HIGH COURT OF LESOTHO
by the Hon. ML Lehohla C.J. on the 24th January 2005.
accused pleaded not guilty to all seventeen charges of fraud set out
in the indictment and the appurtenant preamble thereto.
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.
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
documents including some of the accused's contradictory statements,
which were irreconcilable with acceptable or credible evidence.
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
accused DW1 gave the sole oral evidence for the defence.
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.
of the existence of a felt need among the states in question for the
development of the apparel and clothing industry, means
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
paragraph 5 of the indictment. See Folio 1.1 of the Republic of South
Africa Board of Trade and Industry Guide.
individual company or firm had satisfied those conditions it was then
entitled to a permit called Structural Adjustment
-SAP for short; also known variously as 460.11 permit or the CODE.
relevant period of the abuse of the SAP permits the accused was in
the employ of the Lesotho Government as Chief Development
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
worth noting that paragraphs 2 through 4 and 5.1 through 5.6 of the
indictment were admitted by the accused in the matter
The summarised purport of this admission is that the accused was
authorised to issue SAP permits. The SAP was a scheme
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
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
conditions were of the following order: namely, that to be entitled
to the SAP permit the individual has to
an industry enterprise engaged in the manufacture of yarn. fabric or
clothing and be registered for the SAP with the Department
raw materials manufactured in the SACU area or raw imported
materials on which duty was paid;
at least 2.5% of its turnover, in terms of value, of the products
made from local raw materials;
the requirement that stipulates that only exports to areas outside
SACU qualify for rebate permits;
the requirement that the consumption for local raw materials used
for export and the value for exports must be certified
auditor. Alongside this requirement is the need for firms to prove
that the export proceeds have been repatriated to Lesotho;
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
entity has satisfied any of the relevant and necessary conditions
shown above it is not entitled to receipt or issuance
to it of the
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
(a) LESOTHO HAWK (PTY) LIMITED ( see folder 3)
(b) DS TEXTILES (PTY) LIMITED (see folder 8)
LESOTHO APPAREL (PTY) LIMITED (see folder 13)
connection it is contended that the three companies above named a b
and c did not fall within the purlieus of qualification
the conditions set out earlier. Notwithstanding this embargo the
three companies were issued with SAP permits. This
is common cause.
further contends that the accused either compiled and or authorised
and or verified the SAP permits regarding the three
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.
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
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
alternative to the I 7 counts of fraud the accused was further
charged with contravention of Sect 84 (a) and (c) of the Customs
Excise Act NO: 10 of 1987 set out as follows:
Accused issued SAP permits in the name of the three entities in terms
of the Structural Adjustment Programme for apparel, textile
clothing industries (SAP permits) which allowed the aforementioned
three entities or holders of the permits to deal with the
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.
various witnesses called by the Crown Leslie Geffen was the first.
evidence PW1 disclosed that he is an employee of South African
Revenue Services namely Customs. He has thirty years' experience
service rendered in two capacities namely:
years in Customs Administration
years in investigation as a member of the SCORPIONS.
he was asked to conduct investigations regarding SAP permits. His
Head Office in Pretoria was informed about irregularities
in Lesotho. He came to Lesotho to carry out that function.
important to emphasise that SACU was interested because of the
shortfall in revenue collections. SACU pool is a collection
monies collected by partner states.
a formula used by partners to share the revenue collected in the
common revenue pool by the contracting states. A shortfall
to negligence of a particular partner adversely affects that
partner's entitlement in the pro-rata share of the benefits
from the Union. Such a state could be surcharged or in the extreme
case ostracised or excommunicated.
mention for clarity that contracting states of SACU are South Africa,
Botswana, Lesotho, Swaziland and Namibia. If one member
complied with the terms, of the agreement as outlined in the tariff
schedules then all members are informed about the distressful
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.
initially assigned the task to investigate one importer namely
LESOTHO HAWK.. The investigations covered Lesotho and RSA
on the SAP
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
financial statement of the previous year audited is accordingly the
prerequisite for the issue of SAP permit based again on the
for the whole year. See paragraph 7 of the guidelines.
of proceeds is an essential consideration and should be supported by
documents to that effect as well as the requirements
at that exportation of goods produced should be to countries outside
investigations eventually extended to other firms besides LESOTHO
HAWK. A schedule of underpayments was prepared by PW1 and
CC Van Rensburg. See folio 5.2.
outline of the SAP permits issued is as follows:
relating to Lesotho Hawk reflects permit number 58 issued by
Department of Trade and Industry with M630 000-00 being the
relating to Lesotho Hawk reflects permit number 59 issued by the
Department of Trade and Industry with M585 000-00 being
the amount of
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.
relating to Lesotho Hawk reflects permit number 60 issued by the
Department of Trade and Industry. The amount of duty
exempted here is
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.
3.11 relating to Lesotho Hawk is in respect of permit number 62
issued by Department of Trade and Industry. The amount of
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
accompanied by a Lesotho Customs Officer when he went to Lesotho Hawk
for carrying out his investigations.
findings were as follows:
were no forms to indicate that Foreign Exchange Earnings were
repatriated to Lesotho Hawk from 1994
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
application forms in terms of 2.1 of the guidelines.
the meaning of relevant Bills of Entry (B/E) from 5.6 in terms of
purpose, Country of Destination and Customs Duty rebated.
importance is that schedule 460.11 wherever it applies is a clear
indicator that a consignment was supported by SAP permit.
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.
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
amount that was rebated was in effect the total loss to the Customs
light of the foregoing and contrary to the accused's representations
earlier referred to it can safely be concluded that
International was not entitled to SAP permits because there were no
application forms and supporting documents stipulated
in the general
evidence of PW1 in brief was of a formal nature regarding the SAP
scheme, the investigations he had conducted, the findings
made, the scope of the prejudice his investigations have helped throw
some light on the matter as more specifically reflected
schedules referred to regarding the use of the permits. See folders
5, 9 and 14.
witness further placed all the relevant documentation before this
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.
relating to permit number 93 was shown to have been issued by Trade
and Industry Department to DS Textiles. The amount
of exemption was
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
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.
appear that one permit was fraudulently used. It was used to clear
goods in Durban and Cape Town simultaneously.
shows that M680 000-00 was all used up.
8.10 relating to permit 88 shows the amount exempted as M555 000-00.
It was used in Durban.
8.11 relating to permit 88 reflects the amount exempted as M555
8.12 relating to permit number 88 used in Cape Town reflects the
amount exempted as M555 000-00.
was that double use of permit number 88 as illustrated above.
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.
8.15 relates to permit number 90 and shows the amount exempted as
peculiarity in the permit is that while on the one hand, the original
does not reflect 90, the faxed copy on the other hand
someone attempted to tamper with the number on the original.
8.16 shows that it was used in Cape Town.
8.17 is a continuation of amounts reflected on folio 8.16.
It is in
evidence that Customs Officials in Lesotho reported about the
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.
schedule of underpayments by DS Textiles was prepared by PW1 and
checked by CC Van Rensburg. See Folio 9.2.
rebated amounts were revised and the calculations were in line with
the tariff rates applicable at the time of clearance of
it to say the total underentry of Customs duties amounted to M5 209
390-30. This is the actual loss to Common Customs Revenue
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
54131. Suffice it to mention that the Customs Official who was
assigned to the investigation team is included in the reference
by PW1 as follows:
drove along Moshoeshoe Road in an effort to locate the manufacturing
premises of DS Textiles (PTY) Ltd. They were non-existent
therefore our efforts were all in vain. See DS Textiles (PTY) Ltd
file folio's 12.1 to 12.37 of Bundle A.
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.
TO BEAR IN MIND It has to be borne in mind that
of annual turnover is one of the factors to be considered
terms of folio 1.1 the firm would get SAP permit only after a year
1.5 paragraph 11 shows that permits are valid for one year from lst
April to 31st March of the following year, and further
expiry date would not be extended.
1.2 paragraph 7 adamantly lays down that documentary proof of the
turnover, qualifying exports, money received and local
would have to be submitted before a permit could be issued.
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.
to say two months before the application for a manufacturing licence.
Folios 12.15 and 12.12 relate to assessment of application
manufacturing licence and application for industrial licence.
noticeable is the backdating to stamps in permit numbers 88 and 90.
of folio 12.21 the licence to manufacture is dated 2nd July 1993 as
per receipt number 252923.
circumstances outlined above it becomes patent that DS Textiles (PTY)
Ltd did not qualify for SAP permits at that stage.
THE IRREGULARITIES RELATING TO LESOTHO
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
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.
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
13.3 relates to SAP permit 93 exempting the amount of M2 000 000-00
13.5 indicates transfer of SAP permit dated 25-11-1993.
13.6 refers to attached schedules among which 13.5 was one which was
subsequently transferred to DS Textiles. See Permit number
also folio 13.7 a letter of transfer marked for the attention of Mrs
van der Merwe dated 12-12-1993.
13.8 relating to SAP permit 65 exempts Ml 596 000-00 from duty
13.11 relates to SAP permit 65 exempting M l 596 000-00 from duty. It
was used in Johannesburg on dates:
13.15, 13.16 and 13.18 relate to Lesotho Apparel.
13.41 is a Lesotho Apparel Invoice dated 25-09-1993 reflecting an
amount of M4 939, 200-00 due for exemption from duty.
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
warehousing entries were found. RIB entries were thus not acquitted
by warehousing entries.
to folio 15 reflects PWl's findings summarised in respect of Lesotho
Apparel as follows:
were no application forms.
were no backing up documents required prior to the issue of SAP
firm was in liquidation before the permits were issued.
relevant documents were obtained during PW1's investigations. The
forms constitute the normal customs forms.
1.1 to 1.6 outline normal control procedures.
exhibits were the following documents
1.1 to 1.7
2.1 to 2.7
3.1 to 3.12
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.
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.
confirmed that the accused was the Chief Development Industrial
Officer and that he further had knowledge of the SAP permits,
commonly referred to
permit. He confirmed that the accused was the person responsible for
indicated that, the SAP permit scheme was intended to provide an
incentive to manufacturers for purposes of generating employment
foreign exchange holdings.
light on the importance of the requirement namely that the
manufacturer had to be in business for at least a year, submit
necessary application and produce audited statements.
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.
because of the pervasive permits abuse, the source of which at the
time was a matter for bewilderment to higher authorities
with the scam, a groundswell of rumours erupted in the market about
permits alleged to be " floating around"
who did not qualify for such permits. These rumours are what indeed
set in motion the machinery that culminated
in the accused's
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
such authority and discharge such function in the normal course of
connection the accused had not only access to original blank permits
but was closely and intimately associated with the
system used in the Department, as well as the file reference numbers
of the "entities" referred to earlier
and the stationery of
testified that he had created documents 1.11 to 1.13 while the
accused had created his own unique numbering system regarding
permits to prevent fraudulent and or incorrect permits. I may just in
parenthesis express the view that it shall ever be regrettable
these documents kept by the Department being accountable documents
were not issued through the authority of the Government
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.
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
document paged 1.1 to 1.6.
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
for sound reasons expressed earlier.
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
signature had been forged. The significance of the accused's letting
this aspect of the matter pass in silence is all the more
as he himself testified that PW2 bore him no malice.
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
by one Sekeloane did not comply with the requirements of the SAP
permit scheme. It was the thrust of PW2's evidence therefore
permits issued by DS Textiles were accordingly incorrect or
fraudulent in that DS Textiles had not been in operation for
than a year. I agree for I found this view to be properly founded.
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
further indicated that the accused had signed documents 12.17 and
12.20. This in fact was initially admitted by the accused
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
prerequisite document to an SAP permit. An admitted piece of evidence
representing the truth does not change its quality as the
simply because applied in certain circumstances it becomes
inconvenient to the accused. None of the parties in litigation
entitled to blow hot and cold. Once the truth is admitted for what it
is worth it has to be accepted thread and thrum.
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.
indicated that the owners of Ms Clothing and DS Textiles, no doubt
moved by the sight of everybody getting good business and
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.
illustration of indignation suffered at seeing oneself being
unfairly-discriminated against. Sekeloane is said to have accused
and his Department of issuing SAP permits to others who did not
quality, with permits, yet refusing to issue Sekeleoane with
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!
compiled document 1.18 dated 8th Febraury, 1994.
testified that during a discussion held between him and the accused
on permits reckoned to be forgeries, the accused had intimated
he had personally issued the permits of DS Textiles. Confirmation of
this was in the report dated 4th February, 1994 just
handed in as exhibit documents 1.7 through 1.21. He indicated that
eventually the accused had orally complained that his signature
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,
8.11, 8.15, 13.1, 13.3, 13.5, 13.6, 13.8 and 13.11.
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"
'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.
aware in her Department of the SAP permit scheme and that permits
falling under that category were issued by the Department
Industry. During a conversation with the accused he intimated to her
that there were problems in connection with permits. He
that not all manufactures qualify for the facility because it is just
an incentive to exporting businesses.
: "......... 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"
put the reporting and investigative process into motion and informed
various Department Heads and her Commissioner that
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
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
similar to his common sense dictates that he should have been the one
taking a far more active role in seeing that investigations
in motion in order to catch culprits while clearing his name at the
saying this because PW3 indicated that when she took it upon herself
to report the matter to her Commissioner, in November
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
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
and seeing to it that investigations begin at once? I may just
indicate that what comes to mind to explain PW3's motivation
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.
further confirmed that the three entities mentioned earlier did not
qualify for SAP permits. She confirmed that there were people
attempted to bribe PW2 but that PW2 had merely referred them to the
accused for his action.
'Malefa Ntepe was the next witness who testified that she was
employed as a copy typist in the Ministry of Trade and Industry
confirmed the reference numbers that were typed onto the permit as
well as the entity to whom the permits were addressed including
amount reflected on the permit. The SAP permit document was nothing
but a pro forma document with various blank spaces on it.
indicated that she typed the words Lesotho Hawk and DS Textiles on
permits on the instructions of the accused. It was her evidence
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
testified that in 1993 she could recognise the signature of the
accused, but that while testifying she couldn't. Her evidence
credit of total lack of presumptuousness often encountered when
dealing with witnesses who find it hard to admit shortcomings
their testimony precipitated by lapse of memory and recollection of
events and factors surrounding a case.
been then referred to her 1994 statement she came out with an
important piece of testimony that she had typed the permits
names of Lesotho Hawk, DS Textiles and Lesotho Apparel and various
others footing up to some 23 permits.
further importance despite her lapse of memory and at times her
frustrating attempt to avoid committing herself and thus being
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
Count 17 ; document 13.8
her over-caution it appeared that from her statement she could
identify the signature of the accused on the abovementioned
as reflected in the various counts and documents. Be it noted that
she specifically indicated that " and all these
signed by Mr Thamae (the accused) and I can clearly identify his
signature on them today."
recalled that despite agonising cross-examination which she invited
in part by hesitancy resulting not from the inclination
the court but from over-caution, on numerous occasions during this
spell she confirmed that although she could not remember
permits, she knew, prior to refreshing her memory, that the names DS
Textiles and Lesotho Hawk were typed by her,
on the instruction of
MOTSOENE KHAKETLA was the next witness to testify for the Crown. He
said he was employed as Chief Customs Officer by the
of Customs and Excise during 1994 and 1995 and as such was in charge
of the investigation into the matter, from the customs
with PW l.
result of their investigations they found that DS Textiles had caused
a loss to the Lesotho fiscus in the amount of M5 698
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.
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
Pusetso Ramohapi informed the court that she was also employed as a
typist by the Department of trade and Industry during 1992
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.
cross-examination PW6 further confirmed that some of the permits were
typed on behalf of one 'Masefabatho Lebona though those
typed by her but her knowledge of these permits was watertight for it
was proved by the specific characteristics she ascribed
permits to, namely that on their second page they reflected the
figure 100% as well the peculiarity of the tariff heading
invariably didn't have a full stop between numbers but, for instance,
went something like this i.e. 6200 instead of 62.02.
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.
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
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.
witness was PW7 Litelu Maema who also was under employment by the
Department of Customs and Excise in the Investigation
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.
Silva was the next witness to be called to testify. In that
connection he indicated that he is a Director of Gobodo Forensics
Investigative Accounting (PTY) Limited situated in Johannesburg and
commonly referred to as "Gobodo."
instant investigation commenced under KPMG Forensic a firm he was
working with prior to joining Gobodo. The mandate for Gobodo
investigate had seen transferred by the Lesotho Auditor General for
purposes of unearthing what the Structural Adjustment Project
scam in that scheme was about.
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.
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:
3.2 relating to Count 2
3.9 relating to Count 4
relating to Count 5
formulated his opinion regarding the signatures on material gathered
from the records, record keepers, other witnesses including
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
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.
witness, in reference to DS Textiles testified that it was not
entitled to SAP permits and that an application for a licence
manufacture was only made available to it during July 1993 although
surprisingly it was already in possession of SAP permits
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
relating to Count 13
evidence in this regard was based on what he had gathered during
investigations including the handwriting expert's report. Upon
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.
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
investigation revealed also that Lesotho Apparel had sold their
permits to an entity surviving under the name Iraan Finance
Limited as reflected in documents 13.40 and 13.41. Evidence revealed
that these permits were sold to the value of M49 939
referred to the bank documents reflected within folder number 17
containing documents 17.1 to 17.17. Thereupon his testimony
on the bank opening documentation of the accused whereupon the
signature of the accused was laid bare. The defence very
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
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.
uniqueness of these additional permits consist in the following
percentage is written 100%
tariff code did not have a full stop in it.
name DS Textiles was misspelt.
signature appearing thereon seems to have been an attempt to forge
the signature of the accused.
amazing twist of unplanned fate these permits appeared to be in line
with the evidence of PW6.
Mahali 'Mamoroke Lebesa is presently the Principal Secretary for the
Cabinet Economic Affairs. During 1993/94 she was employed
Ministry of Trade and Industry under its Department of Industry where
she served as a Senior Industry Development Officer
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.
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.
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
alluded to having seen the existence of contact between the accused
and the Sekeleoane referred to earlier. I may just point
however innocent the apparent contact between the accused and
Sekeleoane may have been the Court is not oblivious of the
evidence shows that this is the self same Sekeleoane who claimed
title to SAP permits even if he didn't qualify because
him who did not qualify had obtained them!
as it may PW9 recalls that the contact the accused had with
Sekeleoane had an additional dimension, if I can call it that,
ex soldier called Thebetsoeu.
identified the signature of the accused on various documents relating
to different Counts as could conveniently he set out below
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
documents 13.5, 13.6, 13.8, 13.26 and 13.37 relating to Count 17.
cross-examination PW9 asserted that the accused admitted that Lesotho
Hawk. DS Textiles and Lesotho Apparel did not qualify
crucial element occurred to all appearances prompted by the steady
course which PW9 seemed to have held in the generality
testimony which seemed not to contribute at all to the accused's
comfort because when the accused squirmed under PW9's remarks
Counsel Mr Phoofolo next to whom the accused was sitting suddenly and
for the first time indicated that the signatures were
accused's and were therefore all forgeries. Surprisingly and
significantly though such a denial was put to none of the
the demerit of turning on its head the salutary principle formulated
gratifyingly in Small Vs Smith 1954 (3) SA at 434
adopted in Phaloane Vs R 1981 (2) LLR at 246. The paraphraseology of
that principle is that it is now generally accepted
procedure that the cross-examiner will put as much of his side's case
to witnesses for the opposite side to give all of
opportunity to admit or deny the version being put to them. The
reason for the soundness ascribed to this view is to help
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
argue that their untested version is all lies! Mr Phoofolo is a
practitioner of vast experience. Nohow could he have fallen
type of pitfall unless placed in that awkward position and torn
asunder by dual loyalty between the Court and his client
to me to
be the latter's incessant promptings which at one stage culminated in
the accused denouncing his own Counsel during these
brand of rumour fuelled another all emanating from abuse of SAP
permits PW9's path was crossed by one to the effect that
had received a motor vehicle and that PW2 and the accused had
received 20% shares in a company as a reward for the
permits. I am prepared to discard this as nothing but rumour.
what appears to me to be part of the woes that persistently seem to
be dogging the accused is the fact that while visits
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
his Counsel the accused sought to indicate to PW9 that the duty and
or blame for the imports against permits rested with
Officers. While conceding this charge as a possibility PW9
nonetheless denied its overall purport based as it was on
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.
Pradip Laxman Popat was the next witness for the Crown. He testified
that he was a qualified Chartered Accountant by profession.
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.
further told the Court that he had bought Indi Ocean permits. He had
friends among the owners of Indi Ocean among whom was
Clive Dwyer. In buying Indi Ocean permits, PW10 said he had
authenticated these with his friends, the owners of Indi
purchasing the Lesotho Hawk permits he thought it prudent to take
time to authenticate these permits with the relevant
accused being the man on the spot was specifically the Department's
Official PW10 found himself destined to deal
authentication of the Lesotho Hawk permits. Thus in 1993 around 15th
September or thereabouts PW10 headed for the
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.
attention to detail augments his credibility as to his presence and
in part some of the happenings which he said occurred
presence. He said that for instance, during the authentication
process the accused called for the Lesotho Hawk file and
looking through it he indicated that the permits were correct and
proper and therefore could be used.
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.
authenticated permits were further referred to in the purchase
document and on the permits as reflected in exhibits 3.1
relating to counts 1 through 5 respectively.
later PW10 stated that he was able to identify the accused as being
the Mr Thamae with whom he had the interview during
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.
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
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
witnesses or witness who would contradict them on the issue should
they deny the defence's version, It is not wrong to maintain
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.
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.
handed in documents 17.1 through 17-17 consisting of a variety of
pages of the accuded's account among which can be mentioned:
account opening documentation
including(c) affidavits the subject matter of which falls to be
treated in terms of provisions of Section 236 of our CP&E.
identified the accused's specimen signature reflected in document
17.6 which was uncontested by the accused.
gathered from the evidence of PW11 that three amounts were deposited
into the accused's account consisting of:
(b) R 18
testified that the accused had indicated his occupation as a
consultant for AG-IMP on the 28th September 1993.
reference to R18 000-00 PW11 indicated that it was a cash deposit.
The R100 000-00 deposit amount was a cheque deposit emanting
Technical Development IMP. PW11 indicated that 17.9 is a savings bank
statement belonging to the accused.
witness indicated that the account is still operational.
denied that bank policy allowed that anybody else can open an account
for someone who is not a minor. She referred to this in
" Never. Its' against bank policy. You can't open an account for
someone else unless he is a minor. You can open an account
name and then you sign on it, not the minor.........."
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"
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
the accused's father was disabled hence needed assistance by the
accused to open accounts in Ficksburg.
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
Petrus Jacobus Esterhuizen was the last witness for the Crown and
gave evidence in his capacity as a hand-writing expert.
currently employed as such by the South African Police Services at
the Questioned Documents Unit of the Forensic Science Laboratory
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.
report itself contains sub-divisions handed in individually and
separately among which can be specified the Court Chart and
document Exhibit 20.2 an analysis of the original handwriting of the
accused on his bank opening documentation as reflected
17.16 earlier referred to in Miss Swart's evidence and which was an
undisputed signature of the accused.
PW12 has a rather unfortunate manner of failing to answer a simple
question which required a "yes" or "no"
instead preferring an elaborate round about theoretical exposition
that was extremely frustrating at times especially when
a nagging feeling that this behaviour
attributable to the fact that English not being his first language he
might just have not captured the essence of the question
nonetheless brought to surface the salient points which were
indispensable to the purpose of this inquiry.
indicated that the signatures on the following Exhibit numbers were
undoubtedly of the accused, to wit:-
3.1 all relating to Count 1
3.9 relating to Count 4
8.4 relating to Count 9
13.1 all relating to Count 15
13.3 relating to Count 16
13.26 relating to Count 17
further in his evidence PW12 indicated that the signature on
documents 3.3, 1.3, and 13.32 had a strong degree of similarity
the accused's signature. Elaborating on the meaning of the phrase
strong degree of similarity PW12 indicated that the document
the signature appeared was signed by the same person as had given the
specimen signature i.e. the accused, and that the
were photocopies. He however qualified his answer by stating that as
photocopies and because
factor he was not able to mark out the eight points of similarity it
would be impossible to state beyond doubt that a signature
in such circumstances is genuine, he nonetheless was of the opinion
that it was the signature of the accused.
further to indicate that the signature reflected in disputed
documents 8.13 and 13.6 had a slight similarity to that of
accused and stated that he could mark out only certain points of
similarity, but that while on the one hand he couldn't say
beyond a reasonable doubt the accused's signature, he couldn't on the
other exclude the accused as the person who had made
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,
also have been made by the accused. In brief he could not exclude or
include the accused as the individual who made these
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
high exercise of caution verges on over-caution that
fights shy of putting the accused in bad light all
It should be borne in mind that he indicated that if he had had
access to the originals his findings would have drastically
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 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.
submitted that it had fully complied with provisions of Section 232
of the Criminal Procedure and Evidence Act 1981. I
of significance which detracts from all the accused's defences
consists in the fact that when compared with disputed signature,
original signature of the accused on the bank documents, 17.16 was on
all fours therewith. Thus if the signature on the bank
documents was admitted as the accused's and the same signature
happens to chime in with the disputed signatures it stands
that those disputed signatures which compare positively with the
admitted one are his too.
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
"B" and "D" were made by the same person. These
indeed corresponded positively with the disputed
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
also that the signatures on document 20.2 i.e. Exhibit "A"
"B" and "D" were made by the same
also his further finding that the signatures on exhibit "C"
i.e. the disputed signatures were not forgeries. He
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.
now to the evidence given by the accused the Court received
confirmation of the fact that SAP permit applications were dealt
by the three authorised persons namely (i) himself, (ii) PW2 Maieane
and (iii) PW9 Mahali Lebesa. Besides these were support
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
testified that SAP permits were kept in the office of the secretary
to the Commissioner albeit that numerous other people had
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
of the SAP permit would be granted by any of the three concerned.
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
information to complete the permit. An original SAP permit would have
original typing on it together with an original signature
original date stamp.
accused went on to point out that during the initial period of around
1991/92 there weren't any problems regarding the SAP permit
But with the advent of the permits becoming transferable around April
1993 the problems arose as a sequel thereto.
accused chose to testify to a select set of problems regarding the
SAP permit scheme which he said arose in 1993.
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,
Individuals or firms having no manufacturing licences insisting on
Lebona having issued permits.
though the accused side-stepped the importance of testifying about
forged permits or even forgeries relating to his own
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
invited to look into this wholesale scandalous event occurring in his
own Department. One wonders what had suppressed the
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.
testified that he attached to Exhibit 1.7 various permits which had
not been issued by the Department and was quick to describe
which reflected my signature and that of [PW2] Mr
accused expansively highlighted in Exhibit 1.7 the fact that some
persons or individuals issued permits in the name of the Department.
again a matter that calls for comment that the accused failed to
reflect in the document his new version namely that his signature
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
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
is now faced with an untenable situation where, despite that the
accused had apparently been aware of the problem since
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.
attempt to lend credence to the novelty that he suddenly embarked
upon in his evidence he indicated for the first time in
- in - chief
nature of the forgeries consisted in the following features or
size of the stamp and the number on it
appearance of the signatures: that their features resembled both the
accused's and PW2's.
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.
sequencing as to the numbers on the permit : that company file
number was included in the permit number as well as a sequential
just add that this attempt to lend credence to the new found and
therefore highly cherished brand of evidence merely serves
indicator of the degree to which the accused is prepared to depart
from the truth.
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"
accused had steeped himself so much in self-deception that in saying
that he first knew of the questionable numbers on the Lesotho
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
version at the time it was rendered. Thus he said his signature did
not appear on the Lesotho Hawk SAP permits.
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
validity of this proposition fails to pass muster when subjected to
the glare of forensic search light in the following respects:
blissfully overlooks or totally ignores the fact that customs entry
points were all over the SACU area. For instance in
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.
further attempt to illustrate that permits could not be issued in
April 1993 the accused testified that the SAP permits had
been used by
April 1993. emphasising also that if the permits had not been used by
then the Customs Officials would then have forestalled
the plausible soundness that this proposition is intended to convey
it moves me to pity to observe that first, this proposition
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
accused took a stand that SAP permits were forgeries basing himself
on reference to various self-composed problems on the strength
which he sought to persuade the Court that they adhered to those
permits. In fairness to him during cross-examination he conceded
the permits had the appearance of the correct permits. Thus on this
point he disabused the Court of the impression that he
determined to deny even the obvious.
cross-examination of the accused by Mr Louw traversed the broad area
which ranged from his passports, his implied alibi connected
alleged trip and stay in Ireland during some of the occurrences
alleged to have been affected by him at the time and his
with the Standard
Ficksburg including the various permits he is alleged to have
appended his signature to.
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,
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
accused admitted signatures Al through A6 appearing on the Court
chart-exhibit 20 as well as signatures including documents
B7 on which those signatures appear.
however strained to deny signatures appearing on documents Dl through
D16 which are SAP permits ostensibly signed by him. He
issuing SAP permits in respect of Morija Textiles CGM and Cee Bee
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
itself in the same boat because it was a Chinese firm and imported
important to observe that, as shown in document 105 the SAP scheme
which had started in 1978 would be valid for a year. The
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.
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
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
result of the wave of interest raised by the high level of traffic in
permits he found himself receiving and collecting permits
sources to which he would reply as appropriate in terms of whether
the party so inquiring was entitled to SAP permit or not.
after the intervention of Police he wrote a report on 11th November
1993 to wit document 1.7. to 1.8.
accused indicated that he did his own investigation, took his
findings to the staff and reported on it. Save to say that by
placing his untoward discovery immediately before the police the
accused's exercise amounted to placing the cart before the
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.
on the theme he had developed the accused by reference to document
1.7 paragraphs 5,6 and 7 indicated that his Department
with phone calls from people seeking to have their permits
authenticated. He stated that most of the permits he was
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
itself without abating till November 1993 when police got involved at
the instance of PW9 the accused remained blissfully
seeking to deal with the situation privately and without any attempt
to bring it to light in whatever manner despite
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.
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).
explained that during the entire period he only wrote one report and
stremously denied that he had written the one reflected
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 accused in dim light if I can put it as lightly as that.
Confronted with this reality the accused seeks escape through
theme of conspiracy by Crown witnesses to gang against him for no
apparent reason. In my humble view this charge cannot
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
1.14 reads as follows:
OF SAP SCHEME
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 to bring to your attention some of the copies forged permits
which are found recently.
short report I avail myself for more possible information which may
be at our disposal.
before Commissioner of oaths Maseru P.H.Q. on 22-02-01."
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:
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.
beggars description that despite the evidence of PW12, PW4, PW2 and
PW9 that the signature appearing on permits in folder 3 of
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.
with (PW10) Popat's evidence the accused denies his involvement; and
asked why PW10 should testify as he did about the
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
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.
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
truth was something to redound to his credit as a witness in the eyes
of this court. But, lo and behold! When he discovered
these documents related to DS Textiles and as such were essential in
the obtaining of SAP permits he suddenly changed his mind
attempted to withdraw his admission and change his version into a
denial as if doing so would alter what constitutes the truth
had been man enough to admit in the first place.
justice system is awash with instances of many accused persons trying
to ride on two horses and in the process finding
spread-eagled on the hard ground.
general denial the accused charged as lying PW2, PW4, PW5, PW6, PW8
and PW10. He was of the opinion that PW3, PW5 and PW7
wishing not to thwart the accused's efforts to have his say and
perhaps in the process advance his defence merely sounded
warning by asking the accused if he appreciated the implications and
consequences of his charges against the Public Prosecutor
Officer of this Court Mr Louw as having constructed a case against
him. I don't think he fully understood the meaning of
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
the bank as both irresponsible and without foundation.
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.
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.
Counsel indicated that the accused attempted to show that he was
overseas, by referring to a stamp for the date 14 February
his passport, in London, Heathrow. I must while on this confess to my
surprise that there were no stamps in his passport
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
available. An uncertified copy of the time-table and photographs
taken at a gala evening party supplied by the accused cannot
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
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
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
re-entry back into Lesotho. But a week previous to his official
re-entry into Lesotho his victim dies within minutes due to
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
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!
accused acknowledged that the fraud perpetrated in this matter caused
severe prejudice to the Government of Lesotho including
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.
to his version regarding the bank account, the accused has the
following to say:
he opened the account on behalf of his father.
it was his father's monies, which were paid in there.
his father was present when the account was opened for the first
time and an amount of R150 000-00 deposited in there on
very strange that the accused should churn out this version so soon
after he had told the court previously in a steady and
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.
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
(ii) while indeed his oral evidence including that of PW2 together
with his applications for leave and housing showed him truly
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
(iv) an electronic transfer was effected into his account on 8th
October 1993 from First National Bank Ladybrand by one MM Mpeta
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,
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
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.
documents 17.8 and 17.16.
to me that faced with the possible explanation at some future date
regarding where he got all this money as a Civil Servant
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.
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.
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
on 12th October 1993 and 6th November 1993 which are the dates
deposits were made.
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.
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.
indicated that documents 1.14 and 1.15 are in essence alike except
for the list that appears below the signature above the
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
accordingly accepted by this Court that, since the forensic evidence
on the signature has proved true and therefore acceptable,
inference follows naturally that the accused had created document
1.15, signed it, and having indicated his agreement in the
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
already indicated how the documents relating to Masefabatho Lebona
are different from those relating to the case with which
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.
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.
having initially admitted that his signature appeared on these
documents the accused only after realising that the document
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.
accept the Crown's submission that the accused's change of version
under cross-examination is indeed indicative of the manner
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.
need indicate that with regard to Documents 13.5 and 13.6 although a
variety of witnesses had testified to the accused's
appearing therein, he flatly denied this. Perhaps it is fruitful to
indicate that in essence what is contained in these
transfer permits specifically referred to in Counts 4, 6, 7, and 9 in
relation to Lesotho Apparel.
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.
up the discrepancies in accused's evidence regarding banking it is
worth stressing that whereas the accused deliberately
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.
regarding Document 17.8 the deposit document clearly shows a deposit
from an entity styled Technical Development comparing
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
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
Phoofolo for the defence sought to fight the case on a general ground
that what have been placed as evidence before Court are
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
"Whenever any book or other document is of such a public nature
as to be admissible on its mere production from the proper
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
and certified as a true copy or extract by the officer in whose
custody the original is entrusted."
already indicated that the rambling account of irrelevancies by which
the accused sought to imply that everyone out there
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.
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
that they be of a public nature on the basis of which their mere
production from the proper custody qualifies them to be
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.
the only instances where the documents were certified were in respect
of those testified to by the handwriting expert
documents which were placed before individual witnesses including the
when testifying were copies of the master file containing originals
in the custody of the handwriting expert with the certified
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
had he done his work, are damning unless some credible explanation
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.
defence case seems to revolve around the point that because not a
single witness has come to testify that he or she saw the
append his signature on any of the documents before court then all
the charges preferred against him should fail as unsustained
evidence led or simply as based on unsatisfactory evidence hence the
high degree of criticism that was levelled
the Crown case especially with regard to Lesotho Hawk. However, apart
from the fact that this court does not in its humble
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.
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:
of a disputed writing with any writing proved to the satisfaction of
the Court......... to be genuine may be made
writing and the evidence of witnesses with respect thereto may be
submitted to the Court...........as evidence of the genuineness
otherwise of the writing in dispute." Thus the court is at large
without the assistance of an expert witness to consider
the writing that these lay witnesses claim to know to be the
accused's with the writings he denies the authorship of.
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
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
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
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.
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
this regard could be said to have been more manifest in PW6 than in
any other. But the fact of the matter is she
cross-examined on matters far beyond what it occurred to me. her side
had called her to testify on. Her evidence-in-chief was
the simple task of showing that she typed permits in the names of
Lesotho Hawk and DS Textiles and not that she had
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.
Counsel for the defence took issue with the Crown that the accused
could not have incorrectly completed the permits. The
to this charge which I found truly satisfactory and logical was that
indeed if it is correct that these permits were
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.
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
first place there are distinct differences discernable from those
documents. The typewriter used in one is clearly different
used in the other. The permits themselves look different and the
positions of the respective signatures differ including
respective forms. For all it is worth the letter following the small
"s" in the permit number of 13.11 is small
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
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.
challenge raised by Mr Phoofolo during addresses related to the
460.11 permit on document 12.17. He argued that this is
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.
the case presented on behalf of the crown has always been that the
SAP permits authorised by the accused were used to defraud
Government of Lesotho and other industrialists. It has never been
that he transferred the permits. The charge sheet itself
itself to that first premise. However, the fact that it has been
shown that the permits were transferred serves to strengthen
prejudice element of the case only. The
it was shown through the evidence of Popat (PW10) that the permits
were indeed untilised and as a result of such use of
prejudice is established.
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
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
way of conducting the case for the prosecution. The lay witnesses'
evidence enjoyed corroboration by that of the handwriting
analyst who placed the facts before the court to enable it to reach
an objective conclusion.
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
this court, the extracts below seem to be in in point for lending
support to the proposition set out above.
(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
(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
its own observations that the conclusions were correct.'"
only in agreeing with the above finding which is on all fours with
what I have observed in the instant case, say that PW12
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.
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:
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
position to make the observations on which the expert had relied for
his conclusion." See also for general background
applicable and and the basis for use of expert witnesses S Vs Mkhize
and ors 1998 (2) SA CR 478 (w).
already stated my satisfaction with the credibility of crown
witnesses. Their evidence enjoyed on material aspects of the
for the most part generally the support of documentary proof.
importance of the above situation can truly be appreciated when
considered against the seasonable remarks of Williamson J in
Mphethe and ors 1983 (4) SA 262 (c) letters H to A where the headnote
in part reads:-
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
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
of a witness, to accept another portion.'..........." I am aware
that the above dictum was pronounced in the context
application for discharge at the close of the Crown case. But
nonetheless I find the general purport it conveys quite apt
instant case in answer to a strong argument during addresses that
Crown witness individually and collectively did nothing
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.
laid much store by Williamson J's remark and urged this court to
consider it favourably given that the evidence presented
evidence of events that had occurred during 1993.
common cause that in view of the fact that none of the witnesses
testified to seeing the accused append his signature on the
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
order to be drawn must be consistent with all the proven facts.
also important to observe that this case in fact is based partly on
direct and partly circumstantial evidence.
of the first aspect just stated above the Crown presented direct
evidence that the accused was the individual responsible
creation of the permits forming the subject matter of the charges
preferred against him.
evidence was adduced indicating that during the use of the permits in
question the accused's bank account was appreciably
monies being received therein at a pace far outstripping the
sprinting prowess of a record setting short distance runner
way of giving added impetus to the strength of direct evidence in the
Crown case the accused made various admissions regarding
signatures which were used as comparative specimens and these
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.
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.
entitles an accused person to his acquittal if his story even if
unbelievable, happens to be possibly reasonably true. But
version is beyond all reasonable doubt false then it merits rejection
as in such . circumstances it stands not the slightest
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.
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
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.
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
the instant case the handwriting expert knew nothing about the fact
that the accused would agree with him, is shown to have
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
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.
already indicated that the accused tried an impossible feat of riding
on two horses.
similar circumstances Lord Devlin in Broadhurst Vs Rex 1964 AC 441
has this apt remark to make
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.............."
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.
closer home I am enamoured of the dictum cited by Elyan CJ with
approval in Marcus Leketanyane Vs Regina 1956 HCTLR at page
the decision in Rex Vs de Villiers 1944 AD 493 where it is stated.
a case depending upon circumstantial evidence..............the court
must not take each circumstance separately and give
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
with the innocence of the accused, but the evidence as a whole is
beyond reasonable doubt inconsistent with such innocence."
satisfied that the Crown has successfully crossed this pons
To do so
it had first to prove the essential elements of fraud consisting in
misrepresentation, prejudice - actual or potential,
accepting Mr Louw's submission in respect of the issues forming the
essential parts of PW12's evidence I am inclined to adopt
thereof set out as follows:
admitted and undisputed signature of the Accused appears on Exhibit
17 and 20.2 i.e. the bank documents or signature card.
signatures on Exhibits "A" "B" and "D"
were made by the same person.
admitted signature on the bank documents i.e. 20.2 was by the same
person that had signed Exhibits "A" "B"
All the comparative signatures were therefore made by the same
person who is none other than the accused.
comparative signature of the accused and the disputed signatures
were made by the accused.
has borne in mind that the crown urged that it does not press for
conviction on the alternative counts relating to contravention
provisions of the relevant legislation cited at the beginning of this
judgement. The crown's prayer is accordingly granted.
basis of all the foregoing I find the accused on all the remaining
fifteen counts of fraud i.e. the fifteen main counts guilty
charged and prayed by the crown.
: Mr Louw
by : Ms Mofilikoane
Defence: Mr Phoofolo
criminal justice system is awash with nightmares that have caused
many a judge or the trial of fact a lot of anxiety with regard
sentencing. It is relatively easier to convict an accused person who
has been found guilty than sentencing him. That is usually
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.
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.
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
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.
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
plead guilty. With that submission I agree and would go further to
indicate that, when it comes to a trial, an accused person
large to plead as he has pleaded and let the justice of the case be
proceeded with according to the rules which require the
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
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
with whom he is going to scheme on how they are going to take
vengeance on society on the day of their release.
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
case on the grounds, I think mostly, that he was on
bail therefore those who were in jail should have their cases heard
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
axe poised over his head throughout that period which may itself
have amounted to sentencing him because as a civil servant who
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
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
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
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
his shame. These was also a case of Moitsupeli Letsie which involved
Makotoane and another, there again, the trio were
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.
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
are not during the period of the suspension convicted of
a crime involving dishonesty. That is the order of this court.
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