C OF A
(CRI)11 OF 2006

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between

RAKOLITSOE
MARIUS MAHASE Appellant

and

THE
DIRECTOR OF PUBLIC

PROSECUTIONS
Respondents

CORAM:

STEYN, P

GROSSKOPF, JA

MELUNSKY, JA

DATE OF
HEARING : 19 OCTOBER 2007 DATE OF JUDGMENT : 24 OCTOBER 2007

SUMMARY

Criminal
law - bribery - officer in LDF received M91 168.49 as bribe money in
30 separate payments over more than two years -sentenced
to 6 years
imprisonment.

The
appellant, a captain in the Lesotho Defence Force was paid amounts
totaling M91 168.49 in all over a lengthy period. He persistently

involved himself in arranging travel for members of the LDF despite
the fact that this was outside the scope of his duties. During
the
period over which the payments were made, the travel agency concerned
received the lion's share of the LDF travel business.
The appellant's
explanations for receiving the money were not reasonably possibly
true.

Held:
(1) The appellant was correctly convicted of bribery.

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2. There
   were no grounds for interfering with the sentence. The seriousness
   of bribery emphasized.

   
   

JUDGMENT

MELUNSKY
JA:

[1] The
appellant became a member of the Lesotho Defence Force ("the
LDF") in 1978. After completing his training he was
employed in
the Registry Department at the Ratjomose base with the rank of
private. He was stationed at that base in the same department

throughout his military career. He eventually attained the rank of
captain.

[2] On 21
February 2005 the appellant appeared before Monapathi J and assessors
in the High Court on a charge of bribery, alternatively
with
contravening section 22(1) of the Prevention of Corruption and
Economic Offences Act, 1999. The essence of both charges was
that the
appellant, being a public official and a public officer, wrongfully,
intentionally

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and
corruptly accepted payments totaling M102 868.49 from Millenium
Travel and Tours (Pty) Ltd ("Millenium") and East-West

Travel and Tours (Pty) Ltd ("East-West") in return for
rendering assistance to the said companies to enable them to obtain

business from the LDF. The appellant pleaded not guilty to both
charges. After a lengthy trial he was convicted on the main count
of
having accepted and received bribes totaling M91 168.49 and was
sentenced to six years imprisonment. This is an appeal against
the
conviction and sentence.

[3] By
way of background it may be noted that East-West was incorporated on
26 May 1997 and Millenium on 11 May 2000 and that Mr.
G.A. Nair
("Nair") was a director of both companies at all relevant
times. The evidence in the Court a quo related to
Millenium only and
nothing further needs to be said about East-West. Millenium carried
on business as a travel agent in Maseru
but was not an accredited
IATA travel

4

agent. In
consequence, and while it could make reservations for flights, it was
not entitled to issue air tickets for its clientele.
These had to be
obtained either from the airline concerned or from an accredited IATA
travel agent.

[4] That
the appellant received M91 168.49 from Millenium during the period
September 2000 to July 2003 is not in dispute. The payments
were made
by means of 30 cheques of varying amounts drawn by Millenium on the
Standard Bank or Nedbank. One of the cheques was
paid into the
appellant's bank account and the rest were cashed by the appellant
over the counter at the drawee bank and the proceeds
paid to him. All
of the cheques were signed by Nair on behalf of Millenium.

[5] The
crucial question on the merits of the conviction is whether the Crown
established beyond reasonable doubt that the money
was paid to the
appellant in consideration for

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his
efforts in advancing Millenium's business interests. In deciding this
we have to weigh up the evidence of the Crown witnesses
against that
of the appellant (who was the only defence witness) and to consider
whether, on the totality of the evidence, the
appellant's
explanations for having received the money could reasonably possibly
be true.

[6]
Counsel for the appellant limited his attack on the conviction to
three or four main points in his written heads of argument
but
advanced no oral submissions in support thereof. This enables us to
deal with the facts more economically than might otherwise
have been
the case but it is nevertheless necessary to set out a reasonably
detailed resume of the evidence, not only because of
its relevance to
the conviction but also due to its significance on sentence.

[7] From
time to time officers and members of the LDF are required to travel
to other countries, usually by invitation of

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the
country concerned. The appellant's duties were confined to the
Registry Department where he was responsible for the correct
filing
and custody of all documents held in that Department. It was not part
of his function to liaise with any travel agent or
to make
arrangements for travel by LDF members, apart from obtaining visas
for members who were to travel abroad. It was the responsibility
of
the accounts section to see to the travel arrangements in conjunction
with the training officer of military personnel, a Colonel
Kholoane.

[8]
During the period covered by the indictment, five travel agents were
used by the Ratjomose barracks to make flight reservations
and
provide air tickets for travel outside Lesotho by military personnel.
Millenium was used by the base on 74 occasions and the
other four
travel agents on only 50 occasions. There is no rational reason for
Millenium to have received 60% of the business,
particularly if
regard is had to that company's enormous mark-up of 120% on average

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compared
to the normal commission of about 7% charged by IATA travel agents.
What is more, Government Departments were required
to obtain three
quotations if the cost of travel tickets exceeded M3000 but this
procedure was rarely followed in respect of tickets
purchased by the
Ratjomose base.

[9] It
should also be noted that all mail intended for the LDF was sent to
the Registry Department where it was attended to by the
appellant.
He, in turn, directed the correspondence to the relevant sections of
the Defence Force. Thus it was the appellant who
would receive
letters inviting members of the LDF to travel abroad. He delivered
such invitations to the office of the Commander
which was in the same
base. Although it was in the discretion of the Commander to authorize
military personnel to travel overseas,
he and the appellant
apparently had a friendly relationship. As it was also one of the
appellant's functions

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to obtain
the necessary visas for overseas travel he would generally have to be
kept informed about the proposed travel arrangements
and the
itineraries. All that needs to be stated at this stage is the obvious
fact that the appellant was in a unique position
to know when and to
what destinations military personnel were to travel abroad.

[10] This
is the appropriate stage to deal with the appellant's activities
concerning travel matters in the LDF. A considerable
amount of
evidence in this regard was given by employees of the Department of
Defence and, in particular, by Major-General Thibeli,
the
Deputy-Commander at the Ratjomose base at the relevant time. It is
clear from the testimony of these witnesses that the appellant
did
indeed involve himself in matters relating to travel and, moreover,
in efforts to advance the interests of Millenium. The Crown
evidence
in this regard was not specifically attacked by the appellant's
counsel - and rightly so - and it is therefore not

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necessary
for me to deal therewith at length. All that needs to be said is that
the appellant frequently procured itineraries and
air tickets from
Millenium; that he sometimes even supplied tickets to the persons who
were to travel; that on occasions he brought
Millenium invoices to
the accounts office for processing; and that on one occasion he
enquired about payment of a Millenium account.
All of these matters
were outside the scope of the appellant's duties. The evidence of
Mrs. Selio, who was employed as an accountant
at the Ratjomose base
is particularly revealing. She testified that appellant often handed
invitations to travel and itineraries
from Millenium to the financial
controller. These were passed on to her so that she could prepare an
order for Millenium to issue
the tickets. When Mrs. Selio became the
acting financial controller she required the appellant to obtain the
Commander's authority
before she was willing to prepare such orders
based on the aforesaid documents. The

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appellant
subsequently supplied her with the Commander's written authority.

[11] It
is also of some significance that three letters by the appellant in
connection with visa applications had been produced
on Millenium's
typewriter. The appellant conceded that he personally typed at least
one of the letters in Millenium's premises.
Despite this the
appellant denied that Nair, with whom he had admittedly formed a
close relationship, had asked him for any assistance
in connection
with Millenium's business.

[12] The
appellant told the trial Court that he had met Nair in 1996 and that
they had become friends. He denied that Nair, acting
on behalf of
Millenium, had paid him any money for him to advance the company's
business interests. He testified that M46 400 of
the money received
by him from Millenium represented cheques that he had cashed for Nair

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as Nair
was afraid to do so himself; that M14 768.49 was given to the
appellant to enable him to make purchases for Nair in Pretoria
and
Bloemfontein; and that the balance of M30 000 represented payments
made by Nair for meat (pork and mutton) which he had allegedly

purchased from the appellant.

[13] The
Court a quo accepted the evidence of the Crown witnesses. It held
that the appellant did indeed promote Millenium's business,
that the
appellant's explanations for receiving the M91 168.49 was false and
that the only reasonable inference to be drawn from
the proved facts
was that the money was paid and accepted as bribes.

[14] On
the appellant's behalf it was submitted before us that the trial
Court erred in finding that the version of the appellant
was not
disclosed timeously and, secondly, that the Court erred in drawing an
adverse inference against the

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appellant
due to his failure to furnish an explanation to the police. While I
am not convinced that the Court erred in the respects
alleged, the
aforesaid findings did not seem to play a significant part in its
decision. Moreover, and if we are at large to re-assess
the
credibility of the appellant, as his counsel submitted, we would have
no reason to interfere with the verdict having regard
to our own
assessment of the evidence which is dealt with in pars [15] - [17]
below.

[15]
Counsel for the respondent submitted that the evidence of the
appellant showed that he was not a credible witness and that
the
Court a quo had good reason to reject his version. Counsel pointed to
the fact that the appellant was frequently evasive and
argumentative
under cross-examination; that he was patently untruthful in numerous
respects; and that he contradicted himself on
many matters. The large
number of instances cited by counsel were, quite correctly, not
challenged on the appellant's behalf and
it is

13

therefore
not necessary to say anything further in this regard, other than to
emphasise that the appellant was indeed a most unsatisfactory

witness.

[16] The
appellant's counsel put forward the argument that the appellant's
evidence did not warrant rejection on various grounds,
firstly that
Nair and the appellant were friends; that there was a "total
disregard of the financial regulations by all concerned";
and
that the evidence did not exclude the possibility that other
officials might have mandated Millenium to arrange flight
reservations.
The fact that Treasury was unsuccessful in attempting
to enforce compliance with certain financial regulations hardly
assists the
appellant: he was certainly a significant culprit in this
regard and it does not affect the appellant's guilt if other
officials
also ignored the regulations. Similarly the possible
involvement of other officials in advancing the business interests of
Millenium
does not excuse the appellant's conduct. I add that the

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appellant
never suggested that he was mandated by other officials to promote
Millenium and there was no other evidence to support
this contention.

[17] I
conclude this part of the judgment by dealing with the submission
that the appellant's evidence did not warrant rejection.
Quite apart
from the fact that the trial Court accepted the evidence of the Crown
witnesses and rejected that of the appellant
having regard inter alia
to the unsatisfactory features of his evidence set out in par [15]
above, the appellant admittedly accepted
M91 168.49 from Nair over a
lengthy period and at the time when Millenium was receiving huge
benefits from the LDF. There was,
of course, no onus on the appellant
to satisfy the court that his explanations for receiving the money
were true. The test is simply
whether, on a consideration of all the
evidence, his version is reasonably possibly true. There is no doubt
in my mind that not
only is his evidence not reasonably possibly

15

true but
it is so improbable as to lead to the conclusion that it is palpably
false. For instance, the fact that he kept a written
record of the
favours he did for Nair; that he wrote the cheque number of the
cheques he received from Nair on a piece of paper
and later
transposed these into his diary; that Nair would have agreed to buy
meat from the appellant at inflated prices; and that
Nair asked him
to cash Millenium cheques because he was too afraid to do so when
Nair himself cashed a cheque of M100 000. Moreover,
when weighed up
against the acceptable evidence that the appellant involved himself
in Millenium's affairs, contrary to his functions
and duties in the
LDF, the only reasonable inference to be drawn is that the money
which was paid to him constituted bribe payments.
This conclusion is
consistent with all the proved facts and the proved facts exclude any
other reasonable inference.

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[18] It
follows that the appellant was correctly convicted of bribery and
that his appeal against the conviction must fail. The
question of
sentence now requires attention. Although the appeal was noted on the
grounds that the sentence of 6 years causes a
sense of shock and is
startlingly inappropriate, the main submission that was argued was
that the learned judge exercised his discretion
improperly by, in the
words of Howie AJA in S v Sobandla 1992 (2) SACR 613 (A) at 617 g-h,
sacrificing the appellant "on the
altar of deterrence, thus
resulting in his receiving an unduly severe sentence". In the
circumstances of this case, however,
we considered it proper to
permit counsel for the appellant to argue the question of sentence on
all aspects and he did so.

[19] The
appellant is 48 years of age. He is married with three children who
are dependent on him and he also supports six children
of his
deceased brothers. His wife is a teacher but is said to suffer from
ill-health. The appellant

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himself
injured his back in an accident some years ago and he still endures
pain from time to time as a result. The most weighty
considerations
in the appellant's favour, however, are his clean record and his
excellent employment record until he started taking
bribes in 2000.
He is clearly a man of some intelligence and might still be able to
make a useful contribution to society. It is
of some significance
that he was continuously employed in the Department of Defence for 22
years and that he worked his way through
the ranks and eventually
achieved the position of captain.

[20]
Unfortunately for the appellant, the factors mentioned above are not
the only criteria that need to be taken into account in
determining a
proper sentence. It is well-established that a court should also have
regard to two other vital considerations -
the nature of the crime,
including the perpetrator's participation, and the interests of the
community.

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[21] It
is important not to under-estimate the gravity of the offence of
bribery. It impacts adversely not only on the moral fibre
of society
but on the economic growth of the country. It discourages investment,
leads to a loss of respect for authority and government
and is
inimical to public administration. It is vital for the public to have
complete confidence in the integrity and efficiency
of public
servants but bribery emasculates that very trust and confidence. All
of this has been emphasised in a number of recent
judgments of this
Court and is clearly of relevance when the question of sentence is in
issue.

[22] The
appellant's conduct is to be deplored. He did not succumb to sudden
temptation and then resist from further involvement.
He participated
in the offence in a cynical manner for more than two years and on
thirty separate occasions and showed no remorse
whatsoever.
Treasury's

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demands
that the financial regulations be complied with were simply ignored.
Moreover his conduct enabled Millenium to make enormous
profits from
the Department of Defence to the ultimate detriment of the people of
this Kingdom. It is true that there is no evidence
that the appellant
knew of the extent of Millenium's mark-up but he must have realized
that Millenium's charges were substantially
higher than those of
other travel agents.

[23]
While the sentence imposed by the trial judge was not lenient, it was
certainly not startlingly inappropriate or so unreasonably
severe
that we are at large to disturb it. The further argument advanced on
the appellant's behalf by his counsel - that the learned
judge
misdirected himself by paying too little regard to the appellant's
personal circumstances and over-emphasising the deterrent
effect of
sentence - is without merit. On a careful analysis of the judgment it
is apparent that he weighed up all relevant

20

factors
in a balanced manner. There were no misdirections in his approach to
sentence and there is no reason for us to interfere
with his
decision.

[24] The
result is that the appeal is dismissed.

L S MELUNSKY

JUDGE OF APPEAL

I agree:

J .H. STEYN

PRESIDENT OF THE COURT OF APPEAL

I agree:

F H GROSSKOPF

JUDGE OF APPEAL

For the
Appellant : J. Engelbrecht

For the
Respondent: H H T Woker