HIGH COURT OF LESOTHO
by the Honourable Mr. Justice B.K. Molai on 11th day of February,
exception of A2 who had allegedly disappeared and his whereabouts
were unknown the five (5) accused, namely, A1, A3, A4,
A5, and A6 are
before me charged with five (5) counts of theft and five (5) counts
of fraud. When they were put to them, Al, A3,
A4 and A5 pleaded not
guilty to the charges. A6 also pleaded not guilty to four (4) charges
of theft (counts 1,3,4 and 5) and four
(4) charges of fraud (counts
7, 8, 9 and 10). He, however, pleaded guilty to one (1) charge of
theft (count 2) and one (1) charge
of fraud (count 6).
the Crown Counsel, told the court that the crown was withdrawing,
against A6, the charges in counts 1,3,4,5,7,8,9
and 10. As he had
already pleaded to the charges, A6 was found not guilty and
discharged on counts 1,3,4,5,7,8,9 and 10.
further told the court that the crown was accepting the plea of
guilty tendered by A6 on charges of theft and fraud in
counts 2 and
6, respectively, and applying for separation of trials. The
application was granted and separation of trials accordingly
The trial then proceeded against A6 and the rest of the accused were
ordered to step down from the dock.
offences against which the accused persons stand charged on count 2
and count 6 are theft and fraud, respectively, on the following
Count 2: "during or about 13 July 2001 and at or near Maseru, in
the district of Maseru the accused did, in a joint scheme
common purpose, ... unlawfully and intentionally steal the amount of
M13,800.00, the property of, or in the lawful possession
of the CGM
Industrial (PTY) Limited and/or Presitex Enterprises (PTY) Limited."
Count 6: "upon or about the dates and period between 14 July
2001 until 19 July 2001 and at or near Maseru, in the district
Maseru the accused, in a joint scheme and with common purpose ....
did unlawfully, falsely and with the intent to defraud represent
CGM Industrial (PTY) Limited and/or Presitex Enterprises (PTY)
Limited and/or the Roman Catholic Church and/or Lesotho Bank
(limited) and/or Nedbank (Lesotho) Limited and/or the employees of
such entities (the prejudiced parties) to their actual
the amount of M245000-00, regarding the cheque number 014876...,"
stated, earlier in the judgment, after A6 had pleaded guilty to the
charges of theft and fraud in count 2 and count 6, respectfully,
crown counsel accepted his plea of guilty. It is significant to
observe that section 240 (1) of the Criminal Procedure and
Act, 1981 provides, in part:
"240 (1) If a person charged with any offence before any court
pleads guilty to that offence or to an offence of which he
found guilty on that charge, and the prosecutor accepts that plea the
court may -
(a) if it is the High Court, and the person has pleaded guilty to any
offence other than murder, bring in a verdict without hearing
instant case, A6, who is indicted before the High Court, has pleaded
guilty to offences of theft and fraud which are not
murder. Mr. Louw,
the prosecutor, has accepted the plea of guilty tendered by A6. On
the authority of the above cited section 240
(1) (a) of the Criminal
Procedure and Evidence Act, 1981 this court is empowered to return a
verdict, without hearing any evidence.
A6 is, on his own plea, found guilty of theft and fraud as charged on
count 2 and count 6, respectively.
assessors agree with this finding.
convicted the accused of theft and fraud, it now remains for the
court to determine the appropriate punishment for him. In
counsel for the crown informed the court that although it is common
accused is currently serving a 15 years term of imprisonment
following his conviction on sedition, that conviction is not
relevant previous conviction where the accused is found guilty of
theft and fraud. He submitted, therefore, that the accused
record of previous convictions. That being the case, the accused is a
Mosito, counsel for the accused, told the court that before he could
address the court in mitigation of sentence, the accused
to go into the witness box and testify so that the court could have a
clear picture of how he committed the offences
to which he had
evidence the accused, in a nutshell, told the court that he was 42
years old ordained priest in the Roman Catholic Church.
dependents to look after. They were his elder brother, who was not
working, and his four (4) children.
evidence the accused further told the court that on 13th July 2001,
which was a Saturday, he was in his office at the Cathedral
Lady of Victories, here in Maseru, when one Mothakathi (A5) came and
gave him two (2) cheque leaves which were already completed.
first cheque which was to the tune of M660,000 the payee was the
Catholic Cathedral Church. In the second cheque which was
to the tune
of Ml 4,200 the payee was "cash".
accused told the court that as regard to the M660,000 cheque, A5
explained to him that he and others (presumably the other accused)
had a company at the station area. The person who was in charge of
Chinese and had since left the country. He was, therefore, requesting
the accused that the M660,000 be kept by the church
so that it could
be readily available for use by the company when and if needed by the
company. According to him, the accused acceded
to the request of A5.
the Ml4,200 cheque drawn by C.G.M. Industrial (PTY) Ltd, A5 requested
the accused to give him cash for it. The accused
agreed to do so but
told A5 that he did not, at the time, have the amount of M14,200.
After A5 had left his office, the accused
telephoned a Bank Official
at Nedbank and asked him to come to his office. When the Bank
Official (Lepipi Motanyane) arrived at
his (accused's) office, the
accused asked him to examine the two (2) cheques. The Bank Official
obliged and told the accused that
the M660,000 cheque was in order
and could be deposited into the church account. The M14,200 cheque
should, however, be endorsed
by the authorized signatories of the
church account and be sent to the Bank. The accused then filled the
church's deposit slip
book to deposit the M660,000 into the church
account at Nedbank. He and a Religious Sister by the name of Lydia,
who were both
authorized signatories for the church account, endorsed
the Ml4,200 cheque. The accused then detailed a boy to take the two
cheques to Nedbank. When he returned from the bank, the boy
brought the accused copy of the deposit slip indicating that the
had, indeed, been deposited into the account of the church.
the boy could return to the accused, the bank official (Lepipi
Motanyane) had telephoned him (accused) and advised him that
were no sufficient funds to cash the Ml4,200 cheque. The account, on
which the cheque had been drawn, was short of M400.
The accused then
advise him of the position regarding M14,200 cheque. According to the
accused A5 told him he was far from Maseru and requested
(accused) if he could deposit the M400 at the Nedbank so that the
cheque could be cashed. The accused then gave the M400 to
with instructions to take it to Lepipi Motanyane. Thereafter the boy
returned to the accused with Ml4,200 in cash.
evidence, the accused told the court that out of M14,200 cash he took
M400 and gave the balance of Ml3,800 to A5. When he
pleaded guilty to
theft in count 2, it was, therefore, in respect of the Ml 3,800.
accused further testified that after the M660,000 had been deposited
into the church account, the Bank later telephoned him
to advise that
there was something wrong with the M660,000 cheque. It could not be
honoured by the Bank. He should, therefore,
come and collect it. He
obliged. However, before that, withdrawals had already been made on
the church account about five (5) times.
Of the five (5) withdrawals,
three (3) were paid but two (2) were not paid, by the Bank. The total
amount of money which the Bank
paid from the church account by those
three (3) withdrawals was M245,000. The accused told the court that
when he pleaded guilty
to fraud in count 6, it was, therefore, in
respect of the amount of M245,000.
accused told the court that the reason why he decided to give
evidence, as he had done in this case, was because he wanted to
a clean breast as he was really sorry for what he had done. As proof
of his remorse, he had pleaded guilty before this court.
He had and
is still co-
with the police in their investigation of this matter. He told the
court that, given a chance, he undertook to pay back
M245,000 within 12 months after he had served his current sentence
accused had given evidence, both Counsel who had prepared written
addresses invited the court to take into account a number
in mitigation of the accused's punishment. They have been eloquently
stated in the written addresses. There is no need
for me to go over
them again. Suffice it to say they have all been taken into
consideration in assessing the sentence which the
court is about to
impose on the accused person. In particular I have taken into account
the fact that the accused does not seem
to have initiated the scheme
to commit the offences against which he stands convicted. He was
surreptitiously led into it by others.
Although there is no evidence
indicating that he alone benefited in the scheme to defraud the
church of its M245,000, the accused
undertook to pay it back, all by
is, however, not prepared to turn a blind eye to the seriousness of
the offences with which the accused has been convicted.
He has stolen
other people's property. The law does not allow him to do that. There
is nothing wrong in the law of this land preventing
people to steal
the property of others. It emanates from the Divine Command "Thou
shall not steal". There is, therefore,
a need to impose a
sentence that will serve as a deterrent for a repetition of this sort
of a thing. A sentence that will be a
lesson to the accused and
people of his mind that the courts of law do not encourage this kind
reasons, the justice of the case will, in my view, be met by imposing
the following sentences.
One (1) year imprisonment, without an option of a fine. Count 6: Five
(5) years imprisonment, without an option of a fine.
sentences, which are to run concurrently, are suspended for three (3)
years on conditions that (a) he is not convicted of any
involving dishonesty during the period of suspension, and (b) the
accused pays back to the Roman Catholic Church the amount
within 12 months after he had served his current sentence, as he has
undertaken to do. When he has paid back the church
money, the accused
must give proof to the Registrar that he has done so, failing which,
he must be arrested and taken back to prison
to serve the suspended
It is to
be recalled that the accused was charged together with 5 others.
Separation of trials was applied for and ordered. The
proceeded with the accused alone. After the trial of the accused I
was supposed to proceed with the trial of his co.
the accused has given evidence in which he has, to a degree,
implicated A5. In the light of what the accused
has said in his
evidence, I feel that I now know the facts of this case. It will, not
be proper, therefore, for me to take the
other accused's case of
which I know the facts.
circumstance, I recuse myself from the case of the other accused and
make an order that their case should start de novo before
Judge. I am making this order fully aware that the accused have
already plead before me. In my view the accused are not
going to be
prejudiced, in anyway, if, in the circumstances, they are required to
plead again before another Judge.
: Mr. Louw
Defence: Mr. Semenya
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