R v Thamae (CRI/T/45/2001 ) (CRI/T/45/2001) [2005] LSHC 24 (24 January 2005);

Group

Full judgment

CRI/T/45/2001

IN THE HIGH COURT OF LESOTHO

In the matter between:-

REX

JOSEPH SEKOALA THAMAE

JUDGEMENT

Delivered by the Hon. ML Lehohla C.J. on the 24th January 2005.

The accused pleaded not guilty to all seventeen charges of fraud set out in the indictment and the appurtenant preamble thereto. However, in arguments preceding the closure of this case Mr Louw, Counsel for the Crown indicated that the Crown was no longer proceeding with counts 6 and 14. The court accordingly finds the accused not guilty and acquits him in respect of those two counts.

In support of the charges preferred against the accused the Crown relied on the evidence of 12 Crown witnesses who came to testify and a vast number

of documents including some of the accused's contradictory statements, which were irreconcilable with acceptable or credible evidence.

The list of Crown witnesses who testified consisted of:

PW1 LESLIE GEFFEN

PW2 JOHN MAIEANE

PW3 MAMORUTI MALIE

PW4 ' MALEFA NTEPE

PW5 ERIC KHAKETLA

PW6 TSEBETSO RAMOHAPI

PW7 LITELU MAEMA

PW8 JOE DA SILVA

PW9 MAHAL] LEBESA

PW10 LAXMAN POPAT

PW11 PAULINA S WARTS

and PW12 PIETRUS ESTERHUIZEN

The accused DW1 gave the sole oral evidence for the defence.

According to an agreement pertaining to several states in the Southern African region a body called Southern African Customs Union - SACU -was formed. Lesotho is a member of this body together with notably South Africa among others.

Because of the existence of a felt need among the states in question for the development of the apparel and clothing industry, means were forged among

these states to assist this particular industry. The intended goal by the members of the Customs Union was to exempt firms or individuals engaged in the manufacture and sale of clothes and textiles from payment of certain duties on well set out conditions reflected in paragraph 5 of the indictment. See Folio 1.1 of the Republic of South Africa Board of Trade and Industry Guide.

Once an individual company or firm had satisfied those conditions it was then entitled to a permit called Structural Adjustment Programme Permit -SAP for short; also known variously as 460.11 permit or the CODE.

At the relevant period of the abuse of the SAP permits the accused was in the employ of the Lesotho Government as Chief Development Industrial Officer in the sub-division of the Ministry of Trade and Industry known as the Department of Trade and Industry. As such he was a Civil Servant.

It is worth noting that paragraphs 2 through 4 and 5.1 through 5.6 of the indictment were admitted by the accused in the matter during trial. The summarised purport of this admission is that the accused was authorised to issue SAP permits. The SAP was a scheme devised for importation of goods under rebate of duty in terms of item 460-11 of the 4th Schedule of the Customs and Excise Act NO:10 of 1982. The SAP permits were introduced in the SACU region in 1988 in order to boost exports in the textile and clothing sector.

It is of importance to note that the essential features for an entity to be entitled to the issue of SAP permits consisted of very stringent conditions.

The said conditions were of the following order: namely, that to be entitled to the SAP permit the individual has to

be an industry enterprise engaged in the manufacture of yarn. fabric or clothing and be registered for the SAP with the Department of Trade and Industry;

use raw materials manufactured in the SACU area or raw imported materials on which duty was paid;

export at least 2.5% of its turnover, in terms of value, of the products made from local raw materials;

satisfy the requirement that stipulates that only exports to areas outside SACU qualify for rebate permits;

satisfy the requirement that the consumption for local raw materials used for export and the value for exports must be certified by an auditor. Alongside this requirement is the need for firms to prove that the export proceeds have been repatriated to Lesotho; and
satisfy the requirement that a firm can import only specified tariff heading items against the SAP permits. The 460.11 permits are not necessary for the SAP permits. If the 460.11 permits are used, they must be matched in value and tariff headings to the SAP permits, provided that the total value of 460.11 permits does not exceed the total SAP permit value.

Unless an entity has satisfied any of the relevant and necessary conditions shown above it is not entitled to receipt or issuance to it of the SAP permit.

However, it is the Crown's case that the fraud with which the accused is charged relates to the issue of SAP permits in favour of entities styled:

(a) LESOTHO HAWK (PTY) LIMITED ( see folder 3)

(b) DS TEXTILES (PTY) LIMITED (see folder 8)

and (c) LESOTHO APPAREL (PTY) LIMITED (see folder 13)

In this connection it is contended that the three companies above named a b and c did not fall within the purlieus of qualification envisaged in the conditions set out earlier. Notwithstanding this embargo the three companies were issued with SAP permits. This is common cause.

The Crown further contends that the accused either compiled and or authorised and or verified the SAP permits regarding the three companies in question. It is on the assumption of the validity of this proposition that the Crown asserts that the accused embarked on this unlawful conduct with nothing else than the intent to defraud. Such intent being gathered from his falsely issuing the SAP permits to the three companies in consequence whereof various parties suffered prejudice as set out in the indictment.

Evidence shows that the accused in his representations maintained that the three companies above were entitled to SAP permits for in any case they had complied with the SAP permit requirements. In the result these companies as either holders or benefactors to holders of the transferable SAP permits

were entitled to the benefits in terms of the permits as, in their capacity as holders of these permits, they were entitled to transfer them, for in any event, these permits were not only valid but lawful as well.

In the alternative to the I 7 counts of fraud the accused was further charged with contravention of Sect 84 (a) and (c) of the Customs and Excise Act NO: 10 of 1987 set out as follows:

'The Accused issued SAP permits in the name of the three entities in terms of the Structural Adjustment Programme for apparel, textile and clothing industries (SAP permits) which allowed the aforementioned three entities or holders of the permits to deal with the goods contrary to the provisions of the Customs and Excise Act and thereby defeating the objects of the Act with a monetory loss in the amount of Ml 1 202 200,00" i.e. Ml 1.2 Million Maluti.

Of the various witnesses called by the Crown Leslie Geffen was the first.

In his evidence PW1 disclosed that he is an employee of South African Revenue Services namely Customs. He has thirty years' experience of service rendered in two capacities namely:

Seventeen years in Customs Administration
Thirteen years in investigation as a member of the SCORPIONS.

In 1994 he was asked to conduct investigations regarding SAP permits. His Head Office in Pretoria was informed about irregularities prevailing in Lesotho. He came to Lesotho to carry out that function.

It is important to emphasise that SACU was interested because of the shortfall in revenue collections. SACU pool is a collection of all monies collected by partner states.

There is a formula used by partners to share the revenue collected in the common revenue pool by the contracting states. A shortfall ascribable to negligence of a particular partner adversely affects that partner's entitlement in the pro-rata share of the benefits resulting from the Union. Such a state could be surcharged or in the extreme case ostracised or excommunicated.

I need mention for clarity that contracting states of SACU are South Africa, Botswana, Lesotho, Swaziland and Namibia. If one member has not complied with the terms, of the agreement as outlined in the tariff schedules then all members are informed about the distressful position.

Initially a shortfall of approximately M l5,000,000-00 (Fifteen Million Maluti) was estimated in respect of Lesotho and was the amount by which Lesotho's share from the pool would adversely be affected. But as we now know from evidence adduced the correct amount is of the order of 11,2 Million Maluti.

PW1 was initially assigned the task to investigate one importer namely LESOTHO HAWK.. The investigations covered Lesotho and RSA on the SAP permits.

PW1 gave a brief outline on the guidelines regarding the SAP scheme on apparel textiles and clothing industries. The purpose for the scheme apart from enhancing opportunities of job creation and export promotion is to facilitate, duty free raw materials to be imported. Foreign earnings redound to the benefit of the Lesotho exporter in this connection.

A financial statement of the previous year audited is accordingly the prerequisite for the issue of SAP permit based again on the turnover for the whole year. See paragraph 7 of the guidelines.

Repatriation of proceeds is an essential consideration and should be supported by documents to that effect as well as the requirements earlier pointed at that exportation of goods produced should be to countries outside SACU.

PW1's investigations eventually extended to other firms besides LESOTHO HAWK. A schedule of underpayments was prepared by PW1 and checked by CC Van Rensburg. See folio 5.2.

A brief outline of the SAP permits issued is as follows:

Folio 3.1 relating to Lesotho Hawk reflects permit number 58 issued by Department of Trade and Industry with M630 000-00 being the amount of duty exempted.

Folio 3.3 relating to Lesotho Hawk reflects permit number 59 issued by the Department of Trade and Industry with M585 000-00 being the amount of duty exempted.

Clearance was effected in Durban as shown on folio 3.6. Durban Controller's stamp shows thereon. The imports were deducted stage by stage. The final balance was M198,103-00.

Folio 3.7 relating to Lesotho Hawk reflects permit number 60 issued by the Department of Trade and Industry. The amount of duty exempted here is M665,000-00.

Folio 3.9 relating to Lesotho Hawk is in respect of permit number 61 issued by the Department of Trade and Industry. The amount of duty exempted is M175 000-00. The same amount is reflected on 3.10. which is an annexure to folio 3.9.

Folio 3.11 relating to Lesotho Hawk is in respect of permit number 62 issued by Department of Trade and Industry. The amount of duty exempted is M147 000-00. The same amount appears on folio 3.12, which is an annexure and by token of the same rule an integral part of 3.11.

PW1 was accompanied by a Lesotho Customs Officer when he went to Lesotho Hawk for carrying out his investigations.

His findings were as follows:

There were no forms to indicate that Foreign Exchange Earnings were repatriated to Lesotho Hawk from 1994
The application forms for permits were not found. The Lesotho Customs Official was asked to follow up the matter regard being had to the rule and requirement that in a properly conducted transaction of this nature each and every permit has to be supported by the. application forms in terms of 2.1 of the guidelines.

PW1 gave the meaning of relevant Bills of Entry (B/E) from 5.6 in terms of purpose, Country of Destination and Customs Duty rebated.

Of importance is that schedule 460.11 wherever it applies is a clear indicator that a consignment was supported by SAP permit.

Investigations reveal that the rebated duty of M21 436-50 on B/E number 22 23 was in the name of Lesotho Hawk. No Customs duties were payable because they were rebated on the strength of supporting SAP permit. If there was no SAP permit an amount of M21 436-50 would have been collected.

All the other B/Es numbering 14 in all have been summerised on the Schedule. The total underentry Customs duty and surcharge foot up to M3 384 448-42

The amount that was rebated was in effect the total loss to the Customs Revenue pool.

In the light of the foregoing and contrary to the accused's representations earlier referred to it can safely be concluded that Lesotho Hawk International was not entitled to SAP permits because there were no application forms and supporting documents stipulated in the general guidelines.

The evidence of PW1 in brief was of a formal nature regarding the SAP scheme, the investigations he had conducted, the findings he had made, the scope of the prejudice his investigations have helped throw some light on the matter as more specifically reflected in the schedules referred to regarding the use of the permits. See folders 5, 9 and 14.

This witness further placed all the relevant documentation before this court.

For instance with regard to DS TEXTILES (PTY) Ltd the relevant Trade and Industry file was examined. But in it there were no manufacturing permits. There were however SAP application forms.

Folio 8.1 relating to permit number 93 was shown to have been issued by Trade and Industry Department to DS Textiles. The amount of exemption was M500 000-00

Folio 8.4 issued to DS Textiles in terms of permit number 87 by the Department of Trade and Industry' reflected the amount exempted as M680 000-00

Folio 8.6 relating to permit number 87 issued to the same company reflected the amount exempted as M680 000-00. The entry points were at two different ports namely Cape Town and Durban.

It would appear that one permit was fraudulently used. It was used to clear goods in Durban and Cape Town simultaneously.

Folio 8.7 shows that M680 000-00 was all used up.

Folio 8.10 relating to permit 88 shows the amount exempted as M555 000-00. It was used in Durban.

Folio 8.11 relating to permit 88 reflects the amount exempted as M555 000-00

Folio 8.12 relating to permit number 88 used in Cape Town reflects the amount exempted as M555 000-00.

So there was that double use of permit number 88 as illustrated above.

Folio 8.13 relates to permit 89 and shows the amount exempted as M400 000-00 dated 30-4-1995. This permit was used in Durban.

Folio 8.15 relates to permit number 90 and shows the amount exempted as M800 000-00

The peculiarity in the permit is that while on the one hand, the original does not reflect 90, the faxed copy on the other hand clearly does.

No doubt someone attempted to tamper with the number on the original.

Folio 8.16 shows that it was used in Cape Town.

Folio 8.17 is a continuation of amounts reflected on folio 8.16.

It is in evidence that Customs Officials in Lesotho reported about the irregularities.

DS Textiles (PTY) Ltd was not consulted by PW1 during his investigations. However he found that there were no export documents from DS Textiles. All Bills of Entry (B/E) reflected imports.

A schedule of underpayments by DS Textiles was prepared by PW1 and checked by CC Van Rensburg. See Folio 9.2.

The rebated amounts were revised and the calculations were in line with the tariff rates applicable at the time of clearance of various consignments.

Suffice it to say the total underentry of Customs duties amounted to M5 209 390-30. This is the actual loss to Common Customs Revenue Pool.

Attempts to locate the premises of DS Textiles were to no avail. Strangely though what appears to be a physical location in the form of an address for DS Textiles is reflected as DS Textiles (PTY) Ltd MOSHOESHOE ROAD MASERU LESOTHO. See folio 9.25 on Bill of Entry 54131. Suffice it to mention that the Customs Official who was assigned to the investigation team is included in the reference made by PW1 as follows:

"We drove along Moshoeshoe Road in an effort to locate the manufacturing premises of DS Textiles (PTY) Ltd. They were non-existent and therefore our efforts were all in vain. See DS Textiles (PTY) Ltd file folio's 12.1 to 12.37 of Bundle A.

There is no application for SAP permit in there.

For a new enterprise it appears that in terms of folio 12.15 the expected date of production would only have stood to qualify after a year, meaning in 1994 at the earliest.

FACTORS TO BEAR IN MIND It has to be borne in mind that

2.5% of annual turnover is one of the factors to be considered
In terms of folio 1.1 the firm would get SAP permit only after a year

Folio 1.5 paragraph 11 shows that permits are valid for one year from lst April to 31st March of the following year, and further that the expiry date would not be extended.
Folio 1.2 paragraph 7 adamantly lays down that documentary proof of the turnover, qualifying exports, money received and local purchases would have to be submitted before a permit could be issued.

FEATURES AROUSING SUSPICION OF DISHONEST DEALING

Folio 8.1 bears date stamp 19-10-1993

Folio 8.3 bears date stamp 19-10-1993

Folio 8.4 bears date stamp 30-04-1993.

That is to say two months before the application for a manufacturing licence. Folios 12.15 and 12.12 relate to assessment of application for a manufacturing licence and application for industrial licence.

What is noticeable is the backdating to stamps in permit numbers 88 and 90.

In terms of folio 12.21 the licence to manufacture is dated 2nd July 1993 as per receipt number 252923.

In the circumstances outlined above it becomes patent that DS Textiles (PTY) Ltd did not qualify for SAP permits at that stage.

SOME OF THE IRREGULARITIES RELATING TO LESOTHO

APPAREL (PTY) Ltd.

Folios 13.1, 14, 15 16 and 17 are in reference.

It is of importance to note that Lesotho Apparel did not qualify for SAP permits because it was in liquidation at the time. Folio 16.3 buttresses this fact in that around 4-11-1993 the question of this firm's Liquidation at the time was a matter already dealt with by the High Court culminating at that stage in Mr Matsau a local attorney being appointed a provisional liquidator.

Folio 13.1 shows that SAP permit number 64 issued by the Department of Trade and Industry on 17-03-1993 exempted from duty an amount of Ml 411 200-00

Folio 13.3 relates to SAP permit 93 exempting the amount of M2 000 000-00 from duty.

Folio 13.5 indicates transfer of SAP permit dated 25-11-1993.

Folio 13.6 refers to attached schedules among which 13.5 was one which was subsequently transferred to DS Textiles. See Permit number 87. See also folio 13.7 a letter of transfer marked for the attention of Mrs van der Merwe dated 12-12-1993.

Folio 13.8 relating to SAP permit 65 exempts Ml 596 000-00 from duty

Folio 13.11 relates to SAP permit 65 exempting M l 596 000-00 from duty. It was used in Johannesburg on dates:

14-10-1993

18-10-1993

19-10-1993

22-10-1993

till 20-12-1993.

Folios 13.15, 13.16 and 13.18 relate to Lesotho Apparel.

Folio 13.41 is a Lesotho Apparel Invoice dated 25-09-1993 reflecting an amount of M4 939, 200-00 due for exemption from duty.

Folio 14.1 is a schedule of underpayments of customs duty and Value Added Tax (VAT) in respect of Lesotho Apparel. It was prepared by PW1 and covered goods removed in bond (RIB) to Lesotho and which were never cleared.

No warehousing entries were found. RIB entries were thus not acquitted by warehousing entries.

Reference to folio 15 reflects PWl's findings summarised in respect of Lesotho Apparel as follows:

(a) There were no application forms.

(b) There were no backing up documents required prior to the issue of SAP permits

The relevant documents were obtained during PW1's investigations. The forms constitute the normal customs forms.

Folios 1.1 to 1.6 outline normal control procedures.

Listed as exhibits were the following documents

1.1 to 1.7

2.1 to 2.7

3.1 to 3.12

They relate to Lesotho Hawk following PW1's investigations

Documents 5.2 to 5.23

6.1 to 6.3 were marked as provisional Bills of Entry

8.1 to 8.17 were found during PWl's investigations.

9.2 to 1.120

10.1 to 10.35 all fall under Customs and Excise Ports

12.1 to 12.27

13.1 to 13.41

14.1 to 14.31 as well as 15 and 16.1 to 16.8 were part

of what constituted PWl's investigations.

The next witnesses for the Crown was John Maieane PW2 who was according to his testimony, employed as the Commissioner of Industry during the period spanning 1992 and 1994.

He confirmed that the accused was the Chief Development Industrial Officer and that he further had knowledge of the SAP permits, commonly referred to

as 460.11 permit. He confirmed that the accused was the person responsible for the permits.

PW2 indicated that, the SAP permit scheme was intended to provide an incentive to manufacturers for purposes of generating employment and foreign exchange holdings.

He threw light on the importance of the requirement namely that the manufacturer had to be in business for at least a year, submit the necessary application and produce audited statements.

The Court gathered from P\V2's testimony that SAP permits could be transferred to third parties and that such permits could only be used within the financial year of the issuance thereof.

No doubt because of the pervasive permits abuse, the source of which at the time was a matter for bewilderment to higher authorities unconnected with the scam, a groundswell of rumours erupted in the market about permits alleged to be " floating around" regarding people who did not qualify for such permits. These rumours are what indeed set in motion the machinery that culminated in the accused's prosecution.

In his capacity as the Principal Officer or Chief Development Industrial Officer the accused was responsible for the SAP permits as well as being responsible for dealing with SAP permit applications and having power to authorise the granting of the permits as an official delegated by PW2 to

exercise such authority and discharge such function in the normal course of his duties.

In this connection the accused had not only access to original blank permits but was closely and intimately associated with the unique numbering system used in the Department, as well as the file reference numbers of the "entities" referred to earlier and the stationery of the Department.

PW2 testified that he had created documents 1.11 to 1.13 while the accused had created his own unique numbering system regarding the permits to prevent fraudulent and or incorrect permits. I may just in parenthesis express the view that it shall ever be regrettable that these documents kept by the Department being accountable documents were not issued through the authority of the Government Printer and kept in his custody like the rest of all accountable documents which are issued on placement of an order that enables easy tracing and quick detection of irregularities or abuse.

Suffice it to say that documents 1.2 and 1.9 reflected a summary of the guidelines regarding the use of the SAP permits as contained in document paged 1.1 to 1.6.

The court learnt that the accused himself did the calculations of amounts to be reflected on documents after which an official date stamp of the Department would be appended as well as a signature. The importance of all this outline serves to highlight the fact that only the accused would know if a permit did not fall within his normal numbering code. PW2 emphasised the importance of the numbering code for sound reasons expressed earlier.

In indicating that documents 1.14 and 1.15 were reports by the accused the significance of PW2's remark did not escape this court's attention that "however" such documents did not contain any hint or reference by the accused regarding the fact that his signature had been forged. The significance of the accused's letting this aspect of the matter pass in silence is all the more pronounced as he himself testified that PW2 bore him no malice.

The extent of the abuse of SAP permits was highlighted by PW2's reference to the fact that a firm surviving under the name DS Textiles operated by one Sekeloane did not comply with the requirements of the SAP permit scheme. It was the thrust of PW2's evidence therefore that all permits issued by DS Textiles were accordingly incorrect or fraudulent in that DS Textiles had not been in operation for more than a year. I agree for I found this view to be properly founded.

The poignancy of PW2's evidence is that he tried on all accounts not to put the accused in bad light. Moreover as stated earlier he bore him no malice. This poignancy comes into sharp relief when PW2 confirmed the signature of the accused on documents:

3.1 relating to Count 1

3.3 relating to Count 2

3.7 relating to Count 3

3.9 relating to Count 4

3.11 relating to Count 5

8.4 relating to Count 9

8.9 relating to Counts 10 and 11

8.15 relating to Count 13

13.1 relating to Count 15

13.3 relating to Count 16

13.8 and 13.11 relating to Count 17

PW2 further indicated that the accused had signed documents 12.17 and 12.20. This in fact was initially admitted by the accused who, strange to behold, denied it at a later stage when it dawned on him that the document in reference was a 460.11 in other words a prerequisite document to an SAP permit. An admitted piece of evidence representing the truth does not change its quality as the truth simply because applied in certain circumstances it becomes inconvenient to the accused. None of the parties in litigation is entitled to blow hot and cold. Once the truth is admitted for what it is worth it has to be accepted thread and thrum.

PW2 referring to document 1.8, a summary by himself of the scheme, pointed out that both Lesotho Hawk and DS Textiles did not qualify for an SAP permit.

He indicated that the owners of Ms Clothing and DS Textiles, no doubt moved by the sight of everybody getting good business and rich around them while they themselves were getting nothing from their inertia, in their fervent eagerness to obtain SAP permits for which they didn't qualify 'pestered" the Department without relaxation.

As an illustration of indignation suffered at seeing oneself being unfairly-discriminated against. Sekeloane is said to have accused PW2 and his Department of issuing SAP permits to others who did not quality, with permits, yet refusing to issue Sekeleoane with such permits whereas Sekeleloane was in the same boat with those others who obtained permits even although they didn't qualify for them and he did not!

PW2 had compiled document 1.18 dated 8th Febraury, 1994.

PW2 testified that during a discussion held between him and the accused on permits reckoned to be forgeries, the accused had intimated that he had personally issued the permits of DS Textiles. Confirmation of this was in the report dated 4th February, 1994 just referred to above.

PW2 handed in as exhibit documents 1.7 through 1.21. He indicated that eventually the accused had orally complained that his signature had been falsified, but significantly had never complained that his secret numbering system did not appear on the face of the permits where it normally does. This witness confirmed the signature of the accused on documents 3.1, 3.3, 3.7, 3.9, 3.11, 8.3, 8.4, 8.6, 8.9, 8.11, 8.15, 13.1, 13.3, 13.5, 13.6, 13.8 and 13.11.

With regard to document 1.21 PW2 pointed out that around 8th February, 1994 the accused said regarding SAP permits which had caused consternation by virtue of the extent to which they had been irregularly issued: " that of DS Textiles - indicated that it was issued by him while all others were forgeries"

PW3 'Mamoruti Malie testified under oath that she was a Senior Trade Development Officer during 1993 and worked with permits. Her Department was responsible for the issuance of import permit applications and rebate permit applications.

She was aware in her Department of the SAP permit scheme and that permits falling under that category were issued by the Department of Industry. During a conversation with the accused he intimated to her that there were problems in connection with permits. He indicated that not all manufactures qualify for the facility because it is just an incentive to exporting businesses.

PW3 said : "......... At that point he opened his door and brought out a bunch of papers that he said to me that these are some of the forged SAP permits " and "I don't remember how he said he got those papers and he said to me he was still making his inquiries of who could be doing what within the Ministry"

PW3 then put the reporting and investigative process into motion and informed various Department Heads and her Commissioner that there was something wrong regarding permits; whereupon police investigations commenced immediately. The Court notes with satisfaction that PW3 was the initiator of a serious aspect of investigation. By contrast especially bearing in mind that the accused was PW3's senior the Court is left wondering why it had to take this officer of relatively lower status to the accused to take the initiative on a matter which tended to implicate him in the sense that documents in question bore signatures which appeared

uncannily similar to his common sense dictates that he should have been the one taking a far more active role in seeing that investigations were set in motion in order to catch culprits while clearing his name at the same time.

1 am saying this because PW3 indicated that when she took it upon herself to report the matter to her Commissioner, in November 1993 the Commissioner seemed not to be aware of the problem nor was she herself aware whether the matter had also been reported to a Mr Maieane (PW2). Thus very strangely indeed up and until that stage (November 1993) there was no departmental or formal investigation and the Police had not been involved. The question therefore is what could have paralysed the natural urge to mount investigations regarding an anomaly of this magnitude in the Department? Why should it take a relatively junior officer to waste no time before reporting and seeing to it that investigations begin at once? I may just indicate that what comes to mind to explain PW3's motivation is perhaps her clarity of conscience regarding the matter and her plausible sense of responsibility. Can the same be said of the accused? That is the burning question.

PW3 further confirmed that the three entities mentioned earlier did not qualify for SAP permits. She confirmed that there were people who attempted to bribe PW2 but that PW2 had merely referred them to the accused for his action.

PW4 'Malefa Ntepe was the next witness who testified that she was employed as a copy typist in the Ministry of Trade and Industry during 1994.

She confirmed the reference numbers that were typed onto the permit as well as the entity to whom the permits were addressed including the amount reflected on the permit. The SAP permit document was nothing but a pro forma document with various blank spaces on it.

She indicated that she typed the words Lesotho Hawk and DS Textiles on permits on the instructions of the accused. It was her evidence that a real possibility existed that there were many more entities whose names she could have typed on the permits but because of lapse of memory due to the length of the period between the event and her testimony before court she couldn't remember them as such.

She testified that in 1993 she could recognise the signature of the accused, but that while testifying she couldn't. Her evidence has the credit of total lack of presumptuousness often encountered when dealing with witnesses who find it hard to admit shortcomings in their testimony precipitated by lapse of memory and recollection of events and factors surrounding a case.

Having been then referred to her 1994 statement she came out with an important piece of testimony that she had typed the permits in the names of Lesotho Hawk, DS Textiles and Lesotho Apparel and various others footing up to some 23 permits.

Of further importance despite her lapse of memory and at times her frustrating attempt to avoid committing herself and thus being over cautious, is the fact that she had typed, on the instruction of the accused the permits as referred to in

Count 1 ; document 3.3

Count 3 ; document 3.7

Count 4 ; document 3.9

Count 5 ; document 3.11

Count 9 ; document 8.4

Count l1 ; document 8.9

Count 12 ; document 8.13

Count 13 ; document 8.15

Count 15 ; document 13.1

Count 16 ; document 13.3

and Count 17 ; document 13.8

Despite her over-caution it appeared that from her statement she could identify the signature of the accused on the abovementioned permits as reflected in the various counts and documents. Be it noted that she specifically indicated that " and all these permits were signed by Mr Thamae (the accused) and I can clearly identify his signature on them today."

Be it recalled that despite agonising cross-examination which she invited in part by hesitancy resulting not from the inclination to mislead the court but from over-caution, on numerous occasions during this spell she confirmed that although she could not remember the specific permits, she knew, prior to refreshing her memory, that the names DS Textiles and Lesotho Hawk were typed by her, on the instruction of the accused.

PW5 ERIC MOTSOENE KHAKETLA was the next witness to testify for the Crown. He said he was employed as Chief Customs Officer by the

Department of Customs and Excise during 1994 and 1995 and as such was in charge of the investigation into the matter, from the customs perspective with PW l.

As a result of their investigations they found that DS Textiles had caused a loss to the Lesotho fiscus in the amount of M5 698 007-25. that Lesotho Apparel had caused a loss to the Lesotho fiscus in the amount of Ml 931 146-32 and Lesotho Hawk caused a loss of M42 921-50. Such amounts were ascertained and demanded during or around December 1995. See folder 11.

PW5 found that there were twelve firms which were abusing the SAP permit scheme with a loss to the Lesotho fiscus in the amount of M46 710 955-96. He confirmed also that once a permit had been issued, the permit could be transferred to another entity, or be sold.

PW6 Pusetso Ramohapi informed the court that she was also employed as a typist by the Department of trade and Industry during 1992 until 1994. As such she typed SAP permits for and on behalf of the accused. She confirmed her knowledge of the permit reflected on Exhibit 18.3 and that the accused mostly gave her permits to type a good number of these survived under the titles Lesotho Hawk International and DS Textiles, PW6 however did not specifically recall the name of Lesotho Apparel - a factor to which this court ascribes the merit of freedom from possible accusation that she had been schooled to say things she knew nothing about.

During cross-examination PW6 further confirmed that some of the permits were typed on behalf of one 'Masefabatho Lebona though those were not typed by her but her knowledge of these permits was watertight for it was proved by the specific characteristics she ascribed Lebona's permits to, namely that on their second page they reflected the figure 100% as well the peculiarity of the tariff heading code that invariably didn't have a full stop between numbers but, for instance, went something like this i.e. 6200 instead of 62.02.

Consequently her responses in re-examination inspired confidence in her specific assertion that the permits she associated with the accused were not issued by Lebona. In this regard PW6 specifically dealt with the permits referred to in counts 7, 8, 9, 10, 11, 12 and 13.

It may be convenient at this stage in the judgement to deal with some criticism levelled at the Crown by the Defence regarding the evidence of PW4 and PW6 where the criticism is centred on the fact that not all permits could have been typed by both these individuals. I have looked at the evidence and perused the documents placed before me and have observed that the accused has been charged with only 17 counts while documents 18.2 clearly indicates that he could have been charged with many more counts. With respect to document 18.2 to which PW4 testified there appear to be 23 permits which PW4 says she typed yet the Crown exercising its discretion relied on only 11 which form the basis of this case. The Crown was at large to exercise its discretion as it did and for that it cannot seriously be faulted because in excluding any possible yet relevant charges it cannot seriously be contended that the accused suffered any prejudice. The accused cannot be

heard to complain that out of many permits on which an equal number of charges could legitimately be based the Crown chose to prosecute him on only some and not all of them.

The next witness was PW7 Litelu Maema who also was under employment by the Department of Customs and Excise in the Investigation Division during 1994 with PW5 and PW1. He was charged with the responsibility of assisting PW1 in locating all documentation and presenting it in a report which was compiled and placed before court as Exhibit 19.

PW8 Da Silva was the next witness to be called to testify. In that connection he indicated that he is a Director of Gobodo Forensics and Investigative Accounting (PTY) Limited situated in Johannesburg and commonly referred to as "Gobodo."

The instant investigation commenced under KPMG Forensic a firm he was working with prior to joining Gobodo. The mandate for Gobodo to investigate had seen transferred by the Lesotho Auditor General for purposes of unearthing what the Structural Adjustment Project permit scam in that scheme was about.

It was through application of his skills acquired for purposes of special form of investigation such as was warranted in this case that PW8 was able to make a determination that the Kingdom of Lesotho was going to suffer a loss of some M55 Million from the SACU pool as a result of the SAP permit scam.

Following his efforts in this direction it became possible for him to determine that Lesotho Hawk did not qualify for the SAP permit scheme and also that the accused had signed the documents reflected in documents:

3.1 relating to Count 1

3.2 relating to Count 2

3.7 relating to Count 3

3.9 relating to Count 4

and 3.11 relating to Count 5

He formulated his opinion regarding the signatures on material gathered from the records, record keepers, other witnesses including Mr Mokotjo the then Principal Secretary of the Ministry of Trade and Industry, the Director of Public Prosecutions and other individuals who had worked with the accused and the handwriting expert PW12 Petrus Esterhuizen.

PW8 further enlightened the court on the subject of the sale of permits to R & D Enterprises and concluded by confirming that as a result of the abuse of the Lesotho Hawk permits a loss of some M3 354 615-52 was suffered. Having had sight of the Lesotho Hawk industry file during investigations PW8 confirmed that there were no applications for permits contained therein.

This witness, in reference to DS Textiles testified that it was not entitled to SAP permits and that an application for a licence to manufacture was only made available to it during July 1993 although surprisingly it was already in possession of SAP permits from 30th April 1993.

He confirmed that the accused had signed the DS Textile SAP permits reflected on documents:

8.1 relating to Count 7

8.3 relating to Count 8

8.4 and 8.6 relating to Count 9

8.9 and 8.11 relating to Count 10 & 11

8.13 relating to Count 12

and 8.15 relating to Count 13

His evidence in this regard was based on what he had gathered during investigations including the handwriting expert's report. Upon the basis of the resultant calculations he had made he concluded that as a result of the use of DS Textile's permits a loss to Lesotho in the amount of M5 209 390-30 was suffered. His further access to the DS Textiles file revealed that there was no application for SAP permits within any of the relevant files perused.

PW8 testified further in regard to Lesotho Apparel and stated that this firm did not qualify for SAP permits although the access he had to permits numbered 13.1, 13.3, 13.8, 13.11, 13.26 and 13.37 he observed that the accused had signed those documents relating to Counts 15, 16 and 17.

PW8's investigation revealed also that Lesotho Apparel had sold their permits to an entity surviving under the name Iraan Finance (PTY) Limited as reflected in documents 13.40 and 13.41. Evidence revealed that these permits were sold to the value of M49 939 200-00.

He referred to the bank documents reflected within folder number 17 containing documents 17.1 to 17.17. Thereupon his testimony touched on the bank opening documentation of the accused whereupon the signature of the accused was laid bare. The defence very wisely fought shy of contesting this evidence. In fact the defence went so far as to admit that the accused had opened the account on behalf of his father. As will later be shown this aspect of the matter needs rigorous examination before it could be said to pass muster.

A point of some interest arose during the testimony rendered by this witness with regard to the SAP permit bearing the number 89 taken along with the fact that 'Masefabatho Lebona to whom I made earlier reference, had been charged criminally in connection with the same permit. Consequently PW8 indicated that the Lebona permits were different permits - as it became patently clear to the Court then - and looked different from the permits allegedly signed by the accused. During re-examination such additional permits were placed before Court and thus formed part of the record in this proceeding as documents 8.18 to 8.21 under the name of DS Textiles.

The uniqueness of these additional permits consist in the following respects

the percentage is written 100%
the tariff code did not have a full stop in it.
the name DS Textiles was misspelt.
a signature appearing thereon seems to have been an attempt to forge the signature of the accused.

By some amazing twist of unplanned fate these permits appeared to be in line with the evidence of PW6.

PW9 Mahali 'Mamoroke Lebesa is presently the Principal Secretary for the Cabinet Economic Affairs. During 1993/94 she was employed by the Ministry of Trade and Industry under its Department of Industry where she served as a Senior Industry Development Officer responsible for dealership with large industries and all matters related to their development. She indicated the contrast between hers and the accussed's spheres of activity by pointing out that the accused was responsible for small industries.

Putting this in context it would then seem accurate to say the line function was structured as follows: first was the Commissioner of Industry PW2 Mr Maieane, next the accused as the Chief Industry Development Officer for small scales industry and parallel to which would be the position of PW9 Mrs Lebesa.

From PW9's very clear and largely commonsense based elaboration of issues involved as her evidence unfolded the Court was able to get a clearer picture of how the systems worked amidst all the saga concerning the abuse of SAP permits. She testified in general about the working of the SAP permit scheme and its existence in the SACU. She indicated that as a result of the Commissioner's illness it fell upon the accused to stand in the breach and therefore assume the authority to issue the SAP permits. Needless to say, she indicated that Lesotho Hawk, Lesotho Apparel and DS Textiles did not qualify for the SAP permits.

She alluded to having seen the existence of contact between the accused and the Sekeleoane referred to earlier. I may just point out that however innocent the apparent contact between the accused and Sekeleoane may have been the Court is not oblivious of the fact that evidence shows that this is the self same Sekeleoane who claimed title to SAP permits even if he didn't qualify because others like him who did not qualify had obtained them!

Be that as it may PW9 recalls that the contact the accused had with Sekeleoane had an additional dimension, if I can call it that, of an ex soldier called Thebetsoeu.

PW9 identified the signature of the accused on various documents relating to different Counts as could conveniently he set out below as follows:-

document 3.1 relating to Count 1

document 3.3 relating to Count 2

document 3.7 relating to Count 3

document 3.9 relating to Count 4

document 8.3 relating to Count 8

document 8.4 relating to Count 9

document 8.13 relating to Count 12

document 8.15 relating to Count 13

documents 12.17, 12.20 and 13.1 relating to Court 15

document 13.3 relating to Count 16

and documents 13.5, 13.6, 13.8, 13.26 and 13.37 relating to Count 17.

Under cross-examination PW9 asserted that the accused admitted that Lesotho Hawk. DS Textiles and Lesotho Apparel did not qualify for SAP permits.

Now a crucial element occurred to all appearances prompted by the steady course which PW9 seemed to have held in the generality of her testimony which seemed not to contribute at all to the accused's comfort because when the accused squirmed under PW9's remarks his Counsel Mr Phoofolo next to whom the accused was sitting suddenly and for the first time indicated that the signatures were not the accused's and were therefore all forgeries. Surprisingly and significantly though such a denial was put to none of the previous witnesses.

This has the demerit of turning on its head the salutary principle formulated gratifyingly in Small Vs Smith 1954 (3) SA at 434 and fittingly adopted in Phaloane Vs R 1981 (2) LLR at 246. The paraphraseology of that principle is that it is now generally accepted standard procedure that the cross-examiner will put as much of his side's case to witnesses for the opposite side to give all of them the opportunity to admit or deny the version being put to them. The reason for the soundness ascribed to this view is to help the cross-examiner's side escape the charge later that the version mouthed by them amounts to last minute fabrications or afterthoughts. Indeed it is unfair to let witnesses for one side pass over in silence something that adversely affects the other and later come and argue that their untested version is all lies! Mr Phoofolo is a practitioner of vast experience. Nohow could he have fallen into this type of pitfall unless placed in that awkward position and torn asunder by dual loyalty between the Court and his client with what appeared

to me to be the latter's incessant promptings which at one stage culminated in the accused denouncing his own Counsel during these proceedings.

As one brand of rumour fuelled another all emanating from abuse of SAP permits PW9's path was crossed by one to the effect that the accused had received a motor vehicle and that PW2 and the accused had received 20% shares in a company as a reward for the issuing of permits. I am prepared to discard this as nothing but rumour.

However, what appears to me to be part of the woes that persistently seem to be dogging the accused is the fact that while visits by Sekeleoane and Thebetsoeu could be said to have nothing untoward in them the inexplicable reason why they insisted on speaking exclusively to the accused was something reasonably to be expected to arouse the suspicion of an astute official like PW9 thanks to whose appropriate concern the investigation of the scam involving the SAP permits was started.

Through his Counsel the accused sought to indicate to PW9 that the duty and or blame for the imports against permits rested with the Customs Officers. While conceding this charge as a possibility PW9 nonetheless denied its overall purport based as it was on her sound contention that the Department of Industry should not in the first place issue such permits to people who did not qualify. I don't think that this reply is tainted with any form of fault at all.

PW10 Pradip Laxman Popat was the next witness for the Crown. He testified that he was a qualified Chartered Accountant by profession. He

stated that he represented an entity called R&D Enterprises and as such bought Lesotho Hawk permits with numbers 58, 59, 60. 61 and 62 upon which are founded the bases of frauds preferred against Lesotho Hawk in counts 1 through 5.

PW10 further told the Court that he had bought Indi Ocean permits. He had friends among the owners of Indi Ocean among whom was notably one Clive Dwyer. In buying Indi Ocean permits, PW10 said he had authenticated these with his friends, the owners of Indi Ocean.

Thus when purchasing the Lesotho Hawk permits he thought it prudent to take time to authenticate these permits with the relevant Department. The accused being the man on the spot was specifically the Department's Official PW10 found himself destined to deal with concerning authentication of the Lesotho Hawk permits. Thus in 1993 around 15th September or thereabouts PW10 headed for the accused's office accompanied by Clive Dwyer. The mission was accomplished for the accused is said to have authenticated those permits in the presence of the man who had set out for Lesotho and travelled miles after miles for the purpose.

PWl0's attention to detail augments his credibility as to his presence and in part some of the happenings which he said occurred in his presence. He said that for instance, during the authentication process the accused called for the Lesotho Hawk file and that after looking through it he indicated that the permits were correct and proper and therefore could be used.

Following this reassurance PW10 then purchased the permits and completed the purchase documentation and proceeded with payments as reflected in exhibits 4.11 through 4.7.

Thus the authenticated permits were further referred to in the purchase document and on the permits as reflected in exhibits 3.1 through 3.12 relating to counts 1 through 5 respectively.

Ten years later PW10 stated that he was able to identify the accused as being the Mr Thamae with whom he had the interview during September, 1993. PW10 was naturally taken to task about his ability to identify after ten years a man he claimed he had dealings with for the first time during a relatively short space of time. Much as it could legitimately be said on its own the claim to be able to identify the accused leaves doubts, the fact of the matter is that credible evidence has revealed the line function which placed the accused at the position where authentication unless done by him would need further to be looked into. But as it is he was the highest authority to bee-line for to clear doubts that might surround the SAP permits.

Once more during cross-examination of PW10 was the rule in Small Vs Smith and in Phaloane above breached in respect of what was for the first time referred to as conspiracy especially one in which PW10 was implicated. Surely if there was conspiracy the other witnesses who could possibly know something about it should have had this theory put to them to enable the court to be on the alert about not only the existence of the conspiracy but the possibility of some of the witnesses charged with it being participants. Not only so but such witnesses ought to get advance warning about subsequent

defence witnesses or witness who would contradict them on the issue should they deny the defence's version, It is not wrong to maintain that this allegation is of such great importance and serious nature that if it is true there could be no palpable reason why it was not put to the witnesses to whom the notion of being co-conspirators, it is implied it applied.

PW11 PAULINA LORRAINE SWART told the Court that she was employed by the Standard Bank, Ficksburg as the Head of Office Support. As such she had access to all records of the bank.

She handed in documents 17.1 through 17-17 consisting of a variety of pages of the accuded's account among which can be mentioned:

(a) account opening documentation

(b) bank statements

including(c) affidavits the subject matter of which falls to be treated in terms of provisions of Section 236 of our CP&E.

PW11 also identified the accused's specimen signature reflected in document 17.6 which was uncontested by the accused.

The Court gathered from the evidence of PW11 that three amounts were deposited into the accused's account consisting of:

(a) Rl50 000-00

(b) R 18 000-00

PW11 testified that the accused had indicated his occupation as a consultant for AG-IMP on the 28th September 1993.

In reference to R18 000-00 PW11 indicated that it was a cash deposit. The R100 000-00 deposit amount was a cheque deposit emanting from Technical Development IMP. PW11 indicated that 17.9 is a savings bank statement belonging to the accused.

The witness indicated that the account is still operational.

She denied that bank policy allowed that anybody else can open an account for someone who is not a minor. She referred to this in the following terms;

" Never. Its' against bank policy. You can't open an account for someone else unless he is a minor. You can open an account in your name and then you sign on it, not the minor.........."

Told under cross-examination that the person being thus helped was not a minor but a disabled elderly person PW11 's response was:

" A disabled person can be there and the signature must be there, but the name will remain on the other one"

Thus as far as I can see it makes no difference that a person who is elderly is disabled. The proposition by the accused through his Counsel to this witness should go by the board. In any case the Court had learnt for the first

time that the accused's father was disabled hence needed assistance by the accused to open accounts in Ficksburg.

In brief it seems PW1 l's evidence is beyond question that if the accused's father had wanted such account to be opened, it had to be in his own name.

PW12 Petrus Jacobus Esterhuizen was the last witness for the Crown and gave evidence in his capacity as a hand-writing expert.

He is currently employed as such by the South African Police Services at the Questioned Documents Unit of the Forensic Science Laboratory in Pretoria.

PW12's evidence covered an extensive area relating to both his qualifications and the field of his expertise. His handy work is contained in his report handed in as Exhibit 20.1.

The report itself contains sub-divisions handed in individually and separately among which can be specified the Court Chart and a further document Exhibit 20.2 an analysis of the original handwriting of the accused on his bank opening documentation as reflected on document 17.16 earlier referred to in Miss Swart's evidence and which was an undisputed signature of the accused.

Although PW12 has a rather unfortunate manner of failing to answer a simple question which required a "yes" or "no" and instead preferring an elaborate round about theoretical exposition that was extremely frustrating at times especially when coupled with a nagging feeling that this behaviour

was attributable to the fact that English not being his first language he might just have not captured the essence of the question his evidence nonetheless brought to surface the salient points which were indispensable to the purpose of this inquiry.

He indicated that the signatures on the following Exhibit numbers were undoubtedly of the accused, to wit:-

1.14

1.15

3.1 all relating to Count 1

3.9 relating to Count 4

3.11 relating to Count 5

8.4 relating to Count 9

12.17

12.20

13.1 all relating to Count 15

13.3 relating to Count 16

and 13.26 relating to Count 17

Going further in his evidence PW12 indicated that the signature on documents 3.3, 1.3, and 13.32 had a strong degree of similarity to the accused's signature. Elaborating on the meaning of the phrase strong degree of similarity PW12 indicated that the document on which the signature appeared was signed by the same person as had given the specimen signature i.e. the accused, and that the disputed signatures were photocopies. He however qualified his answer by stating that as photocopies and because

of which factor he was not able to mark out the eight points of similarity it would be impossible to state beyond doubt that a signature reflected in such circumstances is genuine, he nonetheless was of the opinion that it was the signature of the accused.

PW12 went further to indicate that the signature reflected in disputed documents 8.13 and 13.6 had a slight similarity to that of the accused and stated that he could mark out only certain points of similarity, but that while on the one hand he couldn't say it was beyond a reasonable doubt the accused's signature, he couldn't on the other exclude the accused as the person who had made the disputed signatures.

With regard to documents 3.7, 8.9, 13.7, 13.8 and 13.11 PW12 indicated that the signatures could have been made by someone else, but could also have been made by the accused. In brief he could not exclude or include the accused as the individual who made these two signatures.

Ordinarily when the Court is confronted with evidence that both supports and detracts from a point being sought to be established it is compelled to give benefit of doubt to the person facing the charge and free him from liability. At the same time it should be remembered that an expert's evidence is in many ways subject to the same treatment that is accorded the evidence of any other witness. In other words it is subject to being weighed and assessed against other evidence at the Court's disposal. I may point out that PW12's show of neutrality with respect to points indicated is a clear sign of his lack of bias and a manifestation of high exercise of caution verges on over-caution that fights shy of putting the accused in bad light all

the way. It should be borne in mind that he indicated that if he had had access to the originals his findings would have drastically changed.

The above being the case the Court is at large to rely on credible evidence that has come before it to make proper findings. It is a fact that in addition to the expert's evidence there was evidence of various other witnesses that supported the view that the signature reflected was of the accused's.

Thus in the light of positive connection with all the disputed documents it would be straining credulity to cast a blind eye on such evidence and treat it as if it did not exist. It is undeniable though that a hundred percent finding could not possibly be made in every count.

The Crown submitted that it had fully complied with provisions of Section 232 of the Criminal Procedure and Evidence Act 1981. I accept this submission.

A point of significance which detracts from all the accused's defences consists in the fact that when compared with disputed signature, the original signature of the accused on the bank documents, 17.16 was on all fours therewith. Thus if the signature on the bank opening documents was admitted as the accused's and the same signature happens to chime in with the disputed signatures it stands to reason that those disputed signatures which compare positively with the admitted one are his too.

PW12 produced a chart with sections marked "A" "B" "C" and "D" for the convinience of the Court. In it he indicated that all specimen signatures on

"A" "B" and "D" were made by the same person. These indeed corresponded positively with the disputed signatures in section "C". PW12 established that the bank specimen signatures reflected on Exhibit 20.2 were the same as those made by the person whose signatures are reflected on Exhibits "A" "B" and "D" i.e. the comparative signatures.

He found also that the signatures on document 20.2 i.e. Exhibit "A" "B" and "D" were made by the same person.

It was also his further finding that the signatures on exhibit "C" i.e. the disputed signatures were not forgeries. He elaborated how indeed a signature from the same hand can differ from time to time depending on a variety of circumstances, such as anxiety fright etc. He also indicated how detection of forgeries to signatures may result from over-eagerness or over-caution to produce an exact specimen of a signature being sought to be forged.

Coming now to the evidence given by the accused the Court received confirmation of the fact that SAP permit applications were dealt with by the three authorised persons namely (i) himself, (ii) PW2 Maieane and (iii) PW9 Mahali Lebesa. Besides these were support staff.

The accused's version despite earlier representations with specific reference to Lesotho Hawk is that the three companies i.e. Lesotho Hawk, Lesotho Apparel and DS Textiles did not qualify for SAP permits.

He testified that SAP permits were kept in the office of the secretary to the Commissioner albeit that numerous other people had access to them. The procedure for obtaining an SAP permit is briefly that an applicant would complete the SAP permit form. Thereafter it would be assessed by any of the three namely, the accused Mr Thamae or PW2 Mr Maieane or PW9 Mrs Lebesa. After that assessment then authorisation of the SAP permit would be granted by any of the three concerned.

He indicated that SAP permits would be allocated to a company. Each company had its own file with the Department of Industry. He indicated that either of the three officials mentioned would complete the SAP permit in draft form. Thereafter a typist would type in the information to complete the permit. An original SAP permit would have original typing on it together with an original signature and an original date stamp.

The accused went on to point out that during the initial period of around 1991/92 there weren't any problems regarding the SAP permit scheme. But with the advent of the permits becoming transferable around April 1993 the problems arose as a sequel thereto.

The accused chose to testify to a select set of problems regarding the SAP permit scheme which he said arose in 1993.

These set of problems consisted in:

(i) numerous individuals requesting information about permits and wanting to acquire them.

(ii) inquiries being made whether the Department of Industry had issued the SAP permits,

(iii) Individuals or firms having no manufacturing licences insisting on

being informed,

(iv) one Lebona having issued permits.

Strangely though the accused side-stepped the importance of testifying about forged permits or even forgeries relating to his own signature.

He contented himself with pointing out that the permit for which Masefabatho Lebona was to be prosecuted had a similar but different number from the permits for which he is being prosecuted. He nonetheless confirmed that he had written Exhibit 1.7 after the SAP permit scheme problems came to light, on the request of the Police. One wonders when in the accused's thinking the police would ever be invited to look into this wholesale scandalous event occurring in his own Department. One wonders what had suppressed the natural reaction associated with innocence on his part to react immediately thereto as happened with PW9. Needless to say the written report was only prepared after the request by Police.

He testified that he attached to Exhibit 1.7 various permits which had not been issued by the Department and was quick to describe them as

".............permits which reflected my signature and that of [PW2] Mr

Maieane"

The accused expansively highlighted in Exhibit 1.7 the fact that some persons or individuals issued permits in the name of the Department.

It is again a matter that calls for comment that the accused failed to reflect in the document his new version namely that his signature had been famed.

The authorities lay great stress on the importance of putting one's defence to the other side as early as possible even. Notwithstanding that in a criminal case where due allowances are made for a certain latitude that may be afforded for a failure to comply with the laid down requirement it is nevertheless important for the defence to put its case to the prosecution witnesses as the trial court is entitled to see and hear the reaction of the witness to every important allegation.

The Court is now faced with an untenable situation where, despite that the accused had apparently been aware of the problem since September 1993 he never personally reported it and only wrote Exhibit 1.7 as a result of the Police Investigation. Not only so, but he never reported in writing that his signature was forged - a factor that is confirmed by the fact that, for the first time, has the accused made reference to his signature being forged when PW9 was cross-examined. Why then did he let this important version pass over in silence in respect of other witnesses who testified under oath that this was the accused's signature. It is impossible in the circumstances to withstand the real impression that the accused's is a last minute attempt to fabricate his evidence or an afterthought calculated at importing novelty into his evidence and thereby misleading the Court.

In his attempt to lend credence to the novelty that he suddenly embarked upon in his evidence he indicated for the first time in his evidence - in - chief

that the nature of the forgeries consisted in the following features or characteristics:

the size of the stamp and the number on it
the appearance of the signatures: that their features resembled both the accused's and PW2's.
the amount written on the permit : that it was calculated through application of a formula involving a percentage with a decimal point; further that figures were only rounded in cents.
the sequencing as to the numbers on the permit : that company file number was included in the permit number as well as a sequential number.

I may just add that this attempt to lend credence to the new found and therefore highly cherished brand of evidence merely serves as an indicator of the degree to which the accused is prepared to depart from the truth.

He would have this Court believe that the permits were forged by individuals who had knowledge of the permits and the numbering structures used by the Department - in other words - the pedestrian notion of what is commonly referred to as "an insider"

The accused had steeped himself so much in self-deception that in saying that he first knew of the questionable numbers on the Lesotho Hawk permits was when he saw the permits in Court he was totally oblivious of the fact that the prior contrary version by PW10 Popat had not been challenged with

this new version at the time it was rendered. Thus he said his signature did not appear on the Lesotho Hawk SAP permits.

In trying to create a bulwark between himself and the ever threatening waves posed by the strength of the Crown evidence against him he sought to indicate that it would not have been possible for him to forge a permit because of the fact that customs would know - without hindrance - of the scam immediately when an import was made on the fore-doomed strength of a forged permit and the SAP permits.

The validity of this proposition fails to pass muster when subjected to the glare of forensic search light in the following respects:

First it blissfully overlooks or totally ignores the fact that customs entry points were all over the SACU area. For instance in South Africa alone which is the only neighbour for Lesotho one can count more than three consisting of Cape Town, East London, Durban, Port Elizabeth etc not to mention the in-land entry points like Johannesburg. The point to be appreciated here being that the Customs Officials at any such given point of entry would not have access to a Departmental File held in Lesotho. Next, that proposition advanced by the accused is flawed in that it overlooks or indeed ignores the fact that the customs official need only have to receive a permit that would indicate an entitlement to a rebate.

In a further attempt to illustrate that permits could not be issued in April 1993 the accused testified that the SAP permits had to have been used by

30th April 1993. emphasising also that if the permits had not been used by then the Customs Officials would then have forestalled their use.

For all the plausible soundness that this proposition is intended to convey it moves me to pity to observe that first, this proposition has fatal defects of its qualities in that being contrary to his own report exhibit 1.7 paragraph 7th which clearly states that the permits could be used until 31st March 1994, this proposition cannot be relied upon to sustain the accused's argument. Next, this proposition contradicts the accused's own oral evidence that the Department used to endorse the validity of permits until 31st March 1994. Finally this proposition seeks to subvert the incontrovertible record of the permits kept in the exhibit file showing that the permits were actually used until 31st March 1994. Finally, Finally it detracts from his evidence elicited under cross-examination.

The accused took a stand that SAP permits were forgeries basing himself on reference to various self-composed problems on the strength of which he sought to persuade the Court that they adhered to those permits. In fairness to him during cross-examination he conceded that the permits had the appearance of the correct permits. Thus on this point he disabused the Court of the impression that he came here determined to deny even the obvious.

The cross-examination of the accused by Mr Louw traversed the broad area which ranged from his passports, his implied alibi connected with his alleged trip and stay in Ireland during some of the occurrences alleged to have been affected by him at the time and his accounts with the Standard

Bank, Ficksburg including the various permits he is alleged to have appended his signature to.

He admitted his passport reflected on document 1 7.15 as well as the account opening document on 17.16 including that the signatures reflected there and appended on 28th September 1993 were his. However, he indicated that the bank had completed the rest of the document, including a character passing for his employer shown therein surviving under the title Technical Development for AG, IMP who is reflected on the completed form as having had (he accused employed as a consultant. The same signatures which the accused admitted in this regard are signatures which formed PW12's basis of comparative signatures.

The accused admitted signatures Al through A6 appearing on the Court chart-exhibit 20 as well as signatures including documents Bl through B7 on which those signatures appear.

He however strained to deny signatures appearing on documents Dl through D16 which are SAP permits ostensibly signed by him. He admitted issuing SAP permits in respect of Morija Textiles CGM and Cee Bee Knitwear.

The reasons the accused advanced for Lesotho Hawk not qualifying for SAP permits were that it didn't buy its material within the SACU area and that it imported under 470.03. In respect of DS Textiles he indicated that because it did not manufacture and further that it did not comply with any of the requirements for the scheme it accordingly did not qualify. Lesotho Apparel

found itself in the same boat because it was a Chinese firm and imported under 470.03.

It is important to observe that, as shown in document 105 the SAP scheme which had started in 1978 would be valid for a year. The accused nonetheless advanced a proposition that the permit would remain valid until the whole amount had been utilized on it. On this version it seemed that the permit would remain valid until at least the end of March 1994 - the cut off date contended for by the Crown. This being so it becomes clear that the earlier stance adopted by the accused to the counter on this issue stands to be rejected as baseless.

The accused sought to impress the Court with the fact that as at the time he dealt with document 1.7 which he admitted, he had to scrutinise the permits before signing them on account of there having been problems with regard to the permits in that they were forged and that many individuals were attempting to have the permits authenticated. Hence he initially calculated the amount to which the industrialist was entitled.

As a result of the wave of interest raised by the high level of traffic in permits he found himself receiving and collecting permits from sources to which he would reply as appropriate in terms of whether the party so inquiring was entitled to SAP permit or not.

Eventually, after the intervention of Police he wrote a report on 11th November 1993 to wit document 1.7. to 1.8.

The accused indicated that he did his own investigation, took his findings to the staff and reported on it. Save to say that by not placing his untoward discovery immediately before the police the accused's exercise amounted to placing the cart before the horse. In any event it is a matter for unnecessary conjecture to try to make anything out of this self-serving exercise by the accused as there is absolutely no evidence confirming these great efforts anywhere or in any of the documents where one would find it, were it true that such a thing ever happened. In any event the tenure of Mamoruti Malie PW3's account stands in sharp contrast to the existence of any such possibility. It will ever be recalled how she immediately girded her loins and embarked on positive action once she got wind of something untoward concerning the SAP permits.

Elaborating on the theme he had developed the accused by reference to document 1.7 paragraphs 5,6 and 7 indicated that his Department was inundated with phone calls from people seeking to have their permits authenticated. He stated that most of the permits he was contacted in connection with were not correct more especially ones from Cape Town. This spate of phone calls started from April through to the end of 1993, he indicated. He reiterated that the problem with SAP permit scheme seemed to have been triggered by the move to start buying and selling of the permits. He indicated that in some instances during this flood of inquiries by phone he would request that the permit be faxed to him whereupon he would check it against the file thus getting to be in possession of the permit by this means. In some instances he would immediately get to know the people who were not entitled to the permits and be able to inform them so.

It is a matter of great surprise that given the above background and the fact that it started in earnest during or about April 1993 and sustained itself without abating till November 1993 when police got involved at the instance of PW9 the accused remained blissfully contented with seeking to deal with the situation privately and without any attempt to bring it to light in whatever manner despite its overwhelming enormity, even although he admitted in response to a question posed by my Assessor Mr Moeletsi that the permit was an accountable document and had to be dealt with as such. A domestic hen cannot count but natural instinct has endowed it with the amazing ability that just over 21 days after sitting on unhatched eggs it deserts the nest fully aware that they are rotten and can never produce any chicks! By contrast the accused's conduct suggests differently as far as the abuse of SAP permits which needed immediate intervention by police is concerned. Why! The answer is simple. There is more to his conduct than meets the eye.

The accused pointed out that there was a unique numbering system designed for the permits. In it an attempt was made to capture the name of the Ministry, the name of the Department, the company file number and a permit number as reflected, for an example, on document 3.1 where it is shown as : (PERMIT NO: T & I /IND/ 304/ sl: no58).

He explained that during the entire period he only wrote one report and stremously denied that he had written the one reflected on document 1.14 and 1.15 even although the handwriting expert whose evidence was not gainsaid by anyone of similar expertise, said he was certain that the accused's signature appeared on both documents. Needless to say the report

placed the accused in dim light if I can put it as lightly as that. Confronted with this reality the accused seeks escape through his pet theme of conspiracy by Crown witnesses to gang against him for no apparent reason. In my humble view this charge cannot sincerely be sustained against PW12 who bent over backwards to avoid implicating the accused even in instances where through one's naked eye one could see there was similarity which he was prepared to overlook and only suggest that given the originals relating to the signatures in question his answer would be drastically changed. No way can a man who manifests such an attitude and caution be fittingly and sincerely charged with any such mischievous conduct in going about his scientific business.

Document 1.14 reads as follows:

"ABUSE OF SAP SCHEME

The attached samples of SAP permits are obvious forgeries which have been found by this office from South African Importers who were offered to buy and before any transactions are completed each and every buyer needs to know the legal status of every permit. Perhaps it should be mentioned that from our discoveries some of the illegal permits have already been used example of such is also attached.

Pleased also to bring to your attention some of the copies forged permits which are found recently.

With this short report I avail myself for more possible information which may be at our disposal.

SIGNED: JS THAMAE

Sworn before Commissioner of oaths Maseru P.H.Q. on 22-02-01."

Document 1.15 reads exactly the same as the above save that below the signature are listed companies said to have obtained SAP permits under the rules and guidance governing the scheme as follows:

Lesotho Clothing

CEE BEE Knitwear

CSM Industry

Indi Ocean

Morija Textiles

LEE Manufacturing

Lesotho Apparel."

Assuming for arguments' sake that the accused was responsible for the contents of these documents it becomes obvious that the mere sight of Lesotho Apparel being listed as one of the companies which obtained SAP permits under the rules and guidance which govern the scheme i.e. meaning legitimately, would cause the reaction he manifested namely denounce his own genuine signature as a forgery.

It beggars description that despite the evidence of PW12, PW4, PW2 and PW9 that the signature appearing on permits in folder 3 of Lesotho Hawk

were the accussed's, he should persist with his dubious allegation that they were forged. Moreso when regard is had to the fact that PW4 was forthright in saying that it was per the accused's instruction that she typed the permits which he signed.

Confronted with (PW10) Popat's evidence the accused denies his involvement; and asked why PW10 should testify as he did about the accused's actions including authentication of his own signature in PWl0's presence the accused said "Popat was not telling the truth .................. what he wanted is to get his money back." I have no hesitation in rejecting this lame answer as not a proper response to a very crucial question that stands firmly in its challenge against his innocence.

Again the accused's persistence on the version that he had no knowledge of the DS Textiles (PTY) Ltd permits contained in folder 8 and that those were forged is dealt a fatal blow by the fact that as in the case of Lesotho Hawk he never wrote a report regarding his signatures being forged on such permits. His was a bare denial which in my humble opinion cannot prevail against the clear evidence of PW1, PW2, PW9 and PW12 on the issues in question.

The veneer of reliability that the accused wished to maintain in his evidence was dealt a crushing blow when he himself seriously compromised his innocence. This is in relation to the stage where regarding the DS Textiles he initially admitted that his signature appeared on documents 12.17 and 12.20. This was in line with the findings of PW12 and PW9. To that extent his preparedness to tell the truth was something to redound to his credit as a witness in the eyes of this court. But, lo and behold! When he discovered

that these documents related to DS Textiles and as such were essential in the obtaining of SAP permits he suddenly changed his mind and attempted to withdraw his admission and change his version into a denial as if doing so would alter what constitutes the truth which he had been man enough to admit in the first place.

Criminal justice system is awash with instances of many accused persons trying to ride on two horses and in the process finding themselves pitifully spread-eagled on the hard ground.

In his general denial the accused charged as lying PW2, PW4, PW5, PW6, PW8 and PW10. He was of the opinion that PW3, PW5 and PW7 were proper witnesses.

The Court wishing not to thwart the accused's efforts to have his say and perhaps in the process advance his defence merely sounded a mild warning by asking the accused if he appreciated the implications and consequences of his charges against the Public Prosecutor and an Officer of this Court Mr Louw as having constructed a case against him. I don't think he fully understood the meaning of that admonition for in no less than three more occasions he persisted in saying the Learned Counsel for the Crown had constructed the case against him. In line with his attempt to further discredit the case for the Crown the accused charged the bank with having "fiddled" with his account. The problem with the accused's desperate attempt to achieve his end is that in both instances it had never been put to any of the Crown witnesses what he now wished the Court to accept as he narrated it for the first time when he was in the witnesses' box. I have no hesitation in rejecting both of his charges against the Learned Crown Counsel and the bank as both irresponsible and without foundation.

The accused confirmed that all the permits were used from September 1993 till February 1994 as shown in documents 5.1 through 5.5 then 9.1 to 9.2 and finally 14.1 to 14.2. He feigned surprise that the periods designated by the above dates coincided with the deposits made into his bank account during September, October and November 1993.

Mr Louw invited the court's attention to bear on the fact that as reflected in folder 3 the Lesotho Hawk permits were issued on 28 February 1993, the DS Textiles ones during April and October 1993, while the Lesotho Apparel ones during March and April 1993 when the accused was in office, except on his own version, during February 1993.

Learned Counsel indicated that the accused attempted to show that he was overseas, by referring to a stamp for the date 14 February 1993 in his passport, in London, Heathrow. I must while on this confess to my surprise that there were no stamps in his passport regarding his return from the United Kingdom. Nothing is reflected at all. This surprise is further deepened by the total absence from the accused's personnel file of any information whatsoever regarding his visit to the United Kingdom for a course he claims he attended. In terms of Exhibit 21.1 he has attached an uncertified copy of the programme for the course he attended i.e International Development Ireland and Shannon Development Company on Export Processing Zone etc issued in March. An attempt to seek verification per assistance of the Irish Consulate brought about no certainty as to whether the accused in effect attended that course during the relevant period. Its reason being that as that happened so long ago no relevant application forms

were available. An uncertified copy of the time-table and photographs taken at a gala evening party supplied by the accused cannot be of any avail.

Notwithstanding these remarks I am prepared to bend over backwards and accept that the accused was in Ireland at the time he claims he was. But what remains is to deal with his stance that because he was in Ireland at the time there was no way he could sign documents circulating in Lesotho. The basis of this stance seems to be that it is a physical impossibility to sign papers in Lesotho while one is in Ireland. I agree. But that is not the end of this matter. There are flaws in it. I think the flaw in that argument consists in the assumption that to sign documents in Lesotho one cannot be in Ireland. That is the first flaw. The second flaw consists in ignoring the strong inference to be drawn from the facts as advanced by the Crown that if indeed the signature appearing on the document in question is beyond all doubt the accused's then the accused must have signed it in advance and had it post dated. In any event in this modern day of high technology with the ready and willing aid of parties who stand to benefit from the scam papers can leave Lesotho for Ireland for signature and be back in less than 72 hours. The proposition is no different from one in which a man has his passport stamped to show his departure for RSA. Two weeks later he ostensibly has it stamped to register his re-entry back into Lesotho. But a week previous to his official re-entry into Lesotho his victim dies within minutes due to an assault effected by the same man. When charged with murder he produces a passport showing he was away during the period of time coinciding with the assault. But the certainty of the DNA tests consisting of his hairs and finger prints on the deceased and the weapon used set at nought his claim that he was absent and therefore he shouldn't be held liable. This certainty would

lead to the conclusion that in between the dates shown in his passport he did use means of entry and exit where he didn't have to have his passport stamped. In brief he either forded the river forming the border between the two countries, or scaled the fence or went through it. The means by which he got there is less important than the fact that he certainly was at the scene when murder was committed by him!

The accused acknowledged that the fraud perpetrated in this matter caused severe prejudice to the Government of Lesotho including various industries concerned.

I should hasten to indicate that the accused's bank account showed various discrepancies especially on three major areas; namely, the opening of the account; the deposits paid in and the electronic transfers, including the brevity of intervals between deposits regard being had to the accused's salary as a Civil servant and the phenomenal amounts of deposit into his account per each turn.

According to his version regarding the bank account, the accused has the following to say:

that he opened the account on behalf of his father.
that it was his father's monies, which were paid in there.
that his father was present when the account was opened for the first time and an amount of R150 000-00 deposited in there on 8th October 1993.

It is very strange that the accused should churn out this version so soon after he had told the court previously in a steady and well composed voice that betrayed no hint of duplicity that the amount of R150 000-00 was a result of a sale of a truck and that the deposits were effected by his father.

A further complication in the accused's story is precipitated by its failure to chime in with the objective facts in that

(i) document 17.16 shows that in fact the account was opened on 28th September, 1993.

(ii) while indeed his oral evidence including that of PW2 together with his applications for leave and housing showed him truly as a civil servant, the bank papers show him as a Consultant employee of Technical Development for A.G. IMP.

(iii) the amount deposited into his account on 28th September 1993 is only R5000-00 not the amount of the opening account he referred to earlier.

(iv) an electronic transfer was effected into his account on 8th October 1993 from First National Bank Ladybrand by one MM Mpeta and not as a physical deposit effected by him and his father in the form of a cheque as the accused would have this court believe.

(v) document 17.17 shows that two additional deposits were made into the accused's account on 12th October, 1993 and 6th November, 1993 in the respective amounts of R100 000-00 and R18 000-00.

(vi) the amount of R100 000-00 was deposited into the accused's account on 12th October 1993 an objective factor which gives a lie to the

accused's version that this amount was the result of proceeds of sale for a half truck.

(vii) the entity Technical Development was also the entity referred to on the accused's account opening document as his employer. See documents 17.8 and 17.16.

It seems to me that faced with the possible explanation at some future date regarding where he got all this money as a Civil Servant whose annual salary couldn't come to Ml00 000-00 the accused thought it better to explain away all the wealth he amassed in a matter of weeks by concocting all the stones involving his father and in the process departing from the vernacular admonition never to take the name of the dear departed in vain.

Having woven this elaborate web of intricate lies about him the accused felt that he was so far gone in the process that going back was just as tedious as forging ahead, hence his facile though baseless charge against the bank that it had "fiddled" with his account. Further that the prosecution had a role to play in the process. That tendency was further demonstrated by the difficulty he found himself in when he decided to give a lie to Popat and say the permit which had worried Popat was in order and thus authenticated it notwithstanding that he knew full well that this permit was false. Clearly he feared worse consequences were he to tell Popat the truth.

I accept the submission made by Mr Louw regarding the fact that the accused's passport confirmed that on 28th September 1993 he was in South Africa i.e. on the day the R5000-00 was deposited, further that he was in that

country on 12th October 1993 and 6th November 1993 which are the dates deposits were made.

Having regard though to the fact that his passport indicated that the accused was not in South Africa on 8th October 1993 which is the date when the accused indicated to this Court that he opened the account and deposited R150 000-00, I accept the submission that the dates in the passport consist fully with the version that monies were not deposited by the accused but that an electronic transfer was effected from the account of MM Mpeta into the other account, - a factor that could not necessitate the presence of the physical accused at any of the transference points in any event.

The accused sought to discredit PW2's evidence on the ground that PW2 said the accused stayed in a house to which PW2 claimed he went at Ha Mabote whereas the accused stays at Ha Tsosane. The Court takes judicial notice of the fact that these two villages are adjacent to each other. In any case the version of the Crown is consistent with the evidence of PW2 in that at the time the accused was residing at Ha Tsosane in a rented government house as indicated by the accused himself in exhibit 22.

I have indicated that documents 1.14 and 1.15 are in essence alike except for the list that appears below the signature above the accused's initials and name. The last company appearing in that list is Lesotho Apparel. Bearing in mind that this list consists of the companies which obtain SAP permits under the rules and guidance which govern the scheme it stands to reason that the signatory to document 1.15 specifically indicated Lesotho Apparel as one of those qualified to obtain that permit. The submission has merit and

is accordingly accepted by this Court that, since the forensic evidence on the signature has proved true and therefore acceptable, an inference follows naturally that the accused had created document 1.15, signed it, and having indicated his agreement in the issuing of SAP permits to Lesotho Apparel had accordingly issued the permits to that entity or company as referred to in Counts 15 through 17. Be it observed and recalled that even although the accused refers to forgeries in document 1.15 which is in essence an extension of document 1.14 at no stage has he indicated that his signature was forged and no reference was made to the abuse of his unique numbering system.

I have already indicated how the documents relating to Masefabatho Lebona are different from those relating to the case with which the accused is faced. All I have discerned in the accused's contending for consideration of that case is that in the same manner in which Lebona escaped criminal liability the accused should do so too. Having considered the points of difference between the instant case and Lebona's case the latter serves merely as a red herring across the trail. In expressing my satisfaction with the fact that the two sets of permits in the respective cases are as different from one another as cheese is from chalk I am prepared to content myself with treating the instant case exclusively on its own merits.

Regarding documents 12.17 and 12.20 as indicated earlier it can be seen how, various witnesses testified to signatures appended there as being those of the accused.

Indeed having initially admitted that his signature appeared on these documents the accused only after realising that the document involved was a 460.11 document, a prerequisite for SAP permit document, he suddenly and strenuously denied that he had appended his signature on the document as if, regardless of the hundred percent proof that he had done so, this very truth he espoused which any honest person can be relied on to acknowledge, would depend on contingencies. Unfortunately, it is not characteristic of the truth to change with changing circumstances. It remains the same no matter that there be an alteration of circumstances.

Thus I accept the Crown's submission that the accused's change of version under cross-examination is indeed indicative of the manner in which he has conducted his defence and the lengths to which he was prepared to go changing his evidence to suite his fancy. That is not acceptable at all.

Again I need indicate that with regard to Documents 13.5 and 13.6 although a variety of witnesses had testified to the accused's signature appearing therein, he flatly denied this. Perhaps it is fruitful to indicate that in essence what is contained in these documents are transfer permits specifically referred to in Counts 4, 6, 7, and 9 in relation to Lesotho Apparel.

Save with regard to the count in which it was indicated in the beginning that the accused is acquitted, an inference need be and is drawn that the accused was aware of the Lesotho Apparel permits, had authorised transfer thereof, moreso by token of the fact that, considering this proposition along with contents of document 1.15, the accused had at some stage indicated that Lesotho Apparel qualified per SAP permit.

Summing up the discrepancies in accused's evidence regarding banking it is worth stressing that whereas the accused deliberately created the impression that his was a cheque deposit, the document patently shows that the transfer was from one bank to another i.e from FNB to Standard Bank Ficksburg. Moreover, the passport bore no entry to support accused's attendance on 8th October to 1993 to deposit a cheque in Ficksburg.

Whereas regarding Document 17.8 the deposit document clearly shows a deposit from an entity styled Technical Development comparing identically with document 17.16 the accused wishes to wriggle out of the strange employment detail by suggesting that the information supplied to the person who filled the account opening form for him did not emanate from him.

Whereas in terms of document 17.17 it is clearly shown various deposits including specifically a deposit on the opening date of M5 000-00 on 28th September 1993 the accused's version is in conflict with this straight forward state of affairs inasmuch as it asserts that the transaction took place not prior to but in fact on the date 10th October, 1993.

Mr Phoofolo for the defence sought to fight the case on a general ground that what have been placed as evidence before Court are photocopies mostly. Doing so he sought to base himself on the provisions of our Criminal Procedure and Evidence Act 7 of 1981 section 242 (1) to wit:-

"Whenever any book or other document is of such a public nature as to be admissible on its mere production from the proper custody and copy thereof or extract therefore shall be admissible in evidence in any Court or before a

magistrate in a preparatory examination, provided it is proved to be an examination copy or extract, or provided it purports to be signed and certified as a true copy or extract by the officer in whose custody the original is entrusted."

I have already indicated that the rambling account of irrelevancies by which the accused sought to imply that everyone out there including learned counsel for the crown in here must be after his skin and therefore that the whole case against him is a devious plot cannot hold water for the moment.

Now that at the stage of closing addresses learned counsel as indeed he is entitled at any stage before closure of the case to do so, I am constrained to indicate that the documents before this court are documents which satisfy the requirement under the relevant section that they be of a public nature on the basis of which their mere production from the proper custody qualifies them to be admitted on being proved to be an examination or extract. Up to this far the requirement of the section seems to be satisfied in my humble view. Going beyond this stage is an alternative as against an additional proviso that it be certified as a true copy or extract. So this proviso furnishes an alternative means by which a document which adequately qualifies for admission on the strength of proving to be examination copy or extract from a document of a public nature can in the alternative be admitted on the strength of bearing a signature certifying its validity.

Furthermore the only instances where the documents were certified were in respect of those testified to by the handwriting expert PW12. Otherwise documents which were placed before individual witnesses including the

accused when testifying were copies of the master file containing originals in the custody of the handwriting expert with the certified copy in his file.

Finally, the remarks of v.d. Heever AJA during exchange with Counsel at the hearing of the appeal C of A (CRI) NO:5 of 1992 Peter K Mahase Vs Rex (unreported) bear paraphrasing namely that when the Appellant's Counsel was insisting on the production of originals kept in the Bank in Switzerland she is said to have remarked that in a murder case it is never necessary to place the body of the deceased before court to prove that he or she has been dead some months or years ago before the start of the trial. In more or less similar light that Learned Judge is cited in C of A (CRI) NO:1 of 1996 Moitsupeli Letsie & 2 ors Vs Rex (unreported) is quoted at page 25 as having said the following concerning Appellant number 2:

"The indisputed documents placed before court, and the absence of every one of the documents or entries that would have been there had he done his work, are damning unless some credible explanation were forthcoming."

A lot of effort has gone into the Crown trying to prove its case. An even greater effort has been exerted by the defence trying to demolish the case for the Crown.

The defence case seems to revolve around the point that because not a single witness has come to testify that he or she saw the accused append his signature on any of the documents before court then all the charges preferred against him should fail as unsustained by evidence led or simply as based on unsatisfactory evidence hence the high degree of criticism that was levelled

against the Crown case especially with regard to Lesotho Hawk. However, apart from the fact that this court does not in its humble share this sentiment nor accept the submission seeking to give effect to it the court has had regard to the strong evidence of PW10 the effect of which alone is sufficient to destroy entirely the criticism being raised for the defence. The basis for the view I take is that PW10 when anxious to know about the status of the permits for his firm took the trouble to come to Lesotho and there he met the accused who authenticated the permits bearing his signature. The fact that he did not sign in the presence of PW10 is neither here nor there. The fact of the matter is that by authenticating a document bearing his signature he effectively endorsed ex post facto the validity of his signature appearing there.

Furthermore the criticism seeking to persuade this Court to attach no importance to the evidence of PW12 as unsatisfactory in that he left out other material that was submitted before him for examination thus in turn presenting the court with incomplete story cannot prevail because even if the court were inclined to the view urged on it by the defence and ignore or discard altogether the evidence of PW12, the fact remains that there would still be there contend with the evidence of PW2, PW3 and PW9 all of whom identified the accused's signature on the documents placed before court. Their evidence qualifies to be taken into consideration in terns of Section 232 of our CP & E of 1981. It provides without qualification as to categories of witnesses i.e. whether expert or lay witnesses that:

"Comparison of a disputed writing with any writing proved to the satisfaction of the Court......... to be genuine may be made by witnesses,

and such writing and the evidence of witnesses with respect thereto may be submitted to the Court...........as evidence of the genuineness or otherwise of the writing in dispute." Thus the court is at large without the assistance of an expert witness to consider and compare the writing that these lay witnesses claim to know to be the accused's with the writings he denies the authorship of.

On the above basis I would say PW2 impressed me as very cautious not to ascribe to the accused things for which the accused is not responsible. PW3 had worked with the accused for a considerable length of time seeing his signature time and again. Nohow could it make sense that the image of her boss's signature could be so obliterated from her mind as to be on par with that of someone who has never seen the accused's signature. PW9 struck me as not only above average in intelligence but as someone who is astute conscientious with a highly serious sense of responsibility to her duty and work. Her evidence came out in well measured tones without thereby losing the natural spontaneity that is an important factor in the Court's assessment and determination of whether what is conveyed to it is the truth or not, I therefore accept very willingly the submission that what the handwriting expert did in this proceeding was strengthen the case. In other words without him there is still a fairly dependable case for the Crown.

The defence was perfectly within its rights to challenge the dependability of the crown witnesses' memory regard being had to the fact that they came before this court to testify to events which occurred at times more than ten years previously. The weakness in this regard could be said to have been more manifest in PW6 than in any other. But the fact of the matter is she

was cross-examined on matters far beyond what it occurred to me. her side had called her to testify on. Her evidence-in-chief was centred on the simple task of showing that she typed permits in the names of Lesotho Hawk and DS Textiles and not that she had identified the permits. It seems she attracted all the criticism because under cross-examination she was taken along unfamiliar terrain that in turn resulted in a lengthy re-examination geared at correcting the wrong impression that had been created throughout, all because she had unwittingly referred to permit 8.1.

Learned Counsel for the defence took issue with the Crown that the accused could not have incorrectly completed the permits. The simple answer to this charge which I found truly satisfactory and logical was that indeed if it is correct that these permits were fraudulently issued then it serves no useful purpose to strain at the fact that they were not properly or correctly completely because once an element of fraud constitutes the purpose for which they were created then it would be idle to expect the fraudulent act to be properly executed because fraud is not proper or a correct thing in the first place.

In any event I found that a good deal of what was urged on this Court in the submission by learned counsel for the defence should have been put to the handwriting expert. An illustration of the point I am trying to make becomes truly manifest when a comparison of two different documents i.e. documents 13.8 and 13.11 was urged on the court to consider on the basis that they bear the same number, i.e PERMIT NO T&I/IND/308/sl.no.65 reflect the same entry i.e. Lesotho Apparel yet the handwriting expert makes different findings on these documents.

In the first place there are distinct differences discernable from those documents. The typewriter used in one is clearly different from that used in the other. The permits themselves look different and the positions of the respective signatures differ including their respective forms. For all it is worth the letter following the small "s" in the permit number of 13.11 is small "1" while the letter situated in a corresponding position in 13.8 is a capital "I". All these need have been put to PW12 if there was a felt need for explanation of these glaring discrepancies instead of raising them at the submissions stage.

The other criticism was that some witnesses were single witnesses. But in my view they all testified from one perspective the thrust of which was that these permits complained of by the Crown were false permits.

Another challenge raised by Mr Phoofolo during addresses related to the 460.11 permit on document 12.17. He argued that this is not a requirement for an SAP permit. However, my clear understanding of PW2's evidence leads to a contrary conclusion. PW2's credible evidence on the point was that for a person to be able to qualify for an SAP permit he had to have a 460.11 certificate.

In sum the case presented on behalf of the crown has always been that the SAP permits authorised by the accused were used to defraud the Government of Lesotho and other industrialists. It has never been that he transferred the permits. The charge sheet itself confines itself to that first premise. However, the fact that it has been shown that the permits were transferred serves to strengthen the prejudice element of the case only. The

fact that it was shown through the evidence of Popat (PW10) that the permits were indeed untilised and as a result of such use of the permits prejudice is established.

Having listened carefully to all the evidence led in this case the observations I made were that the crown witnesses who testified against the accused did so independently of each other yet they by and large corroborated each other's evidence. I also observed that none of the witnesses, including those whose evidence was particularly damming against the accused were biased or showed any bias against the accused. The crown counsel showed no bias at all against the accused. His was a purely professional and indeed ethical way of conducting the case for the prosecution. The lay witnesses' evidence enjoyed corroboration by that of the handwriting expert analyst who placed the facts before the court to enable it to reach an objective conclusion.

Although the authority of S Vs Armstrong en en under 1998 (1) SA CR 698 (SE) at 699 letters (g) and (i) is in Afrikaanse a language unknown to this court, the extracts below seem to be in in point for lending support to the proposition set out above.

In letter (g) the head note reads in part "in the instant case the defence had not presented evidence in rebuttal ............ The conclusion to which the expert had come, had however, been placed directly in dispute."

In letter (i) it satisfactorily drives the point home as follows:

" ..............the court could not allow the eyes of the expert to become the eyes of the court. The court had to be satisfied from its own observations that the conclusions were correct.'"

I can only in agreeing with the above finding which is on all fours with what I have observed in the instant case, say that PW12 allowed over caution to get the better of him by throwing out of consideration samples which to my observation fitted the bill quite well and had enjoyed the support of other credible witnesses.

In the same vein the caution sounded in S Vs Nthati en ender 1997 (1) SA CR 90 (0)'is worthy of note as reflected in part in letters (g) and (i) where it is said:

(g) " Expert witnesses ought to undertake their investigations with the utmost care and accuracy especially in criminal cases where the guilt or innocence of the accused often depends, largely and sometimes, on the evidence of such witnesses"

(i) "The court remarked that as far as possible expert evidence should be presented in such a way that the court itself was in a position to make the observations on which the expert had relied for his conclusion." See also for general background of principles applicable and and the basis for use of expert witnesses S Vs Mkhize and ors 1998 (2) SA CR 478 (w).

I have already stated my satisfaction with the credibility of crown witnesses. Their evidence enjoyed on material aspects of the case and for the most part generally the support of documentary proof.

The importance of the above situation can truly be appreciated when considered against the seasonable remarks of Williamson J in S Vs Mphethe and ors 1983 (4) SA 262 (c) letters H to A where the headnote in part reads:-

"If a witness gives evidence which is relevant to the charges being considered by the Court then that evidence can only be ignored if it is of such poor quality that no reasonable person could possibly accept it. This would really only be in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his material evidence can possibly be believed. Before credibility can play a role at all it is a very high degree of untrustworthiness that has to be shown. It must not be overlooked that the triers of fact are entitled 'while rejecting one portion of the sworn

testimony of a witness, to accept another portion.'..........." I am aware that the above dictum was pronounced in the context of an application for discharge at the close of the Crown case. But nonetheless I find the general purport it conveys quite apt in the instant case in answer to a strong argument during addresses that Crown witness individually and collectively did nothing to advance it.

The portion in quotes however is an extract from Rex Vs Kumalo 1916 AD 480 at 484 where Solomon JA came out with that stimulating proposition with which I am in respectful agreement.

The Crown laid much store by Williamson J's remark and urged this court to consider it favourably given that the evidence presented was further evidence of events that had occurred during 1993.

It is common cause that in view of the fact that none of the witnesses testified to seeing the accused append his signature on the false documents the evidence led connecting the signature appearing on these permits and other documents before court is of a circumstantial nature. In order therefore to establish the nexus between the accused and the wrongful act the Court has to rely on inferences which in order to be drawn must be consistent with all the proven facts.

It is also important to observe that this case in fact is based partly on direct and partly circumstantial evidence.

In proof of the first aspect just stated above the Crown presented direct evidence that the accused was the individual responsible for the creation of the permits forming the subject matter of the charges preferred against him.

Credible evidence was adduced indicating that during the use of the permits in question the accused's bank account was appreciably enhanced by monies being received therein at a pace far outstripping the sprinting prowess of a record setting short distance runner in the Olympic stakes.

Again by way of giving added impetus to the strength of direct evidence in the Crown case the accused made various admissions regarding his signatures which were used as comparative specimens and these compared

favourably with the disputed signatures thus reducing to nil whatever effort could be exerted in the hope that some differences could be discerned between A and C in an equation where it was accepted that C is equal to B which happens to be equal to A.

Further direct evidence established that in most instances where original documents were available in terms of the handwriting expert's findings it was the signature of the accused which was there to see on those documents.

Our law entitles an accused person to his acquittal if his story even if unbelievable, happens to be possibly reasonably true. But if his version is beyond all reasonable doubt false then it merits rejection as in such . circumstances it stands not the slightest chance of being perceived as possibly reasonably true. There is no way then in the circumstances of the instant case in which a version given in a certain way could pass this test if it temporises to see which way the wind blows and suddenly goes in the opposite direction as did happen with regard to the discovery by the accused that the evidence he had admitted as true relating to DS Textiles was in fact essential in the obtaining of SAP permits.

The next aspect of the type of evidence which is described as circumstantial in this case though truly important carries a narrow bulk of the case in view of the fact that direct evidence was overwhelming against the accused. And in fact an inference that constitutes circumstantial evidence in this case is to be drawn from direct evidence itself; and it points in only one direction namely the guilt of the accused.

In Tatolo Phoofolo Vs Rex 1963 - 66 HCTLR 5 at 6 Watkin Williams P appreciated and cited with approval the description given by Lord Hewart LCJ concerning circumstantial evidence as follows:-

"It is evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics."

Thus in the instant case the handwriting expert knew nothing about the fact that the accused would agree with him, is shown to have independently and by undesigned coincidence established a fact which the accused for different reasons seeks later to denounce.

In Rex Vs Armstrong, Herefordshire Assizes April, 1922, Darling J stated the position

as follows: -

"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; but neither of them separately proves the guilt of the person. But taken together they lead to one inevitable conclusion.

I have already indicated that the accused tried an impossible feat of riding on two horses.

In similar circumstances Lord Devlin in Broadhurst Vs Rex 1964 AC 441

at 457 has this apt remark to make

"..................Save in one respect a case in which an accused gives untruthful evidence is not different from one in which he gives 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.............."

In going about the defence case the court adopted the approach advocated by van der Spuy AJ in S Vs Singh 1975 (1) SA 277 at 715 G that the court should discern whether it is demonstrably false or inherently so improbable as to be rejected as false even if the crown case stood as a completely acceptable and unshaken edifice.

Coming closer home I am enamoured of the dictum cited by Elyan CJ with approval in Marcus Leketanyane Vs Regina 1956 HCTLR at page 2 from the decision in Rex Vs de Villiers 1944 AD 493 where it is stated.

"In a case depending upon circumstantial evidence..............the court must not take each circumstance separately and give the accused benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must 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 satisfy the court, not that each separate fact is

inconsistent with the innocence of the accused, but the evidence as a whole is beyond reasonable doubt inconsistent with such innocence."

I am satisfied that the Crown has successfully crossed this pons assinorum.

To do so it had first to prove the essential elements of fraud consisting in misrepresentation, prejudice - actual or potential, unlawfulness and intent.

In accepting Mr Louw's submission in respect of the issues forming the essential parts of PW12's evidence I am inclined to adopt the summary thereof set out as follows:

The admitted and undisputed signature of the Accused appears on Exhibit 17 and 20.2 i.e. the bank documents or signature card.
The signatures on Exhibits "A" "B" and "D" were made by the same person.
The admitted signature on the bank documents i.e. 20.2 was by the same person that had signed Exhibits "A" "B" and "D". All the comparative signatures were therefore made by the same person who is none other than the accused.
The comparative signature of the accused and the disputed signatures were made by the accused.

The court has borne in mind that the crown urged that it does not press for conviction on the alternative counts relating to contravention of provisions of the relevant legislation cited at the beginning of this judgement. The crown's prayer is accordingly granted.

On the basis of all the foregoing I find the accused on all the remaining fifteen counts of fraud i.e. the fifteen main counts guilty as charged and prayed by the crown.

My assessors agree.

CHIEF JUSTICE

24th January, 2005

For Crown : Mr Louw

Assisted by : Ms Mofilikoane

For Defence: Mr Phoofolo

SENTENCE

The criminal justice system is awash with nightmares that have caused many a judge or the trial of fact a lot of anxiety with regard to sentencing. It is relatively easier to convict an accused person who has been found guilty than sentencing him. That is usually the most difficult part. True enough the accused has already been convicted and in response to mitigating factors that he raised the crown relies on the Heads of Arguments prepared and filed by Mr Louw for the crown but talked to by his assistant counsel Ms Mofilikoane who summarized them. In brief, the crown has argued quite strenuously against treating the accused with kid gloves. The crown has indicated that tremendous loss has been caused to the Government of Lesotho and that this loss has been ascribable to the accused. Part of the complication that the crown advances in this regard is that the accused never promised to refund the amount of the loss that has been suffered by the Lesotho Government.

What I myself find a lot more compelling is the fact that the accused, was in a position of trust and he betrayed that trust as a custodian of the keys to the gate. He undermined this responsibility and cocked a snook at the authority with which he was endowed. Not only so but he has also placed the Lesotho Government in an awkward position vis-a-vis its partners in the SACU in that Lesotho has to make good the huge short-fall involved. The poor Lesotho tax payers will have to fork out those huge sums. The accused is -surely accountable for this and it must be reflected in the sentence to be meted out.

The crown further indicated that the accused has shown no remorse and advanced reasons for saying it thinks there was no remorse on the part of the accused. One of the reasons advanced is that he didn't plead guilty, but instead charged everyone with conspiracy including the prosecutor. And that at the time of the commission of the crime he was still employed and therefore he suffered no financial loss and that he should have thought better of doing what he did regard being had to the next of kin i.e. the mother, the sisters and all the rest of his dependants. This is in brief what the crown indicated.

The defence on the other hand relying also on authorities, and in reaction to the evidence that the accused led before court indicated that the accused was quite remorseful and argued at a later stage that to be remorseful it doesn't necessarily mean that one has to plead guilty. With that submission I agree and would go further to indicate that, when it comes to a trial, an accused person is at large to plead as he has pleaded and let the justice of the case be proceeded with according to the rules which require the crown to prove its case beyond reasonable doubt. Of course there would be nothing stopping the accused in the middle of the trial if he feels that way - certain that issues have been raised, which I agree with and which if the court accepts I am inclined to think that now I must accept that I am guilty and in that respect he can throw in the towel - but his failure to do so does not necessarily mean that if the court has observed him to be remorseful, then he necessarily is not remorseful when he sticks it out to the end and because lack of show of remorsefulness may be indicated or motivated by lack of judgement and naivety. One point that stands the accused in good stead and; this is supported by the crown, is that he is the first offender. In that regard this

court is prepared to treat him rather as a fallen angel than as a hardcore criminal who, if sent to jail is going to meet with his colleagues with whom he is going to scheme on how they are going to take vengeance on society on the day of their release.

But having said that I find that the enormity of the crime, account being taken of the fact that the accused was in a position of trust puts me under the necessity to impose a custodial sentence. The mitigating aspects would be reflected by the portion of the judgement or the sentence that would be suspended. I have considered the authorities which have been tabled before this court and am really persuaded, for instance by the dictum in Rex Vs Moeketsi Makhethe by Cotran CJ as he then was in 1980 LLR/332 where it is stated that a judicial officer should state or record reasons for the delay and weigh that for purposes of sentence. This case has been delayed. The offence is said to have taken place in 1993 and the accused was remanded way back in 1994 but there was no progress in the case. First because it was crowded out by another case which I remember was a marathon in this court i.e. Acres which took months to complete and other commitments on the court's time including other cases which took precedence over the accused's case on the grounds, I think mostly, that he was on bail therefore those who were in jail should have their cases heard before his. That was one of the bases. But this didn't make life easier for the accused who as properly but by his counsel, had put the axe poised over his head throughout that period which may itself have amounted to sentencing him because as a civil servant who was interdicted without pay, he couldn't be allowed to take other form of employment elsewhere because that would conflict with his loyalty to his master the Government and the only employer who could legitimately take

him under its wing would be the government itself. So these are some of the factors that have to be taken into consideration and this is not to try and underrate the seriousness of this case. Fitting cases have been cited before this court which are quiet familiar to the court itself. The case of Sole for instance, which involved stealing out of greed millions of dollars yet when the High Court had imposed 18 years' imprisonment which in the eyes of the High Court was the minimum it could impose a different court sentenced him differently namely to 15 years. Now one would expect that for a lesser offence committed not necessarily for reasons of greed, but perhaps of need although there was not much need, a lesser sentence would be justified. The case of Kenneth Mahase with which this court is quiet familiar, was argued before this court and Kenneth Mahase had looted the funds which were in his custody as the first Secretary in the Lesotho Foreign Mission and when the matter came to trial and he was convicted it appeared to this court that the custodial sentence would not serve any purpose so he was given an option of a fine. Here again it should be illustrated that there was an element of remorse although the culprit had stuck to his plea of not guilty at the trial to its bitterrest end. One could see that the man had done what he had done thinking that he would not be discovered. But immediately on being was discovered he felt as if he could be saved by the world falling under him and he wished he could get this Tsunami to cover his shame. These was also a case of Moitsupeli Letsie which involved Makotoane and another, there again, the trio were charged with looting the Treasury of the kingdom of money, which the treasury was supposed to be looking after on behalf of the government and the nation. There the court did not have any difficulty in finding that in order to give a proper message to the doers of such evil deeds a long custodial sentence would fit the bill.

Here, and my assessors agree, there is a difference. It may be slight but it is a difference, all the same. I have indicated earlier it is a pity it is not going to be possible to either give a fine or impose a wholly suspended sentence or a light sentence for that matter but, a portion of sentence to be imposed will be suspended. Having said that, will you stand up Mr Thamae? I have observed you giving evidence, I saw that you were a quite remorseful contrary to what other people might say. This is duly shared by my assessors. We discussed that particular aspect of the matter and I emphasise that you might have done that evil deed because you were naive that is quiet possible but what is important is that we feel that you were quiet remorseful. But you did a very foolish act for which I am afraid you will have to be punished. Having said this therefore the minimum sentence this court is ready to impose is for you to be sentenced to a term of twelve years' imprisonment of which four are suspended for four years provided you are not during the period of the suspension convicted of a crime involving dishonesty. That is the order of this court.

My assessors agree.

CHIEF JUSTICE

24th January, 2005

For Crown : Mr Louw

Assisted by : Ms Mofilikoane

For Defence: Mr Phoofolo

R v Thamae (CRI/T/45/2001 ) (CRI/T/45/2001) [2005] LSHC 24 (24 January 2005);

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R v Thamae (CRI/T/45/2001 ) (CRI/T/45/2001) [2005] LSHC 24 (24 January 2005);

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Free African Law

Free Foreign Law

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