CRI/T/94/2004

IN THE
HIGHCOURT OF LESOTHO

in the
matter between:

REX

AND

LIRAHALIBONOE
E RASETHUNTSA

JUDGEMENT

DELIVERED
BY THE HONOURABLE MRS JUSTICE K.J. GUNI ON THE 8th MARCH 2007.

Main
Charge: BRIBERY......definition and essential elements .

1. unlawfully
   

   
   

2. intentionally

   
   

3. a
   public officer

   
   

4. offering
   or agreeing to give any consideration

   
   

5. in
   return for an action or inaction by him in an official capacity.

   
   

SOUTH
AFRICAN CRIMINAL LAW AND PROCEDURE VOL II by PM A HUNT, Second
Edition 1980 Revised Edition by JRL MILTON 1990.

Alternative
Charge: Contravening Section 22 (i)

PREVENTION
OF CORRUPTION AND ECONOMIC OFFENCES ACT 1999.

"22 (1) A public officer commits the offence of corruption if he
accepts, or agrees or offers to accept, for himself, or for
any other
person a benefit as an inducement or reward for doing or forbearing
to do anything in respect of any matter in which
he is concerned in
his capacity as a public officer"

BRIEF
SUMMARY OF THE CASE:-

The
accused who is an official of the Department of Finance was amongst
his duties, responsible for arranging, that is booking with
Travel
agency, the international air travel, for his colleagues who had to
travel on government business. In this regard, the accused
dealt with
or engaged in business with at least nine local Travel agencies which
competed against each other in the provision of
this international
air travel service to the Government and the nation at large. The
accused facilitated payment by the Government
to those Travel
agencies he had engaged. From one of these Travel agencies - the
newest in the field, this accused received the
sum of seventeen
thousands six hundred and twenty Maloti [17,620] - allegedly a loan
paid to him over a period of 2 1/2 years.
From the frequency of
payments made to this accused by the said company, it can be deduced
that this accused relied almost exclusively
on the director of this
newly formed Travel agencies - Millennium (PTY) Ltd and EAST WEST
Travel and Tours (PTY) Ltd; for the financial
needs of his family as
far as health, education and well be ing of his family were
concerned. Although the accused claims he was
paid this money by a
personal friend, as a loan; as and whenever he wanted it, there is no
proof of repayments. He claims he was
making part payments whenever
he could. He asked for no receipts when he made those part payments.
He received no receipts. There
were no terms of repayment. There was
no stipulated time to pay. Hence the requirement of proof of payment
in those circumstances.
There was no interest charged. There was no
security required. There was never an investigation regarding his
credit worthiness.
The accused just got the company cheques or cash
payment vouchers whenever he wanted the money from his friends - the
directors
of those companies. The accused's vehement, but
unsubstantiated claims of the existence of close and personal
friendship between
himself and the directors of those companies was
rejected as false. The reason for the rejection of this claim is
because despite
further claims by the accused that their families
including their wives and children were also close friends, was found
to be false.
The accused claimed that the members of their respective
families paid frequent visits to each other's homes. Strangely enough
despite those frequent visits to each other's homes the accused could
not tell this court the names of his friend's children. The
accused
could not tell the court the name of Jack's wife - his friend. How

2

come he
could not remember the friend's name. How come, he could not even
recognise it when he was reminded? The grounds for his
failure to
tell the court those names was as flimsy as it was false - "that
he could not pronounce them. They were difficult
names, he alleged.
He could not even write or spell them. The accused's alleged friends'
names were written in the indictment which
was read to him in this
court. Could that have triggered his memory? Obvious not. Could he
copy the spelling of those names from
the indictment? No, he failed.
When the Crown Counsel put the name to the accused and asked him what
is difficult in the spelling
and pronunciation of that name, the
accused's answer was "nothing". The accused even added that
"now that the crown
counsel spells and pronounces it, the name
Beena becomes simple" -Beena's name appears in the indictment
with that of her
husband as the directors of the companies whose
cheques this accused was receiving frequently over a period of two
years. Although
the payments by the company to this accused are
described by the company as business promotion, according to the
accused, he knows
those payments as loans. He did not quiry the
description of the payment to him as "business promotion"
to anyone who
presented the cash payment voucher in the company
because his interest was in the cash not the description. He was
according to
him promoting no business of those companies. He denies
that "business promotion" in those circumstances is a
euphemism
for the bribe. The allegation that the cheques and cash
payment vouchers and their proceeds, were loans to this accused was
found
to be false. This accused actually directed approximately 14%
of the government business travel arranged by him in his official

capacity, to these companies which paid him M 17,620 for his own
private and personal benefit. The crown does not need to prove
that
the briber received from the bribee more business than anyone else.
It is sufficient to prove that there was an agreement
to exchange
favours even if no exchange has in fact taken place.

There is
no credible evidence that the accused borrowed the money and repaid
it. The accused called no witnesses and produced no
proof of any
"alleged" repayments.

Held;
Where the public officer who in his official capacity directs and
gives business or

any other
consideration on behalf of government or government department, to
the service provider who pays that public officer sums
of money for
which the public officer gives no or unsatisfactory explanation, that
money must be a bribe.

3

INDICTMENT
A: Preamble (and summary of facts):

Whereas
at all relevant times to the charge set out below:

1. The
   Accused, and adult Mosotho male, residing at Qoaling, Maseru, was a
   member of the Lesotho Department of Finance and as such
   a state or
   public official, as well as a public officer as defined in Section 2
   of the Prevention of Corruption and Economic
   Offences Act of 1999.

   
   

2. During
   the period April 1999 to October 2001, the Accused occupied the
   position of accountant in the Lesotho Department of Finance,
   which
   position encompassed, inter alia, dealing with travel agents that
   were engaged by the Department for travel and related
   matters by
   officers of the Department. This included engaging such travel
   agents and facilitating payments to them.

   
   

3. Millenium
   Travel (Pty) Ltd ("Millenium") was duly registered company
   incorporated as such in terms of the company laws
   of Lesotho, with
   its principal place of business at Ground Floor, Agric Bank
   Building, Kingsway Maseru, which did business as
   a travel agent,
   also as described in paragraph 2 above.

   
   

4. The
   directors of Millenium were Jayakrishnan Appukattan Nair (" J
   Nair") and Beena Jayakrishnan ("B Nair"),
   and one
   Malusi ("Kamohi") was an employee of Millenium. Millenium
   acted through J Nair, alternatively B Nair, alternatively
   Kamohi in
   respect of the transaction set out herein.

   
   

4

5. Prior
   to October 2000 the said J Nair and B Nair operated as travel agents
   under the name and style of East West Travel and Tour
   (Pty) ("East
   West"):

   
   

6. Millenium
   and East West facilitated travel arrangements of various government
   officials, i.e. by booking and procuring tickets
   for travel by air,
   whereupon it would in turn, for these services, invoice the relevant
   department within the government for
   payment.

   
   

7. As
   part of his official duties the Accused in turn facilitated the
   payment of such invoices submitted by Millenium and East West
   to the
   Department of Finance, alternatively was in a position to do so.

   
   

8. During
   the aforementioned period the Accused received from Millenium and
   East West cheque and cash payments totalling M17 620.00,
   the details
   of which are set out in the charge hereunder.

   
   

9. The
   payments referred to in paragraph 8 were made by Millenium and/or
   East West and/or J Nair and/or B Nair and/or Kamohi in respect
   of
   action or inaction by the Accused in his capacity as described above
   and/or were intended to influence the Accused in such
   capacity and
   were accepted by the Accused on this basis.

   
   

10. When
    such payments as described in paragraph 8 and 9 were accepted by the
    Accused, he accepted such payments wrongfully, intentionally
    and
    corruptly:

    
    

5

B.
Charge:

1. The
Accused is guilty of bribery in that on the following dates and in
the following amounts the Accused received payments from
the
persons/entities referred to in the preamble and in the circumstances
as described in the preamble, more particularly paragraph
10 thereof.

Payments:

6 April
1999 - M 2 000.00

7 June
1999 - M 2 000.00

30
September 1999 - M 4 000.00

20
November 1999 - M1 900.00

22
December 1999 - M 4 000.00

28
January 2000 - M1 500.00

20 April
2000 - M 500.00

10
October 2000 - M 500.00

13
December 2000 - M 1 000.00

28 March
2001 - M 200.00

2 October
2001 - M 2000

M17 620.00

2.
Alternative charge:

The
Accused is guilty of contravening Section 22 (1) of the Prevention of
Corruption and Economic Offences Act of 1999, in that,
on or about
the dates referred to in the main charge and in the circumstances
as-described in the preamble, the Accused accepted
or agreed to
accept for himself as an inducement or reward, the sums set out in
the main charge, for doing or forbearing to do
anything in any matter
in which he was concerned in his capacity as a public officer, more
particularly as described in paragraph
7 of the preamble.

6

3. The
Accused's Case

The
accused denies all the charges. He however admits receiving and
taking possession of all the cheques and cash payment vouchers
in
question. He claims he did not know or care to find out the source of
Mr Nair's money. Those cheques and cash vouchers are according
to him
the money he borrowed from Mr Nair as his personal and best friend.
From the onset in 1996 when the accused and Mr Nair
first met their
friendship took off immediately as personal and the very best of
friendships.

The
accused had nothing to do with Mr Nair's companies. The accused did
not know nor care to find out where the money which his
personal
friend provided him with came from. Those cheques and cash payment
vouchers may very well be from Mr Nair's companies
but the accused
did not know or care to find out whose cheques and cash payment
vouchers were those. He simply wanted money from
his friend. He took
those cheques and cash payment vouchers from Mr Nair as his [perhaps
meaning, "personal not company cheques".]

This was
the accused's case as put to the crown witnesses. Under
cross-examination the accused was forced to elaborate more on his

defence. On this bare denial of corruptly receiving bribes he did put
more flesh and padding when he answered questions from the
crown
counsel From his evidence under cross-examination, there was no
interest on those loans. There were no terms of agreement.
The
accused told this court that his friend Jack told him to pay:- (1) if
he can. (2) To pay how much he can. (3) To pay when he
can. Is it? Or
can it be a loan? There was no security for repayment. There was no
investigation to determine whether or not he
was credit worthy. There
was no stipulation for time to pay. The accused paid as and when he
wanted to do so. He paid the amounts
in part as and when and how he
pleased until he had fully paid up the whole amount. He asked for

7

and got
no proof of repayment. Therefore he has no receipt or any proof of
repayment Since there was no stipulated repayment period
he cannot
say when such repayments were made. He has no record or recollection
of any time the repayment was made. But nevertheless
he claims that
the loans are fully paid up.

4.
ADMISSIONS

At the
commencement of the trial the counsel for the accused indicated that
in terms of SECTION 273 (1) CRIMINAL PROCEDURE AND EVIDENCE
ACT NO 9
OF 1981, the accused has made the following admissions. These
admissions were signed by both the accused and his counsel.
They were
handed in as Marked EXIBIT A. For easy of reference I quote them here
in full.

"The
accused admits that:

1. At
   all relevant times he was a member of the Lesotho Department of
   Finance and as such a state or a public official, as well as
   a
   public officer as defined in section 2 of the Prevention of
   Corruption and Economic Offences Act of 1999.

   
   

2. During
   the period April 1999 to October 2001, he occupied the position of
   accountant in the Lesotho Department of Finance, which
   position
   encompassed, inter alia, dealing with travel agents that were
   engaged by the Department for travel and related matters
   by officers
   of the Department. That included engaging such travel agents and
   facilitating payments to them.

   
   

8

3. Millenium
   Travel & Tours (Pty) Ltd ("Millenium") was a duly
   registered company incorporated as such in terms of
   the company laws
   of Lesotho, with its principal place of business at Ground Floor,
   Agric Bank Building, Kingsway, Maseru, which
   did business as a
   travel agent, also as described in paragraph 2 above.

   
   

4. The
   directors of Millenium were Jayakrishnan Appukattan Nair (" j
   Nair") and Beena Jayakrishnan ("B Nair"),
   and one
   Malusi Kamohi ("Kamohi") was an employee of Millenium.
   Millenium acted through J Nair, alternatively B Nair,
   alternatively
   Kamohi in respect of the transaction set out herein.

   
   

5. Prior
   to October 2000, the said J Nair and B Nair operated as travel
   agents under the name and style of East West Travel and Tour
   (Pty)
   Ltd ("East West").

   
   

6. Millenium
   and East West facilitated travel arrangements of various Lesotho
   government officials, i.e. by booking and procuring
   tickets for
   travel by air, whereupon they would in turn, for these services,
   invoice the relevant department within the government
   for payment.

   
   

7. As
   part of his official duties the accused in turn facilitated the
   payment of such invoices submitted by Millenium and East West
   to the
   Department of Finance.

   
   

8. During
   the period 6 April 1999 to 13 December 2000 the accused received the
   cheque payments set out in the annexure hereto in
   the sum of M17
   400.00 from J. Nair. [My underlining]

   
   

9

9. The
   cheques by which such payments were made were drawn on the bank
   accounts of East West (being accounts no. 1400813571 and
   01400857101) and Millenium being account no. 40097521901.

   
   

10. The
    cash payment of M200.00 was acknowledged by the accused on 28 March
    2001 by his signature on a cash payment voucher of East
    West Travel.

    
    

11. The
    cheques and cash were physically received by the accused from the J
    Nair (known to accused as Jack). [My underlining] [This
    admission is
    inadvertently contradicted by the accused, under gross-examination.
    It turned out that at times when he went to
    collect the cheque he
    was told to come later. When he returned later, he received the
    cheque from someone else not from Jack's
    person -]

    
    

12. The
    cheques and cash payment voucher bearing the accused's signature
    were seized during a search conducted on 27 January 2004
    under
    authority of a search warrant at the business premises of Millenium
    as referred to above and at the residence of J Nair
    in Maseru West.

    
    

13. The
    accused was arrested by a member of Directorate on Corruption and
    Economic Offences on 27 May 2004 on the charges faced by
    him at
    present.

    
    

10

5. ISSUES

Having
heard the crown case as set out in the preamble and the indictment
and also having heard the defence case as put to crown
witnesses and
later elaborated under cross-examination, one issue sticks out. The
main issue that must be determined is whether
the money received by
the accused from the companies :- Millinium Travel (Pty) Ltd and EAST
WEST Travel and Tours (Pty) Ltd, was
the bribe or loans? From the
evidence led we will find out the characteristics of the bribe and/or
the loan. First of all we must
find out the meaning, definition and
essential elements of these two concepts - (" bribery and
loan"], in order to be
able to differentiate between them as the
evidence led is bound to indicate either way.

6.
BRIBERY

What is
the definition of the crime of bribery? We look at the definition and
essential elements especially from the accused's point
of view or as
he understands the charge. The accused's understanding and
appreciation of the charge he is facing is material to
the
preparation of his defence. The accused is only able to defend
himself properly if he understands and appreciate the charges

levelled against him. As set out in the Accused's Heads of Argument,
the accused person at all the material time relevant to this
charge
was a public servant or civil servant or public officer. It has been
established that at all the material time while holding
the position
of an accountant in the Department of Finance, the accused was acting
in his official capacity. When the accused engaged
the travel agents
to provide the service of transporting the officers in the department
of finance to the various international
destinations, he was taking
that action in his official capacity.

11

The Crown
alleges that on certain dates set out in the indictment the accused
person received certain payments also set out in that
indictment from
Millenium and/or EAST WEST and/or from the named directors and/or
employees of those companies. It is alleged that
those payments were
received by this accused unlawfully intentionally and corruptly
[refer to Heads of argument]. The definition
of bribery as set out in
SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE VOL II (Common - Law Crimes)
Revised 2nd Ed (1982) by Professor
MILTON at page 227, is as
follows:-

'Bribery is committed by a state official who unlawfully and
intentionally agrees to take any consideration in return for action

or in action by him in official capacity". [My underlining}

In this
kingdom, those same elements have been set out and applied where
common law crime of bribery was committed. For this jurisdiction
the
essential elements of the crime of bribery have been succinctly set
out by the Honourable Mr Justice BP Cullinum AJ (as he
then was) in
REX V Masupha Ephraim SOLE (CRI/T/111/99) as follows: "To prove
bribery the crown must establish that the accused,

(i) as a state official and/or public officer

(ii) unlawfully, intentionally and corruptly,

(iii) agreed to take any consideration,

(iv) in return for action or inaction by him in an official capacity.

Those
elements are identical with those set out on behalf of the accused in
the heads of argument which means there is an appreciable
meeting of
minds between the parties on this issue in our present case.

12

Because
this accused has admitted taking the sums of money reflected on the
nine company cheques he received from the employees
of the companies
which he uses for the provision of service to the Department in his
official capacity, what remains is to establish
his intentions at the
time he took the money or prior to the taking of any action or
inaction because what is material in the crime
of bribery is the
agreement between the briber and bribee. [Refer to the DEFINITION OF
THE CRIME OF BRIBERY as set out above by
the learned author -
Professor Milton - South African CRIMINAL Law and Procedure Vol II
and to the Judgement of the Honourable
Mr Justice BP Cullinum in REX
V MASUPHA EPHRAIM SOLE [Supra]. The accused's intention is not easily
known. It is even more difficult
to prove the accused's intention
where exchange of favours is the secret - known only to the - bribee
and the briber]. The agreement
to exchange the favours may also be
known to the bribee and the briber. Without the assistance of the
bribee and the briber the
search to establish their intention is not
easy. The intention therefore has to be established from the
surrounding circumstances
of the case - including the conduct of the
parties concerned. I shall come back to this question after I have
dealt with the defence;
from which the intention is going to be
gleaned. It is the accused's defence that he engaged a number of
Travel agents to provide
the service required by the members of staff
of the Department of Finance. That is to say, he engaged nine travel
agents over that
period in question. In fact he gave most business to
SAA City Centre. He claims that in his allocation of business he did
not favour
Millenium Travel. To a certain degree on the face of the
document [EXHIBIT H] it appears to be so. If the consideration is for
who obtained the most business from this accused person's hand. The
crime of bribery by briber and bribee is completed upon their
mere
agreement only. This is in accordance with the definition and the
essential elements of the crime of bribery. RV KUKBOODIEN
1930 CPD
191. Therefore there is no need for the actual exchange of favours.
It is not necessary for the consideration to be paid
and accepted. It
is just an added bonus where the exchange has in fact happened. It
was the duty of the accused person to direct
business to anyone of
the service

13

providers.
Therefore the volume of business by any recipient of the government's
international travel business, is irrelevant. Especially
in our
present case, where the accused placed no proof of how he selected to
deal with any particular Travel agent. He accepted
that he was
obliged to choose the less expensive but he cannot place anything
before this court to show that he indeed did choose
the cheapest
particularly because his action or inaction may actually be in
accordance with his duty. But In fact it is nonetheless,
bribery to
bribe an official to do his own duty R V Lavenstein 1919 TPD 348, R V
PATEL 1944 AD 511. In our present case, it was
the accused person's
duty to allocate or distribute government business to various Travel
agencies. His discretion was to be exercised
in the public interest -
not his own private interests. What does he put before court to
establish only on the balance of probabilities
that he acted in the
public interest not his own? He did not put before court those three
or so quotations which he claims he received
in order to choose the
best.

7.
LOAN-What is a loan

The
Concise Oxford English Dictionary, tenth Edition - revised describes
the meaning of a word "loan" " as a thing
that is
borrowed especially a sum of money that is expected to be repaid back
with or without interest. The accused person claims
he had been
borrowing money from his best friend Jack of Millenium Travel (Pty)
Ltd since 1996 (i.e. that is before he started
his travel agencies
business]. This is the date of his friend's arrival in this Kingdom.
The accused did not specify the amounts
borrowed prior to the amounts
in question in this matter. But that does not really matter because
those previous debts do not concern
us here. The accused did not say
whether or not those prior loans were presented to him in company
cheques or not. May be that
would be very difficult for him because
according to his evidence he is that type of an accountant which does
not know or care
to know the difference between the company cheque
and personal cheque. It is the finding of this court that the accused
as an accountant

14

should
know and in fact knows the difference between the company cheque and
the personal cheque.

There is
no evidence, verbal or written that this accused person borrowed the
money in question. We only have to go by his own word.
What is his
word's worth? This we shall soon discover. He joined the civil
service in 1977 as accounts clerk. Over the years he
has worked his
way up to the position of an Accountant. He is not an ignorant layman
as far as accounts or accounting is concerned.
He should be able to
account for his money and in fact he is able if he has a will to
account for the money in his possession.
From 1977 to 1999 is
approximately 22 years. For the whole period he was involved with
accounts and/or accounting. Hence his progress
from the bottom to the
top. He must have made his way up because he was capable to do that
kind of work. The accused did not tell
this court anything to the
contrary. Experience is a hard and even a better master in teaching
and showing the students the right
and correct way. The accused
testified that he works with vouchers in his daily business although
he claims the Government Vouchers
are different from the private
sector vouchers. He however could not point out those differences. Is
there or is there no difference
if it could not be pointed out and
shown to those who are not aware of the alleged difference?

EXHIBITS
"D" and "E" are the cash payment vouchers in
question. This accused person received them from EAST
WEST TRAVEL and
Tours (Pty) Ltd. Since he claims that the money-proceeds of those
cash payment vouchers and cheques were loans,
he was asked in cross
examination why the description of the payment on those vouchers is
entered as "Business Promotion,"
instead of loans. He did
not know the reason. He is not illiterate. He can read. He is an
accountant in the Department of Finance
in the Government of the
Kingdom of LESOTHO. He is not such a fool as he makes out. He claims
he had gone to Jack to borrow money
as a personal and best friend of
his. Then instead of describing the payment as a loan, Jack or
someone who works in his office

15

EAST WEST
Travel and Tours (Pty) Ltd enters "Business Promotion where the
description of the payment is required. The accused
is not stupid. He
can read and he did see that the payment he received was for business
promotion - not a loan as he claims here
before this court.

When he
is asked the meaning of "business promotion" the accused
person continues to play stupid. He claims he does not
know. It is
put to him that such moneys paid for business promotion are costs to
the business and they are tax deductable. The
accused person did not
know anything about money and/or taxes. This is an accountant not
just an illiterate or semi-illiterate
Mosotho from the village.
According to him he met Jack on his arrival in the country in 1996.
He made him feel most welcome. Hospitality
is an ancient tradition or
custom of Basotho. It was not strange that this accused welcome a
visitor or new resident in Town. But
he must have communicated to
this foreigner in English or other foreign languages - certainly -
not in Sesotho. According to his
own evidence the accused took it
upon himself to welcome Jack because (1) he was a stranger. (2) he,
the accused, was to show Jack
the country and its people. It was
quite a responsibility that he took upon himself. As a result the
accused took Jack out to visit
tourist centres e.g. Melesi Lodge at
the historic monument THABA BOSIU. etc. By the nature of his work the
accused must be more
than familiar with the language used in accounts
and the documents. It is true his interest may have just been in the
money which
he needed when he went to borrow money from Jack. His
need or love of money did not blind him, so that when he is given a
cheque
he must certainly look at the cheque. To see if it is the
amount he requested and if it is made out to him. He must see
immediately
on its face that it is an open or closed cheque. I do not
believe him when he claims that he did not look or care to examine if

the cheque is that of Jack or his company's. I prefer to believe that
he did not care where Mr Nair's money came from. He was not

interested in the source of Jack's money as he alleges. He has
specifically stated that he was only interested in the money itself.

That is why he did not scrutinize the cheques he received from Jack.

16

The
accused person could have sought pay advance from his employer
instead of going to seek help from his employer's service provider.

It is his argument that there is no law which specifically prohibits
public officer from borrowing money anywhere or from any body.
This
is true to a certain degree. He went to his friend especially because
he got the money as and when he wants it without any
delay. It was as
if when the accused just extended his hand out to Jack, that hand
never came back empty. Everytime the accused's
hand came back with a
cheque or cash payment voucher in it. But it emerged during the
cross-examination that at times he did not
get the money immediately
upon making his demand. At times he was told to come later.

Why? Was
that a delay for its own sake and for no other reasons because he
came to this particular individual in order to get the
money
instantly upon his demand. So he says. When he returned later he was
given the cheque not by Jack but by someone in that
Travel Agency. In
the statement of agreed facts - accused person's admissions at
paragraph 11, the accused physically received
all the cheques and
cash from Jack. So which is which? Did he physically receive all the
cheques and cash payment vouchers from
Jack or not? Even in the
absence of Jack when the accused was given a cheque he never noticed
that it was the company cheque. Therefore
the accused persists in his
denials in those circumstances that he was promoting the business of
Jack's companies whose cheque
he continuously received over a period
of two years.

8. PROOF
OF REPAYMENT

We have
seen in the definition of a loan that it is a sum of money which is
intended to be repaid. The accused person has no receipt
to prove
that he made any repayment of the alleged loans he received from
Jack. He deliberately asked for no receipts. He wanted
no proof of
repayment. He received no receipts of repayment. How on earth does a
person not want the proof of repayment of his
debts? He claims that
his friend Jack made entries in his own diary each time the accused
person made part-payment on any one debt.

17

How did
the accused know how much was paid, how much was outstanding when
cheques kept flowing in with such frequency that at times
the accused
received two cheques from Jack within a period of three weeks. The
accused himself has no record whatsoever of the
alleged repayments.
He has no recollection of when he made any of those part payments he
claims he made. He has no recollection
of when he fully paid up those
debts. The friend had all the records to prove he gave the accused
person the money as evidence
by the cheques and cash payment
vouchers. The accused person had no proof of repayment. The alleged
entries in the diary at Jack's
office was also for Jack's benefit not
for this accused's benefit. This peculiar behaviour of the accused as
described by him,
i.e. having no records of repayment, having no
recollection of when repayments were made, coupled with no terms or
conditions of
repayment:- demonstrate that the money so received by
this accused was not intended to be repaid and was in fact not
repaid. Why?
The loan agreement need not be written. But it can be
verbal. It must have terms and conditions. The loan by definition is
expected
to be repaid; when the money is given without express or
implied terms to repay, it is not a loan. To repay if you want and
when
you like, how much you like, that cannot be a loan. It was
alleged that, the diary in which repayments were recorded is in the
possession of the members of Anti-Corruption directorate. It was
alleged that it was taken at the time Jack's office and residence

were searched. The prosecution called a witness who conducted the
search and seizure of documents at Jack's residence and office.
He
told this court that an inventory was made. It was signed by Jack.
That inventory was produced before court, it contains no
diary.
Evidence of Mr Mohau Mokhochane -principal investigator at the
Anti-Corruption Directorate is that no diary was found at
Jack's
office and/or home. No diary was seized. If the diary was seized it
would have been included in that inventory. This inventory
is hand
written which shows that it was made at the time and place of
seizure. The owner of the diary-Jack has signed that list
which
contains no diary. The diary therefore should still be in the
possession of its owner - Jack - this accused's best and personal

friend. Why did he not call him to bring that diary with him to

18

court and
testify? And show this court the alleged entries which were made by
him when he was repaid?

The
accused claims that he effected repayments by getting money from his
wife. He told the court that his wife sold chickens and
eggs. So it
was after the sale of those items that she, gave him money to make
only part-payment on any debt. Sometimes the debts
came in such close
succession because according to this accused in a matter of three
weeks the accused person borrowed money from
Jack on two different
occasions. He says his mother was very sick. He had to take her to
various doctors. What about his own salary,
he is still working as an
accountant - for the government? What does he do with his own money?
This has been and still is a very
closely guarded secret. The accused
did not disclose what he does with his salary now that his family
seemed dependent almost entirely
on his friend for its financial
needs. His wife's chicken business was obviously not making enough
money. He had to go to his friend
for all his family's financial
needs, e.g. when his children needed school fees and money for books
the accused nor his wife had
no money for that. The financial burden
for the wellbeing and education needs for his family rested squarely
on his best friend-Jack's
shoulders. When a child is send off from
school for none payment of fees the accused person on the arrival of
that child at his
office goes straight to his friend Jack to get the
money. The child is sent back from school because there is an urgent
need for
one or two books, that child comes to the father's office.
The father goes to Jack's office to get the required amount of money.

Some friends! Jack came through for this accused all the time. When
asked what he did for this friend for all these favours, the
accused
told the court that he assisted Jack to find and hire removal van
when he moved his property from Maseru West to the Industrial
Site.

19

This move
by Jack from up-market area to the industrial site must have happen
after the search and seizure of documents some of
which have put this
accused person before this court because evidence shows that the
search and seizure were conducted at Jack's
residence in Maseru West
prior to the arrest of this accused. Before then this accused would
have this court believe that he did
no favours to Jack. His was only
to receive favours from Jack.

The
accused and Jack were not just personal friends, they were family
friends according to this accused. This accused and his wife
and
children paid regular visits to Jack's family. Jack and his wife and
child did the same thing. But when asked the first name
of Jack's
wife the accused does not know it. He claims it is Indian and very
difficult to pronounce. The crown counsel asked the
accused person
what is so difficult about Beena. The accused then said it is not so
difficult now that the crown counsel has pronounced
it. Quite clearly
he does not know the best and personal friend's wife's name. When
asked what he calls her he simply said "sister".
The same
thing goes for the child's name. The accused person does not know
Jack's child's name. Can it be true that those families
pay each
other regular visits? The names of the two directors of those
companies appear in the indictment which was read to this
accused in
the open court. If they were such family friends could that have
trigger his memory? Obviously not. Evidence of one
of the crown
witnesses showed the court that the wife of Jack is a Mosotho - not
Indian as this accused allege. She was not challenged.
Does this
accused know earthnique difference between the appearance of a
Mosotho and an Indian? Obviously not. But that cannot
be true. The
accused person lied. He does not know Jack's wife nor child. He may
or may not have met them. But he did not know
them as his friends.
How can he not know his friend's wife's name? How can he not know his
child's name? They are his family friends.
How can he not know his
friends? The only thing proved so far by the accused's own evidence,
is that there is no friendship between
him and Jack if Jack's wife
and child are not known to this accused. There was a relationship
between this accused person and Jack.
But that relationship was

20

not
friendship. Borrowing the expression from South African media when it
described the relationship between Zuma and his financial
adviser
Sheik Shabi, "it seems to me that relationship between this
accused person and Jack "was generally corrupt".

9.
CREDIBILITY

As a
witness, this accused was a very poor, untruthful and total
unreliable one. His evidence on the question of loans is completely

unreliable. According to the unchallenged evidence of PW2 -
Malebohang Ratsiu; Jack's wife who is also a director of Millenium

Travel (Pty) Ltd, is a Mosotho by earthnicrty or appearance. The man
- meaning Jack was an Indian according to this witness. They
came in
their own persons to the Department of Finance to collect the payment
cheques for service rendered by them as arranged
by this accused for
the staff members' international travel. The accused was not telling
the truth when he claimed he did not know
how to pronounce her name -
"Beena". The accused admitted that "Beena" is
simple, but added that he noticed
or became aware of the simplicity
when the crown counsel put that to him. Perhaps the accused person
had not even met Jack's wife.
The name "Beena" appears in
the indictment where it is alleged that those are the people who
handed the cheques to this
accused. He specifically contradicted that
by saying he physically received all the cheques and vouchers from
jack. Why could he
not just read it in the indictment instead of
saying he cannot remember it because it is difficult to spell. He
heard that name
read in the indictment when it was put to him when
this trial commenced. This accused person just lied too much to be
believed
when he claims he borrowed the money from Jack. When he says
he was expressly told to pay if he can, when he can, how much he can.

That does not make a loan. Now comes the answer to the question "what
is his word's worth? His word is not worth his breath.
Therefore if
there is no evidence of borrowing and repayment, the money cannot be
considered to be a loan, only on the accused's
own word especially
when the accused has proved to be a totally an unreliable witness.

21

It is the
finding of this court that the nine company cheques drawn on the bank
account number of Millenium Travel (Pty) Ltd and
EAST WEST Travel and
tours (Pty) Ltd held at Standard Bank Lesotho limited and cash
payment vouchers of EAST WEST Travel and Tours
(Pty) Ltd together
with their proceeds were a bribe. There is no evidence that the money
was to be repaid. There is no evidence
that it was ever repaid.

The
colleagues of this accused at the Ministry of Finance PW1 - Richard
THABANG LETSOELA and PW3 MRS ALICE MPELA did not know about
the
receipt of the cheques and cash payment vouchers by this accused.
Emphasis was placed by the accused on the privacy of that
matter
between him and Jack. They both expressed a feeling of wrong doing on
the accused's behaviour of approaching the service
providers he deals
with in his capacity as a public officer on behalf of the Government,
in the so called private capacity to solicit
payments as loans or
whatever the accused calls the said payments. Mr Letsoela expressed
the view that even though the accused
regarded taking money from
service providers of his employer as his private business he should
at least inform someone in authority
at his place of employment. Mr
Letsoela could not point at a specific law which prohibit borrowing
money from anyone and from anywhere.
He pointed out that in terms of
PUBLIC SERVICE ACT 1995, the accused is obliged to inform someone in
authority. Similarly, PW3
- ALICE MPELA held that same view that this
accused should have informed someone as and when he received those
payments from those
companies. Although these two witnesses accepted
the privacy of the matter between the accused and those giving him
money, they
felt he should at least have declared his interest or
loans from those companies which he had to deal with in his official
capacity.
But the accused through his counsel was adamant that he is
not obliged to declare his interest or loans to anyone. Now let us
see
what the correct position is in this regard. We now look at that
PUBLIC SERVICE ACT.

22

PUBLIC
SERVICE ACT 1995 in SECTION 16 places certain obligations on the
public officers as regards private employment and private
interests.
[My underlining]. As alleged by this accused, the payments by cheques
or cash payment vouchers to him from the director
of the two
companies with which this accused deals regularly in connection with
the services the two companies provide to the department
of Finance
were a private matter between him and the director of those companies
as a personal friend of his. These two generous
simple and honest
crown witnesses, conceded without hesitation that the accused could
borrow money from anyone he pleased; that
he could make friends with
anyone as he pleased.

Having
friends anywhere, was the accused's private business. The law in
terms of PUBLIC SERVICE ACT 1995 SECTION 16 (1) required
that he
informs the Minister, in his case, the Minister of Finance. The exact
terms of the section are:- "Except with the
approval of the
Minister or as provided in the Regulations, no public officer shall

1. be
   employed in any other paid occupation outside the service; or

   
   

2. accept
   any money, fee, gratuity or reward of any kind for services rendered
   otherwise than in the public service.

   
   

[My
underlining] to highlight the relevant portions to this matter]

The ACT
in no uncertain terms specifically prohibits acceptance by the public
officer, of any money as set out in (b) above. The
accused knew that
as a public officer he is not permitted to accept any money
irrespective of the name he calls it by.

Further
down SECTION 16 (3) re-emphasises the inappropriateness of accepting
or soliciting payments from service providers to the
public service
by the public officer. SECTION 16 (3) provides 'If a public officer
has, either direct or indirect financial interest
(including loans
and shares) in any undertaking, being an

23

interest,
which is incompatible with the discharge of the duties of that person
as a public officer, that public officer shall disclose
that interest
to the Minister. [My underlining) It shows that it is obligatory to
disclose. Why? For example this accused when
exercising his
discretion to give or direct government business to travel agents -
he chose amongst others the company whose cheques
he is undisclosed
regular recipient.

The
accused did not disclose to the Minister the alleged loans he
received from the service provider to the Department. Why? He
claims
he was not obliged. That is not correct. This accused is obliged in
terms of SECTION 16 (3) PUBLIC SERVICE ACT 1995 to disclose
to the
Minister, his receipt of those loans. The accused deliberately failed
to inform the Minister about this private matter of
alleged loans
because they were not loans. He could not disclose that he received
these cheques and cash payment vouchers as and
when he received them
because they were bribes. He is not obliged by the law to disclose
bribes. That is what he should have said
rather than he was not
obliged to disclose loans from service providers. But he most
certainly is obliged to disclose loans. [Section
16 (3) Public
Service ACT 1995]. He did not make the required disclosure. He has
not only failed to comply with this particular
Act. But his whole
attitude and behaviour of befriending the director of the companies
which he regularly engage in his official
capacity as a public
officer, on behalf of the Department of Finance, in order to get
personal benefit, continuously or even once
was wrong. He directed a
lot of the Department of Finance International Travel business to
these companies:- Millenium Travel (Pty)
Ltd and EAST WEST Travel and
Tours (Pty) Ltd. In 1999 the director of those companies, the alleged
personal and best friend of
this accused was only three or so years
in this Kingdom. Since according to the accused, Jack arrived in this
Kingdom in 1996.
His companies must have been formed and registered
after his arrival. Therefore they must have been very new in the Air
Travel
industry. But because of this accused's alleged friendship
with the director of those companies - Jack, he directed about 14% of

Department of Finance's travel business to them in that

24

period.
The success of the two companies in air travel industry even without
being accredited to the EATA which controls the issuance
of air
travel tickets, took off from start in the same intensity and
greatness as the alleged friendship between this accused and
Jack -
the director of those companies. The accused told this court that
their friendship did not grow over the years - but took
off from
start in the same intensity and greatness as it is to day. This has
been proven to be untrue. There was no friendship,
personal or
otherwise.

10. THE
FIRST MEETING BETWEEN THIS ACCUSED AND PW6 – THE INVESTIGATING
OFFICER

Introductions:-
An appropriate introduction was made such "as I am the I.O.
investigating this case. Reasons were given to
the accused as to why
he had been invited to the office of "directorate for PREVENTION
OF CORRUPTION"

The
accused was shown the cheques and asked to explain. An appropriate
caution and advise that he was not obliged to answer etc
etc was
given - When the accused was confronted with the cheques [EXHIBIT K]
all nine or so of them, he elected to exercise his
right to remain
silent He told PW 6 that he first of all needed to consult the
lawyer. The accused left and that was the end of
the matter then. He
never came back with his lawyer or alone but armed with his lawyer's
advice. They meet for the second time
here before this court. Even
though it is not expressed, it seems the accused's attitude from the
start was "I will see you
in court!"

Accused
at his very first opportunity to clear himself he refrained. He
elected to exercise his right to remain silent on the ground
that he
needed to seek a legal advice first before responding to what he was
confronted with. His response comes only now in the
course of his
trial. Nothing is wrong with that. He is perfectly within his rights
to say nothing to the police - investigating
his case.

25

Even if
what he tells this court at his trial was already known to him at the
-time the investigators asked him to assist them in
their
investigations. He had no obligation to help PW 6 in his
investigations of this case. He still has no obligations to this

court to assist it to reach whatever determination it arrives at. But
assistance and cooperation in the search for JUSTICE and
truth, are
always appreciated as energy and time saving devices to alt those
concerned. If all those payments to the accused were
loans as he
alleges why did he need his lawyer to advise him to say so? Still
that by itself does not say the accused is guilty
of anything. It is
the evidence of receipt by him of those various payments for the
period of over two years which forms a prima
facie evidence of
bribery. When the accused failed to rebut that prime facie evidence,
it becomes prima facie proof and conclusive.
S V VELDTHUIZEM 1982 (3)
SA at page 416 - G. He cannot remember when he paid. He cannot proof
how he paid. He cannot proof that
he paid at all. He has no proof of
repayments. This court is in these circumstances unable to accept any
repayment was ever made.
Therefore those company cheques to this
accused by his alleged best and personal friend, were a bribe. If a
loan has not been repaid,
if there is no evidence that it was
intended to be repaid and it was not paid, it is not a loan. Where a
public officer who in
his official capacity gives business or any
other consideration on behalf of government to the service provider
to the government,
who pays that public officer SUMS of money for
which the public officer gives no or an unsatisfactory explanation,
that money must
be a bribe.

The
accused is found guilty on the main charge - BRIBERY.

The two
gentlemen assessors agree with the fact finding in this case.

26

11.
SENTENCE Personal Circumstances:-

Under
oath while giving evidence in his defence the accused told this court
that he is 51 years old, married with 4 minor children:

Presently
a civil servant working at the Ministry of Trade and Commerce as an
accountant.

The
accused himself did not tell this court how much he earns. There is
no pay slip of any official record to show the court the
accused
person's earnings. His counsel in his address in mitigation of
sentence put the accused person's salary at three thousand
per month.

Maintenance
of the Children:-

It is of
paramount importance that the parents maintain and support their
children. In fact it is the parents's legal duty to maintain
and
support the minor children. The community or society in which the
children live have a role to play - by way of helping if
and when
they can .... By way of exerting some sort of influence as advisers
or even role model. The parents are the members of
the same community
or society which influences the bringing up of their children. Being
the closest or nearest to their children
they must have greater
influence on their children. Children often want to be what they see
and admire from their parents or from
the neighbours, e.g. Seeing
someone with admirable means of living, the children may want to be
like that person. A teacher, lawyer,
accountant or business man.

27

The court
when assessing an appropriate sentence is obliged in law to consider
the interests of the minor children. It was proper
for counsel to
draw the attention of the court to the plight of these children as a
likely consequence of sending their father
to jail. To prevent
subjection of children to any suffering is first and most of all the
responsibility of the parents just as
providing for children is the
responsibility of the parents.

According
to the evidence of this accused, under oath while testifying in his
defence he had abdicated from the parental responsibility.
The
reasons he gave why he accepted and collected these bribes was to
meet the financial needs of his family. Such as paying for
school
fees, buying books, paying for school trips and buying Christmas
presents etc. This came out when he was led in his evidence
in chief
in relation to specific amounts - on the cash payment vouchers and
cheques.

The first
five payments he received from Millenium were for taking his ill
mother to various doctors. The following two were for
her medication.

What this
accused did with his salary has been and still is the very closely
guarded secret

The wife
seems to have been giving him some money from her so called small
chicken farming.

To his
children this accused seemed to bring only those illgotten benefits
or a curse. Whenever the child came to him for help as
a father, he
did not help the child with his own money for school fees, books,
school trips or Christmas dresses or whatever Christmas
presents.
This was when he was engaged in full time employment as an
accountant.

28

It is
argued that he is likely to lose that job as an accountant in the
civil service. If he supported the family with dishonesty
and
corruptly obtained money when he was employed, when he is unemployed,
how can he support the family? He appears to be the person
from whom
they should be protected as he is a bad role model.

The
accused is not a rote model to his children only, but to all other
children and also adults. That is to say, there are those
who are
like minded - those who could consider behaving in the similar manner
in conducting themselves in their employment. They
too must be warned
that it will not pay them to do what this accused did to his
employer.

It is a
common saying that crime does not pay. The person who benefitted to
the tune of M 17,000 - or so cannot be fined five thousand
Maloti
unless the truth is that "crime pays"

Because
of the accused person's age over fifty years. Most of all that for
some many years until now he was a law abiding citizen
that must be
reflected in the sentence vetted out to him. Rehabilitation at his
age is not going to be easy. As the saying goes
it is not easy to
teach an old dog new tricks!"

Imprisonment
is the only type of sentence that will be suitable in this case.
Portions of the period of imprisonment will be suspended
firstly to
assist the accused to refrain from trying his hand again soon in
committing similar offences. Secondly as an old man
and with that
minor handicap - limping as counsel pointed out.

29

Sentence;

5 years
imprisonment half of which is suspended for a period of three years
on condition that the accused does not commit similar
offences during
that period.

K. J.
Guni

JUDGE

For the
crown: Advocate Roland Suhr

For
defence: Advocate Saiemane Phafane

30