and Acres to Z M Bam it was
acknowledged that the financial part of this document, i.e. the
about payments related to the evidence that would later come to be
given by PW7, Jean Roux.
1161 However it is in evidence that PWl himself compiled this
document in conjunction with PW7 of Price Waterhouse Coopers. PW1
thus able to inform the court that "this document shows payments
that were made by Acres to Mrs and Mr Bam". See
page 181 line 9
of the typed record. PW1 acknowledged that the top name
1165 appearing on this graphic representation relating to Acres i.e.
M M Bam is Mrs Bam while the middle one is Z M Bam. He immediately
brought to the court's attention that "They [illustrations] show
the payments that were made were made from Mr Bam to Mr Sole.
[document] also shows the time when these payments
1169 were made and what contracts Acres was involved in within the
LHDA". See lines
PW1 indicated that in the early mid 80's Masupha Sole before being
involved 1173 with the LHDA was associated with LESCON (as
The court has had reference to document 31 in which appears a letter
from Acres to the World Bank where in the second paragraph
reference to the
1177 experience gained by Acres in Lesotho while engaged in the main
Lesotho Airport contract. PW1 acknowledged that he was aware
involvement at the time and went further to indicate that the main
consortium that he knew was involved there was Delcanda
also a Canadian firm. The letter was written by
1181 F H
Jonker as early as 3rd June 1982.
Document 34 embodies the opening of the proposals in a brief letter
signed by M E Sole the Chief Executive addressed to the World
1185 1987. The other documents ranging from 35 to 37 are
accompanying minutes. The importance of document 37 is that it ranks
Acres as the first rank bidder as compared with companies Bechtel and
Halcrow which were ranked second and third respectively on
Document 55 is a letter by Acres to the LHDA dated 3rd December 1987
which services of F H Jonker the Executive Vice President of Acres
are offered to act as Assistant to LHDA's Chief Executive. PW1
acknowledges that in fact that 1193 is what actually happened. It is
important to note that this was early on in the time frame
19 otherwise known as TAC - 1.
Document 64 shows LHDA Management meeting minutes in which those
1197 Present include R G Witherel who is number two from the bottom
in the list perused by the court.. PW1 stated that at such
managers of various divisions in the LHDA came to discuss the affairs
of the LHDA including sensitive and confidential
performance of contractors and consultants for
Document 121 is a cover document whose full contents outline the
scope of services proposed at March 1982 in respect of TAC - 2
contract 65. This gives
1205 credence to the view that as early as March 1982 there were
already negotiations with regard to TAC -2.
On 22nd March 1989 The Chief Executive wrote to the World Bank in
document 135 acknowledging the clearance granted for the extensionof
as contractor to increase the number of man months for their services
from 224 to 289. With reference to this event PW1 stated
that in fact
variations exemplified in that regard occurred in most contracts and
that this happened under TAC - 1 and
1213 TAC - 2. The upshot of this is that services would be
increased. He affirmed the question of the learned counsel for the
Crown that work done, the time spent and the people involved from
Acres,[all that] was not constant, it would change and it was
Document 171 written by CJ Brown does not relate to Acres but gives
notice to contractors that were involved in tenders about various
matters giving them a lot of information spanning pages 171 and 177
relating to details of hotels, street maps
1221 of Maseru, a map of Lesotho including a map of certain parts of
Lesotho at page 179. PW1 said this is the sort of information
necessary for people who are not familiar with Lesotho. Conditions
would be explained to them as well as information about what
expect in Lesotho. CJ Brown an Acres man working in
1225 the LHDA is able to furnish all this information and more. One
wonders what should be the function of Z M Bam in such circumstances
at a later stage in contract 65. On the face of it Z M Bam who also
performs the same functions on behalf of Acres would seem to
serving in this regard as nothing else but a fifth wheel to
1229 the cart. The question however remains what could he be doing
for Acres who are
prepared to pay him money for services that their own personnel in
the LHDA seem to be performing with undoubted competence. In
Acres seem to be represented in the LHDA by people who are familiar
with conditions in Lesotho,
1233 who have been in the LHDA for a term of years occupying line
positions in that organisation, and who are men on the spot
Lesotho unlike Z M Bam who is sitting in Botswana under employment by
a Botswana Housing Corporation. There surely is more to
Z M Bam's
relationship with Acres than what is intended to be
conveyed in the representative agreement.
Referring to C J Brown at 186 lines 7-8 PW1 says "........ Under
19 he worked within LHDA, he was from Acres".
PW1 told the court that a Request For Proposals (RFP) with regard to
TAC 2 was given to Acres in January 1990. By 1st February
1990 E M
Sole wrote a letter to Acres. See page 302.
In the penultimate paragraph of that letter he wrote as follows:
"Acres is the only company being requested to submit a 1249
proposal at this time. However, should the technical proposal
be judged inadequate, or the financial proposal be judged excessive,
then the LHDA intends to request proposals from a
short list of consultants. Acres will not be included in this short
The above extract in quotes depicts what would happen with regard to
a sole-sourced contract.
Even though under cross-examination PW1 conceded that when all is set
and done there was nothing sinister or illegal that this
aware of about the conclusion of contract 65 in my humble view that
is a matter which this court 1261 would be expected
pronouncements upon. Furthermore this witness's reluctance to make
such a concession was not lost to the keen observation
made of his
demeanour by this Court.
may just in passing indicate that PW 1 's concession referred to
may not on its own prevail against the contentious issue raised by
the Crown that the honouring of contract 65 by the LHDA and
nothing but a fait accompli forced on them by the unbridled actions
of the Chief Executive Masupha
Sole. (More of that later)
Document 416 in Volume 1 is a representative agreement. PW1 was taxed
in cross-examination about services listed in the first schedule
appearing at page
1273 418. Under re-examination he unhesitatingly told the court that
he never became aware of Z M Bam performing the services
Acres, namely keeping Acres informed of developments, general
conditions, and making Acres known and so on. At no time
or stage did
PW1 become aware of Acres using Z M Bam for such
1277 purposes. See Page 413 lines 5 -10. Most definitely when PW1
was friends with Acting Chief Executive, Z M Bam never came
to PW1 to
make Acres known to him. Nor did he collect documents and forward
them to Acres. At none of the meetings with R G Witherell
inform PW1 that Z M Bam was Acres'
1281 representative. Not even when PW1 was the Acting Chief
Executive despite that R G Witherell and he were on good working
relationships. While still on document 416 paragraph 2(ii) it is
worth noting that ACPM/Z M Bam while purportedly serving Acres
was at once serving Lahmeyer International despite that clause
"ACPM shall with respect to any matter or thing related to LHDA
in Lesotho in which Acres is in any way involved or seeking
involved, act exclusively for Acres and not 1289 directly or
indirectly for any other person or entity".
Needless to say reading from page 426 -429 one sees that even the
World 1293 Bank shared the concerns raised by PW1 about
It is not without significance that the Chief
Executive was described as "an experienced engineer with a mind
of his own".
Page 426 line 13.
The high water-mark of PW5 Sophia Mohapi's evidence with regard to
1297 propriety of R G Witherell authorising the payment of
certificates in his capacity as Acting Chief Executive in the absence
of Masupha Sole was that while R G Witherell in his capacity as the
Acting Chief Executive was entitled to sign on behalf of that
she hastened to point out that " perhaps with benefit of
hindsight it does not allow for checks and balances if that
It is however a matter of some curiosity to this court that R G
Witherell was able to process his own contract 64 while he was
holding the senior position of
1305 Acting Chief Executive in the LHDA. This strikes me as curious
for what it means is that he was able to propose and later
example of this situation was attested to by PW5 where in Volume 9
271 onwards appear payment certificates for advance payment to Acres
in the sum of CD 1 160 000-00 and M250 000 - 00 signed by
Witherell on behalf of the Chief Executive whereas on document 272 he
signed this document on behalf of
1313 Acres. In brief what is seen here is RG Witherell claiming the
money on behalf of Acres and signing his approval thereof
of the LHDA. I have already indicated how this practice at least
speaking from hindsight has struck PW5.
She further stated that she knew Z M Bam but not through business as
1317 had never had any business dealings with him. She had never had
social meetings with him. But she maintained that as a local
he was well known.
When shown a copy of a representative Agreement entered into between
1321 Acres and Z M Bam PW5 said speaking on behalf of the Finance
Division of the LHDA her organisation had never had any dealings
Z M Bam. This was in response to a direct question whether Z M Bam
ever to her knowledge performed any of the services outlined
representative agreement for Acres. I accept
PW5's assertion as true.
It must be appreciated that PW5 spent many years working for the LHDA
and her assertion that in all the years that she was there
Z M Bam
did not perform
1329 any of the services referred to for Acres carries much weight
indeed. The implication here is simply that if Z M Bam indeed
performed any such services PW5 would have known. She struck me as a
very truthful witness whose evidence was straight forward
It should be recalled that she was a lady of great
1333 standing in the LHDA who at some stage in that organisation was
entrusted with the important task of being an Acting Chief
herself See page 480 line 12. She was also fair to Z M Bam in that
having said she recalled on one or two
occasions seeing him going into Masupha Sole's office she hastened to
1337 that many people used to go to Sole's office therefore at that
stage she said this was not of any significance to her.
Again it is of great significance to this court that at the time PW5
1341 financial controller and later Chief Executive Finance, first
as counterpart and next as substantive post holder it had never
to her attention that Masupha Sole had bank accounts in Switzerland.
next witness after Sophia Mohapi was PW6 Johan Classens. At the time
of giving evidence PW6 was with the highlands Water Commission
previously known as the JPTC. The name of the Commission having
changed in 1999 with the introduction of Protocol 6 to the original
PW6 is a South African delegate on the Highlands Water Commission.
But because events being dealt with here relate to pre -1999
6 it is convenient to stick to the name Joint Permanent Technical
Commission, in its abridged form
JPTC. PW6 joined the JPTC in 1988 as a consultant to the RSA
PW6's attention was drawn to page 56 of Volume 8, a document headed
2 Proposal Negotiations. This relates to a meeting with Acres held on
1357 1990. His immediate reaction was that although the JPTC is not
responsible for negotiations as such, it however has a monitoring
function. Thus he explained that in the particular meeting referred
to above he was involved as an observer on behalf of the JPTC
PW6 enlightened the court about the negotiations which went on
between Acres and LHDA regarding contract 65. He gave explanation
about the dispute that raged around the question of taxes which were
insisted on by the Lesotho side
1365 while denounced by the RSA side of JPTC. The court learnt that a
compromise was reached with the result that what taxes were
by Lesotho had to be quantified and paid back to South Africa in well
- calculated proportions. Acres was represented
by one John Arnett in
resolving this dispute. It is worth bearing
1369 in mind that the World Bank itself was adverse to financing
Consultants or contractors for purposes of paying local taxes
foreign countries where such consultants/ contractors' expertise was
put into use.
With respect to the suggestion put to him at page 508 line 14
during the debate between parties about what were billable and
non-billable costs to be borne by client the question was basically
that Acres was going to pay fees
to an agent and that such fees should be included in the non-billable
1377 ultimately be recovered from the LHDA, PW6's reaction was that
agency fees would be paid generally by Acres as part of their
overheads on assignments all over the world all over the world.
insistence by Mr Alkema for the defence that LHDA knew in an indirect
way that they were going to pay Acres fees including representation
fee or agent fee that Acres was paying to Z M Bam because we
Z M Bam was Acres' agent, was met with a telling rebuff, namely
do not necessarily agree with that................I do not think one
necessarily assume that agency fees are payable on this assignment".
In my humble view the reasons given by PW6 for concluding as he has
1389 to be compelling. Furthermore they are consistent with the
stand taken by PW1 especially and PW5 that they are not aware
M Bam was Acres' agent. The more pungent aspect of PWl's reaction in
this regard is that surely if Z M Bam was an agent
of Acres as
insisted on by the defence he would have known.
PW6 denounced a parallel being sought to be made by the defence
between a provision being made by Acres in its contract price for
client's entertainment on the one hand and a provision in relation to
the agent's fees on the other hand. His
" I do not think one can say that if an organisation like Acres
fees..............for assignments all over the world,................
one can [justifiably]
make the assumption that they also pay agency fees on the assignment
do not see that as............ a logical............... conclusion".
The way I look at this debate is that even if as PW6 admits that he
have any personal knowledge of what are being paid by consultants
1405 to their agents the fact of the matter is that if compelling
reasons make it impossible for me to accept that Z M Bam was
agent, PW6's confessed ignorance of what goes on in the world becomes
Indeed at page 12 PW6's response to the question put by the Learned
for the defence was sufficient to cause a sudden but revealing change
of course by Mr Alkema. In this connection it had been said
that Z M Bam was a South African citizen, and as such not subject to
the exchange control regulations of
1413 Lesotho. The suggestion was that Z M Bam was at large to ask
for payment in foreign currency in a foreign banking account.
sound and therefore to my mind acceptable answer proffered by PW6 was
that "If Mr Bam is a South African citizen, then
he is basically
under the same exchange control regulations [as] a
Lesotho citizen. I think it is even more difficult to get clearance
payments internationally if you are a South African citizen."
Amazingly it appears Acres was prepared to go along with this
despite that at page 1284, lines 4 -5 their avowed policy is that
"the corporation will not knowingly aid or abet any
party to circumvent exchange control laws."
It is indeed telling that the Learned Counsel for defence immediately
tried to deftly betake himself from a point he had originated
his disadvantage 1425 as follows:-
"I cannot speak on behalf of Mr Bam and I do not want to speak
on his behalf, in fact it is impossible to speak on his behalf...."
See page 512 lines 7-22
At page 519 of the record having listened to the evidence of the case
it seems fair to make a summary that a Memorandum of Understanding
(MOU) followed by a letter of intent followed by the signing of the
contract is a proper Procedure to be
1433 followed in the LHDA when concluding contracts with
It will be clear later in the relevant context why it is necessary to
bear in mind that with regard to Contract 65 the contract
operation on 21st
1437 February 1991. But Acres had been allowed to start working on
1st August 1990.
Thus it is axiomatic that Acres was allowed to mobilise despite that
the contract had not yet come into operation then. This followed
interim arrangement that was made to allow Acres to start work in
terms of a contract that was only signed the
The JPTC only gave its approval in March that following year. It will
be appreciated though that when signing the contract in February
next year it was
1445 stated that the effective date would be 1st August the previous
year. The truth is that as at 1st August the previous year
contract had not been signed. No
contract was in existence at the time.
While the above outline appeared to be common cause there was
dispute between counsel whether this state of affairs precipitated
from a fait accompli or not. More of that later.
court takes a very serious view of the fact that a company of such
prominent international standing as Acres whose avowed policy is to
denounce deliberate breach of the law should brazenly behave
this court to create an impression that if ACPM/Z M Bam preferred to
be paid in Canadian Dollars in a
1457 foreign country in breach of financial regulations of whatever
country, there was nothing Acres could do about it. Put bluntly
was no skin off Acres' nose!
That Acres should blithely adopt an ostrich's - head - in -the - sand
1461 in the face of a patent breach of the law by its agent is not
only reprehensible but it implies that compared with what Acres
to gain this particular breach was but a mere mackerel sacrificed in
order to bait a whale. This is where the role of Masupha
Sole in his
position as the Chief Executive without whose
1465 recommendations no consultants' contracts with the LHDA could
come to fruition, becomes significant to the extent that he
receiving Acres money channelled through Z M Bam as will shortly be
illustrated when dealing with the evidence of PW7 Jean
Turning now to the evidence of PW7 the court observes that it
confirms the report Exhibit K-1 handed in together with annexures
thereto labelled Exhibits K-2 and 3 together with a graphic summary
showing the flow of funds. This is Exhibit
a very handy piece of work by all manner of means.
The graphic illustration supplied by PW7 is simple to follow. The
explanation he gave in support thereof is even simpler. His sketch
1477 illustration of the flow of money from left to right
represented by red lines and blue ones. On the left are listed
and/or contractors. These consultants and/or contractors
are given as Dumez, Acres International, Lahmeyer MacDonald, Lahmeyer
International, ABB Schaltanlagen and ABB Sweden.
The middle from top to bottom consists of Z M Bam mostly and (his
wife) MM Bam's accounts. The witness says of these holders of
centre stage " That is where moneys have been paid into from
these consultants and contractors". See
page 549 lines 13 - 14.
The witness goes further and says
"the red lines illustrate payments which could actually follow 1
through to Mr Sole's account".
He assured the court that he had reason to believe that the amounts
that were paid into Z M Bam's account, a portion thereof or
the full amount was
1493 paid across to Sole through those accounts. He illustrated that
right of the middle are all accounts belonging to Sole held
various areas of the globe ranging between Maseru, Ladybrand,
Bloemfontein and Geneva into which moneys were transferred from
Bam's account. The witness made so bold as to say that
1497 "Those accounts were used as conduit almost for moneys
received from these consultants or contractors". See page
The red lines on the sketch represent what the witness describes as
the blue non-direct.
It is important even at this early stage of PW7's evidence to
indicate that his evidence forms the crux of the Crown case but it
was nevertheless not challenged,
1505 more especially where it relates to the flow of funds from
Acres through to Sole as depicted by the red lines on Exhibit
PW7 came out impressively when he indicated that if an account
zero balance and somebody pays some money into it giving it a
balance and should the credit holder the following day pay half of
the amount to Mr X then truly the money that came in is part
money that went out. Elaborating
on this sort of scenario PW7 said that as he was in the instant
situation dealing with
1513 money then prudence dictated that he should make certain
assumptions because the money is not specifically identifiable.
tackling this problem he adopted the sound and common sense approach
that if the payment was close enough from the point of
view of time
taken between a consultant/contractor depositing the money
1517 into Z M Bam's account and transferring it into Masupha Sole's
account; or if there
are sufficient circumstances such as that there was no other
transaction in that specific account for a specific period until
payment is made, then PW7's assumption would be that the money in
question was in fact the money that was used to pay the 1521 amount
The above scenario fits in hand and glove with the situation in the
instant case in the sense that the ACPM account held by Z M
1525 only Canadian Dollars paid into it by Acres. Most of the
occasions a regular proportion of the money deposited into that
account was paid to one and no other account than the Swiss account
held by Masupha Sole. No better description fits this scenario
that Z M Bams Swiss Account was a mere conduit for purposes
1529 of transferring moneys paid there into Sole's account. But why?
Sole was the Chief Executive of the LHDA. So what! Acres
interest in securing a consultancy contract with the LHDA and
continuing to serve in that capacity. The fact should therefore
be overlooked as stated by PW1 that Acres was favoured
1533 above all other competitors by the Chief Executive, Sole.
Closely linked with this notion is a mighty concession made by
defence in their written submissions at page 108 paragraph 89 saying:
1537 ".................For purposes of this case it is accepted
that the payments from Bam to Sole were made unlawfully,
and this has
already been found by another court of this Division in the case R vs
argument proceeds that on the facts placed before court it cannot be
that Acres knew of the transactions between Bam and Sole, or that it
was a party thereto. In my view however it would defy common
that Acres should pay so much money as it did consistently over a
period spanning the duration of this
1545 practice without knowing that its money was being used through
their agent to pay the Chief Executive of an organisation
they had a direct interest. Again it was Acres policy to engage
agents who were not tainted with wrongdoing. But the concession
referred to above gives credence to the view that Z B Bam would
1549 not have engaged in the act of unlawfulness if he was as
upright as some of the defence witnesses would have this court
believe. Furthermore it is inconceivable that he would use this
unlawful means of securing Acres' interest by, as it were, rubbing
the right way the only man who mattered namely Sole without Acres'
1553 knowledge. Moreover the fact that the usual 60% passed on by Z M
Bam stops after Sole through losing his legal battle in courts,
any chance of reinstatement in the LHDA where Acres had direct
interest, leaving Z M Bam continuing to receive his usual 40%,
paid to Acres' pretence that it did not know that Z M
1557 Bam kept passing on 60% of money received from Acres to Sole.
The halt to pay percentages usually payable to Sole was no
coincidence with Sole losing that battle but a conscious act by Acres
not to pay him because as no longer Chief Executive
of the LHDA he
was of no longer use to them.
In this connection I find Mr Penzhorn's oft repeated example very apt
and persuasive that - "A's" son has been arrested
breach of the law. "A" approaches the investigating
officer. The investigating officer merely says to the prosecutor
1565 who is to prosecute "A' s" son that so-and-so is "A'
s"son and hands the prosecutor money. The next thing
The other example the learned counsel for the Crown used in order to
1569 home to this court the devious paths that the crime of bribery
often follows, and makes it difficult though not impossible
point or investigate is the example of a traveller who is in a hurry
to cross the border between Maseru's Caledon bridge
and South Africa
but finds that the queue is very long ahead of him and the
1573 sun mercilessly hot. He gives something to a small boy who goes
to hand it over to the examiner of travellers' travelling
at the head of the queue, whereupon this particular traveller is
beckoned forward and has his passport stamped. Thus
he has managed to
jump the queue! Indeed he has thereby escaped
1577 the ordeal of a long wait in the unbearable sun heat. If later
investigation shows that the examiner of passports is in possession
of money or gift received from the traveller in question for which
there is no apparent reason why it was paid, it would not be
conclude that that money was bribe money meant to enable the
1581 traveller to jump the queue. But again I must not be understood
to mean that the act becomes bribery simply because unaccounted
money was found on him in these circumstances. It became bribery when
he agreed to consider the unlawful proposition with favour.
PW7's testimony was that apart from a few isolated transactions
relating to for instance American Express, as well as a few debits
the accounts which he could not identify because of the absence of
documentation, the accounts of Z M
1589 Bam and M M Bam were exclusively for the transfer of monies
from contractors/Consultants to Masupha Sole.
Credible evidence clearly shows that the last three payments of CAD
1593 - 00 each represented some 40% of earlier ones. This is a
remarkable pattern regard being had to the fact that Z M Bam retained
this percentage as his share. It is pointedly remarkable when one
considers that in respect of these payments Z M
Bam did not in turn pay a portion over to Masupha Sole. This
particular aspect of
the case stands in sharp contrast to occasions where Z M Bam would
retain 40% of the payment deposited into his account by Acres
over 60% to Masupha Sole. It is true that sometimes the percentages
were not exactly in the 40% /60%
1601 ratio but they were close enough. What matters to this court is
that in the last three occasions referred to earlier there
is a clear
and conscious effort to ensure that Z M Bam receives 40% which was
usually his share. This conscious effort on Acres'
part betrays a
clear notion that the usual 60% which Z M Bam would pay to
1605 Masupha Sole is now not payable. Now that Acres pays Z M Bam
only 40% to retain means Acres knew where 60% would usually go
they paid it together with the 40 % to Z M Bam in a composite form
i.e. of 100%. The axiom in the proposition at hand is indisputable,
namely that when Z M Bam receives 40% plus
1609 60% in a composite form from Acres, Masupha Sole receives from Z
M Bam 60% of that composite deposit. But when Z M Bam receives
40 % direct from Acres Masupha Sole gets nothing. How can it
seriously be maintained in such circumstances that Acres did
who the character is who now receives
nothing because they paid Bam only 40 % this time.
PW7 is a South African Advocate and speaking as such he expressed the
view that these transactions in Switzerland involving Z M
contravention of the South African Exchange Control Regulations.
This court accepts the submission based on evidence that has been
tested that the Bam accounts were nothing more than receptacles
bribe monies. PW7's
1621 chart gives ample credence to this view. See Exhibit K-4 along
with Exhibits K-l and 3.
One is fortified in this view when considering the use to which Z M
1625 Swiss accounts were put. For instance the chart shows that
these accounts were used for no other purpose than to receive
from contractors or consultants on the Water Project namely ABB,
Lahmeyer, Dumez and Acres and then to channel a portion
Masupha Sole. PW7 was adamant when he related this
1629 to the court. See page 614 lines 12to 18. Needless to say this
very damning aspect of PW7's evidence was not challenged.
I may even
go further to say that with regard to the figures that PW7 worked
with one finds that at the end of the day
DW6 Burnett does not challenge them. All he challenges is PW7's
In a way, PW7's evidence adduced above gives the lie to Acres doing a
thorough due diligence on Z M Bam before and whilst dealing
because as early as when Acres were engaged under Contract 19 they
knew that Lahmeyer
1637 were using Z M Bam as their agent. The Swiss Accounts of Z M
Bam had been receiving monies from consultants/Contractors who
on the Water Project. Among those were Dumez, Lahmeyer and Acres as
Credible evidence leads to the conclusion also that Z M Bam's role as
agent was never disclosed to the LHDA as I pointed out earlier.
Indeed the evidence of the two Putsoanes that of PW5 and PW9 Felix
Matsoha to that effect was not challenged. As stated earlier the
Court attaches weight to the fact that all
1645 these were senior and key staff members of the LHDA at the
time. It is but a small stride for the court to conclude from
premiss that if Z M Bam's role was not made known to them then indeed
no one else in authority was told about that role.
accordingly accept the submission that it seems the arrangement with
Bam was not intended to bear any exposure to the light of any type.
This conclusion rightly follows because there is not even a
copied to Z M Bam. I further accept the soundness of the argument
which is in sequel that the
1653 fact that Masupha Sole knew can hardly, in the circumstances,
be imputed to the LHDA. Clearly the work that he did or the
that he had to perform are thereby consigned to the category of
follows then that if the relationship was not generally known it
fittingly belong to the "red flag" category. It requires
not a quantum leap but hardly half a step to conclude likewise
regard to the sums involved. Z M Bam was paid huge amounts of money
for not doing any of the things stipulated in the 1661
for that matter while he was sitting in Botswana.
At page 263 in Volume 3 it is observed that in papers submitted by
Acres to the World Bank a portentous statement appears which
with a solemn
manifestation of high corporate standards of business conduct
Acres. It is to be seen that Acres says it values its integrity and
therefore strives for adherence to the laws and regulations
ensure carrying out business in an honest and moral manner. Indeed at
page 263 paragraph 2 the opening words read
"..............Acres has also had a corporate anti-bribery
the Acres corporate Standards of Business conduct, since 1978."
Acres also makes reference to the United States Corrupt Practices Act
of 1977. See 1673 page 287 - 291. What is of interest in
connection is that Acres acknowledges that unusually high commissions
are "red flags" indicating corrupt practices.
indicated earlier Acres acknowledges that secrecy is the hallmark of
improper transactions. It goes on to state however
that care was
taken to include
1677 a stipulation against unauthorised payments or commitments i.e.
bribes. Page 305.
But it seems to me that these high standards which are made much of
by Acres are honoured more in the breach than in the observance
the light of the fact 1681 that its dealings with Z M Bam were very
much a hole-and-corner affair.
Thus I accept Mr Penzhorn's submission that, Acres having
acknowledged the caution that must be displayed with the sort of
referred to above, it
1685 contends nevertheless that Z M Bam's role was an open one known
to everyone. This contention had to be formulated in order
rejected and I reject it without hesitation. I have no doubt that
when dealing with Z M Bam, Acres was aware that there could
problem and for that reason sought to keep the relationship hidden.
It is indeed revealing that the amount of CAD 34 325 coming from Z M
account is received in Masupha Sole's account see page 594 lines 20
Z M Bam's account it was transferred to Masupha Sole's account number
More revealing is the fact that after only 31 000 had been
transferred from Acres' account to Z M Bam's account the amount
from this account to
Sole's account was 34 329 - 50 which is about 2 700 more than the
transferred by Acres. PW7 said Z M Bam could not have transferred
this amount of 34 000 without the incoming deposit of 31 000
Acres. See page 596 lines 10 - 16. One sees in the picture that PW7
is trying to make, a lucid and visible
1701 effort by parties involved to clear the over-draft created by
drawing 34 000 on an account containing only 31 000. On the
towards the bottom and proceeding to the next page the question of
60% destined from Z M Bam's Account to Masupha Sole's
clearly. In line 26 of 596 PW7 in offering an
explanation that is unassailable said:
"The CAD 28174 is exactly 60% of the amounts that were
transferred into Z M Barns' account 1709 from Acres".
This was in response to the question that on 23 April 1992 CAD 28 174
was paid over to Masupha Sole further and more direct to
the question was
"..........and you say under the 28 000 amount it is 60%. Could
you explain that to his Lordship",
The same story is given in clearer detail at P 604 where PW7
"That money must have come from Acres" that was
transferred to Sole.
Lines 10 - 11. Of importance is that again it is said to be exactly
60% of the amount that had been transferred into the other
exactly the same day the amount of 14 085 was transferred out of that
account. There are no other
1721 transactions between these accounts and there are no other
deposits being made previous to that account from which that money
could have come.
In his submissions Mr Penzhorn at page 71 under the heading "Issues
1725 from exhibit "L"," indicated that during the
cross-examination of PW7 the defence sought to establish through
exhibit "L", that the payments made to Bam conformed with
the representative agreement. He surmised that the defence
thereby to give some legitimacy to this agreement and particularly
also to dispel the obvious
1729 conclusion reached by PW7 that the reduction in payments from
CAD 7800 - 00 to CAD 3500-00 signifies that Bam was now only
paid his 40% share. Learned counsel concludes that this document does
not really assist the defence. In fact it does the
opposite. I agree
with this submission.
I recall during proceedings how the defence made much of the fact
that at times the ratio by which Z M Bam and Sole shared as claimed
by the crown the moneys from Acres did not conform to the 60/40%
pattern. I however have
1737 satisfied myself that for most part of 16 times out of 20 this
pattern is maintained.
To argue therefore that the Crown should be tied down to the same
pattern even in odd occasions where such is not the case is,
humble view, engaging in unnecessary pettifogging exercise. I recall
in this regard D6 Eric Burnett saying 4
1741 % is a large number and that Governments fall and elections are
lost by 1% margins. That maybe so. But here the court is
assessing evidence given by a witness who was not present when the
events he is investigating were taking place. All
he relied on were
his investigative skills painstakingly applied on the
1745 data that he managed to lay his hands on while the balance
thereof is not traceable. After all the Holy Book somewhere says
single crooked stone in a wall does not warrant razing the entire
building to the ground.
court bore witness to a strenuous effort by the defence seeking to
establish that the reduction in payments from 78 000 to 3 500 - 00
was to the effect that the percentage payable to Z M Bam was
exceeding 3.6%. I have taken time to peruse exhibit "L"and
found that the defence's contentions are not supported by
1753 reference to that Exhibit. In fact reference to page 753 Line 1
reveals the opposite. The debate at page 755 lines 4 to 18
point home in favour of the Crown concerning the question at issue in
the sense that figures taken at random all accord
with Exhibit "L".
instance in certificate 107 the figure 21 151-60 accords with the
Exhibit "L". Below that is 22 101-90 for disbursements
which also accords with Exhibit "L". Certificate 108
likewise accords with the amount of 26 819-08 to which Exhibit "L"
The court is aware that the payment of CAD 180 000-00 is not
reflected in the agreement. Thus if Exhibit "L" is to be
relied on then CAD 45 000-00 multiplied by 4 should have been paid in
the following order:
first, the amount of CAD 45 000-00 being the advance received by
from the LHDA,
next three payments of CAD 45 000-00 following receipt of each of
three monthly progress payments received from the LHDA.
It should be borne in mind that the representative agreement provides
1773 equal monthly payments. Even though this document provides also
for payments which may accumulate at ACPM's option and be
three monthly intervals nonetheless Exhibit "L" does not
reflect any such thing.
What the court has been able to perceive as an objective factor in
Acres is that the amount they paid Z M Bam coincides with the payment
amount only and not with the payment provision in the representative
agreement. By introducing this I feel that Acres' plausible stand is
undermined by what virtually 1781 amounts to throwing a spanner
the works. This, it is contended by Acres shows, that the
representative agreement is genuine. The logic of this contention
Consequently I am inclined to the view expressed by the Crown that
that the payment amounts coincide is neither here nor there. Common
dictates the actual payments would have been incorporated into the
representative agreement, if fears are to be allayed that this
document is not genuine. If for no
1789 other reason, incorporating payments there would be a sensible
thing to do for accounting purposes. Now as things stand the
conclusion is irresistible that this document was used to hide the
true intention. Otherwise one is left wondering what the real
was for the payments; hence a feeling that all this begs the
1793 question regarding the crucial issue upon which the question of
payments is hinged.
WHAT SOLE DID FOR ACRES
It is fitting that immediately after treating of factors set out
above I should consider and focus on the above title.
In his well-thought out judgment CRI/T/111/99 Rex vs Sole dated 13
2002 (unreported) at 12 and 10 Cullinan AJ stated that in order to
establish bribery the Crown does not have to prove a quid pro
However where the Crown is
1805 aware of the bribee doing things or omitting to do things
favouring the briber it should place this before court.
It was in this vein that the Crown called witnesses who might testify
to the 1809 existence of factors encompassed above.
The Court has already indicated that it accepts the evidence of PW1
showing that Sole was certainly well-disposed towards Acres.
pointed to examples
1813 such as what is certainly on record that local engineers were
unhappy with the slow progress being made by Acres towards
advancement of local engineers.
Under cross-examination PW1 was taken to task in an attempt to show
1817 all the checks and balances were in place and that Sole was but
a small cog in a large wheel The checks and balances encompassed
was referred to by DW1 Victor Hare at page 1674 lines 1 to 6 to the
effect that though Sole was the head of the LHDA any substantial
action he took or any approval that he made had the
close scrutiny of the JPTC. Further that:
"It had to have World Bank approval and there were a set of
approvals within LHDA they had to pass."
Saying this it seems DW1 was blissfully forgetful of the fact that
he said to
the court he was puzzled when Sole kicked out one Willet for no
apparent reason as a result Recnhardt came in as the corporate
representative to replace him. To add pungency to the unbridled and
high handed manner in which Sole was dealing
1829 with situations which were not to his liking, when he got to
know from Makhakhe that DW1 himself was concerned that no explanation
was given for Willet's dismissal, he in turn was dismissed from the
project because Sole "considered that I was going over
And because you had the temerity to go over Sole's head you were out
as well -? Yes" see page 1676 lines 5-18.
Needless to say this was a clear indication of the unbridled, high
limitless powers that Sole wielded even if DW1 wishes not to describe
them as such. The fact that the testimony that leads one
conclusion comes from DWl's own mouth could not have given any more
poignancy to this contention
1841 than otherwise. So clearly Sole was no small cog in a wheel in
the LHDA as shown by this and many other factors to be dealt
later. For the moment I can only say Sole's character described as of
a man with an independent mind of his own could not
have been more
fittingly rendered in ordinary language.
To return to the charge. While PW10 Hugo Hiddema was taken to task in
cross-examination because his evidence was largely of secondary
nature, that of PW15 Letlafuoa Molapo bore not any such shortcomings.
PW15's evidence went along with the minutes of the JPTC of which he
was a member at the relevant time as borne out in Exhibit "Z".
That evidence establishes that Article 9 of the Treaty requires
JPTC's approval in writing for any
1853 decision by the LHDA, more particularly any decision involving
the expenditure of funds.
Although at the relevant time namely 1990/91 there were no formal
1857 procedures in place dealing with approval all major steps in
the contract procuring process had to be approved by the JPTC.
Otherwise formalisation of the necessary procedures was effected
under Protocol 4 in 1992. The necessary steps in existence before
coming into operation of Protocol 4 included the request for
proposals 1861 in the case of a consultant, the Memorandum of
Understanding, the letter of intent (if applicable) the actual
contract including any other decision involving the expenditure
funds.. See pages 1072 through 1075.
PW15 sketches a history of Masupha Sole not complying with JPTC
procedures. PW15 was very impressive when giving evidence. He is what
one can describe as a man of equable and resigning disposition
inspired the court with confidence that he truly knew what he was
talking about without exaggerating the
otherwise unwholesome attitude exuded by Sole to the authority of
He indicated that rather brazenly Sole ignored the need to seek
approval of the JPTC when he steamed ahead and sent out a request
1873 notwithstanding that this document describes the scope of the
work to be done. See pages 1072 line 13 and 1073 line 10.
Next Sole decided not to let the Memorandum of Understanding receive
approval of the JPTC.
Further, the letter of intent dated 24 July 1991 was sent out without
approval saying nothing of the knowledge of the JPTC. Needless to say
1881 subsequent authority to mobilise dated 14 August 1991 was
without the JPTC's approval. It is important to note that both
steps had financial implications and for that reason made prior
approval of the JPTC imperative.
my view if Sole regarded his disregard of the above necessary
requirements as minor breaches of otherwise sound practice it was a
matter of time before retracting from this form of behaviour
as tedious as steaming ahead with it. Fact: is it not trite that
impunity incites to greater crime? In my
1889 considered opinion it is on this kind of conduct that the law
has fittingly set a note of infamy.
The need to obtain the JPTC's approval applied with even greater
1893 the authority to pay out the advance where there was no
contract in place yet and therefore no funding as at the time the
preliminary requirements towards the establishment of Contract 65
were driven single-handedly and off his bat by Masupha Sole.
summit of this unwholesome treatment of JPTC as if it didn't matter
exist is that the actual contract was finally signed on 21st February
1991 without JPTC's approval. See page 1107 lines 14-24 especially
where PW15 in line 18 in reference to minute 8.17 almost ruefully
except for his benign equanimity of 1901 spirit told the court
here under 8.17 we noted that the contract had already been signed."
I entirely agree with the Learned Counsel for the Crown in his
paragraph 170 of his written submissions that "all these
primarily be ascribed to Sole. They were also not mere formalities.
By committing the LHDA the way that he did, particularly when
allowing Acres to mobilise and he paid the advance before the
contract was signed, Sole placed the JPTC in an
impossible situation. It had little choice then but to go along with
what he had
done. It was faced with a fait accompli. And all this was to the
of Acres". See page 1105 lines 14 - 20. The words of PW15 are
indeed revealingin this regard. When it was pointed out to him
the person who signed
1913 authorising the payment on behalf of the Chief delegate (sic)
is Mr Witherall, an Acres' employee, and being asked what he
that PW15 said: "The Acting Chief Executive; I think he would
not have done it on his own without
authorisation by the Chief Executive. It would have been something
because he was part of the Acres' team and to sign it he would have
authority from the Chief Executive "
Mr Penzhorn submits and the records amply reveal in support thereof
that the reprehensible sort of conduct manifested by Sole not
led to Protocol 4 but it
1921 eventually led to the disciplinary proceedings against him
which in turn led to his downfall. PP 1114-1116
GREATER FOCUS ON ACRES' NEED FOR A REPRESENTATIVE AND WHAT Z M BAM
DID FOR IT.
stated earlier Acres' involvement in Lesotho dates back to as early
1982, therefore quite clearly Acres was perfectly familiar with the
situation in this country. Even under TAC -1 Acres' involvement
the LHDA spanned the period between 1987 and 1990. Around the
threshhold of the commencement of
TAC-2 Acres had been in Lesotho for no less than eight years. No
had by then been in no trouble knowing their way around. When TAC-1
merged into TAC-2 Acres' staff carried on working without a
amply attested to by
PW10 UGO H1DEEMA at page 1054 lines 8 -16. In fact Sole's letter
August 1990 to Acres rams this point home in paragraph 3 as follows;
"We confirm that we agree that the following Acres staff
presently in Lesotho should commence on the new TAC - Engineering
contract with effect from 1 August 1990"
1937 In the circumstances set out immediately above it seems to me
that the submission that the services of a representative would
clearly not have been necessary is not without merit and thus should
accordingly be accepted.
above contention is further buttressed by the fact that Acres'
agent under contract 19 was in Botswana having already been there
during the contract period of contract 19 i.e. form 30th November
1988. The indefensible question is why use a representative under
contract 65 who broke his representative
contract with his principal under Contract 19 by going to work in
While there may well be merit in Acres' contention that the use of a
representative is accepted international practice for a company
into a foreign
1949 Country for the first time, this contention doesn't seem to fit
in well with the circumstances disclosed by facts in the
regard being had to the fact that contract 19 virtually merged into
Contract 65. Thus Acres cannot seriously be heard
to say they needed
a representative to do the usual agent/representative work
1953 that a fresh company coming to an unfamiliar foreign land would
need. The untenable situation that mocks common sense is
that on the
one hand here is Z M Bam sitting in Botswana thousands of kilometres
away from Lesotho where he is supposed to be doing
an ongoing work
that demands his immediate attention being
man on the spot" for Acres while on the other hand there is
involvement with the LHDA under Contract 19. The puzzling nature of
the situation projected above is compounded even more by the
that Jonker was the assistant to the Chief Executive under Contract
19 and as such had indeed wide 1961 powers and by the
that Witherell took over as assistant to the Chief Executive on 1st
June 1989 going later on to become deputy Chief
Executive on 1st
Factors abound which show that Acres did not have the use of Z M
According to his employment record Z M Bam never took leave from his
housing employment in Botswana except for more than the odd
weekend. The negotiations with him in respect of the representative
agreement in fact took place
1969 while he was in Botswana. Thus if indeed Acres needed him it
was for something else, what is more it needed him for something
did not require his physical presence in Lesotho, such could be a
telephone to Sole.
page 1 in Volume 9 M K Rabashwa the senior corporate Counsel for
Botswana Housing Corporation in a formal statement presented to this
court said in paragraph 3:
"Attached hereto is a copy of Zwalisiwonga Mini Bam's files
relating to his
1977 employment with the Botswana Housing Corporation. It reflects
that the said Bam was employed with the Botswana Housing Corporation
from 1 December 1988 to 20 February 1991 on a full time basis as a
senior civil engineer. " (Italics mine)
1981 I have earlier indicated but it bears repeating for the sake of
clarity in the immediate context that as at 23rd November
terms of contract 65 had virtually been negotiated barring two minor
items. This continued to place Acres within the heart
of the LHDA.
The RFP in Volume 1 pages 189 and 303 read
1985 especially with page 276 and Volume 2 page 496 more than amply
bear this out. The MOU came about on 19th May 1990 essentially
putting Contract 65 in place. Thus in any lawful sense then no
assistance was needed to get contract 65.
court's attention was brought to bear on the fact that apart from
the contract, Z M Bam was supposed to render certain services. But
the court soon realised from credible evidence led and elicited
cross-examination that these services to the extent that Acres needed
them at all, were largely covered in contract
The legal requirements were catered for in terms of the document
titled LHDA Contact 65 Provision of Technical Assistance in
- Phase 2.
1997 This appears on page 432 especially the paragraph reading
"........the Consultant has submitted a proposal dated 28th
March 1990 for the provision of the services. See also pages 451 and
important question of taxation was also taken care of as appears at
Acres were being reimbursed their taxes thus had no need for tax
assistance as amply highlighted in PW5's smooth running and plain
sailing evidence. See PP 474 to 475 and 483 lines 1 to 9. To show
that even in this respect Acres were well
2005 covered to the extent that they needed help they made do with
their own tax consultant John Arnedt to whom I earlier referred.
PW6's evidence sufficiently bears this out at pages 502 line 5 and
503 line 5. Sole was not behindhand in offering his fair share
assistance as shown in the records presented before court
where he sorted out tax matters with the Commissioner of Revenue.
In line with maintaining the spirit of affording optimum working
environment to Acres, support facilities in respect of office
2013 also provided. Furthermore secretarial services including
accompanying ones relating to accounting, banking and
were also in place. In any event Acres already had
all these under contract 19. What need then would there be for Bam to
role towards enabling Acres to fill a non-existent hollow?
2017 A further point for consideration along the same lines is that
Mr Lightfoot was not only ready and available but was actually
and dealing with processing Acres' payments. PW5 and 6 are shown up
as having discharged necessary functions in their respective
the regard stated. See pages 473 and 474 lines
and 5 respectively; also pages 501 and 502 lines 13 and 3
These witnesses certainly would not have needed Z M Bam to help here.
There can be no doubt that Witherall as assistant to the Chief
Executive would have been equal to the demands of the occasion should
need have arisen.
Another factor which militates against any need for Z M Bam's
services is that to the extent that office accommodation and
services were not already provided for, there can be no
doubt that both Jonker and Witherell as
2029 deputy Chief Executives or Acting Executives would have easily
been able to attend to them. In any event, schedule B to contract
obliged the LHDA to provide all this.
ram the point home it is important to note that Lightfoot and his
Lineo Serobanyane, not Z M Bam, attended to bank business and records
for Acres. Peat Marwick, not Z M Bam, attended to matters
the Registrar of Companies. Exhibit "P" would serve to
throw more light on this aspect of the
When all the above have thus been disposed of what remains would be
keeping Acres informed of developments in respect of its services,
2041 nformed of general conditions and developments in Lesotho,
making Acres known to appropriate agencies, collecting documents
promoting Acres in Lesotho. But truly speaking all this could clearly
be done far better by Acres' own personnel inside the
than an outsider, more particularly an engineer employed
2045 on full time basis by the Botswana Housing Corporation in
Gaborone. This is assuming of course that Acres needed these services
at all. On the evidence, particularly regarding Acres' prior
involvement in Lesotho and their position within the LHDA, they did
not need any of these services. It was only necessary to state
them here so as to have the reason for their need accordingly
Common sense seriously questions why, in any event, would Acres want
to use Z M Bam to do this for them under contract 65 when,
contract 19, he
2053 disappeared off to Botswana and left them high and dry. I shall
only assume without accepting that Acres did indeed have
contract with Z M Bam under contract 19 as they claim. However what
sticks out clearly in my mind is that this is inconsistent
business practice. Having let them down once as a
matter of probability, Acres would not use Z M Bam again for this
The question that keeps coming up like a bad penny had to be
namely what Acres really needed Z M Bam for. Mr Penzhorn suggests
answer is quite obvious when viewed against the situation Acres found
itself in on 23rd November 1990. He contends that two things
happen, namely Acres were looking to be paid for the work they had
already done and also the advance
2065 payment and Masupha Sole had to sign. Because this suggestion
has the backing of credible evidence that I vividly recall
with it and therefore accept it.
Mr Penzhorn submits, that if this then really is what Z M Bam had to
2069 achieve, namely facilitate payments and get the contract signed
two questions arise. First, how was Z M Bam to achieve this?
why could not Acres do it themselves?
Penzhorn gives a very compelling answer to both these questions and
submits that clearly Z M Bam would achieve these things by assisting
Acres to bribe Sole. For this the Learned Counsel says Z M
paid 40 % of the bribe. He logically develops this theory by stating
that using Z M Bam made sense
2077 for Acres because by paying through Z M Bam, this dropped a
veil between Acres and Sole which, but for the discovery of the
records in Switzerland, would never have been pierced. The phrase in
italics above provides a dependable sheet anchor to the
that one is compelled to reach in this inquiry that indeed
2081 Acres bribed Sole through Z M Bam in order for Acres to secure
the two vital interests outlined above. In brief the involvement
Sole as a factor in this equation as the recipient of vast sums of
money for some highly obscure purpose, truly and convincingly
accounts for the proverbial milk in the coconut particularly
when looked at against the well thought out submission by Mr
Witness the spectacular manner and speed with which both came to pass
after the representative agreement was signed. As with wielding
magic wand Acres was paid on the one hand while the contract was
signed on the other.
2089 that in fact, Acres were paid contrary to the agreement which
provided for the first (advance) payment only upon signature.
In Volume 2 page 504 clause 6 of Contract 65 it is clearly provided
2093 Advance Payment and Bank Guarantee that "The Consultant
shall be entitled to an advance payment of CAD 1,160,000-00
M250,000-00 on signature of the Agreement and on submission of Bank
Guarantees acceptable to the Employer."
2097 With this scenario playing itself out, sight should not be lost
of the fact that Acres' own man, R G Witherell, authorised
advance payments on behalf of the Chief Executive on 28th November
1990, some five days after the representative agreement
November 1990. See Volume 9 page 134. R G Witherell must
2101 have known that this was in breach of the agreement. It is also
inconceivable that he would have done this, i.e paying his
without the blessing of Masupha Sole. He would also have been very
much alive to the need to obtain JPTC approval and
the fact that it
had not been obtained.
As to what Z M Bam did for Acres one is struck by the fact that
throughout all the events surrounding Contract 65 he is conspicuous
by his absence. His character suits that of a weasel. DW1 wishes to
fob off questions relating to this
2109 slyness on the part of Z M Bam as "obviously he was not
one given to blabbering aloud. He was not a blabber mouth".
so Acres may be credited with having appointed a man whose profile
would suit Sole's unwholesome scams to the full, and they
stood to benefit from underhand dealings. Witness their
2113 preparedness to pay Z M Bam in foreign currency in a foreign
country in contravention of Lesotho's financial regulations
respect of a job Z M Bam and Acres had contracted to perform in
Lesotho. That alone is an eye-opener to the existence of something
much broader and more sinister than mere breach of
2117 financial regulations much as such breach is a serious crime
that therefore is highly reprehensible. Although Z M Bam was
a local engineer through LESCON and being involved in contracts such
as contract 78 as reflected in Volume 2 page 600,
he was not known to
LHDA or anyone else as being Acres'
2121 representative or to act as such. Had he played the part of
Acres' representative, senior LHDA officers such as PW1, PW5,
as JPTC people such as PW6, PW10 and PW15 would have known about it.
This total blank surrounding Z M Bam regarding what
he did for Acres
as its representative in turn cuts a wide swath
2125 on the question whether indeed he was Acres' representative at
all. For if he was one asks why is it that he has nothing
to show for
it to people who must know about it in the LHDA and the JPTC?
agree entirely therefore with the submission by Mr Penzhorn that the
that key people such as I have mentioned did not know about it
clearly suggests that no one else did, barring perhaps Sole. But
is he if not a bird of the same feather who stoutly stood to benefit
from all this underhand operation the flames
2133 of which were enthusiastically fanned by Acres? Z M Bam took no
part in the negotiations relating to contract 65 . In this
PW6 at Page 500 line 23 with regard to his knowledge of Z M Bam
participating in the negotiations relating to Contract
65 says "Not
in the context of these negotiations." In the protracted
2137 negotiations relating to what PW6 referred to as "past
taxes" where parties involved dealt direct with consultants
contractors Z M Bam was nowhere to be seen at all. See page 502 lines
12 onwards. In any event the record reveals that he was
pursuing the legitimate interests of what appears to be his real
2141 as Raboshwana's formal statement is on hand to show and dispel
any doubts to the contrary.
Quite clearly Acres did not need his assistance, in the lawful sense,
2145 obtaining a contract for................ Technical Assistance
Contract Engineering -2" as an attempt reflected in Volume
page 1444 would have us believe. The document is dated 23 November
1990 and to it are attached schedules 1 through 3.
Going a step further into this morass of puzzlement in an attempt to
exactly what was going on one is struck by a total and distinct
absence of invoicing showing the work done by Z M BAM.. In
contrast this with the case of one Milner who was Acres'
representative in Zambia having obtained that
2153 position by virtue of the fact that he knew the head of a
massive River Project there. The point here is that unlike in the
case, in the Milner one Acres emphasised the need to have invoices
for obvious and important accounting purposes. A clear case
-standards. Reference to Acres letter of 29th April 1991 signed by
2157 H C Rynard bears out the contention made here as follows in the
middle of the 3rd paragraph: ".....we also require a
very simple 'invoice for services rendered' from the representative
to match with the money
paid out, for audit purposes' ." That
Rynard placed the relevant phrase in inverted commas more than amply
2161 stress the point I am trying to make, namely that it cannot be
true that no invoicing was required in relation to Z M Bam
was paid a fixed percentage on work done or that the invoices must
have been shredded at expiry of minimum period of
keeping records by
Acres. Be that as it may. Now to return to the point
2165 in issue perhaps the absence of invoicing is understandable
given that Z M Bam was in Botswana at the time. But I would hasten
confess to my bewilderment concerning how Acres thought that someone
working in Botswana could help them get contract 65 signed.
remembered that Acres' efforts to secure Z M Bam as
2169 their agent goes back to 1989 (see Volume 15 Part 6 pp 1 - 21
page 2 of which is prefaced by the hand written phrase "changes
made") when he was already in Botswana. Unless, as suggested by
learned Counsel for the Crown, all he had to do was to confirm
Sole that the representative agreement had been concluded,
2173 and later that the payments had gone through a matter he could
effect by telephone I find his agency for Acres very enigmatic.
Couldn't it perhaps be for the reasons set out above that what
2177 this is noticeably the different tack adopted by Acres at the
debarment proceedings before the World Bank. See Volume 3 page
onwards especially where it is stated that: "Post-award of both
contracts, Bam's role fell principally into two areas
intelligence, and (2) intelligence concerning Acres' personnel's
2181 performance." Now the curious development arising is that
Z B Bam is said to have been the eyes and ears of Acres in
the political situation and developments in Lesotho, Volume 3 pp 293
- 4, ad it is for this that he was being paid.
Acres says this is
also what Z M Bam did for it under TAC -1. On this basis
2185 Acres can then conveniently seek to explain why no one heard of
Z M Bam being Acres' agent and why he did none of the things
stipulated in the contract. The absence of documentation showing the
work done by Z M Bam can then also be explained, as Acres
did to the
World Bank as follows: 'This intelligence function,
2189 clearly a sensitive task, was carried out largely without
documentation". If one may pause here; it becomes immediately
apparent that every step of the way there was an attempt by Acres to
cover their tracks and that to do so they had to have resort
vast financial and intellectual resources yet no way could they
2193 explain the inexplicable because dishonesty is slavish; only
the truth is free. Otherwise in the light of what they term
sensitive task that necessitates absence of documentation how do they
reconcile this state of affairs with the fact that in the
documentation underlying money transfers to Z M Bam in Geneva one
2197 numerous references to invoices against which these payments
were being made.
This is amply borne out in Volume 6 pp 1467 - 15 - 24. At page 1468
we see a transfer of CAD 180 000 to ACPM c/o Bonque Multi Commercials
(BMC) the payee being the Royal Bank of Canada. This is a cheque
requisition for payment
2201 of agent fee for advance payments. Why are there these
references to the numerous invoices yet these invoices are not
Needless to say these new and sudden lurch to the side by Acres
2205 Z M Bam's duties is not without great problems for the defence.
It has the defects of its own qualities. First Z M Bam could
effectively have had his ears to the political ground in Lesotho
while he was in Botswana. As shown earlier he was in Botswana
lst December 1988 until 20th February 1991 according to
Rabashwa's formal statement in Volume 9 page 1 to 133. There is
suggest that Z.M. Bam was associated with politically influential
people. So all this is nothing but dust and ashes. True, Sole
on a different footing. He certainly was associated with his own
Minister. Next, precisely because Acres
2213 personnel held key positions inside the LHDA it does not tie in
with good sense to suggest that they would need someone from
to tell them how they were perceived by the LHDA or for that matter
about political developments in general.
All this would have been right up their street after Acres' many
years within the
2217 LHDA. I accept therefore the submission that goes to buttress
the statement that
Acres did not need Z B Bam for political intelligence as amply
illustrated also by the discontent felt by the Basotho engineers
within the LHDA. Witness that things got so bad that they called a
meeting with Masupha Sole as shown by exhibit "D"
2221 which is on hand to prove the point. At this meeting grievances
were articulated. Yet lo and behold! there is nothing to
Z M Bam reported to Acres on this issue, or even warn them that there
was discontent towards Acres. What master would
rear a ferret hamster
and do himself the ferreting out of vermin in the form
2225 of rats, likewise what sort of a man would own a dog and be
expected himself to do the barking!! I raise these questions
from the evidence it definitely appears that Acres people such as
Witherell, Lightfoot and Clifford Brown quite adequately
role as local agents in this sense for Acres. In Volume 6
2229 paragraph 1708 one sees the Chairman Mr Rynard communicating an
important message to Witherell regarding invocation of means
the important question of taxation might be resolved. Not only so,
but he actually invited Witherell by that letter to
involved in making "some interim
2233 arrangement until the tax problem is cleared up". As we
know Witherell proved equal to this task. At pages 1722 and
see Brown being entrusted with the mammoth task and his expertise
being sought towards resolution of the question of requirements
terminating guarantees because according to Lesotho Laws then
2237 it was possible that unless returned to the issuing Bank the
guarantees remained outstanding. At page 1776 we see C J Brown
sending an important letter to the LHDA and signing it as an
"authorised representative". I need look not far to realise
that Acres people themselves were performing "intelligence"
function as the
2241 documents before court are simply pullulating with examples of
this. These relate to the security situation in Lesotho, to
perception of Acres' performance and to many such related factors. In
illustration of this we see in Volume 7 page 1874 the
J D Lawrence communicating to C H Atkinson an important
2245 document relating to the fact that Witherell had been given a
memorandum while there with questions relating to policy. A
of the substance of that document was given covering several items.
At page 1935 C J Brown is seen addressing a telefax
to Atkinson and
as being quite equal to the task of supplying
2249 the other with information regarding the sensitive security
situation and political events as follows:
"It is time to advise you that the security situation has
deteriorated in Lesotho
during the past month or so. There have been a succession of car
from EXPATS. Handguns are being used. We are being cautious about
moving around especially at night, although there have been a
of incidents in daylight hours. These incidents are not being
reported in the media." See also
pages 2151 and 2154. The importance of all this is that by contrast
with Z M
Bam's highly doubtful way of reporting to Acres if at all, Acres' own
people are seen invariably reporting in writing as the examples
accept therefore the legitimacy of Mr Penzhorn's deliberative
"if this [the question of security in Lesotho, the perception of
Acres' performance, and so on] was the real purpose of employing
why was this not stipulated in
2265 the contract?" In this context one has to have regard to
the fact that this contract was not simply a pro forma document.
indeed went through a number of revisions. The parties were not
uneducated or illiterate persons. The fact is the opposite is
The conclusion is irresistible that the fact that Z M Bam's real
duties are not stated in the contract gives the lie to the entire
document. I accept the soundness of Mr Penzhorn's submission that
when parties sign a written contract which turns
2273 out not to reflect their true intention, any inference as to
the real intention must perforce be an adverse one.
It comes therefore as a logical and indeed an inevitable conclusion
2277 Acres' present assertions about Bam and his "intelligence"
function is just a last minute fabrication precipitated
serious fact that Acres never needed a representative in Lesotho, as
has carefully been tried to illustrate, nor, as clearly
did Z M Bam act as one.
In going about the above heading I wish to liberally adopt the
introductory 2285 submissions made by Mr Penzhorn in his commendable
effort to clear the decks for action.
The learned Counsel accordingly indicated in paragraph 129 of his
submissions that in 1990 one (sic) Maloti equalled 0.4715 Canadian
Indeed Volume 6 at Page 1466 bears this out per Acres' cheque
2nd October, 1990. In terms of the agreement Z M Bam was supposed to
be paid four lots of CAD 180 000-00 which equated to M381
1990 this amount
indeed was an exceedingly enormous sum; far exceeding the Acres'
advance. Thereafter Z M. Bam was supposed to be paid 69 consecutive
monthly sums of CAD 7826-00 equalling M16 598-00 per month
phenomenally huge monthly "salary".
2297 It would be fruitful to make comparisons of Z M Bam's earnings
with earnings of others. In this regard it will be noticed
contract 78 and in the year 1993 Z M Bam earned M9545-00 per month on
the basis that he worked the whole month. See
volume 2 pp 600 and 646
where Z M Bam's title is Services
2301 Manager as it appears in Schedule 4-1A of the Professional
Staff Billing Rates expressed in Maloti currency. At the time
earning P2612-00 in Botswana. The Botswana Pula at the time was equal
to the Rand or Maloti.
should be borne in mind that Witherell was the assistant to the Chief
Executive and later became the deputy Chief Executive of the LHDA. In
1990 Acres was negotiating a salary for him of CAD 7 250-00.
appears in the column opposite R G Witherell's name whose position is
shown as Technical
2309 Manager in 1990 as reflected in volume 2 page 83. The Chief
Design Engineer C J Brown's salary was CAD 6500-00 so was that
of J G
Clark the Project Manager. As the assistant to the Chief Engineer
Witherell was paid CAD 8338-00 See Volume 2 pp 424 and
518. At that
time a senior engineer for Acres was earning
2313 CAD 7579-00. This of course was in respect of full time
employment as such in the LHDA. Yet Acres was then prepared to pay
M Bam, out of its profits, comparable monthly amounts for
information, indeed information moreover which Acres could largely
obtain for itself using its own staff It requires no great stretch
2317 of the imagination to perceive that this suggests more was
involved here than mere supply of information by ZM Bam to Acres.
my view in this regard passes muster then it becomes par for the
course to accept the conclusion that all this in itself points
improper purpose underlying the representative agreement. It
2321 simply defies intelligence that Acres would have paid Z M Bam
these huge monthly amounts, over and above the CAD 180 000-00
"intelligence". In fact, even if Z M Bam was in Lesotho
working honestly on a full time basis in respect of the
representative agreement, it is highly unlikely that Acres would have
paid him so
much. Moreover, payments would surely not have been on the basis of
retainer but rather in respect of work actually shown to have been
these figures must also be compared with LHDA salary scales at the
time. PW15 testified that these would have been known to Acres
do not think he is wrong
saying that. At page 858 a pointed question was posed to PW15 as
"........In relation to other Basotho engineers and also in
relation to the salary earned by Mr Sole as the Chief Executive
Officer of the LHDA what would your comment be on Mr Bam earning
an agent for Acres the equivalent of Ml 6 378 per month in
PW15 replied "Well that what he earned under that contract is
2337 than anybody else in Lesotho (sic) earning considering that Mr
Sole was known to
be about the highest paid public official. Mr Bam here of course was
an engineer on the contract, but he certainly earned more
Representative Agreement payments than what he got for his normal
work as an engineer - considerably 2341 more".
This amply justifies the Crown's emphatic assertion that Acres was
prepared to pay Z M Bam more than even Sole the Chief Executive
2345 to say as chief Executive Sole was earning M8 365-18 per month
as borne out in Volume 8 at page 336 regard being had to the
shown above, that CAD 7800-00 Z M Bam was earning per month from
Acres equated to M16 378-91 per month. See Volume 2 page
Remarkably this fixed amount of some CAD 7800-00, of which 60% was
regularly transferred to Sole, was suddenly reduced to approximately
40 % actually retained by Z M Bam, namely CAD 3500-00. A remarkable
coincidence which is
2353 no mere accident is that this occurred after January 1997 the
period round about which the Court challenge by Sole drew to
This indeed is further evidence that Acres knew of the 60/40% split
and the actual identity of the recipients to which
amounts in the split were destined. The presumption is not ill-
2357 founded therefore that because of Sole's waning influence, it
was decided to only pay Z M Bam his share. It interestingly
bold question mark on the genuineness of the representative agreement
when in fact Acres could simply ignore or unilaterally
vary its own
"contractual" obligation under that document
2361 without regard to what the other contracted party might need to
say in the matter.
MANNER OF PAYMENT
2365 Evidence abounds to show that payments to Bam show Acres
relationship with him to have been cloaked in secrecy. Acres had
local Lesotho accounts. Z M Bam in fact operated a local account
through LESCON which shows numerous payments by consultants such
Lahmeyer. Indeed even Canadian Embassy
2369 cheques were deposited into this account. Exhibit "V"
bears out this at Page 206(b) where R478.50 was drawn on
Embassy's account. As a matter of fact all Acres' dealing with Z M
Bam in the past had been with him through LESCON. But surprisingly
all of a sudden Acres now pays Z M Bam from Canada for work he
2373 does for Acres, not through LESCON locally but through ACPM in
Switzerland. I have not the slighted doubt that if Acres was
genuinely paying Z M Bam for true and honest Services Acres would, as
a matter of overwhelming probability, have contracted with
that the payments would have been made locally.
should not be overlooked that the agreement is structured in such a
without access to the actual bank records in Switzerland no one would
have known that the recipient of the Acres payments was indeed
Bam . See Volume 6 PP 1468 - 1524. I need repeat just for emphasis
that but for the discovery only of
2381 Swiss accounts nobody would have known of Z M Bam's
relationship with Acres for at that stage Z M Bam's identity was
camouflaged as ACPM and thus cloaked in impenetrable
masquerade. It was thanks only to this discovery that this thick veil
lifted. I may go further to say if Z M Bam was in truth
2385 Acres' agent not ACPM then simple and sound business acumen
dictates that payment be in Lesotho where both had accounts and
services were in any case rendered. So it is clear ACPM had a
convenient role to play on the basis of which nobody would
discovered that by paying into the ACPM account in
2389 Switzerland Acres was actively breaching the Lesotho Financial
regulations while in doing so they were entertaining a fat
the true identity, which they knew, that in fact ACPM is Z M Bam
would never be unveiled. It is a matter of common knowledge
funds and ill-got gains especially from various
2393 dictatorships in the world, once safely locked away in the
Swiss Banks nobody even with overwhelming legitimate claim to
funds could be allowed to lay his hands on them. Thus on this basis
it seems to me the game might very well have been worth
the candle in
the eyes of Z M Bam and Acres.
untenable situation with which Acres is now faced is its attempt to
on two horses at once. In this regard consider that the other
representative agreements put up by Acres in order to show this was
something quite normal clearly show the identity of the agent and
give his physical address. As an example
2401 of this, one need look at Volume 15 part 3 at PP 1 - 63 where
one readily sees Acres having Jean Dean of Mauratious as their
His/her address is given at page 6. Another agent is Russel Rennet
whose address is given at page 12 while yet another taken
is a company known as Canpak International Trading
2405 Corporation whose address is at Page 17. Thus if one may ask
the simple question but why not so with this one that Acres
Z M Bam. Truly any reconciliation of these two positions is
impossible. Thus in trying to perform that feat Acres is bound
fall between the two stools.
It certainly won't do for Acres to adopt the head-in-sand attitude
concerning what they clearly knew to be the practice by other
contractors or consultants. For instance Lahmeyer who were also
consultants were also paying subcontractors such
2413 as LESCON locally. How certain is it that Acres knew this? Why
shouldn't Acres be given a break and be allowed to mind their
business without being required to poke their nose into someone
else's business, one may ask. Because they themselves helped
LHDA with Acres' own Mr Lightfoot processing
invoices that's why; and this is a fact that no one can run away from
tantalising the prospect. It can be deduced from this that clearly
Acres knew that LESCON had a local account or even accounts.
they knew also that Z M Bam had local accounts after all they paid
him into his account in Johannesburg.
Learned Counsel for the Crown has expressed scepticism about whether
Acres could possibly be as squeaky clean as it holds itself
to be and
was quick to point out that evidence shows otherwise. Truly speaking
justification for this
2425 feeling of scepticism is in evidence. For instance there was a
clear conflict of interests in Acres' very association with
Z M Bam.
Acres was after all supervising consultants on behalf of the LHDA.
One such consultant was Lahmeyer. Lahameyer employed
Z M Bam as part
of Associated Basotho Consultants (ABC)
2429 and also used Z M Bam as an agent - surprise surprise - to
Acres' knowledge. The submission is therefore not without merit
Z M Bam simply could not serve both Acres and Lahmeyer without the
potential for the undesirable factor of compromise. Similarly,
could not supervise Lahmeyer and Z M Bam and at
2433 once use Z M Bam as its agent without the potential for
compromise. It is stimulating to observe in volume 2 page 446
3.2.4 that in keeping with the common law duty in this
regard contract 65 has preserved that prudence in a clause dealing
with Prohibition of Conflicting Activities by providing
"Neither the Consultant nor his subcontractors nor the Personnel
of either of them shall engage, either directly or indirectly,
business or professional 2441 activities which would conflict with
the activities assigned to them under this Agreement."
Acres is an international organisation whose policy as espoused in
2445 documents before this Court is to maintain high business
standards. Furthermore a clause such as the one cited loc. cit is
binding on it if its regard for maintenance of high business
standards means anything to it. But as just pointed out shortly, it
seems the avowed policy is obeyed by Acres more in the breach than in
observance at all, at all, at all.
It bears repeating in this context therefore that payments overseas
also constituted a contravention of both the South African
2453 Control Regulations. Both these countries have vested interest
in the LHDA hence their respective Delegations in the JPTC.
would brook compromise of any sort by the LHDA of their respective
Exchange Control Regulations whether aided or abetted by
the LHDA be they consultants or otherwise. Needless
say PW7 an admitted South African Advocate holding an LLM degree in
banking law testified to the effect that payments overseas
constituted the contravention referred to above. See Page 750 lines
to 20. As regards Lesotho; section 11(1) (c) read with section 25 of
the 1989 Regulations amply spells out in
2461 clarity the point in issue. Further evidence of this is
contained in Volume 5 pp 952, 953 and 959. At page 953 section 11(1)
(c) provides that
"No person shall, except with permission granted by the Minister
and in accordance with such conditions as the Minister 2465
3. enter into any transaction whereby capital or any
right to capital is directly or indirectly exported
from the Common Monetary Area"
If in the eyes of Acres, a world renowned organisation, exporting
Switzerland to pay ACPM/BAM was the best way of complying with this
provision cited above it is a matter of great bewilderment to me.
makes it an offence for any person who contravenes any provision of
regulations and imposes a penalty not exceeding M250 000-00 fine or a
the value of the security.
It is not as if Acres was not astute to possible existence of hazards
and pitfalls that might accompany any slackness in the employment
an agent. In fact
2481 Acres acknowledges that care must be taken also with regard to
any legalities before employing an agent. Volume 3 at pp 276
bears this out. At page 276 Acres boldly states that ACPM/BAM was
bound to comply with Lesotho antibribery laws. Acres
"maintained control not only over who was
2485 providing services, but over any promise of payments by the
representative that could implicate Acres". Page 276 paragraph
On all the facts as earlier illustrated no one knew about Acres'
Switzerland. Certainly the Lesotho Commissioner of Revenue would not
known. It thus must have occurred to Acres that they were
facilitating tax evasion on Bam's part. But it seems casting a blind
eye to their role played in this patent breach of the law was an
infinitely minor misdemeanour in comparison with the
prospective gain to be made in the process.
Acres was in clear conflict with provisions of Contract 65 with
regard to picking an agent to pay whom is in contravention of both
Exchange Control Regulations.
Under pressure of events felons are known to do stupid things
sometimes. Thus one does not know why Sole kept being paid by Acres
even after he had left
2501 the LHDA. What is known however is that the 40/60% share for
Sole stopped when he lost his legal battle in the courts. There
also evidence of residual loyalty towards him. Some of it was
inspired by fear that should he win his legal battle and be
those concerned should not be caught on the wrong foot
2505 their attitude towards Sole. How far Acres felt contractually
bound by this loyalty is unknown. What is known is they kept
even afterwards perhaps out of force of habit.
After May 1997 evidence shows that Acres only paid Z M Bam his 40%.
What is patent is that the arrangement to do so was reached before
Sole left the LHDA.
court is called upon then to determine primarily whether or not th
payments made before Sole left the LHDA were corrupt. Once this has
been done and it is accepted that they were corrupt, it seems
that later payments would be similarly regarded more so because the
taint of untruth told by Acres relating to
representative agreement would affect all the payments.
It is therefore worth seriously considering the submission by the
Learned Counsel for the Crown that while there is no running
from the fact that Acres' 2521 money was used by Z M Bam to pay Sole
it is inconceivable that Z M Bam would have done this
instructed to do so by Acres.
COURT'S SCRUTINY OF THE 23 NOVEMBER 1990 AGREEMENT
On the face of it this document contains an agreement between Acres
entity named ACPM. The court's attitude is that the submission by
Acres to the World Bank that the real contracting party was Z
is not evidence of that
2529 fact before this court. However for purposes of applying
judicial search light to factors relevant to this relationship
between Acres and ACPM it would perhaps be fruitful to assume that Z
M Bam was the real agent.
very first step that the court tries to take in that direction leads
but dust and ashes. A careful perusal of all the documentation
consisting of not less than 28 lever arched files each of which
brimful of paper work, leads to no reference of an entity called
ACPM. No one had ever heard of it. Nor was it
2537 registered in any form in Lesotho. At pages 873 line 26 and 874
line 6 PW12 Mrs Mohau despite making a diligent search in
where she is employed as the Registrar General of Companies of
Lesotho turned out nothing. It is the high water mark
of the entity
called ACPM that Z M Bam never operated a bank account in its
2541 name, not even in Switzerland. Considering that Z M Bam was a
well known engineer in Lesotho partly so because of his company
LESCON it is totally strange that all of a sudden he should want to
conclude this agreement with Acres in the name of ACPM yet
operated an account in Lesotho in the name of LESCON.
Acres certainly knew this.
I accept the submission made on behalf of the Crown that clearly a
conscious decision must have been made to adopt the name ACPM
doubt this sudden
2549 appearance of a new name must have raised serious questions
with Acres which knew Z M Bam very well and his LESCON. It is
without cause then that initially it was contemplated that the
agreement be concluded with LESCON as borne out at page 1392
where the name of Lesotho Consultants Limited
2553 appears on the first page and is abbreviated thereafter in the
same page as LESCON as well as in the two schedules which
In terms of this agreement ACPM was to assist Acres in getting
2557 and also perform certain services during the life time of the
contract. For this Z M Bam would receive 3.6% of the net value
contract with Acres. Bearing in mind Acres' mark up of 14.7% this
meant that he would get approximately 25% of Acres' profit.
question that immediately arises is why pay him 25% 2561 occasioned
by the mark up in circumstances where contract 65 is in
Before the World Bank Acres claims that the LHDA was not made to pay
for Z M Bam's services. Appearing in volume 3 Page 281 the
"Acres did not conceal its payments to ACPM on its books and
Because they were part of the negotiated contract price, Acres paid
commission out of Acres' profit on TAC Eng-1 and TAC
2569 Eng-2, rather than charging them back to the customer, LHDA."
This claim stands in stark contrast to the credible evidence
Classens that at the end of the day costs such as these are
indirectly debited to the employer, in this case the LHDA. At
489 lines 5
".....as part of the structure of the contract, you have billing
rates for the professional staff that work on the assignment. That
billing rate is made up of a basic salary and then some overhead
charges that gets (sic) added onto the basic salary. The sum of the
salary and the overhead charges and in this instance there
number of charges, social charges, overhead charges, support services
2581 and taxes-that then becomes the total mark-up factor that you
apply to basic salary which then becomes the billing rate for
specific individual." See page 295 lines 10- 12 as well as page
498 lines 12 -13 where PW6 indicates that as part of the
charged back to the client".
As I indicated earlier for Acres to be taken at its word one may
presume that as a basic and sound way of guarding its back yard
against an uncanny agent in the
2589 world of trade, Acres would have wanted a signed contract
enforceable against its agent in the event of defaulting on the
of that agent. Indeed the monthly payments would also be a constant
reminder to those being paid of their obligation to their
Acres. But how would this be achieved either way in view of the
2593 fact that the contract does not describe ACPM, what entity it
is, who or what controls it or even who acts on its behalf.
an irredeemably gaping hollow in that department. Thus in the event
of a breach Acres would find itself up a stump and
with nobody to
sue. Why? Because Acres could not sue Z M Bam for
2597 Acres had no contract with him. Even the Swiss Bank accounts
would be out of reach for Acres because they were in the name
of Z M
Bam. It is in these circumstances that I find the argument compelling
and worthy of credit that if Acres could have no recourse
"agent", the point of this written document is 2601 none
other than as an "insurance" or to be
produced as an
"alibi" if and when needed. No better moment seems to fit
that bill than now.
ACPM had no address except the address for a banker in Switzerland.
2605 hard to imagine this not raising any questions for Acres, when
they were after all the authors of the previous drafts of
representative agreement. It is thus inconceivable that an honest and
diligent business man would have accepted
ACPM's address, i.e a bank in Geneva, for a genuine representative
More by token even Acres' own documentation relating to payments
recipient to be ACPM rather than Z M Bam. See Volume 6 pp 1468- 1524
where reference is made to ACPM invoices. Epitome of surprises
one takes into account that Acres was in full realisation that the
accounts it was paying into were
those of Z M Bam and his wife M M Bam. The intensity of this
compounded and rendered more pronounced by the fact that no ACPM
invoices are produced saying nothing of any correspondence with
I can only conclude that it cannot be true that payment of this into
Z M Bam's Swiss account did not
raise any suspicion.
Indeed the words of Cullinan AJ in CRI/T/111/99 Rex v Sole
(unreported) on 20th May, 2002 at Page 200 are very apt and I feel
compelled to cite them four 2621 lines from the bottom as follows:
"What need was there for either party therefore, purportedly
associated by the common bond of business in Lesotho, to enter
into contractual agreement and conduct financial transactions
in a foreign country, far removed from the LHWP, if their
relationship was bona fide?"
Camping on the trail just blazed by the Honourable Judge immediately
I am constrained to observe that the bona fides of this relationship
between Z M Bam and Acres are further called in question by
that the contents of the representative agreement were sometimes
cryptic, even nonsensical in the
2633 circumstances. This comes out clearly in Volume 15 part 6 Page
31 where Z M Bam talks about submissions instead of payments
the address for submissions" instead of referring to his bank
account. I share in the Crown's conjecture that this
must have been
cause for considerable doubt for DW1 Victor
2637 Hare, the person to whom the letter was addressed and the
principal driver of the representative agreement. The letter in
question is addressed to V Hare in Niagara Falls by Z M Bam and is
dated 4th June 1991.
is a matter of great concern and perplexity to this court that
payment documents make reference to invoices against which respective
payments were effected, no such invoicing is produced. The
in such a situation is twofold but in either direction it is adverse
to participants in an enterprise. The
2645 twofold inference means either that Z M Bam never submitted
invoices, a practice condoned by Acres contrary to the insistence
Acres in the Milner case, or if he submitted them Acres is not
prepared to disclose them. In the latter event this must be because
their content is damning to Acres. In either event the absence of
2649 invoices points to a guilty mind. Assuming the invoices do not
exist, then reference to them in Acres' documentation could
for the benefit of its auditors or other anxious entities like the
World Bank. Any auditor considering these documents
could easily be
hoodwinked into assuming that invoices existed and that
payment vouchers were prepared pursuant to them.
It was stressed on behalf of Acres in submissions, in oral evidence
and from the documents filed for the defence that Acres' relationship
with its agent was not
2657 something hidden under a bushel. However the documentation
placed both before the World Bank and also before this court has
it wise to what seems an unassailable fact that an audit would not
have revealed the fact that Z M Bam was, as Acres now claims,
actual agent. All that would be revealed is that an entity
2661 called ACPM, whose address is a bank in Switzerland, was Acres'
agent. Thus should a diligent auditor call for further documentation,
such as invoices, it would have been the most facile thing for him or
her to be fobbed off with a simple "sorry, we just can't
them for the moment..." Even at the cost of being repetitive it
2665 should be stressed that in fact had Z M Bam's Swiss Bank
records not been discovered, and obviously the intention was that
they would not be discovered -witness that at the time of opening the
accounts there any records kept there were watertight - then
that the actual "agent" was Z M Bam and not ACPM
would never have come to light.
I have also earlier alluded to the fact that Acres seems to blow hot
and cold with regard to representative agreements it put up.
comparison the other
2673 representative agreements put up by Acres in order to
demonstrate the genuineness of this one, invariably show a physical
address and they clearly identify the actual agent. In the instant
matter Z M Bam's alleged first representative agreement under
Contract 19 is, for some obscure mishap, lost; a matter of surprise
important document should get lost when documents dating back to
assisting Acres' case are remarkably still in existence, not only
those but even older representative agreements. A further strange
coincidence of the phenomenon of disappearance of documents relating
to Z M Bam is demonstrated by the fact that
2681 although Acres makes mention of an earlier payment to Z M Bam,
there is no evidence of such payment having been made in the
of contract 19 under a representative agreement. This accordingly
casts a great doubt whether there ever was such a representative
As earlier illustrated this agreement of 23 November 1990, from
whatever angle it is viewed, is bedevilled by more and more questions
concerning its genuineness and true purpose.
ANOTHER BEDEVILLING FEATURE IN THE AGREEMENT IS ITS
accept in toto the submission made on behalf of the Crown that if the
reason was for Z M Bam to help Acres with contract 65 the expectation
would have legitimately been that this representative agreement
been entered into at a time when contract 65 was still in the air.
But as has been noted by 23rd November 1990
2 was to all intents and purposes in place. Evidence which is
shows that Acres began to mobilise on 1st August 1990, i.e. some four
or so months before the representative agreement was concluded.
simple parallel would help demonstrate the absurdity of concluding a
representative agreement in these
2701 circumstances. A is engaged in a fight to the death with B. A
sees C at some distance away and desperately beckons to him
the lists in his favour in order to quell B. However by the time C
gets to the spot of the fight rigour mortis has set
in on B. C
nonetheless delivers a blow on B. Can "C" seriously be
2705 to say he helped A against B even though the blow C dealt on B
came after B's death? Common sense says, no. It is for this
that I accept the Crown's submission that the conclusion of the
representative agreement on 23 November 1990, was both irrelevant
illogical. By then the game was over bar the
In other words what still had to happen, from Acres' point of view,
was for Masupha Sole to sign on behalf of the LHDA and for
start receiving 2713 payment. All that the conclusion of the
representative agreement at that stage represented was not
securing of Contract 65, perhaps it served as straws in the wind for
strange occurrences to come and which soon culminated
in the can of
worms that affected all key characters that evidence in this case has
one is to accept that events where money is involved don't just
one should, by token of that rule acknowledge the existence of one
thing triggering a reaction in the other where that happens.
connection it becomes hard to ignore the patent possibility that the
representative agreement was concluded to
2721 expedite payment under contract 65 for this is precisely the
effect it had. Be it remembered that as at that time Acres had
engaged in the proposed TAC 2 since 1st August 1990 and was putting
in payment claims shortly after then.
Invoice number 1 dated 17th September 1990 is in evidence in Volume
134 showing that contractual provisions have been met signed on
behalf of the Chief Executive by Witherell. At pages 139 to 140
the same Volume appears a telexed
2729 message from Sole to Acres (attention H C Rynard) dated 14th
August 1990 at paragraph 3 of which is stated:
"We confirm that we agree that the following Acres staff
presently in Lesotho should commence on the new TAC-Engineering-2
contract with effect
(sic) 1 August 1990:
C J Brown M S Taylor
Of importance is to note that within six days of signing the
agreement, on 29th November, Acres received its Maloti component of
the advance payment as also evidenced in Exhibit "U"
32, and then soon thereafter it
2741 received the Canadian dollars component of the advance i.e CAD
1 060 000.00 on
4thJanuary 1991. See Volume 9 page 195
As pointed out earlier all this was expedited by Witherell who signed
the 2745 necessary payment authorisation. Doubtless this
with Masupha Sole's approval after all paragraph 6 of document 139-40
in Volume 9 dated 14th August 1990 was written under
the hand of
Masupha Sole who stated:
are therefore prepared to make the advance payment
envisaged under the contract upon receipt of the appropriate bank
Even though all this sounds in money and huge expenses at that, it
nonetheless done without authorisation by the JPTC. Needless to say
shortly thereafter Acres paid Z M Bam CAD 180 000-00. Amazing
behold still, all this preceded the signing of contract 65 on 21st
February 1991. To compound the
2757 irregularity even the more, Acres' payment of CAD 180 000-00
was not in terms of the representative agreement. Under the
the CAD 180 000-00 was supposed to be paid in four instalments of CAD
45 000-00 each over a period of time.
According to Sole's passport reflected in Vol 9 page 360 it seems
that shortly after the conclusion of the representative agreement
visited Canada. The Canadian stamp shows his entry in that country on
29 September 1990. That he
2765 went there at this time also appears in Acres' own
documentation. See volume 6 pages 1429 - 1438. Z M Bam on the other
was in Botswana as his leave record at page 113 Volume 9 shows
that for the month of September he took only one day leave making
rather unlikely that just in one day he could be in Canada
THE DEFENCE EVIDENCE
Starting briefly with the general impression the court had of the
witnesses, it appeared that each one of them was an expert or had
vast experience of the general background to issues they came
testify to. Their experience was impressive but there was always a
great problem on their part on how to reconcile
2777 the theories they espoused with facts relating to this case.
DW4 Johanes Meyer a man of neutral disposition decided in my
wisely to go along with suggestions made to him by the Crown and in
mostly supporting the crown version left the defence
high and dry. He
is an important witness who served in the JPTC
2781 therefore the evidence that he gave under cross-examination in
support of the Crown version is all the more worthy of credit.
The vast experience of defence witnesses formed a facade of
2785 to the massive edifice within which they had walled themselves.
The superiority of their otherworldliness was made all the
manifest when learned counsel for the defence in cross-examining the
Crown witnesses would ruefully and self- reproachingly
do you know what is the practice in the international
2789 corporate world" on an issue that the Crown witnesses
would dutifully own up that
they know nothing about. It was a mark of the defence preparedness
for this case that their witnesses backed up in evidence-in-chief
version introduced very competently by the learned defence counsel in
putting questions to the Crown
2793 witnesses. But unfortunately under cross-examination of the
defence witnesses, that outwardly robust citadel much like Prince
Rupert's drops disintegrated at a mere touching. Why? Because it was
founded on inevitable attempt to hail the integrity of both
Sole and Z M Bam. The integrity which has been shown
2797 in the analysis given earlier to be totally lacking. Not only
so. But that Acres couldn not have been unaware of this. In
they at its very lowest aided and abetted this. So adamant was the
defence witnesses' blind faith in backing Sole's integrity
time when testily referred to adverse comments made against
DW1 for instance would repeatedly say "that is preposterous".
When the court had thought perhaps it was time DW1 's attention was
brought to bear on the other side of Sole he might have not
and asked him "where
2805 is he now" DW1 in answer gave something the Court was not
really expecting namely that "he is under going a criminal
trial". I should hasten to indicate that the court merely sought
to find out if DW1 knew as a matter of fact and record that
been dismissed from the LHDA after finally losing the legal
2809 he had put up in courts even up to the court of Appeal. Of
course this was brought to this witness's attention for his
Not only so but also the fact that during his gallant
battle in litigation Sole made no bones about how he used bribery as
to attain results; that he would use bottles of brandy which
he would cause to
2813 be delivered to a Minister before whom Sole had sent a document
for approval and signature; that later when he would meet
Minister in question he would ask
"Mr Minister did you get the parcel?" and the Minister in
reply would say
the way has the document I signed reached you yet". Thus when
suggested to DW1 that it appeared from the foregoing that for Sole
the practice of bribery was in fact a religion or faith pursued
religious fervour he was clearly in a cleft stick. I according fought
shy of appearing to gloat at DWl's obvious 2821 agony
embarrassment at this stage because after all the cross-examination
was in the capable hands of Mr Penzhorn.
At one stage during proceedings when the Court sought to have some
2825 clarification on a point with DW1 he out of the blue said he
was not being evasive. No suggestion in the slightest was made
he in fact was. But however minor this observation was at that stage
it served as a prelude to things to come in the total
projected by this witness in his evidence.
As for DW3 Gourdeau, his evidence was characterised by stone-walling
even when confronted with small hurdles regarding which a
"yes" would suffice to answer the question truthfully.
Otherwise it was not unlike him to give the 2833 impression
was out and out being untruthful. Compare this with PW1 Putsoane who,
although obviously uncomfortable with the answer
he felt compelled to
give agreeing with the cross-examiner's stance that as of now PW1 is
aware of nothing that would make contract
65 a subject of dispute,
nonetheless gave it. The
2837 point I am briefly making here is PW1 was uncomfortable with
the answer he had to give but gave it because it represented
truth namely that contract 65 had finally been concluded and it was a
valid contract in the context the answer was rendered.
DW3 had a
field day in this court always fencing with the questions.
2841 Truly the court was at large to call him to order but at the
same time if it did so it would deny itself the opportunity
him persistently and gleefully heap coals of fire upon his head.
Suffice it to say generally speaking the defence witnesses namely DW1
2845 DW2 Brown DW5 Gibbs (especially) and DW6 Burnett (to some
extent) seemed to be jobbing backwards in their effort in seeking
present before court the sort of case they had pondered.
Learned counsel for the Crown aptly indicated that defence witnesses
to explain what was in effect a res ipsa loquitur situation. I agree
with him having addressed my mind to various features characterising
this case and relevant factors attendant thereon that the context in
which the payments were made, the very
2853 amounts, their timing, the manner in which payment was effected
taken individually and collectively all point irresistibly
direction and one direction only, namely that the payments were
unbearably reeking of bribery.
2857 In like manner, the representative agreement when viewed
against the situation in which Acres found itself in 1990 within
LHDA, the status of the negotiations relating to contract 65, the
help that Z M Bam could and did legitimately give Acres in
this contract, as well as all the other factors 2861 enumerated
above, overwhelmingly point to this agreement being
nothing but a
It is in this situation that DW1 and 2 were called and their mission
struck one 2865 as clearly to try to explain the inexplicable,
justify what obviously cannot be justified, make seem credible what
on the face of it cannot be believed and explain that which
quite incapable of innocent explanation.
when giving his evidence spoke well and induced a lot of confidence
in the process. In his evidence he was nimble in his responses
betraying possession of a good memory. A combination of these two
factors namely agility in giving answers and possession of a good
memory stood him in good stead and gave an
2873 impression that he knew what he was talking about throughout
his evidence-in-chief As Mr Penzhorn aptly observed, "in
he looked quite impressive in the witness box. However, the substance
of his evidence is another matter all together".
I am in
agreement with this observation by Learned Counsel for the
The thrust of DWl's evidence in brief was this. Acres is a company
with a proud history which would never even consider doing anything
improper. The very
2881 thought that Acres could be involved in bribery is quite simply
preposterous. The term preposterous is one which he repeatedly
with, no doubt in my mind, studied assertion whenever a suggestion
was made of wrongdoing either by Acres, Sole or Z M Bam
context of the involvement of either in bribery with the aid
2885 of one other. He buttressed his assertion by pointing out that
Acres has a strong anti-corruption policy to which it strictly
adheres. It was in line with this policy that Z M Bam was employed as
agent and this was also only done after thorough due diligence.
However as I observed this policy as applied in the case of Milner
2889 who was eventually appointed agent in the Zambezi River
Authority the so called due diligence to my mind was a mere
For the highest water mark of the criteria they
used appeared to be that Milner was the Cousin of the Chief Executive
of the Authority
one Mpala. This factor alone seemed to dispel
2893 otherwise patently dubious factors which arose immediately
prior to Milner's appointment. Have regard to the curious manner
which in the mind of Rynard betokened a lie as to how Milner got to
have his name and his hotel and room number. Seepage 1464-
1494. Despite indications, as shown in Milner's
2897 appointment, negativing Acres self-gratification at the policy
of which they are so proud, DW1 maintains that any suggestion
that Acres would even have suspected that Z M Bam did anything
improper is similarly preposterous. Yet there is no running
the fact that in a parallel situation Milner's big selling was
2901 his contacts, more particularly, with the Chief Executive of
the Project i.e. Mpala. See Page 1469 line 17 read with 1433
DWl was an experienced engineer, a vice president of Acres and this
2905 Organisation's person responsible for overseas business. He had
been in Acres from 1967 to 1996 when he retired. See Page
25 to 1. See also Page 1449 where DW1 indicates from line 11 onwards
that in the competitive world of consultancy such
as Acres was
engaged in "......of course governments would
2909 assist but in an honest way, in an honest and appropriate way".
My mind cannot help harking back to the assistance offered
Canadian High Commissioner in the appointment of Milner in deference
to the invaluable counsel and advice that Rynard credited
with. See Page 1470 line 10 and Page 1474 lines 7-10.
As an employee of Acres at one stage DW1 was the director of overseas
operation for a concern that is primarily export driven.
and Page 1447 lines 15- 17. Thus no doubt he is a highly experienced
and very intelligent person
2917 well steeped in working with contracts. Undermining these
highly valued attributes in him however is the fact that he claims
was not intentional that Z M Bam's name was omitted from the
representative agreement in favour of contracting only with the
ACPM. He says it did not occur to him to include Z M Bam's name
2921 in the document and that Z M Bam's provision of a Swiss bank
account number at a Swiss bank as ACPM's address for purposes
agreement did not arouse suspicion in him - this even though Z M Bam
changed that address more than twice. Confronted with
of this all, in credit to him, he readily
2925 concedes that in hindsight all this is suspicious but, rather
imprudently spurning the credit just generously endowed on him,
insists that it did not occur to him at the time. It is the Court's
view that the suspicion was as plain as the nose on one's
throughout. How else, in the face of the fact that he was careful
enough to protect
2929 Acres by asking Z M Bam to put up a bank guarantee, utilising
his vast experience, by in the process even providing Z M Bam
draft and later a finished version of the bank guarantee? How indeed
in the midst of the extreme caution he demonstrably
exercised on his
part. More by token he even insisted that Acres get
paid first by the LHDA before Acres could be obliged to pay Z M Bam.
I accept the submission by the Crown that it is no white lie but a
blatant one that it did not arouse suspicion in him when Z M
Lesotho said pay me in
Suffice it to say that besides being improbable in the extreme all
this simply cannot be true. This is borne out by the fact that
DW1 had prepared the
2941 various drafts he would refer them to Rynard, the Chairman of
Acres (See Page 1292 lines 14 - 16) for checking. If DW1 is
believed, Rynard also never noticed these curiosities. But this is
the height of absurdity. As Chairman of Acres Rynard was
extremely able, intelligent and experienced man. When
2945 he checked he even made amendments to typographical errors. In
the instant regard he changed "and" to "or"
the conjunctive to the disjunctive an exercise that requires a
conscious effort to perform. Thus it is again obvious that Rynard
intended the agreements to be with ACPM without reference to ZM Bam's
2949 this, because of the real purpose behind the representative
agreement, i.e. that it should be a vehicle to commit bribery.
force of the above argument leads to no other conclusion than just
submission is therefore well grounded that even an average person
would have detected peculiarities in the representative agreement.
Common sense dictates that on the instant point concerning specialist
persons of vast experience and high intelligence the ability to
detect the said peculiarities would be all the
2957 more pronounced. I agree therefore that the obvious conclusion
then is that DW1 was being deliberately untruthful on this
COMING NOW TO MILNER AFFAIR - PROPER
In the context of the Zimbabwe agent, Mr Milner, DW1 testified that,
as far as he was concerned, there was nothing suspicious about
took place in the process of engaging Milner. In the light of DWl's
experience this simply cannot
2965 be true. Given that it appears patently clearly from Rynard's
letter to the Canadian Embassy that all Rynard was interested
confirmation that Milner was very close to Mpala the Chief Executive
of the Zambian River Authority, what DW1 tells the
court in this
connection cannot be true for it defies not only the spirit but
2969 the letter of Rynard's quest. Needless to say if Rynard did not
have improper intentions this would not have been his only
it called to memory that Rynard's file note dated 27th February 1991,
and copied to DW1 shows that Rynard bristled with
Milner's advances. Clearly honesty and integrity
2973 were not uppermost in Rynard's mind when he did his "due
diligence" on Milner, but rather "ability to produce".
The same charge of lack of honesty and integrity would equally, in my
view, fit in well with DW1 following his pretence that it
occur to him at the time that Z M Bam's behaviour aroused suspicion.
2977 highly qualified people for all their intelligence even, lacked
the eternal jewel of basic humanity, namely integrity. Intelligence
minus integrity in my view betokens the same form of emptiness of
character that the English language itself aptly warns against
expression "if you expectorate you should not expect to rate".
It is a matter fit to raise one's eye-brows to consider the eagerly
pursued policy of "ability to produce" in comparison
DWl's statement at page 1285 lines 1 - 25 to the effect that by due
diligence is meant [that] "............ we would
2985 ensure that the agent has a good reputation, - he has had no
problem with the law, .... he is well respected in his society
comes from a responsible background, [... he has] whatever we feel is
necessary to have the confidence that he would not
business ethic.....we would ensure that our agreement prohibits him
2989 from doing that [breaching business ethic] and of course
throughout the course of time we would carefully monitor and observe
what he is doing to the extent that we could and make sure that he
was complying with our requirements."
response to a pointed question that "Mr Penzhorn [has said] that
it is all
very good and well to have a standard document containing the terms
of your standard business ethics which you will conveniently
use as a
shield to hide behind when your agents act unlawfully....?" with
his hackles rising as of an agitated cock,
2997 DW1 said ".........without in any way wanting to offer any
insult to Mr Penzhorn
I find the idea ludicrous. We are a respected company, we have been
in business for over 75 years, we have never had a problem,
never had an ethic problem until this unfortunate issue today. We
have, what I consider to be a well
3001 thought out code of ethics, we insist that our senior Managers
sign that code of ethics on an annual basis. We do everything
to ensure that our business is always conducted in an ethical way.
You can only do what you can". He concluded.
What I found truly comical was when DW1, finding himself confronted
with a statement regarding which he and Rynard were on opposite
thus making DWI unable to change the statement staring in his face,
suggested that Rynard was
3009 confused when the latter wrote to Milner on 29th April 1991
confirming Milner's appointment as Acres' representative in Zambia
and telling him that Acres would require an invoice "to match
the money paid out, for audit purposes". See Page 1471
lines 8 -
11 See Also Page 1473.
I have already indicated that Raynard was a highly placed,
intelligent man in the Acres hierarchy. He was even Chairman as just
shown. That it can be said he was confused for doing something which
he clearly and consciously invites
3017 attention to focus on by placing it in inverted commas as he
did with the phrase
"invoice for services rendered" which occurs in the
sentence: We also require a very simple invoice for services rendered
from the representative to match with the money paid out, for audit
purposes is an exercise in gimmickry of the type that pays
3021 scant regard to the intelligence of this Court. Suffice it to
say DWl's evidence that Rynard was confused in this regard
not true. Quite clearly as Rynard has emphasised the point by use of
inverted commas to show what he meant, he amply
indicated that he
seriously meant what he wished to convey in his letter to the
3025 addressee. Obviously this suggests that evidence "be
cooked" in the event of need to cover up Acres' glaringly
exposed hindquarters in the future. I take a special note of Mr
Penzhorn's submission that Rynard took the trouble to place the
"for services rendered" in inverted commas. The submission
farther consists with
3029 a plausible and palpable explanation that this [use of inverted
commas in the context in question] in itself suggests that
words were used to convey to Milner [the addressee] that he would be
doing something other than "rendering services".
obvious that Rynard wanted invoices from Milner for auditing
3033 purposes. The reference to invoices in the documentation
relating to Z M Bam points to just this. Thus DWl's suggestion that
these were "internally generated invoices" is not only
indicative of malpractice but also of an intent to deceive or
a false impression.
in his evidence in chief said that Acres used agents as a matter of
course, as part of their business plan for overseas operations in
recognition of the fact that they were in unfamiliar territory.
stressed " we would normal (sic) [not dare] think of entering
onto foreign soil to operate without the one or the other"
Italics mine see Page 1268. The italicised words above refer to the
agent [or} the insurance which appeared in context previously
In this context the defence created the impression that those
3045 agreements to be found in Volume 15 part 3 were just a few
random examples and that Acres in fact had "literally hundreds"
of other agreements to show the Court. Indeed in this context it
dared the Crown at the risk of wasting time to cross-examine DW1
"a bundle containing literally I think hundreds, the use of
hundreds of agents historically" see page 1286 lines 9 to 22.
Under cross examination indeed a completely different picture
emerged. Now DW1 says that although Acres might have as many as 20
-30 overseas projects
3053 on the go at any one time, of which maybe a handful were large
ones (page 1452 lines 1-18), they "definitely" don't
agents for all of them. See P 1452 pages 19 - 22. True enough one is
alert to the fact that DW1 was at this stage giving approximate
figures of what he was talking about, so he said that there were all
3057 sorts of exceptions to the almost invariable practice of "using
agents as a matter of course" See Page 1268 line
emphasised "it is part of the Acres' business plan if you like
for overseas options"line 5. Examples were where
sub-consultant, as with Delcanda on the airport contract, where the
project is small,
3061 where CIDA contracts were involved and the like. The actual
text is rendered at P 1295 lines 10 to 18 as follows by DW1 in
evidence in chief:" Acres first sent people to Lesotho in
connection with the new airport at that time, in 1980..... At
time Acres was engaged for the Lesotho Airport by another Canadian
3065 called Delcanda and Acres' role was one of a sub-consultant
providing some specialist services to Delcanda in their contract
provide design and the supervision of structural services for the
airport authority. So Acres was here, it had people here,
but we were
in the capacity of a sub-consultant. So in that respect
3069 there was no need for us to have an agency arrangement."
See Also Page 1452 lines 23 - 25.
It is important to note that this evidence was given by DW1 after it
3073 in cross-examination that Acres had not used "literally
hundreds" of agents but that instead there were agreements
only 28 in total spanning a period of some 22 years of which 21 had
expired. See pages 1685 - 1687. The court at this stage
DW1 looking and sounding constrained to change his evidence
obviously so, because clearly the facts did not square with what he
had said in
chief. What emerged in cross-examination being that representative
agreements are only used in exceptional circumstances. Thus
emerged it is definitely not Acres' almost invariable practice. Thus
further giving a strong flavour in this case of the
fact that more likely than not they are used only when a bribe has
to be paid.
Another matter of importance which shall ever dog Acres and therefore
which they cannot wish away however eagerly they might feel
inclined for their
3085 peace of mind is that when Jonker first came to Lesotho, way
before the airport contract, to look for work for Acres, he
engaged an agent. See page 1297 line 21 also 1298 lines 1 to 6 and
finally lines 14 - 16 which rounds off the point neatly
3089 "[Mr Jonker] he and Mr Bam had some discussions but the
opportunity with the project did not develop and therefore the
did not develop from that stage [The pre-Airport stage]. And it was
by coincidence that we ran into Mr Bam again on the
because P 1298 line 1 indicates that when Jonker
3093 came he was not associated with the Airport Project but came
"Quite independently......[his coming] predated the start
Airport Project." The contradiction contained in the text is
pungent that on the one hand there is Jonker clearly not
agent when he first came to Lesotho yet on the other hand
purpose of engaging an agent was to help you "acquire work"
as made so
patently clear by the reading of P 1269 lines 9 - 12 to the following
effect: "what would the functions be generally of an
appointed by a big corporate client ......? I think you could put
them under two general headings: the objectives of the
3101 consultant would be to acquire work and then to-and then to
execute it successfully".
To have engaged an agent at this stage then would have been harmless
because the agent only gets paid once the Acres contract has
Acres is paid - so the reality in this case painfully belies Acres'
DW1 acknowledged that Acres' corporate records are of a high standard
that a careful record has to be kept of dealings with
representatives, especially "if
action was needed". Page 1286 lines 2 to 8 show that Acres'
practice goes back for upwards of 75 years and that" it
certainly has an extensive
record of agents employed throughout the world." DW1 pointed
when he was asked about the whereabouts of the records, although
acknowledging that there would be a record, he was vague about where
the records were kept, i.e in which file. It is indeed amazing
DW1 should talk about proper keeping of records as a practice
faithfully followed by Acres yet when it
3117 comes especially to those relating to Z M Bam the avowed
practice seems to be
upheld in the breach. Either this or rather that suddenly there was a
need to be discreet - agents do not want to be known as blabber
mouths. His own files had been destroyed. Acres' policy was to
destroy documents after ten years - yet there
3121 are some records which have been produced which relate to Z M
Bam's two agency agreements as well as others, such as Milner
records. The reason cannot be far to fathom why DW1 did not want to
commit himself as to the whereabouts of the files and their
Obviously and as a matter of irresistible inference a selective
cull of Acres' records has been done.
The learned Counsel for the Crown cannot be faulted in his
observation that if DW1 is to be believed about Acres and the way it
conducts business it must
3129 surely be the finest example of an ethical company that exists
on this planet. In support of this Utopian belief DW1's evidence
creates an impression that Acres is without blemish, incapable of any
impropriety and unassociated with any wrongdoers. In accepting
this evidence cannot be correct I entirely reject it
not only untrue but as unreliable for clearly being founded on
fallacy and t ainted with exaggerations.
For instance at P 1272 lines 11 - 26 when referred to a column on
glibly said business ethics of EDC required "themselves and
others to operate
lawfully. I think Canada is well -known for its adherence to lawful
practices, I say that as a Canadian with certainly a lot of
I think that is recognised throughout the world". Emphasis
Asked specifically about bribery he said "... obviously bribery
is an illegal practice and obviously I do not think they even
say that. If they had said illegal practices everyone would have
recognised that bribery was one of those ".
At page 1284 lines 25 to 26 DW1 when asked what Acres does to ensure
agents don't indulge in unlawful activities said ".....we would
do extensive, due
diligence before actually engaging an agent".
At page 1285 lines 1-5 with regard to diligence in application he
said: "... we would ensure that the agent has a good
has had no problems with
law, .... is well respected in his society ...... comes from a
background, whatever we feel is necessary to have the confidence that
he would not violate our business ethic". See pages
1282 line 12
to 1284 line 18 and line 26 . See also 1287 to 1288 line 15.
difficulties I have with DW1's evidence are not just few and far
One bedevilling feature concerning the proposition deservedly
formulated for purposes of rejection immediately above is that DWl's
evidence does not chime in with the facts. He said for example that
Witherell, as assistant Chief Executive,
3161 was given firm instructions not to have anything to do with the
establishment of Contract 65. Putting this side by side with
(Clifford Brown's) evidence for purposes of reconciliation results in
the impossibility that was envisaged when the phrase
into pint pot was first fashioned. DW2's evidence
3165 contradicts him yet he was the principal person in Lesotho
responsible for Acres business.
Another vital area where DW1 is contradicted in a material respect is
3169 PW15 Mr Molapo who is backed by credible evidence said there
was no finance in place when various documents relating to contract
65 were signed. DW2 also supports DW1 in their baseless contention to
the contrary. I have no hesitation in rejecting their evidence
this extent that it is in contradiction with PW15's
In yet another closely related area DW1 having conceded that
Witherell received all communications between the LHDA and the World
Bank and the JPTC
3177 he however insisted that Witherell did not and would not have
passed information relating to these on to Acres in Canada.
were to believe this one would believe anything at all, at all. Not
only does it defy human experience but also it flies
in the face of
Witherell's appointment as Acres' most senior employee in
3181 Lesotho responsible for looking after Acres' business there. On
DWl's evidence it has been learned that Witherell was virtually
automaton when he signed the various documents. He made a big thing
about the fact that the letters signed by Witherell prima
proof that they were prepared by some other persons
3185 whose initials as a rule are reflected in such letter. Anybody
possessed of the minutest grain of common sense would know
author of a letter cannot be freed from responsibility for the
contents of such a document on that flimsy ground inasmuch
could not on the other hand be denied a reward he would deserve
3189 for writing it, on grounds that it was processed by someone
else whose initials appear thereon. The simple principle here
with a curate's egg the advantages are to be taken along together
with disadvantages. Thus the notion by DW1 implied in his
that Witherell merely "signed off on behalf of Sole"
3193 cannot be entertained. I therefore reject it. Otherwise where
would the question of the "automaton" feature in
where he authorised the various payment certificates to Acres itself.
In this instance, having regard to his job description
64, he must have known that neither the JPTC nor the World Bank
3197 had approved contract 65. He must also have known that funding
was not in place to finance contract 65. But he signed
I accept therefore that the only palpable
explanation that is reconcilable with reason is that Witherell signed
Acres was desperate to be paid: thus Witherell did
3201 to facilitate payment. This credible explanation is in sharp
contrast with the assertions by DW1 and DW2 that bridging finance
in place. I therefore reject those explanations to the extent that
they seek to detract from this explanation. The assertions
of DW1 and
DW2 could not have been true in the light of the desperate
3205 pressure and strain imposed on the JPTC to tell the LHDA to
ensure that a plan was necessary to make in order to effect payments
under Contract 65. Reference to PW15's evidence read with Exhibit "Z"
at page 219 would suffice to highlight the point
where the JPTC said
to the LHDA that a plan would have to be made to make
3209 payments under contract 65. This was long after Witherell had
The telling points contained in Exhibit "Z" at page 219 are
to be found in the
3213 JPTC minutes of 19 September 1990 relating to Contract 65 in
clause 7.18 reading:
That although repeatedly requested from the LHDA no further
information had been received regarding the status of the above
1. That LHDA be informed that mobilisation of Acres personnel under
the "unawarded" contract is not
acceptable to JPTC
2. That the above action by the LHDA without JPTC's prior approval
is in contravention of the Treaty, and that this fact is brought
the attention of the LHDA
That LHDA be advised to consider funding of the above
interim services under VO [Variation Order] to TA1...." While
keeping at the back of one's mind the lofty ethical standards
Acres would have the court believe it maintained it is important to
see how far
3229 these are reconcilable with the actual practice by Acres. In
this connection the court is immediately struck by failure on
part of Acres to dispel the observation that it was not acting in a
perfectly ethical manner as betrayed by examination of
the two Royal
Bank of Canada bank guarantees where a deliberately misleading
3233 impression was created by the indefensible suggestion that
contract 65 had been "awarded". This patent untruth
not be transformed into something else. Even on the rather recherche
construction attempted by Mr Alkema on the words based
on the letter
of intent the sort of hurdles that beset that exercise made that
exercise fruitless because it was obvious that the letter of intent
had all sorts of
conditions that had to be met. These had not been met when the bank
guarantees were obtained. Every indicator points to Acres having
in the know of this. Suffice it then to say that, whichever
construction is used, Contract 65 had not yet
3241 been awarded as at the date of the bank guarantees. This too
was not outside the pale of Acre's cognizance. Can this be consistent
with the ethical paragon that DW1 tried to portray Acres to be? I
further indication of Acres' disregard for acting in seemingly
manner that it would have this court believe formed its sheet anchor
is the way Witherell worked with his own contract, i.e . Contract
In Volume 1 page 387 in a letter dated 3rd June 1990, addressed to
the World Bank, marked for J 3249 Renkewitz's attention
and signed by
Witherell on behalf of the Chief Executive, the contents read:
" we enclose two conformed copies of contract 64, services of
Acting Assistant to the chief Executive". The submission
merit that if Witherell was to behave consistently then not only
would he have avoided dealing with Contract 65 but he would also have
avoided working with contract 64; more so because contract
64 too was
in effect a contract between the LHDA and
3257 Acres as was contract 65. But it is clear to me that Witherell
by his conduct saw nothing unethical about it; thus he variously
worked on his contract without any qualms as he saw nothing wrong in
that; prompting in this Court's mind a recall of a
3261 recital of a phrase in a play performed more than 30 years ago
in which an actor aptly responded to a scene in the words
with vomit malice inconveniences not the perpetrator but the
Along the same lines emerges something which, if the previous
incidents were to be regarded as mere accidents prompting the
question so what,
gives an impression that after all it seems wrongdoing is a way of
life with Acres.
3269 Fact: DWl admitted that he knew that Z M Bam and Masupha Sole
were close; and that Masupha Sole had been involved with LESCON.
Z M Bam and Masupha Sole were close can be gathered from pages 1678
line 19 to 1679 line 6. DW1 knew this at the time he negotiated
representative agreements for he admits at
3273 page 1694 lines 12 to 13 in response to the question put as
follows".... how did you know that Mr Sole was involved
LESCON...? Through Mr Russel".
This notwithstanding DW1 throwing caution to the winds went ahead and
3277 used Z M Bam. Thus I accept with approval the submission that
if Acres was so ethical as it would have this court believe
it to be,
DW1 would not have used Z M Bam because of his unduly close
relationship with Masupha Sole. But looking back on the Milner
connection it would seem behaving as Acres did in the
3281 Sole/Bam relationship was just par for the course because the
very reason that Milner was a cousin of Mpala the Chief Executive
the Zambezi River Authority was Milner's selling point as far as
Acres was concerned despite that that obviously unduly close
relationship existing between the two would militate against
It has more than once in this judgment been pointed out that DW1 is
obviously an intelligent man, clever and experienced. But features
3289 which either point to his truthfulness or deliberate
untruthfulness. One thing when it came to remembering small things it
was with amazing clarity and monumental aplomb. But there was always
this nagging feeling that he inspired; namely that he remembered
because he wanted to. Otherwise how come things which by
3293 their sheer prominence are big enough to form unmistakable
mile-stones along his memory lane become completely obliterated
and absolutely forgotten. Things that he remembered were those which
were either beneficial to Acres defence or simply not
thereto. Examples abound in this particular area. In illustration
3297 of this can be cited the fact that he could not remember a
really important event like the proposal that he put to Z M Bam
their meeting together in November 1986 in relation to which the
proposal was subsequently put to the "relevant parties"
Z M Bam. Now he conveniently contends that these things all happened
3301 time ago and for that reason he could not remember details. The
next brand of forgetfulness emerged on the scene strikingly
ghost at the feast when attempts by the prosecution to have DW1
identify Z M Bam's source or contract within the LHDA drew
blank Common sense dictates that if you know
3305 Z M Bam that well and what he is doing the next logical and
indispensable thing is knowledge of his connection point within
LHDA and remember it as indelibly as you remember Z M Bam because the
two are but the sides of the same coin. Thus I accept
that on these important matters DWl's
3309 forgetfulness is convenient in the extreme, regard being had to
his sharp remembrance of old and minor details which either
Acres or mean no harm to it.
court was spell-bound by the facility with which DW1 confidently
stated in his evidence in Chief that Acres' invariable practice was
to use representatives in foreign countries. But a small scratch
the cross-examination on the surface relating to this issue revealed
that as a matter of fact the first time
Acres engaged an agent in Lesotho was when they engaged Z M Bam in
It should be recalled that by this time Acres had been in Lesotho for
years and had attempted to get TAMS' technical assistance
with WEMIN, as well as the feasibility study awarded to LMC which was
under the supervision of TAMS. Like
3321 Tac-1 these were obviously large contracts. Yet they never used
an agent. However the moment they were invited to submit
under Tac -1 they were stung into engaging Z M Bam. Be it recalled
that on DW2's evidence at this stage an agent would
not have been
necessary. Why then despite all this. Truly the
3325 reason would seem to lie way beyond what a mill of the run
agent is required to do. Nay not even just within the pedestrian
requirements such as providing political intelligence or the like
which Acres maintained would serve as good enough reason to proffer
to the question why in the light of the fact that Acres was neatly
3329 in all areas by its local personnel rendering the use of an
agent unnecessary, did it feel it needed an agent nonetheless.
the need for an agent in these circumstances was so as to please Sole
and share with him Acres' money in turn for promotion
interests outside their avowed policy of acting lawfully,
outside what contents of the representative agreement purport to
DW1 testified that he met Z M Bam at the latter's offices on 10th
November 1986. Nothing of note was focussed on in their discussion.
However DW1 says
3337 he used this opportunity to meet Z M Bam when he came to
Lesotho for a site visit.
Yet he put a specific proposal to Z M Bam, which the latter "again
highlighted" to the "relevant parties":
paragraph 2 in Volume 15 part 4 at Page 16 reads: "Did take care
to again highlight proposals of November 11 to the
DW1 conveniently could not say what this proposal was. He tried to
explain it with reference to the Acres' proposal TAC -1. But
vain act of spatchcocking was set at naught in its tracks by virtue
of the fact that Acres' Tac - 1 proposal had
3345 not even been submitted yet. This was only going to be
submitted on 19th December, 1986 as amply vouched for in Volume 15
part 4 pp 11-12. How else then could DWl's proposal to Z M Bam have
been at this meeting but that it must have been a separate,
proposal. Were it not so, common sense dictates
3349 that there would not be any need to highlight it to the relevant
That the proposal was improper also gives an explanation why DW1 has
conveniently forgotten what the proposal was. Be it remembered
too that Acres only engaged Z M Bam as its agent after it had been
invited to submit a proposal but
before the contract award.
The court puts a premium on the significance of the timing of the
engagement of Z M Bam as Acres' representative. Once regard is
3357 evidence taken along with that of DW1 that in effect there was
nothing that Sole could really do to assist, there would have
need to engage Z M Bam at all: that is assuming their story is true
in that regard. There was after all, on their evidence
nothing that Z
M Bam could do for them. Here one is introduced to a
3361 morass of vague and unconvincing answers by DW1 putting his
glib tongue to optimum use in that regard. The bare truth established
by credible evidence is that there was a lot that Sole could do for
Acres. Further evidence points to the fact that Sole did a
Acres. I may go further and say it was no sheer coincidence that
3365 as it turned out the money that Lahmeyer paid Z M Bam also was
shared with Sole.
Page 1673 lines 20 - 23 "Were you blissfully unaware of
Completely" was DWl's response in cross-examination. It is
strange that even though the German Government, as admitted by
made all sorts of moves to
3369 get Lahmeyer back in the "fray" - page 1673 lines 1 -
10Dwl didn't want to know what Z M Bam was doing for Lahmeyer.
is another example of incredible failure to observe things which by
their nature are striking to one's eyes unless one covers
to obstruct viewing them. In such instance the failure to see is
DW1 was repeatedly asked both in cross-examination and re-examination
what Z M Bam did for Acres between April 1989 and February
3377 assist Acres in relation to contract 65. He stuck to singing
his pet theme, namely that Z M Bam performed general intelligence
work for them and gave them advice. Apart from the fact that DW1
appeared to be scrupling to give it the answer itself was simply
vague. DW1 could point to no specific thing that Z M Bam did
3381 for Acres. I accept the submission that DW1 's vague answers in
this regard suggest that Z M Bam did nothing lawful for them.
inference is irresistible from this instance that instead Z M Bam was
paid to do Acres' dirty work for them namely to bribe
Sole. If this
were not so Acres would have notes of precisely what Z M
3385 Bam did and these would in turn have been produced. Serious
consideration should be given to the fact that those scanty notes
that Acres have produced are peppered with suggestions of
3389 According to DWl's testimony when Acres got the instruction to
mobilize on 14th August 1990 it believed that all the contractual
conditions had been met.
This observation is vouched for at page 1423 lines 19-25 especially
21 to 25
".....what was your perception at home office in regard to the
conditions or the conditions contained in the letter of intent of 28
July 1990______? ....... we would believe that if the owner
the step of ordering us to
mobilise, then all conditions would have been removed.
What was your belief_____? That was our firm belief."
This evidence cannot be true because Witherell was the assistant
Executive at the time. DW1 admitted that all World Bank and JPTC
communications would pass Witherell's desk. Meaning in brief that
would have known that the conditions referred to in the letter of
intent had not been met.
Under cross-examination DW1 made what amounted to dropping a bomb-
shell. A very telling thing he said which naturally made the court
raise its eyebrows with curiosity. He said after Acres
mobilised it was performing contract 65 work but it was not getting
paid. He said that Acres was then in effect financing
3409 contract 65. This in part appears to me to be an
acknowledgement that JPTC had not granted its approval thus it would
been absolutely true that Acres was doing so since its staff was
working. Therefore Acres was having to pay salaries, mobilisation
costs and the like. For all this Acres was not being paid or
3413 by the LHDA. Truly this was obviously an untenable situation. If
allowed to go on too long it had the potential not merely
Acres with an egg in the face but seriously embarrassing Acres
financially. Therefore it could not be allowed to go
3417 Amidst all this untenable situation Acres was keenly aware that
it had absolutely no leg to stand on. Fact: Acres could not
any of the protection clauses relating to non payment or late payment
as provided for in contract 65. Indeed one is tempted
to ask how
could Acres have opted for this foolhardy course
3421 when the other course as provided for in Contract 65 would have
none such uncertainties. At the end of the day the ultimate
seems to lie in the greed of the Chief Executive and Acres' eagerness
to benefit in turn for slaking it. The immediate answer
Acres found itself "financing" the LHDA because
3425 contract 65 had not even been signed yet. In fact at that stage
important contractual considerations, like for instance Acres'
up, had not even been agreed. This relates to the time around 25th
September 1990. In a letter by Renkewitz the task manager
to the LHDA
dated 25 September 1990 in Volume 1 pages 402 - 3 last
paragraph the contents read:
"We consider the proposed fee of 20% excessive for contracts of
large value and long duration. This usually ranges from 10-12%
the appropriate fee should therefore be in the
neighbourhood of 10% ..."
Thus clearly this shows important things still needed to be put right
before Acres, with the blind and enthusiastic cooperation
encouragement of the Chief Executive, could leap as it did before it
3437 Needless to say it was only after the above date that Acres'
mark up was reduced from 20% to 14.7%. Acres was thus firmly
LHDA's mercy and Masupha Sole who was at the helm of the LHDA had got
them by the short hairs in this instance. Thus Acres
had no option
then but to resign itself to the tender 3441 mercies of Sole.
But wonder of wonders all this as if by magic wand was put to bed
very quickly after the representative agreement was signed. The
equation is simply too
3445 close to deny existence of a connection between its extreme
ends. Signature on the representative agreement equals loosening
the grip on Acres' throat by Sole! On the outside signing of the
representative agreement should mean nothing beyond payment
to its agent Z M Bam. What is in it then for Sole that he should
3449 loosen his grip on Acres' throat? Truly something that is paid
to Z M Bam to use his account to pay Sole with and not without
knowledge. It turned out then that within days of the representative
agreement being signed Acres was paid its Maloti component
M250 000-00. Not long thereafter, on January 4th,
3453 1991 Acres was paid its Canadian advance. Clearly the
conclusion of the representative agreement on 23rd November 1990 had
the direct effect of removing Acres' nightmare of effectively
financing contract 65 on behalf of the LHDA.
peripherally alluded to earlier under cross-examination DWl's
grafted halo of self-righteousness completely crumbled. And when it
did it not only s howed up inconsistencies, contradictions
improbabilities, but it revealed DWl's evidence to be quite simply
Examples abound in the typed record of proceedings to support the
above observation and finding. They are to be found in:-
Page 1535: lines 5 - 7 : DW1 after beating about the bush
3465 ultimately says Z M Bam was going to help Acres' get a contract
which as the court now has seen for itself had already been
without Z M Bam's assistance. What explains why he could not answer
the simple question with a direct
3469 answer is that he knew it could not be true in the
circumstances that Z M Bam could be of any assistance in getting the
contract for Acres.
3473 - Page 1521 lines 5-23. The sudden need for an agent after
Acres had been in Lesotho.
Pages 1525 line 8 - 1526/8: The need for an agent where
Acres had been invited to make a proposal. Invitation to submit
a proposal betokens that the stage for securing an agent had clearly
past. See lines 22 - 24.
3481 - Pages 1527 line 11 to 1528 line 13: No clear answer about
what Z M Bam was going to do for Acres except that he was discreet
and did not blab. Nothing indicated about what the role of Z M Bam's
contact Mr Makhakhe was. When questioned closely on
3485 the due diligence to which he attached so much weight
concerning Z M Bam, whether DW1 did this due diligence he suddenly
said Mr Russel and not him.
3489 - Pages 1529 line 7 to 1530 line 26: Qualification of Z M Bam
to do agency not going to do engineering work is that Russel
and Jonker found his name in a telephone book. This is the indicator
of the extent done of due diligence to enable
Acres to pay Z M Bam CAD 132 000.00
1533 line 15 to 1535 line 18: The particular attraction of Z M Bam
and what he was going to do for his money.
3497 - Pages 1540 line 2-1543 line 17 ZM Bam's contacts inside
theLHDA and who they were.
(1544 lines 5 - 9.) DW1 is unable to help court evaluate how
good and reliable Z M Bam's contact is.
1554 Lines 6 - 10 : Inclination to involve the Canadian Embassy and
the reason for doing so, namely to influence the
minister (1555 line 18 to 1558 line 22.
1683 DW1 denies what otherwise had been for a long time a common
perception that funds once stored away in Swiss
accounts could not be touched by anybody else.
The instances which constitute inconsistencies in DWl's evidence are
well summarised by learned counsel for the Crown under distinct
headings set out in
3513 paragraphs 201 to 211 of the written submissions. I could deal
with each of them at great risk of prolixity to this Judgment.
Suffice it to say in paragraph 202 I have highlighted as an example
of the circumstances in which Z M Bam was engaged in respect
contract 65 sub-paragraph 202.3 referring to "Advice from EDC on
3517 the use of agents, control over agents and as this applied to Z
M Bam (pp 1589 line 4- 1592 line 6.)
With regard to paragraph 203 headed
3521 "The representative agreement (RA) and the various drafts
it went through", the first sub paragraph thereof sufficiently
illustrates the point being made namely that the representative
agreement was not simply a pro forma document. The entire text
reproduction as follows: " The point I want to make here is this
is not a pro
3525 forma document where you just fill in the right name, this is a
document typed out in respect of LESCON, in respect of TAC
right__________? That is correct", replied DW1 to Mr Penzhorn.
3529 In paragraph 204 relating to other events at the time learned
counsel for the Crown has among other points for consideration
pointed at Sole's visit to Canada at this time, September 1989
Paragraph 204.1, payment to Z M Bam on 1st October 1989 in respect
his disbursements in Canada Paragraph 204.2;
3533 ..........Payment by Acres of Sole's travel expenses, also in
the light of its corporate policy, paragraph 204.4.
Under paragraph 205 headed as circumstances leading up to the RA on
3537 November 1990 is earmarked among others for consideration
sub-paragraph 205.3 styled "Authorising of the advance payments
and the position this put Acres in (pp 1646 line 13 to 1653 line 9.)
Reference to the text, in the record of proceedings clearly
that DW1 was hard put to it to provide answers to this. He was 3541
simply in a quandary to do so.
Under paragraph 206 whose heading is what the R A provided for as
opposed to what Z M Bam was needed for stood the unforgiving
3545 206.4 whether the RA was not really a form of insurance for
Acres. (P 1669 lines 12 to 19) This question clearly effected
stunning blow to the facade of impenetrability that DW1 had initially
assumed at an earlier stage when he appeared to be on top
situation in this court. It simply left him out on a limb
presently illustrated in the text as follows:
"......At the end of the day was this agreement with Mr Bam not
just a form of an insurance policy .... ? Was it not just
a form of
an insurance policy?" came the reply in the form of another
question to the question clearly put. Not only so
clearly understood! See page 1669 lines 12 to 14.
Paragraph 207 highlights the double conflict with Lahmeyer being a
consultant on the water project. A truly poor way of Acres holding
itself as above
reproach in the sphere of keeping away from conflict of interests.
Paragraph 208 illustrates DWl's poor show in trying to deny that Sole
wielded tremendous influence and power that went well and
3561 normality let alone acceptability. DWl's denial was despite what
he himself struck him as an unreasonable and puzzling behaviour
the part of Sole who first booted out Willet for no reason whatever
and then DW1 himself for "daring" to bend to the
curiosity by whispering to someone else why Sole did kick out Willet.
Paragraph 209 relating to payments outside Lesotho i.e. in
Switzerland puts on the spot Acres' code of ethics and calls in
its violation of Lesotho's Exchange Control Regulations and
tax laws. Especially the part of conduct that is
3569 akin to behaving as if butter wouldn't melt in its mouth
Paragraph 210 relating to the relationship between Z M Bam and Sole
questions in 210.3 whether, in the circumstances neatly set out to
indicate one thing
3573 and one thing alone, Z M Bam would not have told Acres that he
shared the money with Sole.
Paragraph 211 under the heading contact with Sole after his departure
3577 the LHDA deals in the first paragraph with the question of there
being no further dealings with Sole after that (P 1714 lines
next with Acres sharing lawyers with Sole. This appears in the record
3581 1717 lines 11 to 1718 line 24 where the sheer irregularity of
the practice that Acres indulged in in that regard was highlighted,
leaving DW1 not knowing where to put himself as he remained stuck in
a cleft stick;
with consulting with Sole for purposes of this trial. See pages 1717
line 11 to 1718 line 24.
In sum then I am convinced not only from my own observation, but from
3589 submissions by counsel and discussions with my assessors that
in each one of the points raised in paragraphs 201 to 211 of
Crown's written submissions there is some or other unsatisfactory
feature ranging from DWl's evasiveness, display of a selective
memory, contradicting other credible evidence, uttering such
3593 improbabilities as cannot be believed to downright being
untruthful in plenty of instances.
DWl's evidence appears to be calculated to achieve only one thing,
extrication of Acres from the intricate web of intrigue in which it
itself. For achievement of that goal it seemed to me that telling the
court the truth was not something he had set his sights on.
process he put not only his credibility at stake but Acres' own bona
DW1 testified that he arrived in Lesotho about four weeks before he
gave evidence and that although during that time he had made
with Sole he did not ask him about allegations made in this case. He
further pointed out that
3605 although he had good working relationships with him Sole did
not confide in him. His reason for not asking Sole about these
allegations was that DW1 thought they were very sensitive. See page
1905. Yes, they did at times discuss items relating to Acres
however he would not use the word "confide" as implying
anything other than open discussion. See page 1905 lines 20 - 21.
The next defence witness to give evidence was DW2 Clifford Brown
whose evidence was characterised by consciously measured pauses
giving an impression
3613 that he was giving serious thought to what he had to say as
well as giving the impression that he was saying carefully rehearsed
things. At page 1891 line 18 a particularly long pause ensued
following a very fair but truly poignant question in line 17- 18
namely ".....my question to you is this, instead of speculating
not ask Mr Sole why Mr Bam paid him all this money_____? (Pause)
I notice that there is a long pause here, Mr Brown_____? I did not
that as my business. I do not go around asking sensitive questions
like that of
anybody" DW2 replied snappily.
Otherwise after every pause he would make, giving as he did so the
impression that he was being extremely careful what to say,
3625 on and on. He has also a trick of asking a question to be
repeated even though he obviously understood it. At page 1883 line
the text goes "Mr Witherell was an Acres man, not so____? That
is correct, yes.
So he presumably is on Acres' side_____? I am sorry, I did not
3629 He presumably is on Acres' side....? Would you repeat that
again please." Italics supplied.
At page 1886 the same thing happens in the following text after much
3633 hedging previous questions about and dodging to answer
"So you did apply your mind at the time to this question as to
why Mr Sole was being disciplined, did you? And you concluded
must be because of the
friction between the LHDA and the JPTC ....? Repeat that again
please ". Italic
At page 1996 the court had to intervene having realised that his
trick had an
3641 added aspect to it namely of interpreting what the question
means and at the end of such irrelevant interpretation instead
giving an answer to that question, blissfully basking in the make
believe that he had responded to the essence of the question.
3645 Perhaps sensing the Court's disapproval of this form of
behaviour, Mr Alkema, after the simple question had been put to DW2
again by the cross-examiner, dutifully tried to intervene but the
court set the learned Counsel at ease by pointing out at page
line 15:- "Oh, but he struck me as ... a man of fairly
3649 elastic mind". To this day this is the impression firmly
imprinted on the Court's mind by the agility with which he
answering questions while in fact saying very many things which did
not amount to anything of substance in the process.
The court paid
him homage for having been a teacher at one stage therefore no
doubt given to talking as a matter of acquired habit.
I accept the observation that the over-all impression of DW2 was that
he was extremely anxious to say all there was that could
be said in
Acres' favour. He
3657 admitted at P. 2022 line 25 as follows: " I am certainly
always batting for Acres," but now here as ever often
of what he said was of little importance. Suffice it to say then DW2
was not an impressive witness. The outstanding feature
evidence was one of a holier - than -thou attitude biassed all in
3661 Acres. Examples of repetitiveness, verbosity,
argumentativeness, inclination to fence with questions and many
of improbability illogicity and obvious untruths liberally
litter his evidence.
3665 For instance even though he was in Lesotho at all times
material to contract 65, having arrived there on 15 January 1988
left in August 1994, he knew little or nothing about Z M Bam that is
of relevance to Z M Bam's relationship with Acres, other
than that Z
M Bam was Acres' agent.
At page 1938 lines 9-15 the above account is vouched for pauses and
all. The text goes:
"......did Mr Sole know about your arrangement with Mr Bam____?
That Bam was Acres' agent in Lesotho_________? Yes
I see ...? I assume, I never discussed with him, but Bam was our
pages 1939 to 1940 lines to 9 this court was treated to much weaving
dodging of the question by DW1. The simple question was whether Z M
Bam being an agent of Acres was not in breach of a clause 3.2.3
Volume 2 at page 446 prohibiting consultants or entities affiliated
with the consultant from being
3681 interested in the project during the term of the agreement and
after its termination. The question turned on whether Z M
such entity as envisaged in the prohibition by virtue of being an
agent was not disqualified from providing services
The text goes in line 24 page 1939
"My question to you is any entity affiliated with the
consultant, doesn't that include Mr Bam, Acres' agent in Lesotho, was
he not affiliated with the consultant [Acres]?
am not trying to give a legal interpretation of this, I am asking you
understand by this_____? He was Acres' agent" DW1 was content to
"Representing Acres' interests in Lesotho ...? Yes.
Now at the same time does that not... make him affiliated as its
3693 would not like to make that statement, I would make the
statement he was Acres' agent, yes," he stonewalled. Now the
Court asks itself how in matters of obscure nature this witness can
be trusted to be of assistance to the court when in matters
simplicity needing obvious answers he hedges around and brazenly at
tells the court that he would not like to make such and such a
Contrast this with that of PW1 Putsoane who despite his discomfort in
accepting that after Contract 65 had been signed nobody complained,
truthfully recorded his agreement with the defence counsel in that
regard. Obviously the court is entitled
3701 to a lasting impression that nothing could prevent DW2 from
truthfully answering that simple question whose answer seems
simple especially for a man of his experience intelligence and what
is more, a man who has been a teacher, thus been trained
to impart the knowledge and the attendant truth it contains.
Why DW2's knowledge of Z M Bam should be so shallow as to belie the
essence of DW1's evidence that DW2 was at one time Z M Bam's
puts Acres' case in very dim light because, either DW1 was not
truthful in saying DW2
3709 was Z M Bam's handler, or that in truth DW2 was ashamed of
being such handler hence he pretends to know so little about an
important entity like the only agent Acres' had in Lesotho, namely Z
M Bam. The court would be strengthened in this regard because
said nothing of it in his evidence in chief. Furthermore he at
stage said he knew where Z M Bam lived. See page 1949 lines 3-5
"At no time did I ever know where Mr Bam lived" DW2 said.
At pages 2034 lines 24 - 26 and 2035 lines 1-2 he said. "
lord, the Prosecution is now asking me in my position and my position
is that I was not aware that Bam was the agent
3717 of Lahmeyer or that LESCON, and I did not know whether he was
even still with
LESCON or not, he was a businessman in Lesotho and I was not aware
LESCON was part of ABCC......." he rambled on with every sign of
impatience with the simple question which had been patiently
all the decency that Mr
3721 Penzhorn was at pains to maintain, to wit "Mr Brown, the
question is simple, and I suggest to you you understand it
well. Here you are supervising the work of inter alia, somebody who
is also working for you to serve your interests vis-a-vis
That is a clear conflict situation_____?"
Compared with that of DW4 Johanes Meyer the evidence of DW2 betrays
the attitude of a witness who was not prepared to answer questions
with sincerity except to put Acres in the good light only. The
contrast with DW4 is not only
3729 enlightening it is sharp and stimulating: this is to be found at
page 2174 lines 2 to 20 more especially the underscored words
The text goes:
3733 "And one of the prominent firms that would have been
involved in this was LESCON_______? I do not know whether it was
prominent, it was one.
He was the Managing Director of LESCON, Bam or do you not know that
3737 _____? I know only that he had a leading function, I think he
was a partner, so he had even owned part of that company. His
official function I do not know. Would I be correct in saying that
that was a reasonably well-known fact in the
engineering world in Lesotho that - LESCON - Mr Bam was involved
Yes, it was a well-known factor to me and the community.
We know from an affidavit of Mr Witherell before the court that Mr
Bam was the agent of Lahmeyer in Lesotho from about 1987 onwards.
Were you ever 3745 made aware of that____? No, not at all.
I am not suggesting you were, I am just asking a question___? I
was not aware of that. [Line 18]. To be clear in my answer. I heard
about it in the
3749 context of my evidence given here today. In that context it was
the first I heard about that" (Relevant phrases underlined).
underlining merely serves to indicate a witness who does not want to
lie in the sense of giving the court half-truths or deliberately
withholding evidence that he clearly senses could be material
have only good commendation for DW4 in this regard therefore.
As just indicated according to DW4 everybody knew of the Z M
Bam/LESCON ASSOCIATION. If DW2 indeed knew little or nothing about
then this corroborates the Crown's case that Z M Bam never performed
genuine representative services for Acres in the context of contract
DW1 gave extensive evidence round about the period when contract 65
established " P 1760 lines 17 - 19. Despite clear documentary
evidence to the
contrary he insisted that "[t] here was nothing that I was aware
of during my tenure at LHDA during which Mr Sole's influence
to favour Acres and the establishment of contract 65". See page
1876 lines 5-8. This was obviously
untruthful evidence I therefore reject it.
DW2 was closely cross-examined at pages 1880 line 9 to 1882 line 11
in an attempt to let his mind focus on the truth concerning
obvious power and
3769 influence wielded by the Chief Executive whereupon he
begrudgingly conceded that the one person " among everybody in
the LHDA to be on your side" would be the Chief Executive. As I
have stated the witness begrudgingly conceded the point made
prosecution. It may well be worth one's while to show just how
3773 begrudgingly and in the process show justification for the
criticism earlier levelled at DW2's evidence. See page 1882 lines
onwards. The text there goes
" Who would you choose among everybody in the LHDA to be on your
3777 if you could_____? I start again, that is a loaded question and
it would not come into my mind to frame such a question in
my mind to
be addressed. I didn't join the LHDA in order to have people on my
side and against me. I recognised various people
and their positions
in the LHDA and I would address and relate to those
3781 people with respect to their positions. I would not be looking
for somebody to be on my side except if, in the course of
my duty, 1
am looking to attain a certain objective and then I may look, as the
prosecution wants me to address, to somebody to
support me in my
objectives and the highest person in the LHDA is the chief
3785 Executive, so yes to the loaded question". In the light of
the above exposition I accept the submission without hesitation
DW2's reluctance to make this simple concession is demonstrative of
3789 A further demonstration of DW2's bias is that even though he
admits that the two people comprising the LHDA executive at
relevant to contract 65 were Sole and Witherell, he does not and
wouldn't concede that Witherell was " on Acres
page 1883 lines 11 - 17 the text goes: "so at the time that we
3793 talking about in respect of contract 65, the two people
comprising the Executive were Mr Sole and Mr Witherell____? Yes.
Mr Witherell was an Acres man, not so_____? That is correct, yes.
So he presumably is on Acres's side____? I am sorry, I did not
presumably is on Acres' side_____? Would you repeat that again please
He presumably is on Acres' side, he serves Acres' interests_____? In
his capacity as Acting Assistant to the Chief Executive? No."
This court is in no doubt that in general terms DW2 was very much
the tension between the JPTC and the LHDA relating to Sole's "not
following the Treaty requirements in terms of approvals."
page 1886 lines 4-11 where after going in a round about way and
saying the audit was not made following rumours
3805 circulating in Lesotho or within the LHDA he stated that
"because of the friction between the JPTC and the LHDA"
resulting from JPTC's thinking that the LHDA and the Chief Executive
did not follow the Treaty requirements in terms of the approvals
this was precipitated. But surprisingly DW2 could not bring himself
3809 to admit that Sole variously acted without JPTC approval in
establishing contract 65 as already illustrated by an extract
page 1876 lines 5 to 8.
Indeed with regard to Acres' demonstrable shortcomings in this
3813 DW2 was not prepared to make any concession. He instead adopted
a protective attitude like that of a hen with one chicken.
instance when questioned about the cash flow chart Exhibit "K"
and the forensic evidence establishing that Acres'
money was used to
pay Sole through Z M Bam "about half a million Canadian
Dollars" he was not prepared "to express a view on these
limited assertions" or
"reach any conclusion or view on that very sensitive subject at
this time" despite that in his evidence in chief he had
expressed strong views on all sorts of other matters. See page 1888
lines 4 to 5, line 23, lines 12-13 as well as page 1905 lines
3821 8-16. As far as he was concerned "t [here] are too many
presumptions" the hedging about presumably would afford
refuge he maintained. In the light of the fact that "K4"
truly established a prima facie case an irrational refusal
candidly acknowledge this obvious fact is manifest indication of
When DW2 was asked why Z M Bam paid Sole all this money he explained
that he would answer this one because he didn't want to appear
obtuse, and because he thought his opinion really matters, thus he
was quick to venture a possible
3829 explanation and suggested that maybe ".... Mr Sole was
paid for past services or past assets or something " see
1890 lines 25-26. At page 1891 line 9 he came to terms with a likely
possibility that "it is speculation" on his
of welcoming the offer to relieve him of this speculation - which
seemed to be
3833 bothering him-by Learned Counsel who assured him that
speculation on his part was unnecessary for the easiest thing to have
done was simply ask Sole who was after all "sitting at the back
of this court and speaking to various Acres people" DW1
it with a curt reply clearly manifesting a holier-than-thou attitude
3837 "I did not regard that as my business. I do not go round
asking sensitive questions like that of anybody" he grunted
his reply after a very long pregnant pause. See page 1981 lines 1921
and 1892 lines 3-9. See also page 1905 lines 8- 16. Indeed
this is a
telling piece of evidence which about sums up all I have been trying
express as the negative impression that Dw2 has portrayed in his
DW2 was disinclined to express opinions when questioned by counsel
for the Crown yet he was quite content to express these "at
question of my counsel".
3845 See page 1892 line 16. His reason being that questions from
Counsel for Crown were "loaded or mis-directed" see
1892 line 21.
At page 1977 of Volume 7 is a handwritten note by DW2 to Acres in
3849 In it is shown that Sole gave advice as to when Acres should
submit a particular variation order. Not only that but advice
given as to the content of their letter.
Be it noted that Sole had rejected the first two drafts. When
questioned about this patently not so dispassionate preference
by Sole towards Acres DW2
could be seen straining unconvincingly to explain Sole's indefensible
the process he failed to justify Sole's undeniably improper interest
in wanting to protect and advance Acres' private interests.
substance of the letter dated 8th February 1994 is set out at page
and the cross-examination thereon continues from there to page 1911.
The substance of this is as follows:
Attached is a copy of the letter to LHDA re: notice of Military
disturbance. This is the third draft. Mr Sole did not like my first
two drafts which asked LHDA to agree that we submit our claim
costs as a VO [Variation Order],
He did not want a letter that required a reply from LHDA and too
stated that Acres, as part of LHDA, should not be the first ones
claim, that we should hold off until other claims come in".
On page 1910 reference is to page 283 of Volume 3 where the 2nd
"There is no evidence that Mr Sole ever solicited any payment
3873 He appeared to take decisions based upon the merits including
the governing contract provision". Yet in footnote 20
"Acres did pay for certain lodging expenses incurred by Mr Sole
on a trip to Ottawa, Canada in October 1993 to visit the CIDA
Training Funding". This on all
3877 accounts suggests a very comfortable relationship between Sole
and Acres yet D W2 chooses to call it a good business relationship.
He prefers not to use the word "comfortable". In my view
the discomfort it causes him is all too plain. It causes him
discomfort because the description of the relationship as comfortable
Further discomfort was suffered by DW2 when again his attempt to say
why Sole gave advice to Acres as to how Acres should protect
interest against competition from Bechtel because he could not run
away from the fact that Sole's
3885 advice was intended to give Acres an unfair advantage over
Bechtel who did not know that behind their back Sole was saying
Acres you had better do a good job because Betchel is knocking at the
door, obviously betrayed bias.
Another example is reflected in a handwritten note by DW2 to Acres
Canada relating to the appointment of a technical evaluation team.
Acres were interested in having Hugh Reinhardt, an Acres man,
appointed. In this Memorandum DW2 undertakes to discuss Reinhardt's
candidacy with Sole and
"I will test the waters with Sole quietly" DW2 admitted
that he had the kind of relationship with Sole that enabled him
"speak to him off the record". See
3897 Page 1916 line 17. He went on quickly to water down the impact
of his admission of such a relationship by saying. "It
was not a
unique relationship by any means". Page 1916 line 19. Needless
to say the damage had been done. The first impression
counted especially when contrasted with the lame attempt to
reduce its impact.
Pages 1917 line 23 to 1924 line 3 provide another window of
gaze over the lengths Sole was prepared to go to in advancing Acres'
3905 relevant memo on this is at Volume 7 page 1812. In this memo
DW2 says to Acres in Canada that "Sole is going to bat
extension [of Mr Priestman's contract] so we have more confidence
that it will eventually be approved"
Notwithstanding that it is obvious that Sole would be advancing
interest in a matter "against the JTPC", DW2 insists that
this was not so and that instead Sole " is batting for
page 1918 lines 7 to 26 the text (incredibly) goes
"What is that all about? Why is Sole going to bat for the
extension and against the JPTC______? Because Mr Sole very strongly
felt that he needed a very
senior economist on staff
He is also batting for Acres here______? No he is not. He is batting
is for Mr Priestman____? He is batting to fill the senior economics
position on the LHDA, he did not want that position to go vacant.
Mr Brown, I am sorry if I am smiling but: " re Priestman. Still
up in the air
regarding extension. As of today Sole is going to bat for the
extension of Mr
Priestman". Not so? Who else, what other extension is there, is
it the extension of Mr Brown or Mr Smith, this was Mr Priestman's
extension, not so_______? That is correct.
Right, Mr Priestman is an Acres man right______? Yes, he is also.....
Sole is going to bat for him______? He is also the senior economist
LHDA Project" he insisted.
"Yes, and it is his extension that Sole is now going to bat for
against the JPTC______? Yes, it just happens to be an Acres'
his name happens to
3937 be Mr Priestman"; the stuffing ultimately appeared to have
been knocked out of him despite his lacklustre but strong
to talk himself out of a conflict situation.
3941 It is to be appreciated that of the five top-most persons in
the hierarchy of the LHDA at the commencement phase of the project
three were Acres' appointees. DW2 concedes that the five consisted of
Sole, Witherell, Ramollo, Clarke and Brown himself (DW2).
See pp 1924
lines 16 to 1927 lines 18 to 19.
PP 1929 line 17 to 1930 line 26 the record of proceedings in this
court reveals DW2 being referred to a document contained in Volume
page 171 wherein at page 173 appears under DW2's own name information
paragraph 1 as follows:
" the following information has been sent to registered
contractors for guidance in making travel/hotel reservations".
Needless to say the contractors referred to above are told when the
site visit is going to be, where they can find hotel accommodation
Maseru. They are given direction on how to get to Maseru Sun Cabanas.
It is made known to them
where the place is of the delivery tunnel south core. They are given
information including available transport and car rental. DW2
conceded that he would have been involved in facilitating all these
for the benefit of the contractors including providing them with
maps. He conceded the purpose of the information
3961 would be to familiarise these people with the situation in
Lesotho. In the light of all the above it becomes clear that Acres
would never have needed a representative for purposes of assisting
Acres acquaint itself with conditions in Lesotho. I accept the
submission therefore that in the document referred to above DW2
3965 potential tenderers for various construction contracts all they
need to know for a site visit to Lesotho, right down to such
as car rentals as has been pointed out just shortly above.
3969 Less wonder then that DW2 was more than unconvincing on the
subject of Acres' conflict of interests arising out of Acres'
Z M Bam as their agent in Lesotho in circumstances where they were
also supervising contract 45, under which Z M Bam through
also engaged as a part of LHC.
3973 direct relevance to DW2 admitting that Z M Bam had been Acres'
agent in Lesotho from about 1986/87 onwards as conveyed in
"You see, we have also heard evidence that Mr Bam was Acres'
3977 Lesotho from about 1986/87 onwards, right____? Yes " see
page 1937 lines 3 - 4.
DW2 is observed vainly trying to contend that he did not know what Z
3981 Bam's involvement was with LESCON as clearly borne out at page
1936 lines 23 to 24. This makes unconvincing reading when
against the background of DW4's evidence at Page 2174 line 2-13;
compounded with his (DW2's) presumption later that
in 1990 Z M Bam
was involved with LESCON. See page
3985 1937 lines 1 - 2 where in reaction to the question "In
1990 did you not know that
Mr Bam was involved with LESCON_____? " and he replied "I
knew he had been involved with LESCON in the past but in 1990,
asked me I would have presumed so, but I did not know" (emphasis
supplied). It is amazing that despite
presumption DW2 said " I did not see the conflict".
The text goes as follows at page 1937 lines 3 to 15 onwards:-
"You see, we have also heard evidence that Mr Bam was Acres'
Lesotho from about 1986/87 onwards right____? Yes
Does that not create a serious and I mean a serious conflict
situation? Because now you are on behalf of the LHDA supervising a
contract which includes
3997 ABC which in turn includes LESCON at the same time that LESCON
through Mr Bam is your agent in Lesotho, is that not a serious
conflict problem here_____?
I do not see the problem....."he proffered after the
characteristic deep pause and then rattled away paying scant regard
to the point of curious consternation in the
4001 question. Amazingly though, DW2 believed that Sole knew of
Acres arrangement with Z M Bam.
The text goes as follows at page 1938 lines 9 to 15:-
".... did Mr Sole know about your arrangement with Mr Bam_____?
(Pause). I believe so.
That he was your agent____? I believe so. I never discussed it with
Sole, but I always assumed that he knew.
That Bam was Acres' agent in Lesotho______? Yes.
I see....? I assume, I never discussed it with him, but Bam was our
4013 accept the submission that DW2's evidence in this regard simply
cannot be true. 1 therefore reject it as just another vain
DW2 to talk himself out of a conflict situation which as the text
palpably indicates is indefensible.
4017 Even more unconvincing was DW2's evidence dealing with the
conflictarising out of the Z M Bam/ Lahmeyer relationship alluded
earlier in this judgment. See pp 2027 line 19 to 2038 line 1, But to
illustrate the point it may be fruitful to quote the text
at P. 2035
lines 8 - 19 as follows:
"... I was not aware at any time that LESCON was a part of ABCC
Mr Brown, I will not keep hammering at that but surely, if I may use
4025 word surely, you were aware that LESCON was involved in various
sub-consultancy contracts in Lesotho______ ? Yes, and these
contracts, to my
knowledge, were all in the infrastructure division.
consultancy________? They could be consultancy contracts in the ....
sorry, did I say construction ? I am sorry, I meant to say
infrastructure, in the infrastructure division. From my knowledge and
I do not know what.... I cannot say what contracts they were on, but
I was well aware that LESCON was looking
4033 for business and any business that I knew of that they had or
might have had, was with the infrastructure division and never
the engineering and construction department". Needless to say it
is very difficulty to make head or tail of what DW2
is trying to say
here apart from the fact that he thought he had said construction
4037 instead of infrastructure in circumstances where he had not
alluded to the word " construction". See pp 1937 line
1938 line 8.
The deepening of DW2's difficulties with Acres' obvious conflict
4041 became even more apparent and pronounced when it was pointed
out to him that Acres' conflict also arose by virtue of the
of Clause 3.2.3 of Contract 65. By the time he was questioned about
this clause he had already conceded that he knew
that Z M Bam was
Acres' agent in Lesotho at all material times. When
4045 confronted with Acres' obvious difficulty, at first he
vouchsafed the court no audible reply, just an indistinct mumble that
I recall similar to the rumble of a distant volcano. When it was
pointed out to him that he could take as long as he wanted, (again
looked to me that the cross-examiner was relishing this moment
4049 of obvious perplexity occasioned by vain attempts to avoid the
truth) DW2 insisted that" this is a very legal clause
would like to take a minute to read it". The simple manner in
which the question had been put left me in no doubt that
merely stalling for time hoping meantime that per chance he could
some bright answer thereto.
When it was pointed out to him that he is an experienced engineer
accustomed to working with engineering contracts, he asked for
time to read
4057 it. Then he wanted the question asked again as he was wont to
do a good number
of times before whenever an obvious truthful answer appeared to him
to be likely to compromise Acres.
When he did eventually give a reply he tried to suggest that he did
that LESCON was a member of ABCC. See page 1940 lines 5-19.
When pressed the best he could do was to say that he "did not
knowledge of ABCC at the time". As I indicated earlier the
above was but an
illustration to show the lengths to which DW2 was prepared to go
questions, waving and ducking, improvising and avoiding the truth. I
have no hesitation in rejecting this evidence as highly unconvincing
and obviously untrue.
is just in keeping with obvious but vain attempts to wiggle out of
situations occasioned by hope to successfully escape the course of
the truth as has been shown to be the case in reference previously
PP 1937 line 10 to 1938 line 8.
Confronted with the above pattern of unconvincing answers to simple
questions whose answers should at worst be obvious it was like
liquid fuel to raging fire. His answers became even more and more
unconvincing and no
4077 doubt instant fabrications some of them. For instance reference
to pp 1941 line 18 to 1942 lines 14 to 26 will help ram the
home. The text goes:
"But Mr Brown you must have [knowledge of ABCC]. All these
contracts had a local Basotho content, that was the requirement
local Basotho be allowed
4081 to participate and that is why they were involved in these
contracts on the Lesotho side. They were involved in these contracts
and the association that acted for the Lesotho consulting Engineers
was ABC, that was a fact well-known to everybody in Acres____?
Pardon______? it was not Sole,......you said earlier on, punted the
participation of local engineers with the World Bank and with
JPTC____? Yes that is exactly what I said.
And that is the association, that is the ABC that he punted_____?
That is right and he pushed this for these contracts 45 and
46................ So it was not something that I was looking at over
a period of three or four years. It was
4093 something that came up in these contracts, it was the
Association of Basotho Consultants (sic) was for the first time
and I did not have and in -depth knowledge of that
you saying to day.......? It was an independent company as far as I
.............Are you saying to his Lordship on oath that at that time
you did not
4101 make the connection between ABC on the one hand and LESCON on
the other, youdid not associate the two? Let us just have an
and I will move on_____?
(Pause) Yes. I did not associate the two and certainly I did not
associate the two in terms of any conflict of interest".
with the pause with which the reply
4105 is prefaced, it sounds starkly familiar in its hollowness to
the notorious phrase " I never had sex with that woman"
when the culprit a married man of highest standing in society was
charged with encouraging his girlfriend to conceal their liaison.
4109 The case favoured by Acres does not hold. It seems to give in
at the seams as will presently be illustrated when considering
divergent paths followed by DW 1 and DW2 concerning a point where in
truth they ought to converge. That emerged when DW2 was
with the fact that an Acres person namely Mr
4113 Lightfoot is shown as having dealt with Acres' contracts on
behalf of the LHDA particularly contracts 19 and 65. Again instead
answering the question directed to this anomaly DW2 prefacing his
reaction with the usual pause that gives away his devious
finally landed at the stunning answer that as far as he was
4117 concerned this was "nothing unusual" see page 1945
line 1 read with pages 1943 line 20 to 1946 line 24.
On page 1944 lines 18-19 DW2 is observed in his element as
text to the following effect: "The question simply is how is it
that an Acres'
person is dealing with the Acres' contracts on behalf of the LHDA
I presume that Mr (...) In the case of contract 64, I presume that
Executive asked Mr Lightfoot to prepare the draft......." If
anything this answer
instead of responding to the obvious essence of the question simply
question in much a similar manner where a question is asked what is
the process by which sunlight enables us to see; and the answer
we are able to see because sunlight provides us with light. Put in
another way how is a frog able to swim? It
able because it can move and float in water.
All in all the essence of the question, even if the question was
framed in such a way as to leave no room for hedging around by
for example why is it that
4133 the Chief Executive found it fit to ask Lightfoot an Acres
person to prepare the Acres draft on behalf of the LHDA, remains
unanswered. Yet the capital finance division had to deal with
contract 65 and on DWl's evidence Witherell was given strict
to have nothing to do with he establishment of Contract
4137 Needless to say DW1's evidence is not only improbable but it is
also contradicted by DW2 who in re-examination, conceded
Witherell signed the advance payment he "would have known as a
fact that the final terms of contract 65 had not
yet been finalised
in relation to taxes and fees" see page 2056 lines 11 - 26.
When closely questioned about Acres' bank accounts DW2 conceded that
Acres' local expenses would have been met through these accounts.
may add that this would have been a sensible and common sense move to
adopt. From this
4145 concession it is a matter of no anguish to me to accept the
submission firmly founded on good reason that makes for sound
commercial sense that had Z M Bam been Acres' lawful representative
in Lesotho he could and would have been paid through these
Not even the otherwise elastic mind of DW2 could take
4149 this aspect anywhere. Thus he sought the exit from the all too
familiar escape route 'That question would have been appropriate
DW2 was not only closely cross-examined but extensively so about the
4153 failure to obtain JPTC's approval in terms of the Treaty for
the various milestone steps in the establishment of contract
incline to the observation expressed by Learned Counsel for the Crown
in his submission that the overall impression here
is that DW2 was
more than disingenuous. Fact: in his earlier evidence and in a
he candidly admitted that there was serious friction between the JPTC
and the LHDA regarding the LHDA and the Chief Executive's
follow JPTC requirements in terms of approval. Yet in the context of
Contract 65 there he was
4161 digging his heels in and not giving any quarter for
accommodation of supremely legitimate concessions at all. For him
was a difference between "approval" and what he said
they as Acres, did namely "we would consult and we would ask
their concurrence" for him there was a meaningful difference
between the two,
albeit a "small difference". See Page 1963 lines 4-18.
The text goes as follows:
"When you say concurrence can one also equate that to
4169 can discuss, debate the terminology, but I believe I gave the
definition, our definition of concurrence and approval earlier
will give it again, My Lord, it is very short. By concurrence we were
asking for the JPTC's agreement with what we were doing,
regarded it in accordance with the Treaty that we did not
4173 have to have that concurrence before proceeding. Approval we
regarded as we could not proceed unless we had the approval
JPTC. There is a small difference, but it comes to what the
Prosecution in his opening remark on this point was, that all
we consulted with and received their concurrence or approval
..." Suffice it to say for a man who expressed his phobia for
legalese earlier to
indulge in the sort of subtlety that he has projected in the above
statement this serves as inexcusable hypocrisy.
accept the submission that the distinction described is artificial
calculated to serve as a red-herring across the trail. Moreover the
subtlety contained in this distinction is what in law is reprobated.
What is clear to me reading the function and purpose of the JPTC in
all picture of the LHDA is that the JPTC's approval had to be
obtained before any step involving costs could be taken. Yet DW2
couldn't bring himself to concede that anything improper went on in
the establishment of contract 65. Thus when
4189 confronted with PW15's (Molapo's) evidence in this regard he
sought refuge in the use of an inapt expression that" I
Molapo's testimony is being turned a bit" "see Page 1964
lines 5-6. The expression is inapt because apart from
aspersions on the integrity of the cross-examiner in what it implies,
it is simply not
4193 true that there was even the slightest attempt to turn PW15's
testimony. PW15's testimony in effect showed that there was
a lot of
impropriety that went on in the establishment of contract 65. The
minutes of the JPTC and the fact that he was not shaken
cross-examination on this point are a clear indication that this was
4197 effect of his evidence. Nothing in it was turned a bit. Once
more I reject DW2's evidence as untrue in this regard.
DW2's main proposition was that the JPTC knew what was going on. The
4201 reason for this proposition was that they (JPTC) attended
meetings, negotiations etc. This in turn according to DW2 was
tantamount to approval. The emptiness of this largely mistaken belief
was dealt a shattering blow by the simple example advanced
Counsel for the Crown at page 1965 lines 12 0 15 resulting
4205 in DW2 undergoing a momentary numbness of his faculties
typified by a long deep pause before he responded. The text goes:
"Mr Brown, if I know my wife is committing adultery and I do not
4209 anything about it, does that convey approval.......? (pause) I
think that is an odd question, but in fact in my reading of
court cases I believe that might be taken as approval". In my
view the essence of this question was to highlight that
approval had not been given let alone sought. That essence has, in my
4213 been successfully highlighted. In the result the court is of
the firm view that the essential JPTC's approval which was absolutely
necessary before the establishment of Contract 65 was not given as it
should have been were the essential milestone steps not ignored
the Chief Executive with the connivance of Acre's personnel
4217 who were in the LHDA. Surely this couldn't have been for
nothing in the light of all the points already considered in this
At one stage DW2 even went so far as to say the "issuing of the
4221 intent didn't require JPTC approval" because "in
accordance with the Treaty I do not believe it was required".
See pages 1965 lines 24 to 26 and 1966 lines 1 to 13:
".... but as I understood his [Molapo's] evidence......the LHDA
to them for approval. And by the end of the day they were faced with
4229 that here was Acres, they were here, they were working, a
letter of intent had been issued, they were mobilised and the JPTC
was sitting there faced with this situation; what did they do now?
That was the crux of Molapo's complaint as I understood his
evidence_____? Well, I accept Mr Molapo's complaint as has
4233 been brought out in this case. There was tension, there was
friction between the two groups, and I am sure the JPTC would
liked to have received a formal written statement saying gentlemen,
we are issuing the letter of intent, here it is, please
comments and okay, it appears that such & formal letter was
not written, but in accordance with the Treaty I do not believe it
But I believe that although Mr Molapo maybe felt that there should
have been more communication and I would accept his concern
regard ...." Emphasis supplied.
I have no doubt that now here DW2's train had completely left the
metals; so much so that he even suggested that PW6 (Classens),
he attended the contract 65 negotiations leading up to the MOU, was
not there just as an observer. I reject
4245 DW2's contention in that connection as a total misconception of
the practice of JPTC's members attending the LHDA's meetings.
So thoroughly stuck was DW2's in his self-serving misconception that
when shown that PW6 had no approval powers during the negotiations
therefore that he could not speak on behalf of the JPTC, for he had
no authority to do that, DW2's stubborn answer was "that
true". I accordingly reject his contention in that regard as a
misconception having no basis in reality and in turn
4253 in the truth. When later he was pressed on this same issue as
learned Counsel was properly entitled to do , DW2 said "
trying to think how to answer this M' Lord." He then tried to
suggest that it would be "just bad management"
matters to the JPTC. If all this was not more than sufficiently
DW2 what immediately follows amounts to him out doing himself by the
superlative degree. Thus he even went so far as to suggest in answer
to a question that the LHDA needed JPTC approval before committing
itself to money vis-a-vis Acres that "that is a point at which
you are stretching it" see page 1979 lines 3 to
Further down the text says:
" Mr Brown, Acres got the LHDA to commit itself financially to
Acres__ 4265 ? Yes.
At a time when Acres full well knew that this requires the prior
the JPTC, that is the bottom line_____? No, I, the LHDA, need to have
funds in order to finance the contract....."
At page 1980 lines 23 to 25 the Court was astounded to learn from the
question " you... Acres are the ones that got LHDA to
itself to funds well-knowing that the money was not there___?"
the following answer " well, the
4273 money was there". It is as I have indicated immediately
above, indeed astounding that DW2 should insist that funding
place for contract 65 when Acres got the LHDA to commit itself to
contract 65 despite obvious truth to the contrary. For
all it is
worth he was adamant that "the prosecution is (sic) way
4277 misunderstanding the financial arrangements here" See pp
1980 line 23-1981 line 8. He insisted that the documentation
this and made an appeal to his counsel to help but his counsel did
"not know which document this witness is referring
as Mr Alkema dutifully informed the court. See 1984 lines 18 to
4281 24. Indeed truth is stranger than fiction for there DW2 was,
having stunned the court with his histrionics, he appealed to
counsel for support to no avail, and instead of giving this up at
that crucial stage as never going to pay; his one more attempt
suggest that "the point coming out from all these references is
4285 was money and it was available". P 1988 lines 9 to 10. At
this stage it may not be presumptuous to suggest that DW2
was by then
a lone traveller in the thickets of despair he had sought to traverse
despite indications that his Counsel was in obvious
what to do to protect him against harming himself
Indeed while money may have been available, bearing in mind that
Acres was paid, this is a far cry from prior JPTC approval in
writing. DW2 must have known this, yet he would not admit. The
question is why. The answer is obvious.
4293 Because he was bent on trying to mislead the court with
untruths any admission that would be consistent with the truth would
not fit in with his scheme of things.
I accept the submission that at the end of the day DW2's evidence
4297 take the defence case anywhere for he does not address the core
question whether the representative agreement was valid.
was manifestly biassed and came to Court to "bat" for
Acres. In his own words he said " I am certainly
for Acres" see page 2026 line 25. I do not think it would have
4301 seriously speaking for a man who has been a teacher to simply
say he is prepared to bat for the truth. But because he took
particular option he was then prepared to say anything, whether it
was true or not, logical or illogical, probable or improbable,
long as it was in favour of Acres.
It is my considered opinion that both DW1 and DW2 who seemed to
constitute very important artillery in Acres' arsenal have dismally
failed to help Acres' cause. In a way Acres, by having them give
evidence in the manner they
4309 did, has shown its true colours namely that it is prepared to
bend the truth in order to secure an acquittal. A company which
prepared to do this will also not shrink from paying bribes. These
two witnesses came to extract Acres out of the bad situation
the process have exposed it in worse light. Never could the
4313 expression suit the situation more fittingly than they went for
the wool and have come home shorn.
Consider for instance at page 1902 lines 14 onwards where no
4317 answer was rendered to the question why Acres had concluded
that there was no wrongdoing, not even a hint of bribery, when
World Bank initially asked Acres for documents and statements. The
question was indeed a pertinent one and required a straight
The initial reluctance to provide these documents
4321 coupled with the loaded justification for that conduct that the
World Bank would not be given access to them for fear that
information may be shared between it and the prosecution in Lesotho
is most telling as an indictment against Acres' good faith
flaunted - about uprightness.
REGARDING DW3: JEAN PAUL GOURDEAU
I have already made a few preliminary remarks about DW3 who was
the defence to play the role of an expert witness for purposes of
enlightening the court about engineering practice relating
use of agents. The over-all impression of this witness' evidence is
that he was clearly not the independent objective
witness Acres held
him out to be.
When confronted with specific situations clearly relating to instant
facts he would either refuse to commit himself to a view or
stonewall and thereby often refrain from coming to the inevitable
destiny lying ahead of the path along
which he might be treading if thereby Acres would be put in dim
DW3 was perfectly prepared to express views in his evidence in chief
when asked to do so.
At page 2067 lines 7 - 14 he commented expansively as follows in his
evidence in chief:
I have looked at the document and it contains what has generally been
suggested in the framework of the guidelines, whereas it outlined the
services which were expected from the representative, the
from Acres, the remuneration and I have noticed that the remuneration
is 3.6% of services.
4349 Services mean that normally the taxes, reimbursable expenses is
(sic) excluded, therefore from the total contract price it
less than 3.6%...."
Contrast the above with answers at page 2101 lines 6-18 where Mr
for the Crown asked pertinently:
" .... All I want to do is suggest to you in conclusion, Mr
Gourdeau, that by the simplest strategy, a representative agreement,
like the one that you have been shown in this particular matter, can
be made to look like a representative agreement
4357 when in truth and in fact it is just a disguised agreement
regulating the terms of bribery.....?
I do not agree.
Well, I am suggesting to you that is possible, that it can be
done_____? I do think
is possible, but I do not agree.
......you do not agree what____? I do not agree that just because you
success fee, automatically you are enticing an individual to
The above text is self-explanatory.
Clearly in cross-examination when asked to express a view which he
perceived would rebound against Acres' interests he refused to commit
himself as was the case at page 2078 lines 10 - 22 where
the text is
rendered as follows:
4369 "At a hypothetical level, sometimes it is difficult to
visualise a factual situation that is consistent with the
example which has been given to you but just as at a
hypothetical level, if you, the consultant, already were absolutely
you were going to get the contract, would you still engage
4373 representative to get you the contract_____? That is a
hypothetical question and I am not [prepared].....in a manner to
answer a hypothetical question but I would say that even if I were
sure to get the contract, which I have never been, I would also
representative for the execution.
you would not engage him to get you the contract if you were sure you
were going to get it? You would engage him to help you after you
implementing it. That is what you say___? That depends on the
I cannot answer that, because that is hypothetical and hypothetical
gives you wrong,
would I say, insinuation, and a real problem".
What is clear is that the hypothetical question posed by Mr Woker
simply too well with the facts of this case for DW3's comfort.
DW3 disarmingly professed not to know too much about the facts of
case: at pages 2973 line 23 - 1074 line 24. He said for instance "
... I did not
know Dennis Hare but knew of him and I did not know Cliff Brown.
.... i.e the Crown vs Acres in these criminal proceedings, what is
the extent of that knowledge_____? Very general.
.....read the record in this matter.....the transcript of.... the
4393 .... studied Mr Jean Roux's report.....know who [he] is.....?
No, I do not know ...
seen his report____? No
.......and annexure thereto____? No
Have you looked at the exhibits ____? I have looked at the
Agreement and I guess that is about it.
So we can conclude then that what you know about the facts of this
case is what you have been told by Acres____? That is correct".
4401 Notwithstanding the above apparently scanty knowledge of facts
in this case his answers to certain hypothetical situations
him clearly reveal a far deeper knowledge and understanding of the
facts than he would have the Court appeciate.
for example at page 2081 lines 1 to 5 where in relation to the
put that Acres had a contract to staff the LHDA he said:
"I know, I will just repeat what I was informed. The contract
had not been signed, they had a letter of intent, they were
mobilise. Before they
4409 mobilised they got a financial commitment for the cost of
mobilisation. They did mobilise and the contract was signed later
That is what I was informed".
But despite all this knowledge above nobody told him that Witherell
the second most important person in the LHDA as Acting Assistant to
Chief Executive. How strange indeed. How sectarian his source of
information and knowledge. Compare this with the vivid knowledge
had of an agent leaving the country and going somewhere else. Clearly
he was very much alive to the Z M
4417 Bam/Botswana situation as revealed at page 2083 lines 14 to 24
where the answer to the question says: ".....if he [the
was corrupt.....we would walk away from him. If he lives in another
country, we have had such cases because he was there
on a temporary
basis or for periods of time and he was still available to assist
so yes, it has happened".
To DW3 this was perfectly acceptable. Another example relates to the
timing of the engaging of a representative. When questioned
4425 consultant for the time after having been in the country for
some years and in circumstances where the consultant has already
invited to submit a proposal DW3's answers clearly indicated that he
knew what the present facts are and that he was seeking
to cover for
Consideration of evidence in pages 2084 line 5 to 2087 line 9 makes
very telling revalations in support of the view that DW3 for
pretence at the beginning of his evidence is very much steeped in the
knowledge of facts of this
For example he indicated that as soon as possible after a
consultants' arrival in a foreign country he should engage a
4437 "that would be a desirable asset". Further that after
starting work for a few years he would not afterwards engage
representative. Developing this view he was however quick to say
"there is quite a difference between having a representative
with a firm contract and having a representative whereby since we
4441 have decided to be partners, we have had handshake agreement
for two years before a contract was actually signed, we acted
faith and that has happened".
Nothing can mirror the situation relating to contract 19 and
4445 contract 65 vis-a-vis- the involvement of Z M Bam with Acres in
this instance more.
It was the highwater mark of the debate in this connection that Mr
4449 properly in my view warned DW3 "But you cannot have it
both ways, Mr Gourdeau you cannot...?" and the latter
him and said " Yes, I can because I was not
involved......" True enough DW3 was astute enough to appreciate
the importance of not having been involved yet
unfortunately he had so overplayed
4453 his hand in blindly leaning over in support of facts favouring
Acres that he undermined the foundation stone of objectivity
which expert evidence is normally erected.
further example relates to the signing of a representative agreement
circumstances where the consultant is already mobilised and the
contract is all but signed. Again here DW3 was obviously alive
facts of the present matter.
See pages 2078 line 23 to 2079 line 5.
Mr Woker had put to the witness finally that Acres engaged a
to get them a contract which they already had. "Why would they
That is not what I have been told, so I cannot answer yes or no on
4465 So your information is that the facts are different to what I
have put to you____?
This has an added feature to it which cannot be to Acres comfort
4469 First either their briefing of DW3 on facts is deliberately
wrong and twisted or in his over-zealousness for the protection
Acres DW3 himself has in the last answer shown above, fatally shot
Acres in the foot.
4473 It is revealing that when pressed along the lines intimated
above DW3 became evasive. DW3 truly cooked his goose in the eyes
this court when, in another example going to show the vast extent to
which he was alive to the facts of this case, his evidence
that an agent were to be paid in circumstances
4477 where he was not needed. Here his answers were not only evasive
but illogical as well. Reference to pages 2079 line 7 to 2083
would suffice to buttress the view that his answers were
unaccountably inconsistent with normal business practice.
Consistently with this trend was a particularly blatant example of
DW3 covering for Acres during cross-examination which pertains
Acres paying Z M Bam 25% of its profit. At first DW3 appeared as
though he did not understand
4485 what was being put to him hence the desperate look in his eyes
as I watched him cutting a pathetic figure like a duck in
thunderstorm. Then simultaneously he recovered his composure, and the
penny dropped as appears at P 2096 lines 10 to 15 where
"Okay, I am suggesting to you as his Lordship is doing, that
costs is excluded from staff costs___? Right.....
That staff costs is the same I am to further___? Now I see it, yes
That staff costs is the same thing as is contemplated in schedule 2
Representative Agreement, namely services ____ ? That would seem so".
4497 Then DW3 stubbornly refused to commit himself to an answer or
an opinion which was self-evident, namely that to pay Z M Bam
Acres' profit for nothing more than "intelligence" is
ludicrous. Unless there was some other reason for the payments
is rendered even more audible by this evasiveness and total
4501 stonewalling on the issue. Pages 2092 line 19 to 2098 line 5
sufficiently vouch for my comments in this regard.
Suffice it to say generally DW3's failure to acknowledge that the
4505 circumstances are at least very suspicious - in particular the
objective fact that Z M Bam paid Sole using Acres' money -
evidence in the light of his international experience and obvious
intelligence, highly unsatisfactory.
Furthermore it has indeed been shown in a number of major instances
In keeping with his intelligence and in deference to his
international experience DW3 in certain circumstances found himself
with no option
4513 but to concede the obvious, for instance that a consultant
would not encourage its representative to, for instance, contravene
foreign exchange regulations or tax laws - page 2091 lines 15 - 22 -
or otherwise allow a conflict situation to arise. (Page 2090
to 26). To this extent Dw3's evidence rebounds against Acres and
contradicts the evidence of DW2.
Apart from always fencing with questions DW3 when confronted with the
obvious dilemma of paying the agent for results on the one
4521 temptation in his way thereby on the other, DW3 became vague
and argumentative. Instead of acknowledging the obvious and
establishing his credibility and objectivity or better still
enhancing them, he tried to fudge the issue. Compare this
discomfort that PW1 rather tolerated than risk being damned for
4525 the obvious, namely that he was aware of no one being queasy
about the signing of Contract 65. From which fact PW1 must have
painfully aware that an inference would be drawn that Contract 65 was
perfectly legitimate, so what's all this that Acres
is being bothered
to come to this court to answer: that would be a
question constituting a thorn in PWl's flesh.
But as indicated by contrast set out immediately above DW3 testified
in the manner that left no doubt that he did in order to avoid
to concede this very
4533 real danger posed by the dilemma referred to above. This then
flies in the face of the protests by DW3 and vicariously or
by Acres itself that they took care to ensure that the representative
didn't do what he should not . In this instance
DW3 and Acres are
hoist with their own petards. See page 2098 line 24 to 2101
line 4 especially 21 00 line 3 onwards where the text shows the
" And you yourself said that the reason why consulting engineers
conclude success type representative agreements with representatives,
is because it motivates
them to go and get the contract —? True.
Yes. How do you propose they do that? They will do anything to get
paid, will they not, to get the contract? Unless of course they
completely squeaky clean ____? I do not like the word "anything"
because if you are an honest individual,
4545 you would do the utmost to get the job, but that does not mean
that you will use a dishonest thing ... you could be ashamed
Look, I accept that, you know it is easy to sit in the witness-box
4549 theoretically say these things, but at the same time it is
equally true, Mr Gourdeau, that these thing.....that these success
type agreements invite corruption surely. It is possible____? They
motivate people to do things, they do not invite corruption.
people are corruptible, which you accept, and you give them this
type motivation: you succeed, we pay, are you not inviting people who
completely scrupulously clean to perhaps do things that are not
Well, that is why you go through a pre-due diligence arrangement. You
make sure that you are both in the same boat than you partner. So we
motivated to do the job, but in an honest fashion because each one
has a reputation to uphold and that is very important.
4561 On the one hand you do a due diligence and on the other hand
you put temptation in the representative's way___? Well, just
it is a success fee, does not mean that it is temptation because
business itself- you have bonuses and I am sure you have
where you have a bonus. Now, does that mean that
4565 because you have a bonus or a success that means you are
corrupt?" DW3 ended his answer with a deliberative question.
I find it difficult to banish from my perception the existence, or to
put it more
4569 lightly the real possibility of the existence of an inherent
contradiction in saying due diligence is done on the one hand
then placing temptation coupled with promise of a huge reward in
exchange for results under the representative's nose on the
However Acres does not seem bothered that framing their agreements
this fashion compromises their integrity and their business ethics.
reference to the situation under consideration this blot on Acres'
escutcheon takes an even more significant character than could
been the case otherwise.
Examples are teeming which detract from DW3's objectivity. One
outstanding example manifesting this particular defect in DW3's
evidence is to be found in his answers to questions relating to
questions about the timing of the conclusion of the representative
agreements with Z M Bam and what the latter
4581 could lawfully do for Acres. Needless to say his answers in
this regard were vague and unconvincing. See pages 2086 line
2089 line 7. See for an example the plea by the Cross-examiner to DW3
to project himself in the character of an expert witness
that he is
supposed to be. Page 2086 lines 15 - 18.
" .... I am putting to you and am asking you to be an objective
expert witness that this court must rely on, you will agree
that is odd [that Acres people only began to negotiate the
representative agreement after they were invited to
4589 submit a proposal]____? Well, it depends on the timing but let
us put it this way and I will phrase it differently because
I do not
like ... so if they believe they had a job and if they signed the
contract and only then start discussing negotiation
representative, that would be odd". It is to be realised that
DW3 landed at this
4593 answer because the debate around it was dubbed a debate at a
general level by the cross-examiner. Otherwise as it turned
DW3 reverted to his accustomed hutch that " so when you are
invited to submit proposals, yes, immediately thereafter.
negotiate with a representative". Page 2087 lines 8-9.
Further still as an example of the above reference to lines 17 - 20
would prove fruitful as follows:-
"What is he [representative] going to lawfully do to help you
get the contract
______? Make sure that the proposal you are going to submit is in
line with the expectation of the client....
why can you not yourself do that ? You are a consulting engineer.
.....you know what the client's expectations are, it is in the
request for the proposal ______ ? No, sir, consulting engineer is
people business, people change continuously and you have to realise
that the big obstacle to realising a project too
often, is just personal conflict...."
The vagueness of DW3's answers in this regard was accentuated by the
fact that everything that he said the representative could
itself could have done
4613 for itself. In any event even if Acres for argument's sake
could not do these things for itself, what DW3 suggested the
representative could do would have been improper in the circumstances
because this would have entailed giving Acres an unfair advantage
over other competitors. This would certainly be the case in a
4617 competitive bidding situation, like contract 19. But in the
context of contract 65 which was being sole -sourced, it would
have been necessary for Z M Bam to perform any of the services that
DW3 suggested Z M Bam might have performed. In any event
given that Z
M Bam was sitting still far away in Botswana.
I am enamoured of the Crown's parallel employed to highlight the
point and submitted as follows:-
"Gourdeau 's evidence to the effect that if you genuinely need
a representative and what he does for you is honest and perfectly
lawful then this carries the blessing of the international
community, is almost laughably
4629 obvious (PP 2074/25 - 2975/24). It is analogous to saying that
it is perfectly acceptable to use a driver to take one to
the bank so
that one can draw money from one's account. It is however a totally
different situation if on the facts, the driver
4633 employed to drive one to the bank to effect a bank robbery and
for that same driver thereafter to drive the getaway car.
It is in
this latter context that the witness showed his bias towards Acres.
is patently clear to me that DW3 refused to commit himself to the
once more in this regard. I accept the Crown's submission to that
effect therefore. One would pay pounds to know why DW3 refused
on hypothetical level to acknowledge that a representative agreement
could be used to obscure what in truth
4641 amounts to a bribe agreement. This unreasonable refusal to
acknowledge the obvious is much reminiscent of herd boys who were
the habit of stealing and eating a farmer's sheep. Because they
feared that little boys who participated in the eating might
that this act of illegality goes on in the veld the bigger ones
4645 busied themselves drumming into the heads of little culprits
that this is not a sheep but a springbok. So it occurred that
where an innocent resemblance was noted between the hooves of the
sheep and a springbok he was fetched a vicious blow with
a cosh for
mouthing that innocent observation within hearing of the bigger
4649 herd boys who once more made him repeat after them "this
here thing is not a sheep but a springbok".
Another outstanding feature in DW3's evidence that rebounds to Acres'
disadvantage is his concession that due diligence is an ongoing
reflected in pages 2091 line 23 to 2092 line 18 especially lines 3 to
5 to this effect:
''Okay, but one thing is for sure this thing about due diligence, it
4657 ongoing thing. You keep an eye on your rep, you do not want him
to do anything
wrong that could embarrass you___? Yes"
On the facts of this case it would have been obvious to anyone within
4661 who knew that Z M Bam was Acres' representative and that he was
being paid so well for little or no work, that he was not
the run of
the mill type of "rep". Yet Acres personnel did nothing to
discharge their much avowed ongoing due diligence
duty. Instead they
pleaded blissful ignorance. What? all of them? Where all that
money was involved to boot? Absolutely incredible.
The fact that there is an international practice concerning the
lawful engagement of representatives is not strictly speaking either
here or there provided
4669 that the practice is carried out for bona fide lawful purposes.
It interests this court that this always happens hence this
Use of expert witnesses in that endeavour is something that the court
does and would treasure immeasurably. But regrettable
use of DW3 who
qualifies eminently as that rare and precious asset has
4673 proved manifestly unhelpful as an expert. What is telling in
the evidence of DW3 is that what happened in this instant case
be reconciled with lawful practice yet this very inexplicable pursuit
by Acres of a practice that defies the sensible norm
is what DW3
sought avidly to extricate Acres from.
To that extent logic
dictates that DW3's evidence necessarily should rebound against
Then the question why in the light of these patent defects in DW3's
evidence, did Acres call him must rebound against Acres because,
first it held him out to be
4681 an objective and impartial witness. Next because although it
transpired that he was not what Acres held him out to be, they
him obviously to come and help. It can be assumed with little margin
of error that the purport of what he told this court,
before hand. So they must bear the consequences for their good
faith is fittingly called in question.
CONCERNING DW5 CHARLES GIBBS
crown's thrust of attack against DW5 revolves around the notion that
representative agreement (RA) was a document designed to cover up the
fact that the payments were bribes. Thus it would seem the
whether or not the payments did or did not "comply" with
the terms of the agreement is of no
consequence in that
panoramic view of the present forensic landscape.
The court is keenly alive to and vividly recalls that in the course
4697 evidence PW7 (Jean Roux) pointed out from the outset that the
payments by Acres to Z M Bam did not always comply with the
next that there was a remarkable coincidence between Sole losing his
court battle and Acres reducing its payments to Z
M Bam to
approximately 40% of what they had previously been, 4701 which amount
roughly equated Z M Bam's share, and with Z M Bam
then not sharing
this amount with Sole.
As part of its defence Acres sought to show that the payments did
4705 conform with the RA. When however it was shown that this is not
so, by reference to PW7's report i.e. Exhibit "Kl"
then sought to explain deviations from the RA through exhibit "L".
To this end it seems DW5 was called to testify
and also to explain
the rather embarrassing if curious reduction from CAD 23, 478 - 27 to
4709 CAD 10 500-00 in 1997. Going through DW5's evidence reveals him
making heavy weather of how there was this reduction to CAD
and in particular the explanation for its timing. In his evidence in
Chief DW5 seeks to explain it in the context of
projections done at
the time as to the contract and the total amounts of
services Acres expected to perform over this time. At page 2302 line
rendered the following:
"I see going back to the second page of Exhibit "L"
that the instalments to
4717 Mr Bam to ACPM were reduced in October 1997 from the 23 479-27
to 10 500 ____? That is correct".
DW5 takes it from there to page 2305 line 4 trying to explain how
4721 65 was supposed to run for 72 months and how by the end of that
period 20 million would have then been paid for services
trying to explain this taking into account the terms of the agreement
cross examination it was pointed out to him with reference to the
document Volume 15 part 6 at page 38, first that if the intention was
to bring down the payments as a result of Acres getting less
this would have logically been done before this date, because Acres'
services amounts had already come down.
4729 Also at the time there was a positive variant in favour of Z M
Bam that had to be worked down. In this sense there is then
gainsaying the fact that the timing of the reduction was both
arbitrary and in fact illogical. DW5 had great difficulty explaining
this and ended up saying that it seemed to be "an opportune
time" to do
4733 so, particularly when Witherell was coming to Lesotho in any
event. I may remark that the answer arrived at seemingly by
sounds both hollow and unconvincing. As for the rider that Witherell
was coming to Lesotho in any event sounds to me to
be no more than
DW5 making a virtue of necessity.
At some stage during this judgement I pointed out that one of the
features which strikes me in the witnesses for the defence is
all nagging feeling that there is a distinct attempt to job backwards
in order to make the facts square with
4741 the happenings in this case. The question posed by Mr Penzhorn
seems to have highlighted this feature as the Learned Counsel
to have touched the thing with the needle when he asked: "the
point is at any time you could have done this [working
variance] The point I am making with you is this exercise
4745 could have been done at any time. You could at any time have
taken a computer, given it a projection, and that projection
have told you what it told you, and then you could have brought it
down at any time if you wanted____? Well, you must remember
particular memo was given to Mr Witherell because he was
4749 coming to Lesotho and therefore it was an opportune time to
discuss it with him...." See page 2324 lines 16 to 23 read
2322 line 17 to 2327 line 7.
The other justification for the timing of the reduction was that the
4753 being paid to Z M Bam had to be reduced to the agreed 3.6%
Furthermore in this regard it was pointed out to DW5 that if this
the true reason also here the timing was completely arbitrary. At the
time this was done the cumulative percentage stood at
3.49%. Also, if
the intention was to bring it down to 3.6% it
4757 would have been a simple matter to simply calculate the
percentage on the basis of the actual services. Exhibit "NN"
was then shown to him which amply illustrates this. I fully accept
the sound approach adopted by the Crown in setting out the above
statement and providing the underlying difficulty DW5 found himself
4761 with trying to gainsay it. In fact the lame response by DW5 to
all this was simply to say this could have been done but it
Taking it that doing it was consistent with what common sense
dictated it would seem then that the converse is true that
something else or failing to do this means senselessness prevailed.
page 2327 lines 8 - 25.
At page 2359 Mr Penzhorn took the battle in earnest to the defence
taking the document that was prepared by PW7 (Roux) after studying
4769 Exhibit "L" and letting DW5 go and study it
overnight. He very appropriately said to DW5 " I have no
to that, [letting you study it overnight] it is something I
am thrusting before you" Emphasis supplied. See P2359 lines 6 to
4773 Thereafter he elaborated as follows "up to that line, in
other words up to the line under 7 May and under the 23000
up to that
line it is exactly your document. Now what I suggest to you is this,
if you wanted to reduce the payments to bring them
in line with 3.6%,
on the dates that are shown thereafter, in other words 23
4777 October, 11 December, 26 January, 6 May(over the page), 10
September 1998 and 24 March 1999, if you had wanted to bring it
line with 3.6%, you would have paid on 23 October, you would have
still paid the same amount and that would have brought it
to 3.50. Do
you see the blackened percentage on the right____? Yes."
The court has observed that in justification of the reduction DW5
also refers to the inter-office memorandum of 3rd July 1997.
document appears not, in my view, to really assist the defence. If,
as the Crown contends, it is correct that the
4785 R A is a cover up then it would follow of course that any
reduction to pay Z M Bam his share would similarly be justified
memorandum such as this. This exposition in my view makes perfect
sense and I deem it compelling to accept it.
also accept that from here what follows would be that Acres simply
to reduce the payments and then adding that Witherell should discuss
this with Z M Bam on the former's trip to Lesotho. This in
amounted to an amendment of the RA. Yet most strangely the defence is
unable to produce a written
4793 amendment to the RA. This despite the fact that initially the
RA went through several revisions in the course of which each
t" was crossed and "i" dotted. Suddenly in 1997 the
Contract is drastically amended and yet, miraculous to
is no document showing this earthquake like event. DW5's evidence
4797 that there indeed is an actual amendment is hearsay for he does
not claim to have effected the amendment in any event.
DW5 was cross-examined closely with a view to establishing the truth
4801 whether Acres had a binding agreement with Z M Bam at all. See
Pp 2328 line 26 to 2340 line 20. What is telling in all this
a number of factors militate against the notion saying nothing of the
reality that any binding agreement existed between
the two. What part
of it would be binding when evidence shows CAD 180
4805 000-00 instead of four payments of CAD 45 000-000-00 were paid,
what part of it
would be binding when evidence shows that payments were suspended
unilaterally for a year after October 1992, what part of it would
legally binding when evidence shows arbitrary payment of CAD 13
500-00 and payments ceasing
altogether when Z M Bam died.
In respect of none of these variations from the contract is any
documentation produced showing that the contract was indeed amended.
In my humble view this
4813 provides overwhelming evidence against there ever having been
any binding agreement between Acres and Z M Bam.
The fact that Acres appeared not to have been too concerned with what
4817 "agreement" stipulated also appears from DW5 saying
something like " we had a contract with Mr Bam which called
us to pay him 3.6 of the services amount. At this particular point in
time we had paid him well in excess of that". (PP
2330 line 19 -
21) "I believe it was just explained to Mr Bam" (P. 2335
line 25 to 26)
4821 and "I believe that the representative agreement allowed
for the changes of the amount" Page 2339 lines 5 - 6.
DW5 tried to link the RA to the duration of Contract 65 and in that
4825 sought to explain why payments to Z M Bam could be adjusted or
even extended beyond the 72 months period. In this regard
that there was an assumption that Contract 65 would last for 72
months, and that where this did not happen and the contract
longer that there was an agreement between Acres and Z M Bam
extend the agreement. What DW5 cannot explain is why there is no
document to this effect. Also, there is silence on what was to happen
with regard to the services Z M Bam was to render in terms
of the RA.
accept the submission as properly founded on credible evidence that
is shown by this inexplicable state of affairs is that the payments
by Acres to Z M Bam hardly bear any resemblance to the terms
RA. Had there been written amendments to the RA Acres would certainly
have produced them in this court. It
4837 follows therefore that clearly then the intention was never
that Acres should be bound by the terms contained in the so-called
representative agreement. It furthermore follows that the reasons for
the payments are to be found elsewhere and not in this document.
wind lies in some other place than there.
RE: DW6 ERIC BURNETT
DW6 was called as an expert witness no doubt for purposes of
countering PW7's 4845 (Jean Roux's) evidence and at the very least
cast doubt on his opinions as they appear from Exhibit "KI"
To this end therefore he prepared his own forensic report,
as Exhibit "OO" in evidence.
of the characteristic features of his evidence which he was hard put
it to deny was that as a general observation he "usurped"
the judicial function of this Court by making legal findings
virtually giving the verdict in favour of Acres on the basis of a
brief exercise he engaged in as opposed to consideration
4853 evidence of no less than two and half thousand pages of
recorded evidence and a good many Volumes containing minutes of the
JPTC and other voluminous documentary exhibits including his own
Exhibit "OO". This is though an abridged but general
pre-view of DW6's evidence.
4857 In line with the brief outline of DW6's evidence above it is to
be appreciated that in his evidence in chief he then expresses
view that the payments between Acres and ACPM were made in terms of
the contractual relationship between them, constituted
by i.e. RA. He
goes on along this line to also express the view that
4861 payments from Z M Bam to Sole indicated a contractual
relationship between the two of them. He further expresses the view
that there is no evidence in the documentation that he looked at of
any contractual relationship between Acres and Sole or any
to support the proposition that Acres paid Sole with the
4865 intention of bribing him. Thus he concluded by making an
undisguised legal finding.
At pages 2393 line 22 to 2394 line to 8 is to be found the following
the following question:
"..............so what is your opinion in the light of what you
said, Mr Burnette ___- ? My overall opinion into the various
of the relationship between all
4873 the parties has been that in my opinion the financial
transaction between the LHDA and Acres were in terms of the
relationship between them. And secondly, in my opinion
the financial transactions between Acres and ACPM are in terms of the
relationship between as amended from time to time.
4877 There appears to be evidence that payments were made to Sole
from the Swiss bank accounts of Z M Bam and that would indicate
contractual relationship between them. However, there is no evidence
in the financial and supporting documentation provided to
me of any
contractual relationship between Acres and Sole or any
4881 evidence to support the proposition that Acres paid Sole with
the intention to bribe"
The first problem with DW6's evidence is the basis from which it
His basis is that the RA correctly reflects the relationship between
Acres and Z M
4885 Bam. Yet the inquiry into this is precisely what has exercised
the mind of this court for many hours of sitting in Court
conclusion of this case. See pp 2396 page 1 to 2400 line 2 especially
page 2398 line 20.
.... you proceed from that basis and you say:
'I have been requested to consider various documents together with
the report of Roux to determine whether in my opinion there
support to the allegation
that Acres paid Sole:'
I suggest to you that once you have accepted that agreement as a
basis to work from, you cannot otherwise but (sic) to conclude
there is no support to
allegation that Acres paid Sole. Would you agree with that___? Sorry,
would like you to repeat that for me?"
The question was repeated but the response was an amazing "Well,
4901 that is the same question you have asked me a few times,
but.....(obviously in no hurry to face up to the question)
All I am saying is that from there you proceeded to the issues which
4905 address, that is what I am putting to you _____ ? For the
purposes of my investigation of the financial transactions the
validity or otherwise of that RA, I did not and I would never have
been in a position to test its validity. That is certainly the
purpose of the matter before the Court" he said with tongue in
cheek. Hence 4909 the immediate question that was to follow:
"You see then your report makes interesting reading because that
is as I read your report [Page 7] [paragraph] 3.1:
T have reviewed the contractual relationship between Acres and
And between Acres and ACPM' how did you do that to conclude .... ? I
read the agreement.
Yes, and you proceeded on the basis of that agreement being the
that determines their rights and obligations, because you talk about
the contractual relationship between Acres and ACPM____? That
And you assume that contractual relationship to be as set out in that
agreement___? That is correct".
I accept the Crown's submission that once this is assumed then
fact that Z M Bam paid Sole is completely irrelevant. What
4925 from this is that it becomes quite clear that DW6 is not the
objective expert he holds himself to be as further buttressed
number of examples which should shortly follow.
First DW6 did not address the issues that PW7 addressed, namely what
accounts of Z M Bam were used for. The immediate reaction from those
expecting objectivity from an expert witness would be a legitimate
why not. Then when PW7's conclusions in this regard are put to DW6,
for instance that these accounts
4933 were simply used as conduits between the
Contractors/consultants in question and Sole, he refused to agree to
what was obviously
the case. At pages 2400 line 8 to 2401 line 14
this comes clearly out as follows: "From your investigations
what other use
were these accounts put to apart from receiving moneys
4937 consultants and paying the moneys through to Sole? What other
use were these accounts put to from your investigation____?
from my investigation, but from my review of Mr Roux's report it
would appear that there were very little other uses
put to those
funds" he conceded reluctantly. But I may just add that
4941 credible evidence conclusively indicated that the Z M Bam
account into which were deposited Canadian Dollars 60% or so of
was transferred to Sole was used exclusively for the purpose. Not
even the American Express payments for Z M Bam's personal
were made into or out of this particular account.
DW6 gave a rider that there were possibly some American Express
payments that would be some personal expenses of Z M Bam. Hence
following close questioning: (Page 2401 line 14 onwards)
"To be more accurate, over the whole period covered by the two
Bam accounts relating to Acres' payments, there was one payment
company called Guestemar, I think it was, for 17 000 and one payment
made by Mr Bam to his own
4953 American Express account. Those were the only two payments out
of that account that were not made to Mr Sole. What do you
that? Just as a general proposition, speaking as an accountant,
speaking as an expert, what do you make of all that____?
obviously Mr Bam paid Mr Sole money.
From the money he got from Acres______? Or other contractors.
No, no, no, this is why I asked you whether you examined these
accounts. If you look at the Acres' accounts, at least if you look
the Acres at the Canadian dollar account, if you look at Mrs Bam's
account and you look at Mr Bam's account, did
4961 you not notice that the only, and I mean the only depositor into
that account, was Acres__? Yes that is correct"
"Well, why do you [say] other consultants and contractors if
that account only
4965 concerned itself with payments coming from Acres' what is the
relevance of other consultants____? Well, the way I answered
question I was looking at Mr Bam operating, as set out in Mr Roux's
report, a whole number of accounts which he used to pay
money to Mr
To say the least the above answer is totally unsatisfactory and shows
evasiveness of a witness who had understood and appreciated
obvious barb in the question. This is a typical example of an
unconvincing answer to a pointed
4973 question here; that the only depositor into that Canadian dollar
account was Acres and n consultants serves no other purpose
except to cloud the issue or deliberately o other consultants or
contractors. The use of other contractors and draw a red
across the trail.
Suffice it to say it became embarrassingly obvious that DW6 never
looked at the accounts themselves and simply assumed that the
consultants/ contractors involved paid into the same fund. See pages
2401 line 23 to 2402 line 2. Even when it is pointed out to him that
the Canadian dollar account was only 4981 used to receive
Acres and in turn to pay funds over to Sole Dw6 still digs his heels
in and refuses to acknowledge that this is indicative
arrangement whereby Z M Bam is paying Acres' money to Sole.
Contrast this with the evidence of PW7 (Roux) which is very
the issue at page 747 lines 3 to 20 rendered in the text as follows:
" Is there anything on record, Mr Roux, to indicate that Acres
4989 to ACPM for any other reason than in terms of the Representative
Agreement, on the information available to you and on the
available to you____? If I have to make the assumption that that
Agreement was a valid Agreement, which again is something
I have not
tested, the payments that were paid were done in
accordance with the Agreement that was shown to me, yes.
So is your evidence then............on the figures available to
you......Mr Roux, there is nothing to indicate that Acres made
payment to Sole using
as an intermediary, is that right___? That is not what I am saying.
am saying is if one follows my report through, it is pretty obvious
from the report that moneys that were paid by Acres into the
of Bam were used to pay Mr Sole. There is no way which 1 can try and
understand or try to speculate what the 5001 reason
was why Acres
paid the money into Bam's account and why Bam paid the money into
Sole's account. It was not part of my investigation,
but there is a
definite pattern, that I can say". (Emphasis supplied).
return to DW6
When questioned about the 40/60% split identified by PW7 in paragraph
4.29 pp 24 to 25 of Exhibit "Kl" DW6 steadfastly refuses to
5009 there was indeed such a split. At page 2411 line 13 onwards
appears the following:
"But there is a pattern here, is there not, 14 086 on ....22
occasions .... does
that not say something to you as an accountant____? Yes but 60% of
5013 transections were paid by Mr Bam of moneys he received he paid
60% to Mr Sole, but in this particular instance and the one
following page there was no receipt from Acres, so I just do not
understand what the pattern is." At page 2412 line
2 onwards the
5017 "You see the other oddity we find on page 23 which Mr Roux
points out is in the fourth line [where] we have a reverse
[situation] where Mr Bam pays the 40% (sic) before he in fact gets
his money from Acres, do you see that____? I do
The share to Mr Sole of 14 100 was paid to Mr Sole in July 1995 and
his moneys from Acres in January 1996, right____? Yes I see that.
So he was giving him credit or something expecting the moneys to come
no doubt___? I do not know what he thought, but the point is that....
it is a 60% but the timing is not forming part of the usual
To my mind once the pattern exists as DW6 acknowledges existence of
usual pattern to which the instant point being debated is only an
exception does not detract from the generality of a form of behaviour
from which it can safely be
5029 concluded that a definite pattern is maintained, therefore does
exist in a substantial majority of cases.
However at P 2412 line 26 to page 2413 line 1 DW6 insisted " I
5033 believe that one can actually come to the conclusion that the
real pattern is there by excluding certain transactions".
He was hotly and closely pursued immediately thereafter as follows:
"What conclusion does one as an accountant draw from this, as
conclusion do you draw from it____? The conclusion that I would
draw from this is that Mr Bam generally paid 60% of the moneys which
he received from Acres to Mr Sole" he tried to fob off
cross-examiner who could not be got
of that easily and therefore insisted:
"Speaking as an accountancy layman, he was splitting the money
not so, or would that be going too far, would that be
speculating____? I think
5045 there is no doubt that Mr Bam was paying Mr Sole". He
assumed this answer would be enough. He was wrong for the final
which was enough to break the camel's back came instantly:
was splitting the money he got from Acres with Mr Sole, I mean why be
coy about this____? Well, if that is the way you want to put it, but
the point is he did pay the money to Sole" he finally
though not without the usual rider as can be seen in quotes above.
I thus accept the submission properly formulated to the effect that
even when it is pointed out to DW6 that all the moneys paid
emanated from Acres and that, apart from the initial payment of CAD
180 000-00 and the odd payment that
5057 was reversed or was a composite of the60/40% pattern, that the
evidence clearly establishes such a pattern he still doesn't
acknowledge what is after all perfectly obvious.
court recalls the vigorous cross-examination to which PW7 was
subjected regarding the fact that while he maintained that the split
was in the proportion of 40/60% pattern in fact in one instance
Z M Bam received not 40% but 44 % with the result that Learned
Counsel for the defence having scented
5065 blood in this regard sought to lay a basis for a demonstration
that the cardinal principles in Blom's case were not satisfied
thereby implying that Acres should in due course be freed from
Consideration of evidence at pages 741 line 21 to 26 and 742 lines 1
will help illustrate the point. The text reads as follows:
"Then in the light of that, if you accept those assumptions and
you look at
5073 paragraph 4.27 of your report at page 23 where you say those
three payments of 10 500 each constituted the 40% retained by
Bam____? Sorry, just the paragraph number again please.
4.27 on page 23. Then the inference which you draw in that paragraph
not the only inference, is that right_____? It can never be the only
mean anything is possible, that I assume, My Lord. It is just, it
represents and it does not represent precisely 40%, it is in
% of the amount.
In other words another inference which is also compatible with the
bigger scheme of things is that the 10 500's did not constituted
... It constituted payments under the Representative Agreement____?
It is possible.
Let us just pause a moment at paragraph 4.17 because I have some
difficulty in understanding what you are saying. I take it you
that this amount represents the amount that was previously retained
by Z M Bam, 40% after transferring 60%
the amount paid by Acres to Sole, I take it you are referring to the
instalments of 10 500 which appear at the top of page_____? The 40%
actually refers to the payment that were made in terms of the
on 4.25, the numbers that are there indicated where 60% was paid over
to Sole. I am saying that this amount
5093 represents the amount, represents that 40% which in actual or
the actual amount there would have been 9900 and something,
remember correctly. As I say this 10 500 is not exactly 40% of that
amount, it is about 44% of the amount but it does represent
amount because it is about 44% of the amount, it is about 44% of the
5097 amount but it does represent that amount because it is very
close to the amount that would have been retained by Bam after
paid over to Sole on the original payment." The
cross-examination centred on the imprecision revolving around the
went on vigorously on 742, till culminating on page 744 with
"But then I don't understand you. You have just told his
Lordship 40% of
23478-27 is 9337. Now why___? But as I have also explained I said I
5105 it is not exactly 40%, I said it represents that amount. It is
44% and that I agreed to.
So is it now 40% or is it 44%____? I said right from the start the
amount is 44 % but it represents the amount that has been retained .
Is your report wrong_____? No
Is your report correct____? Yes
Is it 40%_____? it represents 40%.
is the difference between it represents 40% (sic) or it 40%______?
Represents, it looks like and if it is exactly the same it is exactly
The 10 500 looks like 9038____? It is a lot closer to 10 000, to 9
it is to 23478".
When the above raging storm had come to a lull about thirty pages
presumably the passage of time had had a blunting effect on the
learned counsel's mistrust of approximations which detract from
precision he had shown himself to be a stickler for, addressing
himself to PW7 to make calculations by aid of
adding machine that is known for accuracy, at page 773 lines 1 - 11
"24 126-62____? That amounts to 221 170-14
Repeat it again____? 221 170-14
That is the figure on page 306_____? Well, it seems to me there is a
5-35 difference there.
There is a CAD 5-00 difference, I think that is because we could not
one figure properly, but that is close enough___? If you are trying
a formula, I do not think close enough, is close enough, it must be
exact". Finally PW7 effectively had his own back. Can
him after all what is sauce for the goose is sauce for the gander.
Accordingly smarting under the keenness of this barbed sting learned
Counsel gave his final salvo to the hotly debated question
percentages with a gracious promise!
"Well, then we will do it 100%".
BACK TO DW6
Picking up the threads of evidence relating to DW6 the court observed
far as he was concerned there could have been many reasons why Z M
would have wanted to pay Sole. (Page 2421 lines 16 - 23). When his
attention is drawn to the total evidential picture and he is
venture an opinion as to why Bam would be paying Acres' money over to
Sole, DW6 simply refuses to draw the
conclusion which to anyone else would seem perfectly obvious.
It fills this court with despondency to observe that nothing in this
entire case seems capable of deflecting DW6 from his firm
that everything between
5149 Acres and Z M Bam was perfectly acceptable and normal. Even the
fact that a person from Lesotho was being paid by a Canadian
in Switzerland appears to be no skin off his nose. Lines 15 to 22 at
page 2428 show that DW6 was now weaving and ducking
ensuring that he
does not face up to the essence of the
5153 question. A pointed question was asked whether as far as he is
concerned it is par for the course in Lesotho that a person
there is paid in Switzerland seeing that he suggests it is not
something one sees too much of in South Africa. He dodged
this by saying that was not what he said. However the question
5157 was well put to expose the implied meaning that this sort of
behaviour is accepted
practice in the accounting world.
The question had been earlier put to him. Misleadingly he appeared to
5161 given a positive response to it. The question was: " The
fact that a contractor or a consultant in this case at the
concluding the contract or just before or just after, whatever, is
paying to a middleman or paying Mr Bam who in turn pays
CAD320 000, did that raise any question marks____? Yes, of course it
But asked what question mark it raised with him something entirely
to what common sense would command in the circumstances was said;
5169 raised my alertness to the fact that these allegations were
here and my review of the documentation and everything had to
satisfy myself of what was happening here, 1 had to be particularly
Surely common sense would command that something is wrong here. It
cannot be proper or right for if it happens anywhere in a law abiding
society preventive measures are to be taken and culprits
raised no question mark that the Chief Executive of the water Project
receives CAD 300 000-00 in Switzerland from someone who in turn
received it from one of the contractors on the water project.
5181 However he made a major concession when it was put to him that
"In other words there is no duty on Z M Bam in terms
representative agreement to transfer money to Mr Sole, so one has got
to look at the reasons for the transfer of the money
to Mr Sole
outside the representative agreement, not so____? Yes, that
5185 is correct." Even so it appears that DW6 accepts the above
proposition only in so far as it supports his theory that
it was in
Z M Bam's long term interests to keep Sole happy to ensure that Z M
Bam remains with Acres. But the crux of the matter
is why keep Sole
happy using Acers' money?
I am in no illusion that DW6's bias in favour of Acres really comes
to the fore when he is invited to speculate on the reasons
why Z M
Bam would be using Acre's money to pay Sole in Switzerland. The
passage in his evidence at pages
5193 2429 line 16 to 2433 line 18 manifestly makes nonsense of any
suggestion that he is an objective witness. But even more so
looking at the ludicrous examples he gives in order to try and
explain why Z M Bam would have wanted to pay Sole. The ludicrousness
of these explanations reinforces the legitimacy of the conclusion
that there can be no other explanation for these payments than
simply that they
were indeed bribes. The important thing is that if there has been any
real explanation DW6 would have ventured it.
When during the course of cross-examination it appeared that DW6 was
criticizing PW7 on the basis of bank records that he had not actually
seen, it transpired that he based his finding on little more
PW7's report. He did not look at the representation by Acres to the
World Bank contained in Vol. 3-6
5205 before the court. Page 2458 lines 10 - 13 brings this point to
the fore as follows: "Did Acres not give you these documents
that they presented to the World Bank, did they not make them
available to you___? I never asked for these.
Did you know that they existed_____? No, I did not"
The fact that DW6 omitted to look for documents which would have
enabled him to establish the authenticity of the representative
agreement leaves him in a difficult position indeed. Without DW6
looking at supporting documents like
5213 invoices to see what Z M Bam or ACPM did for Acres for which
they claim 7826 his claim that the representative agreement
in the teeth of compelling evidence to the contrary amounts to mere
speculation or figment of his imagination.
was not aware of the state of negotiations at the time the
agreement was entered into, or that Acres had already mobilised and
were already working on contract 65 at the time, (Page 2461
- 26). He was also not told about evidence before the court that the
services specified in the representative
5221 agreement were not needed by Acres. Page 2462 lines 9-11:
"Those are the services that ACPM were to perform. Were you
that there was evidence before this court that those services were
not really needed by Acres____? I have no
knowledge of that"
One more strange thing about DW6's evidence is that at page 2462 line
24 he says ".... I have said already I am not in a position
to test the validity or otherwise of this agreement" yet he is
on record at page 2395 lines 17 to 18 as
5229 having said ACPM was appointed by Acres in terms of a
representative agreement. The important point here is he was given
opportunity to say whether that was a fact that he assumed and he
countered by ruling out that he assumed by saying " Well,
not know if it is an assumption". A man who denies an assumption
5233 the circumstances can only be understood to assert his positive
knowledge that something is a fact.
The court further learnt that DW6 was not told that Z M Bam was in
Botswana at the relevant time. See Page 2462 lines 15-17. All these
constituted a damning indictment on his "declaration of
independence" in terms of which he proclaims that his report
"includes all matters relevant to the issues on which [his}
expert evidence is given " see appendix 1 to "00".
DW6 even refuses to acknowledge that there was at least something odd
about the fact that the payments to Z M Bam dropped to CAD
where this amount equated approximately to Z M Bam's share, at a time
when Sole had lost
5245 his Court challenge for his dismissal. Be it recalled these
particular payments were then not shared with Sole. Not only
fail to find this but he is quite content with simply assuming that
this must have been for the reasons given by DW5 (Gibbs).
consideration of the following passage will reveal the absurdity of
5249 DW6's singing Taliessen the fullest throat of song to DW5's
melody. Driven to exasperation in the Deathless Country by
mimicry Tennyson at page 141 lines 298 to 301 puts it
neatly by saying:
"But ye, that follow but the leader's bell.......
Taliessen is our fullest throat of song, And one hath sung and all
the dumb will sing". See pages 2434 line11 to 2436 line
particularly from 3435 line 13 onwards
5257 where the text is as follows: "and Mr Gibbs, and this was
canvassed with him that
Sole only lost his legal battle against his dismissal in January of
1997, you heard that______? I heard that yesterday, yes.
All right. You go on to say that
have satisfied.......myself with reference to the financial history
project payments to Acres by the LHDA that the real reasons for the
reduction were related to the project performance as I have
5265 Do I understand that to mean because Acres was .... getting
paid less by the LHDA and for that reason was reducing its
Yes that is correct.
And that is the.....the document memorandum that we have from Mr
Mr Witherell, that is the document___- ? That is correct"
Now comes the hazardous pitfall into which those who indulge in
incautious mimicry find themselves entrapped:
5273 "You see is this not a bit remarkable where you seem to
accept that explanation from Mr Gibbs before it was even testified
in Court? That is the
evidence that came later, it came this week_____? Yes actually I came
conclusion some time ago before I had even had the opportunity to
discuss it with
5277 the Acres representatives". Surely this explanation cannot
escape the appropriate
criticism that it is a last minute fabrication based as in this
context it seems to be, on afterthoughts.
Even without DW5's says- so DW6 assumes in favour of Acres that this
done in order to bring the payments within the 3.6% provided for.
This despite the fact, as pointed out to him, through calculations
made by PW7 (Roux) in Exhibit "NN", that the timing of this
reduction was at best arbitrary. See pages 2436 line
to 2438 line 14, also 2438 line 21 - 2438 line 7.
Nor does even his evidence about the payments to Z M Bam coinciding
with the contractual terms in the RA dovetail with the facts.
evidence that the
5289 payments "generally" accorded with the terms of the
agreement simply fails to stand up to scrutiny when compared
actual contractual terms. Despite this DW6 simply refuses to
acknowledge the obvious, namely that it simply cannot be said
the payments "generally" conformed with the agreement. Who
know that improbity thrives in infinite generality?
But as could be anticipated, where non-observance of the agreement
becomes quite glaring DW6 quite conveniently assumes that the
contract must have been
5297 amended, or it did not mean what it said. In other words it is
not what it purports to be! Amazing and interestingly bearing
resemblance to David's scam. David was a mischievous neighbour's son.
He used to wake up in the dead of the night and without
consent or permission milk his cow. The owner was
5301 at his wits' end to try to think why the sudden drop of the
milk yield from his otherwise prolific milker. One bright moonlight
night when his wife ventured towards the stall she recognised David
by his clothes and height as he jumped out of the stall having
apparently been disturbed by the creaking of the farm house door
5305 when the farmer's wife came out. She shouted his name "David".
The encroacher shouted back, I am not David I am
George. The wife
thus gained an added advantage of recognising David by his voice when
he denounced his name. The absurdity of
it all is how George, if it
were him escaping, could squander away the
5309 gratuitous alibi provided by the farmer's wife by correcting
her and thereby getting identified by his own stupid act when
sole aim was to throw the scent away thus avoiding detection, arrest
and eventual conviction. Once more it is amazing that
insist that the contract is not what it is. See Page 2450 lines 14 to
5313 where DW6 makes so bold as to say " I question why the
agreement was written like that". Alongside this stunning
revelation comes a further factor to complete the mystery. When it
was pointed out to him as follows: " all I am suggesting
is that the point at which the payments were stopped is a pretty
5317 he responded "I am not sure why it was at that particular
point that a decision was made". Surely if this purported
a contract once something like stopping of payments outside the terms
thereof happens, it should be recognised for what it
arbitrary instead of dodging this obvious issue and seeking in the
5321 reasons to account for occurrence of the event at a particular
time. He further compounds the mysterious tale he is relating
suggesting at page 2452 lines 22 to 24 that payments were made in
error. The simple answer to all this is that the terms
contract were not adhered to. So either they were not binding or the
contract itself was but a contract in name only; meaning it was
The court was struck by DW6's lack of impartiality as manifested by
his failure to discern what relationship there was between
Z M Bam
and Sole other
5329 than that it was improper. However to his credit he was at
least prepared to admit that if the underlying reason for these
payments was not as reflected in the agreement then the fact that the
payments complied with the terms of the agreement would be
irrelevant. This comes out clearly at page 2441 lines 16-20 where
text sets out as follows:
"If the real Causa, if the real underlying cause for the
payments is not for services in Lesotho, but was in this instance
instance for a bribe, then you would
5337 take care normally to ensure that the payments that are then
made at least accord with the written document, although the
underlying Causa is something else_____ ? Yes, I would, I accept it."
accept the submission properly formulated that DW6's inability to
point out anything, apart-as I noticed - from one or two minor
errors, in PW7's report that was not factually correct further serves
to enhance the quality of PW7's findings and thus fittingly commends
them to this court for acceptance in respect
which the court obliges quite readily.
The court thus naturally demurs at DW6's partiality. The fact that he
expressed views quite literally with blinkers on does not
5349 objectivity and his expertise. What is more Acres' bona fides
are to a large measure seriously compromised by all this to
extent that Acres were a party to DW6 entering the witness box with
the benefit of a completely one-sided picture of what really
in this case.
At page 2431 because he had been sitting in court hearing other
witnesses giving evidence because of him being an expert served
two-edged sword so he had to answer even questions which could have
been avoided were it not for the
fact that the requirement to test his credibility invited them.
At page 2434 he admits to working on limited documentation.
Pages 2435 to 2435 reflect the specious stand DW6 took in relation
fact that Z M Bam received 44% instead of 40%. He even buttressed his
stand by saying 4% difference is a large margin taking into
that governments may fall because of 1 % difference. A clever but not
convincing reaction seeing that this
5365 witness confines himself to a solitary fibre sticking out in a
cloth instead of focussing attention on the pattern constituted
multiplicity of other fibres which go to form the entire cloth in
page 2436 the test put to DW6's theory puts him in dim light
His impartiality is further put to a severe test through which it
comes out 5373 severely bruised because no convincing answer
proffered why he insinuated that the conclusion favouring the defence
is no speculation while the one favouring the Crown
Page 2451 reflects unsatisfactory reliance on Acres' advice by a
holds himself out as an expert witness.
Page 2453 reflects DW6 scrupling about 4 out of 20 as not safe for
5381 remaining 16 occasions to qualify as forming a pattern. Yet
earlier at page 2412 this was accepted without such querry: "Now,
in accounting terms does that not establish some form of pattern to
you____? On the basis of the transactions which you have selected
yes, but all the....." See Page 2412 lines 22 to 24.
At page 2417 while accepting the existence of a pattern DW6 qualifies
his answer by putting in the question of time delay as making
difference. See lines 20 - 27. In my view the fact remains unaffected
that once there is nothing 5389 intervening then
consequence can be attributed to time delay.
Section 1.2 of DW6's report forms the core of his investigation. See
pages 2365. 5393
At page 2367 he says that he is not a lawyer and that he has not
expressed an opinion on the legality of ACPM/Acres contract. But
references in regarding PW7's forensic audit even taken along with
evidence that he evaluated, as no proof
beyond reasonable doubt smack of legalese that firmly belongs to the
fraternity. See page 2386.
At Page 2367 he says his investigation was to see if there was proof
Acres paid Sole.
At Page 2377 appears payment of CAD 180 000 reference to this has
been made earlier as to its fate.
Again at Page 2377 the court sees DW6 making heavy weather of
treating Z M Bam as ACPM despite the obvious fact that there is no
difference between the two.
Soon enough at Page 2380 the two are used interchangeably by DW6.
Page 2380 betrays the facility with which this is done. At Page
he agrees ACPM paid Sole. But now at 2383 there is clear evidence of
Z M Bam pulling through
payment from ACPM to Sole.
At Page 2385 DW6 is categorical that there is no basis for inferring
that there is any link between moneys paid by Acres to ACPM
paid by Z M Bam
At page 2388 a storm in a tea cup is raised by DW6 regarding the
closeness of time, but in my view as long as the money was paid
before being received, that
5421 would fit the bill. Also in fact where the transaction is shown
to be a credit advanced to the payee.
At Page 2392 the court bears witness to the fact that a witness DW6
5425 has a solution to a matter the court has been presiding over
for months on end to resolve.
At pages 2401-2405 DW6 concedes that the only depositor into Z M and
M 5429 M Bam's account was Acres. See page 2404 - 2405.
At page 2405 he concedes the fact of the split but disagrees with the
actual percentage. He contents himself with acknowledging
certain amount went to Z M Bam while the other went to Sole.
But now at 2409 DW6 is faced with an undeniable proof that Z M Bam
specifically ordered that 60% be transferred to Sole. Surely
page 2411 the number of occasions i.e. 21 or 22 of them would justify
a pattern has been formed of the method of payment maintaining 40/60%
has put his cards on the table. He does not conceal the oddity. He
volunteered the information that Z M Bam is paid 40% in one instance
before he gets Acres payment (see Page 2412).
Page 2412 without a hitch 16 out of 20 conforms to the rule of
patterns, it is
dead in line with pattern.
At Page 2414 the court after studying proceedings revealed in this
5449 forms the opinion that it is unfair that PW7's evidence should
be scrutinised after he has left the witness box by reliance
evidence of DW6 a man who had withheld his report till May when he
had benefit of PW7's evidence and report way back in
Page 2418 shows a major shift from a stand hitherto maintained by
DW6. At page 24 20 is shown concesion of what must have all along
been known thus reinforcing the view all along there must have been a
concerted effort to
mislead. The text goes:
"We have already shown that it is not from other consultants and
it is only from Acres, do you accept that_____? I accept that the
moneys that were
5461 paid to Mr Sole have come from a bank account which has solely
received funds from Acres". (Emphasis supplied)
This is indeed a momentous if truly an inevitable concession for it
detracts 5465 from a stand initially adhered to with a great
At pages 2424 to 2425 DW6 is now shown here hoist with his own
It is convincingly demonstrated that the only connection between all
5469 contractors/consultants paying moneys which ultimately reach
Sole is that Sole is
the LHDA's Chief Executive. Given this setting how can DW6 be heard
there is no evidence of Acres paying with intent to bribe?
little scrutiny of the speculation that DW6 proffered will enable one
same conclusion, given that Z M Bam is using Acres' money to pay Sole
to keep him happy yet the representative agreement does not
should. See pages 2429 to 2430.
5477 This coupled with the damning evidence of non authenticity of
the representative agreement (2457) coupled further and finally
the fact that invoices fail to show what Z M Bam or ACPM did for
Acres yet DW6 blithely ignored the invoices and did not call
(2457) yet he makes so bold as to
deny the link established by the Crown (2464).
Before stepping off my remarks dealing with DW6, I thought I should
mention that at the beginning of this trial when Mr Alkema
5485 postponement which I granted despite opposition, I was moved by
his plea that he was a layman as far as matters relating
accounting were concerned therefore he required proper briefing from
his clients in Canada. I should confess here that he and
I were in
the much unenviable rogue's gallery as far as that point is
Thus on my part relying on the expertise of my assessors asked them
to prepare a synopsis of their evaluation of DW6's evidence
the background of any relevant evidence. They obliged and I include
intact hereunder their
unanimous and handy product:
CROWN VS ACRES INTERNATIONAL LIMITED
5497 1. Acres International limited was awarded a consultancy
contract No. 65 TAC -2 Engineering by Lesotho Highlands Development
Authority in February 1991 by a sole-sourcing procedure.
Acres personnel were well placed within LHDA and occupied the most
senior positions during the implementation of the contract including
Mr Witherell who was appointed Deputy Chief Executive while
he was a
designated representative of Acres at the same time. A clear case of
a conflict of interest.
3. Mr Z M Bam was purported to have been appointed by Acres as their
representative agent for the implementation of contract 65
which time he was employed on full time basis by the Botswana Housing
Corporation and resided
4. Payments allegedly made for services rendered by Mr Bam in
accordance with the Representative Agreement were initially made
Mrs M M Bam, his wife,
5513 through a Swiss bank account in January 1991. This payment was
later transferred to Mr Bam's account also in Switzerland.
5. Several payments were subsequently made by Acres to Mr Z M Bam in
Canadian Dollars in Switzerland between 1991 and 1998 in
Lesotho Exchange Control Regulations.
6. Part of these monies were eventually transferred to Mr M E Sole's
bank 5521 accounts in Geneva on a 60/40% split between Mr
Mr Bam respectively. This apparent pattern and link has been admitted
by Mr Burnett, a chartered accountant who appeared
as a defence
The point of departure between Burnett and Jean Roux's investigation
was on the split of the monies where Burnette argued that Bam's share
was 44.33% as opposed to Roux's 40%. This difference, if
It is our contention therefore, that Bam's Swiss bank accounts were
as receptacle by Acres to pay Sole.
9. Acres made these payments secretly and contravened the Lesotho
Income 5533 Tax laws in the process as no taxes were deducted
duly paid to the Commissioner of Income Tax because the funds were
sourced from a Lesotho project.
other exercise the assessors were to do was abandoned as amounting to
an unnecessary duplication as it appeared to have been on all fours
with contents of PW7's report pages 24 and 25 paragraph 4.29.
re: DW4 JOHHANE'S MEYER
Proceeding now to deal with DW4's evidence.
At all times material to contract 65 DW4 was in Lesotho. He arrived
in this country in 1988 and left in December 1996. The learned
Counsel for the Crown
5549 makes a point of saying that despite the importance
attributable naturally to the fact that he was always in Lesotho at
the crucial time during the inception and initial life of contract 65
DW4's evidence took the defence case nowhere. For the same
that the Crown advances for this conclusion I would come to a
5553 conclusion namely that DW4 actually undermined the defence
case. Taking it nowhere does not go far enough.
I accept that, with the exception of a few disclaimers in
5557 as reflected in pp 2173 line 17 - 2174 line 13 he said nothing
about Z M Bam and the representative agreement. DW4 had been
in the Lesotho Delegation of the JPTC having been seconded from his
German Company Lahmeyer International to that position
in the JPTC.
Clearly he too was blissfully unaware that Z M Bam was associated
with Acres, strange as this may truly sound. One hollow feature
his evidence is that it did not touch upon the real issue in this
case, namely what the true causa was for
concluding the representative agreement on the 23rd November 1990.
Apart from the above his evidence essentially related to the various
steps leading up to the establishment of contract 65. At P.2111
16-18 can be seen
"From what you said you were a member of the JPTC at the time
contract 65 was established_____? I was a member of the JPTC, yes".
He owned up that he was aware of allegations by the prosecution that
contract 65 was established in an irregular manner. To this
DW4 successfully helped neutralise the answer given by PW1, admission
of which matter
I said earlier had caused him visible discomfort.
Not only so but DW4 said he was aware even of the fact that the
alleged irregularities complained of were founded on allegations
the LHDA were not
5581 observing the requirements of the Treaty. Indeed with "an
adversary" like this what need would there be for PW1
to have a
It was Acres' effort to make an attempt through DW4 to show that
5585 in the process leading up to the establishment of contract 65
was regular, procedural and above board. Yet as has been alluded
earlier the striking feature of his evidence was that although he
agreed with everything that was put to him in chief, he nonetheless
agreed also with everything put to him in cross-examination. 5589 "If
you were not present during his evidence in chief but
during the cross-examination phase you would not be wrong in forming
the impression that the cross-examiner was making
him repeat the
version he must have given in chief the way he was agreeing with
This was the apt description of DW6 5593 by one of the Gentlemen
assessors during tea break. I accept the submission that consequently
everything he said in chief was neutralised by what he said in
other purpose for which it seems DW4's evidence was led appears to be
to counter the evidence of PW10 and PW15. Be it recalled that PW15's
evidence was in essence to the effect that the important milestone
steps leading up to the establishment of contract 65 were reached
without JPTC's prior written approval.
5601 Further that to the extent that the JPTC did approve, it did so
retrospectively in other words the JPTC was playing "catch-up".
The signal virtue of PW15's evidence is that it was almost all
vouched for and indeed corroborated in material respects by Exhibit
"Z" which is the minutes of the various JPTC meetings. Now
5605 when cross-examined DW4 was taken through those self-same
minutes which formed the substratum of PW15's unshakeable evidence.
Then as indicated earlier Dw4 agreed with various important and
indeed relevant portions put to him in cross-examination with
reference to Exhibit "Z".
DW4 told the court in his evidence in chief that a move had to be
made towards selection of consultants and that this was impelled
sense of urgency; see page 2127 lines 19 - 21, after the decision had
been made to sole-source. See
25 line 17.
At page 2134 lines 4 to 17 DW4 makes the point that it was unlikely
the JPTC had insisted that the Request for proposals documents
it before they could be issued. He is certain that the LHDA would not
shared the opinion of the JPTC on the issue due to tension prevailing
between the two bodies at the time. However under cross-examination
at pages 2186 line 26 to 2187 line 27 he pointedly denies that the
JPTC's insistence on approval of the RFP
5621 before their issuance was a form of meddling into the affairs
of the LHDA. To the suggestion that initially the LHDA indeed
the JPTC's approval as testified to previously by PW15 Letlafuoa
Molapo, DW4 does not only accept this suggestion he goes
to volunteer explanations the upshot of which is
support PW15's testimony up to the hilt as follows:
".........at the beginning the comments made during such
meetings were taken
as approval and there was a good working relationship and it was
clear that if Mr
5629 "X" who was a representative of the JPTC would have
that comment, the whole story would have a good chance of being
approved. I agree that there might be approvals regarding other
contracts or contract documents before we dealt with contract 65."
He readily accepted the suggestion that it would have been
shortsighted of the LHDA not to obtain the approval of the JPTC along
the various steps of contract negotiations leading up to the signing
of the contract.
With respect to the negotiation of the MOU at pages 2140 line 11 to
line 20 DW4's evidence is to the effect that the JPTC was always
involved in LHDA's negotiations of the MOU, he denied that up
there ever having been any feeling of discomfort within the JPTC in
relation to the manner the negotiations
5641 were conducted. He indicated that the MOU was afterwards sent
to the JPTC and remained in their hands. He intimated that
of intent would have been mentioned in the course of the negotiations
and mobilisation would follow on the basis of
this letter of intent
thus Acres International limited acted on the basis of
these processes. At page 2143 lines 10 - 12 the text is as follows:
"My question to you is was the JPTC aware of these facts___?
in possession of the MOU.
But at pages 2185 line 17 to 2186 line 25 the above picture is
controverted as follows:
".......the JPTC as such does not have a say in the actual
? That is if the JPTC attends, it attends as observer___? Yes, that
is true" DW4
went along with the suggestion that if Mr Claassens a member of the
JPTC was present at the negotiations meeting he was not the
negotiating. His actual
words: "No, he is not the one who is actively negotiating."
He volunteered an explanation how these meetings ran. Suffice it to
say he clarified the point that the JPTC members were invited
these meetings and they
5661 contributed by way of comments depending on which negotiators
would readily have an inkling into the possibility whether
proposals would be able to get past the JPTC thus allowing the
negotiators an opportunity to as well change their proposals
risk it meeting with a rebuff by the JPTC.
DW6 was agreeable to the suggestion that even if Mr Claassens
signified that he had no problem with a suggestion or decision while
sitting at these meetings that in itself did not signify agreement.
With regard to the issue of the letter of intent DW4's evidence at
pages 2143 line 21 to page 2144 line 20 shows that he was in
agreement with the fact that the letter of intent was issued
following discussions between the LHDA and the chief
5673 delegates of the two delegations to the commission as the
question in line 4 at page 2144 suggests namely " My question
you, Dr Meyer, is was the JPTC aware of the letter of intent____? At
that stage, 1 October, yes."
Even though the immediate response which was in chief shows one
favourable to the defence the next response which was also in chief
showed something different which is devastating to the same
This appears at page 2146 lines 20 - 25 where the text goes:
" I am talking about this particular period of time in July,
August and September 1990. Can you say, as you sit here today,
you state under oath and categorically that no approval was given by
the JPTC, even assuming that approval
5685 was necessary by the JPTC in respect of the letter of intent
under Contract 65___?
Do you refer to the formal approval" the witness wanted to be
sure he understood the question.
Yes___? Ja, I can say there was no formal approval given".
This is a big concession that is in line with the Crown's version
One thing Learned Counsel for the defence's body language showed that
he could not have expected this answer. But categorical it
was and as
I said the witness testified to it who had been alerted to the fact
that this that he was about to respond
5693 to was under oath. So there can be no assumption that he was
confused or did not understand the question. He focussed his
telling the truth when he responded to it. To that extent he can be
credited with being truthful; especially when he said
this in his
evidence in chief rendering it unnecessary to have him
cross-examined on the point at a later stage.
Under cross-examination at pages 2200 line 21 to 2201 line 26, my
understanding of what appears to be the issue here, taken in context
5701 evidence is that although at the time the 20% fee was regarded
as too high it is at this very time that Sole steams ahead
disregard of the JPTC's concerns and does not seek their approval
with regard to the letter of intent.
Asked if it was not remarkable that Sole should have done that his
answer was he expected him to do so.
Hence the court's intervention as a follow up to this highly pregnant
"What would you attribute his failure to do that [to] [failure
to seek JPTC's
approval]_____? Excuse me, My Lord!
You say you would expect him to do that, to seek the approval, now
what would you attribute his failure to seeking approval to?
be the same thing
5713 that you told me about, namely inexperience and power (sic)
trouble [struggle], this time____? I would rather in this case
about a matter of principle (power
Another concession on a crucial question is to be found at page 2189
13-21. This concession demolished the castle being tried to be built
around the question of urgency precipitating failure to seek
of the JPTC on these matters. The text goes in part : "If he
[Sole] wanted the JPTC approval, he could
easily have sought it, not so___? It was physically, for sure, not a
[Mr Molapo said that] if a matter had to be dealt with urgently, that
could be arranged. An urgent JPTC [meeting] could be convened,
people could be brought down from Pretoria or the Lesotho people
could be taken to Pretoria___
It could have,.....ja......."
The delayed comparison of what went on at pp 2200/21 - 2201/26
appears with what is reflected at pages 2228 line 1 to 2229 line
The text goes "you will see that on 6 November the JPTC notes:
'That the letter of intent, the letter which TAC engineering -2 have
5733 effective 1 August 1990 has not been approved by the JPTC nor
has it been verbally agreed to by the Chief delegates.'
Do you see that____? Yes
do you accept that, that is correct____? Yes"
The effect of this concession by a man who was in the JPTC at the
time is an unmistakable charge on Sole that he was intentionally
only misleading but
5741 deliberately lying when he wrote his letter suggesting the two
chief delegates to the Commission had approved. To this extent
further comment is needed to illustrate that the inception of
Contract 65 was founded on a massive fraud through the machinations
of a very corrupt and dishonest Chief Executive of the LHDA
5745 who must have been influenced either by promise of a bribe or
actual acceptance of bribery whichever way is actually the
irrelevant as the decision by the honourable Cullinan AJ with which I
am in respectful agreement has shown in CRI/T/111/99
Rex vs Sole
The court puts a special premium on DW4's concern that there was not
even a verbal agreement to the letter of intent. See Pages
1 to 2229 line 2.
Page 2229 lines 19 to 26 intensifies the improbity of the Chief
implying that there had been approval by two Chief delegates of the
JPTC while there was none. In fact they disavowed that brazen
page 154 of Volume 8 a letter is written by M A Pettenburger of the
African section of the JPTC addressed to Van Robbroeck and dated 26
October 1990 referring to a letter of intent by the LHDA dated
Referring to item (e) of the draft letter Pettenburger says:
"Item (e) of the draft letter would seem to reflect a rather
clumsy attempt to imply JPTC approval of the letter of Intent.
you confirm whether or not any
5765 such understanding was reached at any of your confidential
discussions with Mr Sole. If so, we must retrospectively formalise
What is clear is that in one draft there was no question of JPTC
hence the crunch which came following the next question:
".........there was no reference to JPTC approval, so can we
accept that there
was no question of JPTC approval either to the letter of intent and
5773 mobilisation_____? We can definitely assume that there was no
verbal agreement in the answer given by the two Chief delegates"
DW4 effectively disowned Sole's shenanigan. Suffice it to say then
that Sole's attempt to make believe that the chief delegates
given their approval is an act of astounding and unparalleled
grotesquerie all existing in a class of its own.
With regard to the authority to mobilise reference to DW4's evidence
in chief appearing at pages 2144 line 21 - 2156 line 18 will
to clarify the position 5781 when placed side by side with his
evidence under cross-examination appearing at pages 2202
line 7 to
2205 line 6.
In this regard he was referred to the evidence of PW10 Ugo Hiddema to
5785 effect that the latter had said there was no formal approval by
the JPTC relating to the issuing of the letter of intent
mobilisation of Acres. His response was to stonewall into the
previous position he had adopted namely "I repeat what I
before. The JPTC was of the opinion that that letter of intent
required the approval
5789 of the JPTC before issuing it. I repeat again that LHDA did not
share that opinion" see page 2148 lines 10 - 17.
Thus it would not be wrong to resolve this particular point in favour
5793 version specified and adhered to by PW10 at pages 2202 line 7
to 2205 line 6. In this regard it is to be realised that mobilisation
of Acres' construction manager was without JPTC approval.
"Right? [The mobilisation] of the construction manager had
without approval____? Without JPTC's knowledge" readily DW4
a correction; in the process intensifying the absurdity of the entire
departure from the proper procedure which should instead
DW4 acknowledged that there was not even a reference to mobilization
having been authorised by the LHDA itself let alone by the
illustrate the point it will be noticed at page 2201 lines 20 onwards
the following is revealed that ....... reference is to the
mobilisation of the
construction manager only "but no reference even of the
mobilisation as such which was authorised on 14 August [is made],
that correct_____? Authorised by the
5809 LHDA?" DW4 again provides pertinent correction by adding
an important balance to the question asked.
"Authorised by LHDA, yes____? Ja, there is no reference, that is
emphasises by adding a series of positives.
"So as at 4 September one must accept, must one not, that the
JPTC was totally in the dark [regarding] the mobilisation authorised
by Mr Sole on 14 August, otherwise, surely there would have been a
note of it here? I am not talking
5817 about whispers in the corridors, it was totally in the dark
about it as JPTC____?
If you refer to official information then you are right yes,"
agreed DW4 adding more appropriate reference terms than were
mentioned by the learned counsel as the emphasis supplied by italics
is intended to demonstrate. See page 2203 lines 5821 1 to
Further down that page DW4 acknowledges that the above action by the
LHDA without JPTC's approval (prior approval) is in contravention
He is tested in line 24 downwards
"Did you share that view? I see that you were present at that
meeting, if we
can go to page 208, you were present as one of the GOL delegates. Did
5829 the view at the time that the absence of prior approval
constituted a contravention of the Treaty____? It was definitely
JPTC's opinion that prior approval was
required" he attempts to blunt the directness of the question
intended for him by spreading its blow to the generality of
despite that it was clear from the
5833 repetitive reference to the fact that he was present the
question was meant for his attitude in particular.
Learned Counsel affords no quarter and refuses to be fobbed off by
generalities: "and that was your view as well____? Yes"
came the brief proper
Learned counsel for the Crown then effected the coup de grace to the
5841 defence case on the above issues raised by reference to article
9.11 of the Treaty and proceeded as follows:
"I suggest to you that anyway one reads the article in
cost to be incurred with regard to a contract, that requires JPTC
would be facetious to read the Treaty in any other way____?
...........I do not
need to be convinced about that, because I was always convinced that
it should require JPTC approval but obviously our counterparts
of other opinion, of
5849 different opinion and I feel sorry for that." I agree
entirely with the content of the question put and also appreciate
response of the witness who in effect tries to discourge the Learned
Counsel from preaching to the converted so to speak.
that has been demonstrated above confirms the Crown's contention that
DW4's evidence in chief has done Acres more harm than good. See pages
2144 page 21 to 2156 page 18. He frankly testified that mobilisation
and the issue of the letter of intent authorising mobilisation took
place without JPTC's knowledge, let
5857 alone approval. In fact at the time as far as he was concerned,
contract 65 had not
even been "awarded". See page 2151 lines 200 21. The actual
words appear in the text as follows:
"And when is a contract awarded in your view____? In my view
5861 contract has been signed". Be it remembered contract 65
had not been signed at this stage.
With regard to payment of the advance comparison of DW4's evidence in
5865 chief with that under cross-examination is true to pattern. See
pages 2159 line 22 to 2160 line 20 c/f pages 2213 line 5
to 2217 line
2 where without any qualms whatsoever he says: " I can only
agree with you" that the payment of the advance
irregular". See page 2216 line 15.
Regarding whether or not funding was in place for contract 65 it
would be fruitful to observe that whereas at pages 2156 line 18
2163 line 1 he testified that the JPTC had the draft contract in
their possession though he would not be sure
5873 they were informed of the World Banks documents, he was certain
that the JPTC was in the know about the advance payment of
000 and M250 000 because these fees and percentages were well
discussed at the JPTC. He also denied that it would have
irregular to have made an advance payment to Acres
5877 during September October 1990 etc before the contract was
signed. But at page 2183 lines 7 to 18 DW6 concedes that if one
not find approval in the minutes of the JPTC brought before him then
it meant none had been given. He also made it plain that
approval would normally be in writing and also confirmed at a
5881 later meeting of the JPTC. But preceding all this the approval
has to have been requested in the first place.
Thus the state of funding was not in place because finally at page
12-13 DW4 concedes that as far as the JPTC going into the contract
certainty as to funding was all irregular. He further acknowledges
irregularity in effect was placing not only the JPTC but the Lesotho
Government in difficult position because GOL was the Guarantor
the CMA funds so should
5889 the contract fail to be signed in the end GOL would be left
"holding the baby".
DW4 indirectly recognised that Sole was the author of all this tricky
situation in which the JPTC and GOL at the end of the day
With regard to the actual signing of the contract 65 DW4 accepted
contract was signed on 21 February 1990. All issues raised by the
JPTC or its RSA part of the delegation had been resolved and
World Bank had approved the contract. See pages 2163 line 7 to
21681ine5. One other thing DW4 didn't recall
5897 ever seeing Mr Hiddema at the technical management meetings.
DW4 discounted any possibility of fraud having been employed
secure contract 65 adding that Sole was a very influential and
powerful person but this notwithstanding the instruments of control
in the project which were exceptionally good would surely
5901 militate against any corrupt use of all that power and
influence. See pages 2168 to 2170. But at pages 2219 line 22 and 2221
line 11 DW4 concedes that the LHDA incurred a certain risk on behalf
of Lesotho. Going further at page 2221 line 10 he faces up
essence of the question being asked and says:
"[The JPTC] It had no choice because of the project requirements
He conceded that it is because of this sort of thing i.e. presenting
5909 with fait accompli that protocol IV was established thus
resulting in the tightening up of procedures. This way DW4
that contract 65 was signed without JPTC approval and
that when it did approve the contract ex post facto "it had no
DW4's evidence is important in the sense that it essentially endorsed
PW15's evidence. To the extent that it can be relied upon
corroborates the Crown's case. But it is important to test it against
objective facts otherwise, because standing
alone it sways like a green reed in a strong wind. It is significant
that in his
evidence in chief he said "There is no doubt that Mr Sole was a
very powerful man with lots of possibility to influence whatever
decision" see page 2169 lines 17 to 19. It should not be
overlooked then that this proposition is indeed central to the
5921 Crown's case and something which Acres, with somewhat receding
conviction, has tried to contradict.
Furthermore in relation to the statement at page 2222 lines 14 to 15
World Bank memorandum when describing Sole starts with the sentence:
"We would note that the Chief Executive Officer of the LHDA is
an experienced engineer with an independent mind of his own
(italics supplied) DW4
reacts and says:
"It is a quite strong statement and it is directed quite well, I
say, to the JPTC".
As stated earlier the main issue canvassed in the evidence was
representative agreement put up by the defence is genuine or not.
The Crown alleges that Sole favoured Acres. The other issue canvassed
in evidence related then to whether or not this was so, more
particularly in the context
5941 of establishing contract 65, and in addition whether when
showing such favour he also acted regularly.
In the words of Mr Alkema SC the issue in this case concerns the
5945 of the representative agreement signed by the parties on 23
November, 1990. If the payments by Acres to ACPM/Bam were made
terms of a legitimate representative agreement, then such payments
are destructive of an inference of bribery and corruption.
But as already indicated in the body of this judgment overwhelming
evidence to the contrary shows the representative agreement
genuine at all. It was only necessary for me to formulate the premise
on which the notion of the
legitimacy of the representative agreement is founded in order to
The defence states in the alternative that if (as the prosecution
allege) the representative agreement is simulated and there was
intention on the part of
either Z Bam or Acres that effect should be given to such agreement,
follows(and is conceded by the defence) that the only reasonable
inference from the payments by Acres to Z M Bam is that those
payments were intended as the payment of bribe monies for onward
transmission to Sole. The Crown contends
5961 that no effect was given to the representative agreement and
that the true intention of the parties was to channel moneys
accounts of Z M and M M Bam to Sole. It should be noted that the
payments from Z M Bam to Sole are not disputed by Acres
common cause between the parties.
It is stimulating that Mr Alkema seems to have captured the essence
of the proceeding before this court in his accurate observation
conclusion that the gravamen of the case is therefore quite clearly
whether the representative agreement
5969 between Acres and ACPM/Bam dated 23rd November, 1990 is
legitimate or whether it constitutes a simulated agreement. If the
former, Acres is entitled to an acquittal; and if the latter, Acres
should be convicted (sic) at least on count 1. But as I have
intimated this court has overwhelmingly been persuaded and has itself
5973 definite finding based on solid evidence that the so-called
representative agreement was just a smoke screen kept in the
ground only to be readily available as a form of an insurance should
Acres or any of the parties involved find themselves
faced with a
prosecution for bribery. It is important to note that the
crown has built its case on evidential blocks none of which has been
challenged as it is apparent the defence in this case is based on the
validity of the alibi. The defence appears not to focus on
arguments raised in support of the Crown's view and in turn on the
inferences flowing therefrom, but largely focuses 5981 on
are presenting before this court.
It bears pointing at that Mr Alkema seems to have taken hold of the
wrong end of the stick in his view and submission reflected
paragraph 6 appearing at
5985 page 168 of his heads of arguments to the effect that the
statement appearing in paragraph 290 of the Crown's submission
'MEYER "...........testified that mobilisation and the issue of
the letter authorising mobilisation took place without
...." is incorrect In fact it is his own submission that is
5989 because reference to page 2202 shows that what the Crown claims
Meyer said is exactly what that witness said in line 18 in
a question based on an extract from JPTC debate in a minute saying
"the mobilisation of Acres' construction manager
approval had taken place" see lines 13 to 16 in Volume 22
5993 of recorded evidence where the following appears followed by
the point at issue:
"'Feedback that was being awaited from the LHDA on the
Commission's comments in respect of the contract and now that
construction manager without JPTC approval had taken place "
Right ? Of the construction manager had taken place without
Without JPTC's knowledge.
Yes, without JPTC's knowledge had taken place____? Ja.' (Emphasis
I am prepared to condone this resounding mistake as I don't think
6005 Learned Counsel deliberately intended to mislead this court.
Having formed a truly good impression of the way he has comported
himself in this trial I would condone this error on the principle
that Homer sometimes errs. (The best of us do also err.)
Having said this I would hasten to make reference to page 135
of the Learned Counsel's heads reading
"The defence counsel and attorney take offence at the submission
6013 paragraph 47 page 24. It is true that the defence team in the
presence of HARE and BROWN consulted with SOLE and that SOLE
court, and these events were never hidden and were openly disclosed
to the prosecution. The implication in this paragraph
is that SOLE,
in the course of these consultations, may have disclosed
admitted that he received bribe monies from BAM which originated from
contractors and consultants, including ACRES. If this in fact is so,
senior counsel, junior counsel and the instructing attorney
guilty of gross professional and ethical misconduct which may warrant
an application to strike their names from
6021 the roll of advocates and attorneys respectively. The defence
based on the legitimacy of a representative agreement was vigorously,
and perhaps even aggressively, canvassed and it was put to various
witnesses, particularly ROUX, that the payments from ACRES to
were made in terms of a lawful
6025 representative agreement. This conduct of the defence would
have been highly unprofessional and unethical if SOLE indicated
the monies received by him from BAM were bribe monies pursuant to
offers of bribery by, inter alia, ACRES."
True enough the crown made its submission complained of. I do not
the defence arguing orally in response thereto. The submission
bemoaning the Crown's implied aspersions cast at the defence appears
in the defence's written submissions to which the defence did not
talk. Thus I neither had benefit of the
6033 defence's oral responses to the Crown's submissions nor in turn
the Crown's replies. However with the material laid before
me I have
not formed the impression that the Crown went out of its way to make
unsavoury attacks at the person of the learned defence
junior and his instructing attorney. If he was hurt
6037 thereby he has all my sympathy but the signal behaviour of both
Counsel to my recollection and my lasting impression was
type purely professional free of querulous and vitriolic attacks at
each other. Thus making the task of the court
that less arduous . Be
it appreciated that in our vernacular the business of
6041 litigation is likened to the skinning of a pole-cat by the
judge his assessors and counsel on apposite sides of the spectrum.
The stench issuing from the pole-cat can easily be ascribed to any of
the persons I have described. But truly that would be wrong.
I wish to be understood to say that even if Mr Alkema seriously
6045 maintains his character has been sallied or assailed, in the
eyes of this Court he remains a leading member of the profession
whose character has not been dented in any way and thus remains
hope he takes this in the spirit I have tried to project.
The court is alert to the effort by the defence to water down the
rather striking feature of the enormity of the moneys that Z
received from Acres 6053 and a good portion of which went to Sole's
account. The court makes a finding that these moneys
huge. Sole according to the evidence was the best paid person in
Lesotho yet Z M Bam even exceeded him. In any case
it is a matter of
record fighting against which would be vain and imprudent that in Rex
vs Sole a
branch of this court made a definitive finding as follows at page
"It is then significant that Lahmeyer and LMC in particular
should, as expected, conduct its normal course of business, involving
the payment of millions
6061 of Maloti, through local banks, yet also paid Mr Bam further
large amounts of money into Swiss bank accounts, sixty per cent
which he channelled to the accused". Emphasis mine. The forensic
chart Exhibit K "4" patently bears out the statement
leaned Judge above as well as the position as affects Acres in the
The facts of the instant case satisfy me that the trio involved who
were operating under cover of darkness afforded by the
of Swiss Account
6069 at the time, were, when the lights came out, discovered without
a fig leaf to cover their glaring nudity.
CIRCUMSTANTIAL EVIDENCE - ACCUSED'S SILENCE
Revisiting now the question of circumstantial evidence along with
accused's silence and false testimony.
drawing any inference it behoves the Court to look at all the
together and not piecemeal. See S vs Ostilly & Ors 1977 (2) SA
104 (D) at 106 H - 107A where Kumbleben J said ".... the
should not restrict its attention to those portions of.... evidence
which tend to support the state case but is obliged
6081 to have regard to the whole of such evidence to ensure that
statements favourable to the State are seen in their proper context
and that exculpatory statements are not left out of account." I,
like the learned Judge stated, agree that this is the correct
It stands to reason therefore that the Court must decide whether the
inference is the only reasonable one that can be drawn from
complete picture painted by all the established facts. This then
means that to find fault with individual
6089 witnesses on a piecemeal basis without considering the effect
of that criticism on the overall picture or impression is a
approach. Where such criticisms, even if valid, do nothing to
displace the inference or give rise to no other reasonable
then the criticisms are of no real value or relevance. Despite lip
6093 to the contrary this is exactly what the defence urged upon the
court in the application for discharge. Indeed even the foundation
laid for this eventuality was discernible from the cross-examination
which would invite a witness whether his response excluded
elaborate number of possibilities suggested to him. I have
6097 already commented on an instance/s where this was spotted apart
from where it was asked of PW1 whether there was anybody
dissatisfied with the conclusion of TAC -2 as far as he was
concerned. The court therefore recalls the fact that the Crown
witnesses were individually criticised but in my humble opinion those
criticisms did nothing to displace the impression created by the
evidence as a
I endorse the words of Davis AJA in R vs De Villiers 1944 AD 493 at
"It is not each proved fact which must exclude all other
inferences; the facts as a whole must do so." (Italics supplied)
see also R vs Sole at pages 191 to 192.
Both counsel made common cause in impressing upon the court the
important words appearing in Cooper & anor No vs Merchant Trade
Finance Ltd 2000 (3) SA SCA at 1027F-G which restates the dictum in R
vs Blom above.
6113 Of importance is to bear in mind that a distinction must be
drawn from the proven facts on the one hand and conjecture,
speculation and making assumptions on the other. The former being in
order while the latter is impermissible.
Formulating its request for the form of inferences the court is to
Crown submitted two main inferences to the following effect:
Acres knew very well that it was paying Z M Bam to use its money
6121 to bribe Sole.
Acres used Z M Bam to camouflage this fact by using Z M Bam to break
the chain of evidence relating to the payments between
I have already indicated previously that the main thrust of the
defence case that an inference to draw from the facts they advanced
that Acres made payments to Sole pursuant to an offer to bribe is not
consistent with the evidence of the
6129 representative agreement would depend on the validity of that
representative agreement in the first place. Since a reading
judgment leaves no doubt that in the eyes of this Court that
representative agreement was but a worthless smokescreen,
to reason that nothing turns on the submission made by the
defence in that regard. It is therefore rejected.
Likewise the submission that the evidence of the representative
agreement and the payments made by Acres to ACPM/Bam thereunder,
exclude the inference
6137 that payments were made in terms of an offer to bribe, is
rejected on the score of absurdity in that no valid inference can
founded on an invalid representative agreement.
6141 I accept the submission that the so-called representative
agreement is analogous to a criminal carefully setting up his alibi
before committing his crime so that he is able to fall back on it
should the need arise. Thus the argument is equally rejected
says the "pattern" of Roux is based on selective figures
6145 ignores the total amount paid by Acres to Z M Bam. The
extension of this argument is also rejected to the extent that it
seeks to persuade this Court that "In any event, and even if
there is a 'pattern' in respect of some of the payments, it ignores,
.... the existence of an inference that the payments were made in
accordance with the terms of a representative agreement."
The defence seeks to make a merit of the fact that certain aspects of
evidence referred to were not challenged. While this may
be true it
ignores the overall effect
6153 of evidence advanced by the Crown to sustain a conclusion
sought. In this regard the word of caution by authorities comes
handy that the dependability of circumstantial evidence should be
likened rather not to a chain the measure of whose strength
weakest link thereof but rather to a rope to which reference
6157 is aptly made by Elyan J in Marcus Leketanyane vs Regina 1956
HCTLR at page 3 where the learned Judge quoting with approval
passage in Wills
Circumstantial Evidence 7th ED. P 435 said: "....... Such
evidence is more aptly
compared to a rope made up of strands twisted together. The rope has
6161 more sufficient to bear stress laid upon it, though no one of
the filaments of which it is composed would be sufficient for
In any case the words of Curlewis JA in R vs Hepworth 1928 AD 265 are
6165 very apt that "A criminal trial is not a game where one
side is entitled to claim the benefit of any omission or mistake
by the other side...." For completion it seems necessary to cite
the dictum in de Villiers 493 more fully as where at
appear the following words:
"In a case depending upon circumstantial evidence......the Court
take each circumstance separately and give the accused the benefit of
any reasonable doubt as to the inference to be drawn from
each one so
taken. It must 6173 carefully weigh the cumulative effect of all of
them together and it is only after it has done
so that the accused is
entitled to the benefit of any reasonable doubt which it may have as
to whether the inference of guilt is
the only inference which can
reasonably be drawn. To put the matter in another way, the Crown must
6177 court, not that each separate fact is inconsistent with the
innocence of the accused, but that the evidence as a whole is
reasonable doubt inconsistent with innocence".
am in respectful agreement with the above dictum for it even enjoys
support of Darling J in Rex vs Armstong, Herefordshire Assizes, April
the following effect;
"Circumstantial evidence going to prove the guilt of a person
is this: one
witness proves one thing and another proves another thing, and all
these things prove to conviction beyond a reasonable doubt;
neither of them separately proves the guilt of the person. But taken
together they do lead to one inevitable
In order to justify the inference of guilt, though, the inculpatory
facts must be incompatible with the innocence of the accused,
incapable of explanation
6193 upon any other reasonable hypothesis than that of his guilt.
See Rex vs Kasa  OPD 200 and Rex vs Tshabangu 1934 AD.
I find Lord Coleridge's disquisition on circumstantial evidence both
6197 to-earth and stimulating in its simplicity contained in his
summing-up in the trial of Rex vs J A Dickman 1910 (5) CAR 3200.
"It is perfectly true.....that this is a case of circumstantial
6201 Now circumstantial evidence varies infinitely in its strength
and proportion to the character and variety, the cogency, the
independence, one of another, of the circumstances. I think one might
describe it as a network of facts cast around the accused
network may be a mere gossamer thread, as light and
6205 unsubstantial as the very air itself. It may vanish at a touch.
It may be that, strong as it is in part, it leaves gaps and
through which the accused is entitled to pass in safety. It may be so
close, so stringent, so coherent in its texture that
no efforts on
the part of the accused can break through. It may come to nothing. On
6209 hand, it may be absolutely convincing. If we find a variety of
circumstances, all pointing in the same direction, convincing
proportion to the number and variety of those circumstances and their
independence one of another, although each separate piece
evidence, standing by itself, may admit of an innocent
6213 interpretation, yet the cumulative effect of such evidence may
be......overwhelming proof of guilt. Ask yourselves then,
what is the
cumulative effect then upon your minds of so many, so varied, so
independent pieces of evidence, all pointing, it is
said, in one
direction, all tending, it is said, to inculpate the prisoner and the
prisoner alone in the commission of this crime?"
Even at risk of over burdening this proceeding I deem it important to
indicate adherence by various authorities to the principle
For instance Davis A J.A in Rex vs de Villiers 1944 AD 493 buttresses
the view expressed above as follows in his own words:
"But I should not leave this point without dealing shortly with
pressed upon us by Mr Morris that, in a case depending upon
circumstantial evidence, ' the court must take each factor separately
and, if each of them is possibly consistent with innocence, then it
must discard each in turn'. This
6229 argument is entirely fallacious...... It is not each proved
fact that must exclude all other inferences; the facts as a whole
must do so .... As stated by Best, Evidence, 5th Ed. s. 298, 'Not to
speak of greater numbers; even two articles of circumstantial
evidence - though each taken by itself weigh but a feather -join them
6233 will find them pressing on the delinquent with the weight of a
millstone..... It is of the utmost importance to bear in mind,
where a number of independent circumstances point to the same
conclusion, the probability of the justness of the conclusion
the sum of the simple probabilities of those circumstances, but is
compound result of them ..... The court must not take each
separately to give the accused the benefit of any reasonable
doubt......" as earlier indicated.
Conclusions reached above namely that Acres knew very well it was
Z M Bam to bribe Sole and that Z M Bam was used to camouflage this
fact are inter-related. One relates to mens rea while the other
relates to the truthfulness of Acres' defence. As to mens rea this
has always been a matter of inference. Very
6245 seldom is there direct evidence of mens rea as where an accused
is heard saying "let me swing for the bastard".
Thus it can
more commonly be gathered from the circumstances. These being that in
a case of assault the nature of the weapon used,
the location of the
blow delivered and the degree of force applied are matters of
6249 importance in trying to determine the existence of mens rea.
See S vs Mbelu 1966 (1) Prentice Hall H. 176 (N). As with the
authority above, the same reasoning is applicable in the instant
matter to ascertain Acres' mens rea from all the facts.
Of course Acres bears no onus. The Crown must prove its case against
the accused beyond a reasonable doubt. It appears on the Crown's
evidence that the only inference is that Acres knew that it was
paying Z M Bam in order for him to
its money to pay Sole. On the face of it Exhibit '"K4"
lends support to this
inference especially when viewed against the background of the water
project and Acres' involvement with the LHDA. Of further importance
in this regard is that Exhibit "K4" does not stand on its
own but is re-enforced by evidence collectively
6261 pointing to the guilty knowledge on Acres' part, as well as a
strong motive to bribe.
The collective force of all this evidence, standing unanswered, more
than satisfies the test in Blom's case cited above. On this
the only inference
6265 to be drawn is that Acres intended to bribe Sole and indeed did
so through Z M Bam. The two propositions in the instant paragraph
lent strong support by the authorities of (i) SE. van der Merwe et al
in their invaluable works styled Evidence at page 417
where it is
"The State will have established a prima facie case; an
evidential burden (or duty to adduce evidence to combat a prima facie
case made by his opponent ....) will have come into existence i.e it
will have shifted, or been transferred, to the
6273 accused. In other words, a risk of failure will have been cast
upon him. The onus still rests on the State; but if the risk
losing is not to turn into the actuality of losing, the accused will
have the duty to adduce evidence, if he wishes to be acquitted,
that, at the end of the case, the Court is left with a reasonable
The other is (ii) that of R vs Mlambo 1957 (4) SA 727 at 737 D-F to
the effect that : " Proof of motive for committing a crime
always highly desirable,
6281 more especially where the question of intention is in issue.
Failure to furnish absolutely convincing proof thereof, however,
not present an insurmountable obstacle" because it is quite
unrealistic to loll in the realm of conjecture when there
is at hand
material which furnishes "a perfectly sound, rational, common
solution to the problem". I am in agreement with this approach.
It follows from Van der Merwe et al that it is then for Acres to
displace the inference drawn. I should emphasise that this does
mean Acres bears any onus.
6289 Instead the Crown evidence which calls for an answer which is
not forthcoming from Acres prima facie becomes conclusive proof
whereby the Crown is adjudged to have completely discharged the onus
of proof. If as it has also happened in the instant case a
or unsatisfactory answer is given it is equivalent- to no
answer and the prima facie proof, being undestroyed, amounts to full
In the celebrated passage of Lord Devlin in Broadhurst vs Rex 1964 AC
441 at 457 it is to be noted that:
is very important that the jury should be carefully directed
on the effect of a conclusion, if they reach it, that the accused is
lying. There is a natural tendency for a jury to think that
accused is lying, it must be because he is guilty and accordingly to
without more ado. It is the duty of a judge to make it clear to them
that this is not so. Save in one respect, a case in which an accused
gives untruthful evidence is not different from one in which
no evidence at all. In either case the burden remains on the
prosecution to prove the guilt of the accused. But if on the proved
facts two inferences may be drawn about the accused's conduct or
state of mind, his untruthfulness is a factor which the jury can
properly take into account as strengthening the inference of guilt.
strength it adds depends of course on all the circumstances and
especially on whether there are reasons other than guilt that might
account for untruthfulness".
stated earlier the representative agreement is doubtful and
so because the court does not believe the evidence of Hare and Brown
that should conclude the matter against Acres.
Ex Parte the Minister of Justice. In re R vs Jacobson and Levy 1931
AD 466 at 479 where Stratford JA said:-
"It is not, however, in every case that the burden of proof can
6321 be discharged by giving less than complete proof on the issue;
it depends upon the nature of the case and the relative ability
the parties to contribute evidence on that issue. If the party, on
whom lies the burden of proof, goes as far as he reasonably
6325 evidence and that evidence 'calls for an answer' then, in such
a case, he has produced prima facie proof, and in the absence
answer from the other side it becomes conclusive proof and he
completely discharges his onus of proof. If a doubtful or
given it is equivalent to no answer and the prima facie proof, being
undestroyed, again amounts to full proof I accept the submission that
in the instant case Acres' answer has been
shown to be more than just "doubtful or unsatisfactory".
It has indeed been
shown to be a manifestly false answer.
In coming to the conclusion that Acres' version ought to be rejected
6337 beyond doubt this court has borne in mind the instructive words
of Van der Spuy in S vs Munyai 1986(4) S 712 at 715 G where
".........even if the State case stood as a completely
6341 and unshaken edifice, a court must investigate the defence case
with a view to discerning whether it is demonstrably false
inherently so improbable as to be rejected as false". Of course
my investigation of the instant case qualifies it as so.
6345 It is also fruitful to heed the terse lucidity of Lord
Denning's phrase with regard to the criminal standard about which
"It need not reach certainty, but it must carry a high degree of
6349 probability. Proof beyond a reasonable doubt does not mean
proof beyond a shadow of doubt. The law would fail to protect
community if it admitted fanciful possibilities to deflect the course
of justice. If the evidence is so strong against a man
as to leave
6353 remote possibility in his favour, which can be dismissed with
the sentence 'of course it's possible but not in the least
the case is proved beyond reasonable doubt, but nothing short of that
will suffice". See Miller vs Minister
of Pensions  2 LL ER
I am particularly enamoured of the underlying purpose for the
approach adopted by Lord Denning in the passage just quoted to be
seen to be protecting the
6361 community and not allowing culprits to get away with it by
resort to a whole host of flights where their fancy may take them.
I am in no doubt therefore that for purposes of the onus in a
6365 it has been shown that Acres' answer cannot reasonably be true.
See Ntsele vs S 1998 (3) ALL SA 517 (SCA) letter B to C where
reference is made to onus of proof and to the fact that where the
State relies on circumstantial evidence, it is sufficient that
cumulative effect of the evidence before the Court indicates that
accused is guilty beyond a reasonable doubt.
Accused's silence and false testimony
Reference to Broadhurst and Van der Merwe above has at once a good
deal of bearing on the topic relating to an accused's silence and his
giving false testimony.
need only indicate that because Z M Bam in his capacity as Acres'
has been shown to have been using Acres' money to pay Sole this piece
of evidence has furnished the court with prima facie material
for an explanation by Acres. The rule of thumb being that where the
prosecution has presented a strong
6381 case based on circumstantial evidence which the Accused, if
innocent, could reasonably be expected (not required) to answer
explain, his failure to do so will serve to strengthen any
unfavourable inferences which can properly be drawn.
R vs. Dube 1915 AD 557 at 563 Innes CJ said:
"The onus rested upon the Crown to establish her guilt. At the
same time the fact that she did not endeavour to explain the
6389 circumstances of suspicion which the prosecution had set up was
an element which the trial Court was entitled to take into
In keeping with this authority is R vs Bardhu 1945 AD 813 at 822 - 3
where 6393 Davis AJA said:
"......the accused has given an explanation which has been
rejected - one
which cannot even possibly be true......... The court should
not.....find on his
6397 behalf some explanation which, if given, might perhaps have
been true, but which he himself has not given". I agree
with this statement.
R vs Mlambo above is also worth paying attention to at 738 B to D
Malan JA said:
".........if an accused deliberately takes the risk of giving
false evidence in the hope of being convicted of a less serious
6405 even, perchance, escaping a conviction altogether and his
evidence is declared to be false and irreconcilable with the proved
facts a court will, in suitable cases, be fully justified in
rejecting an argument that, notwithstanding that the accused did not
avail himself of the
opportunity to mitigate the gravity of the offence, he should
nevertheless receive the same benefits as if he had done so".
I must hasten to indicate that the importance of the phrase "in
6413 should be read as a clear indication that R vs Mlambo is not an
attempt to undermine the cardinal rules in R vs Blom. In
regarding Blom as to the second rule of logic on which Mr Alkema
reposed a lot of faith the authorities
sound a word of caution as follows:
6417 "The second rule of logic in Blom is a salutary rule,
whose field of application is limited by its nature. It is a tool
detecting and avoiding fallacy, for testing the logical validity of a
conclusion. It is no more than that. It is not a legal
precept. It is
not another way of stating the criminal standard of proof. It does
not in itself
6421 provide an automatic answer to the question whether guilt has
been proved beyond a reasonable doubt. Even if the rule is
it does not follow that the trier of fact must convict the
6425 See The South African Law of evidence by Hoffmann et al 4th Ed.
At page 590
The weight to be given to a failure to give evidence was discussed in
R vs Ismail 1952 (1) SA 204 A at pages 206 F to H and 209
G to 210 C
At page 206 F - H Centlivres CJ said "........the evidence led
for the Crown
was sufficient, taken in conjunction with the absence of evidence for
the defence, to make it impossible for this Court to hold
magistrate was wrong in
6433 arriving at the conclusion that beyond reasonable doubt the
appellant possessed 80 bottles of wine for the purpose of sale.
the absence of any explanation by the appellant as to why he was in
possession of the 80 bottles of wine plus 87 found in his
having regard to the humble position he occupied in community, it is
6437 asking too much of human credulity to draw from the facts
proved in this case any inference other than that the appellant
in possession of the 80 bottles of wine for the purpose of sale".
At page 210 C the learned Chief Justice whose expressed view has my
endorsement goes on to say:
"Each case has to be dealt with in relation to its own
circumstances; considerations which may have to be taken into
6445 account in any particular case are the strength or weakness of
the Crown case, the apparent certainty with which the accused
have answered that case, if he were innocent, and the probability or
improbability of the accused's failure to testify being
some hypothesis unrelated to his guilt on the charge in question".
Hence for instance the endorsement of the sentiments expressed above
by Quenet JP in R vs Joseph 1964 (4) SA 54 [S.R.,AD] at page
57 D to
F where the
learned Judge President said:
"The cases relating to the recent possession of stolen goods
provide frequent examples........if the accused's hat were found
6457 a house that had just been burgled it would theoretically be
possible, even in the absence of defence evidence, to imagine
circumstances explanatory of the hat's presence there consistently
with the accused's
innocence. The hat might have been lost by or stolen from the
accused or he might have lent it to someone. It might be one of a
number of hats belonging to the accused and might simply have
disappeared. But unless he gave evidence laying the foundation for
one or other of these explanations the possibility that one of them
might be the true explanation would presumably be regarded as
remote and not reasonable. In such cases the accused would fairly
certainly have been alive to the explanation if true and so his
failure to propound it would remove it from the range of reasonable
possibility. Lapse of time may introduce the factor that the accused
may have forgotten the facts which might provide an innocent
explanation: whether that might reasonably explain his failure to
propound the facts will depend on their nature and on the length of
time involved. Unless at the time when an explanation is to be
expected of him i.e. at the trial or earlier according to the
circumstances, it is reasonably certain that the accused is aware
the facts and appreciated their importance there is no reason to
explanation merely because no evidentiary foundation therefor is laid
by the accused".
I am thus fortified in my view that remote possibilities more often
6481 remain no more than just that, that is until such time as the
accused makes them reasonable ones by introducing them as evidence.
In the instant situation the case of the Crown is much stronger in
6485 accused has given an explanation in the form of the
representative agreement. But because the court has determined that
it is false this would seem to be the end for the defence case.
Likewise if the court believed Hare that would be the end of the
for the Crown. But that is not so.
I may add only for purposes of emphasis that where an accused gives
false evidence, the Court is at large to infer that there is
something he wishes to hide, adding then an element of suspicion to
facts which may otherwise have been
neutral. See S vs Rama 1966 (2) SA 395 (A) at 400 H to 401 B.
In Mawaz Khan vs Reginam  1 ALL E.R at 81 H - 83 B the Privy
Council specifically held that a false explanation constitutes
evidence of guilt. 6497
In keeping with the above view, which I wholly support, the effect of
a false explanation and the value to be attached to it in
Africa is authoritatively set
out in S vs Mtsweni 1985 (1) SA 576 A the headnote of which
position neatly as follows:
"The weight to be attached thereto must relate to the
circumstances of each case. In considering false testimony by an
the following matters should,
inter alia, be taken into account:
(a) the nature, extent and materiality of lies and whether they
necessarily point to a realisation of guilt;
(b) the accused's age, level of development and cultural and social
background and standing in so far as they might provide an
explanation for his lies;
(c) possible reasons why people might turn to lying, e.g. because,
in a given case, a lie might arise in some people to deny the
out of fear of being held to be involved
a crime, or because they fear that an admission of their
involvement in an incident or crime, however trivial the involvement,
would lead to the danger of an inference of
participation and guilt out of proportion to the truth".
In the instant case when the other circumstances surrounding the
factor of these payments is added the inference of corruption
court is of a firm view that if Z M Bam could keep all the money he
received from Acres for himself he would surely have done so. There
is no suggestion based on any evidence that Z M Bam would have
Sole out of generosity or some other obligation, contractual or
otherwise. Acres certainly
6529 haven't offered any sensible explanation for the payments made
by them to Z M Bam. I need once more emphasise that no onus
Acres at all to prove its innocence. But the extortion theory hinted
at before the World Bank is nothing short of fanciful
speculative. So are the various theories advanced by DW1
Hare DW2 Brown and DW6 Burnett.
It is strange that the best Acres has been able to do in the face of
all this fourfold cord of damning evidence is that it did
that its money was going
through to Sole.
The court is disinclined to follow the path advocated by Mr Alkema
broadly speaking it means that the court should treat piecemeal the
6541 evidence which forms the basis of this case. That path also
seems to ignore the importance of the authorities which highlight
factors which characterise circumstantial evidence such as that it is
like a rope with several strands and not like a chain upon
single links depends its strength.
I accordingly reject the submissions the acceptance of which would
lead to the acquittal of Acres.
COURT'S FINDINGS ARE TABLED BELOW
1. The court's findings are that the representative agreement is not
what it purports to be but mere sham.
2. The court rejects the theory that Acres didn't know that Z M Bam
was paying Sole with the money obtained from Acres.
3. Acres had an interest in ensuring that Sole was kept happy in
order for Acres to derive benefit of favourable
disposition by the LHDA towards it. For this it was
prepared to pay Sole.
4. In order to pay Sole Z M Bam's accounts were used as a conduit.
Again this was done with Acres' full
5. All the moneys that Z M Bam paid in the ratio of 60% to Sole while
Z M Bam retained 40% or thereabouts were
bribe moneys to ensure that Acres' interests in the LHDA
were secured to the detriment of other competitors who were under
false belief that Acres had won contract 65 by fair means over
(a) Z M Bam could hardly have squeezed so much money out of Acres
without persuading Acres that it was worth its
while. That he was paid 25% of Acres'
mark-up is a clear indication that he achieved this by letting Acres
Sole was in on the deal.
(b) Because of my acceptance of this on reasonable grounds now
everything falls into place. Anomalies in the Acres'
(i) wanting to use Bam as an agent even
though he was in Botswana
(ii) paying so much money allegedly for
(iii) why it is that most of the services in the representative
agreement were not necessary
(iv) the fact that no one knew Z M Bam
was Acres' agent
(v) the fact that he was paid in
begin to make sense.
(c) Acres' reliance on the representative agreement
pronounced a sham in (1) above establishes mens
rea in the sense that
(i) by relying on this document Acres, as in the case of alibi, put
its eggs in one basket.
Thus because of the crack suffered by the
defence in an instance where their denial of criminal liability was
proved to be false the whole proverbial edifice was destined
come tumbling down.
6. The court further finds that the reason why Acres would want to
hide its true agreement or understanding with Z
66\3 M Bam is that it has a guilty knowledge of what the real
situation involved here is (much akin to a man who intending to
murder his wife carefully plans his alibi in advance so that it
place if and when he becomes a
7. The court further relies in making the above findings on
the concession by the defence that the representative
agreement does not reflect the true agreement. Pages
398 line 23 to 399 line 7.
8. the incontrovertible facts before this court are a negation
the validity of the representative agreement, thus
leaving the credibility of Acres in tatters in this case.
(there is no reason for the court to believe Acres about the need to
provide "political intelligence"
when, if this were true, Acres could and would
easily have drawn the agreement in those terms.)
9. Because various amendments which were made to the
agreement for over one and half years yet at no stage
were services provided for in Schedule 1 ever amended, thus showing
they were not required the court makes a finding that they
have been intended as
"window dressing" or just an "eye -wash".
10. The 40/60% split of Acres money between Z M Bam and
Sole and the very amounts conceded to be "huge" by the
defence ("Page 35 line 18) connote the existence of a
specific and compelling reason why Z M Bam made these payments to
Sole. The reason was promotion of corruption. Payment of these
into and out of
Swiss accounts held by Z M Bam and in turn to Sole
betokens corrupt motive as these accounts were operated in breach of
foreign exchange regulation and were in secret.
11. The court finds that it makes no difference that Acres thought
payments they made into M M Bam and Z M Bam's accounts were
account for as long as it
established, as has indeed been the case, payments
were made with the intention to bribe.
12. The court also finds that not all the moneys can be traced
through to Sole. However it does not change the fact
that all the moneys involved were used in order to facilitate bribery
thus the fact that a portion thereof
remained with Z M Bam for his part in the scheme does
affect the situation.
Because the Crown has discharged its onus in respect of both counts
of which Acres stands charged the court accordingly finds Acres
guilty on both these
counts of bribery.
My Assessors Agree.
M L LEHOHLA CHIEF JUSTICE
FOR CROWN : Mr G H Penzhorn SC
H T Woker
FOR DEFENCE : Mr S Alkema SC
Mr W Geyser
INSTRUCTED BY: Messrs M T Matsau & Co.
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