C OF A (CRI) NO.9/05
IN THE APPEAL COURT OF LESOTHO
In the appeal between:-
Held at Maseru
GLEN TEBOHO SEROBANYANE First Appellant
MOKOMA MANUEL MOTHAKATHI Second Appellant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent
In the cross-appeal between:-
THE DIRECTOR OF PUBLIC PROSECUTIONS Appellant
GEORGE MANUEL LEHLOKA First Respondent
GLEN TEBOHO SEROBANYANE Second Respondent
DANIEL MASIEA Third Respondent
MOKOMA MANUEL MOTHAKATHI Fourth Respondent
CORAM: Grosskopf, JA
Smalberger, JA
Majara, JA
2
SUMMARY
The four accused were charged in the High Court with theft and fraud committed in the execution of a fraudulent scheme. The bank account of the Roman Catholic Church was used to launder the money obtained by means of a forged cheque. Accused 2 and accused 4 were convicted of fraud and theft but the conviction of accused 2 was set aside on appeal. The Crown noted a cross-appeal against the acquittal of accused 1 and 3, against the leniency of the sentences imposed on accused 2 and 4, and against the ruling of the court a quo that statements made by the accused to the police were inadmissible. The Crown's cross-appeal was not successful.
JUDGMENT
GROSSKOPF, JA
[1] I shall refer to the parties respectively as the Crown and accused one, two, three and four. The four accused were charged in the High Court with five counts of theft and five counts of fraud. Each theft count had a corresponding fraud count. The counts were all, either directly or indirectly, based on certain forged cheques of a company known as CGM Industrial (Pty) Ltd ("CGM"), or on cheques of the Roman Catholic Church, whose bank account was in the name of the Catholic Cathedral ("the Catholic Cathedral").
[2] George Manuel Lehloka ("accused 1") was discharged by the court a quo at the close of the Crown's case. An application for the discharge of the other three accused was dismissed by the court a quo, whereupon the remaining three accused closed their respective cases without giving any evidence or calling any witnesses. The
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court a quo then found Glen Teboho Serobanyane ("accused 2") guilty on count 6 of fraud in respect of a CGM cheque for M660 000,00 ("the M660 000.00 CGM cheque") and sentenced him to two years imprisonment. Daniel Mothokatha Masiea ("accused 3") was found not guilty and acquitted by the court a quo.
[3] Mokoma Manuel Mothakathi ("accused 4") was found guilty of fraud on count 6 in respect of the M660 000,00 CGM cheque. Accused 4 was also convicted on count 7 of fraud in respect of a M14 200,00 CGM cheque ("the M14 200,00 CGM cheque"). Accused 4 was farther convicted on count 2 of theft in an amount of M13 800,00 withdrawn from CGM's bank account by means of the M14 200,00 CGM cheque. (The undisputed evidence was that an amount of M400,00 had to be deposited into CGM's bank account before the Ml4 200,00 CGM cheque could be met). Accused 4 was sentenced to three years imprisonment.
[4] Accused 2 and accused 4 appealed against their convictions while the Crown noted a cross-appeal against the acquittal of accused 1 and accused 3, and against the sentences imposed upon accused 2 and accused 4. The Crown further cross-appealed against the ruling of the learned judge in the court a quo concerning the admissibility of certain statements made by the various accused to the police.
[5] Both accused 2 and accused 4 were found guilty on count 6 of fraud in respect of the M660 000,00 CGM cheque. Count 6 reads as follows:
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"In that upon or about the dates and period between 14 July 2001 until 19 July 2001 and at or near Maseru, in the district of Maseru the Accused, in a joint scheme and with common purpose as alleged herein-before, did unlawfully, falsely and with the intent to defraud represent to CGM Industrial (Pty) Limited and/or Presitex Enterprises (Pty) Limited and/or the Roman Catholic Church and/or Lesotho Bank 1999 (Limited) and/or Nedbank (Lesotho) Limited and/or the employees of such entities ("the prejudiced parties") to their actual prejudice in the amount of M245 000.00, regarding the cheque with number 014876 that:
The cheque was not a stolen cheque, and/or;
The cheque was a properly drawn cheque, and/or;
The cheque was a lawful cheque, and/or;
The cheque was a properly signed cheque, and/or;
The cheque was a properly authorized cheque, and/or
The Accused were the lawful possessors of the cheque, and/or;
The Accused were lawfully entitled to possess the cheque, and/or
The Accused were entitled to deposit the cheque into the account of Catholic Cathedral at Nedbank Maseru with account number 021000000091, and/or;
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The Accused were entitled to withdraw funds from the CGM Industrial (Pty) Limited account by means of the cheque, and/or;
The Accused were entitled to the proceeds of the cheque.
Whereas the Accused knew, at all relevant and material times, that the aforegoing representations were false."
[6] CGM made use of two bank accounts on which its wage department could draw cheques, one at the Lesotho Bank (1999) Ltd ("Lesotho Bank") and another at Nedbank (Lesotho) Ltd ("Nedbank"). The witness Tsepiso Lazarus Moroanyane ("PW1") was in charge of the wage department at CGM during July 2001. He discovered that two of CGM's blank Lesotho Bank cheques bearing cheque numbers 014876 and 014877 had been unlawfully removed from the wage office. PW1 further mentioned that accused 1 used to work in the wage office at the time and that he assisted PW1 in searching for the missing cheques.
[7] The Crown produced a photocopy of cheque number 014876 ("exhibit G") which shows that the original cheque had ostensibly been drawn on 13 July 2001 on behalf of CGM in favour of the Catholic Cathedral as payee in the sum of M660 000.00 (the M660 000.00 CGM cheque). The defence objected to the admission of a photocopy instead of the original cheque number 014876, but the court a quo ruled that the photocopy of the M660 000.00 CGM cheque (exhibit G) be admitted as secondary evidence. The court a
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quo reached this decision in the light of the evidence of Inspector Thlabi Lebetsa ("PW13") who was the investigating officer before his retirement in October 2001. He testified that he found the original M660 000.00 CGM cheque after it had been torn into many pieces. He recovered 43 pieces and pasted them together, leaving only two small and insignificant gaps where pieces of the reconstructed original cheque were missing. He compared this reconstructed original M660 000.00 CGM cheque number 014876 with the photocopy, exhibit G, which the witness Strini Naidoo ("PW8") had given him, and he found that the two were identical, except for the two gaps in the original.
[8] PW13 retired a few months after the commission of the alleged
crimes. Before he retired he handed this reconstructed original M660 000.00 CGM cheque together with a number of other documents to the clerk of the court who issued a document, exhibit F, in which he ordered that a cheque consisting of "43 pieces", as well as 57 other "pieces of paper" be kept in the custody of the police, pending the trial. PW13 testified that he then handed the original of exhibit F as well as the reconstructed original M660 000.00 CGM cheque and the other 57 documents mentioned in exhibit F, to superintendent Hlaele of the police. However, when PW13 was required to testify in May 2005 none of these documents could be found after a proper search had been made for them.
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[9] I agree with the learned trial judge that the evidence shows that a proper search has been made for the reconstructed original M660 000.00 CGM cheque, but that it has apparently been lost or destroyed and that the photocopy thereof, exhibit G, could accordingly be admitted as secondary evidence. See R v Amod & Co (Pty) Ltd and Another 1947 (3) SA 32 (A) where Tindall JA held at 40-
"that the general rule is that when the purpose is to establish the terms of a writing, the writing itself must be produced, but that secondary evidence may be given of the contents when the original has been destroyed or lost and proper search has been made for it".
See further S v Blaauw 1989 (1) SA 202 (A) at 205 E-G.
[10] The photocopy of the M660 000.00 CGM cheque, exhibit G, has been identified by at least two witnesses as a true copy of the original M660 000.00 CGM cheque. I have already referred to the evidence of PW13 in this regard. The witness Strini Naidoo (PW8) was a deputy general manager of CGM at the time, and an authorized signatory for CGM. His evidence is that he never signed the M660 000.00 CGM cheque and that his signature on the cheque had been forged. He certified exhibit G to be "a true copy of the original cheque with forged signature". His certificate bears the date 25.07.2001. He is clearly mistaken when he says that the CID brought the original cheque to him and that he made a copy
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thereof on 25 July 2001. By then the original cheque had already been torn up. PW8 probably made a photocopy of the original cheque when it was first brought to him to verify his signature. By then the original cheque was still in one piece and capable of being photocopied, as appears from exhibit G. PW8 apparently certified exhibit G as a true copy of the original only thereafter on 25 July 2001.
[11] A further indication that exhibit G is a true copy of the original M660 000.00 CGM cheque appears from the bank statement of the Catholic Cathedral at Nedbank. The particulars set forth in this bank statement coincide with those reflected in exhibit G. The bank statement shows that an amount of M660 000.00 was deposited into the bank account of the Catholic Cathedral on 14.07.2001 by means of a cheque numbered 014876. Exhibit G is a photocopy of a cheque bearing the same number 014876, dated 13.07.2001, and drawn in favour of the Catholic Cathedral for M660 000.00.
[12] It is not in dispute that the signatures of both the authorized signatories of CGM on the M660 000.00 CGM cheque were forged
signatures. That is the evidence of PW8 referred to in paragraph [10] above. The other signatory is the witness Shellina Hsiao Teng ("PW3"), another deputy general manager of CGM. She too denied that she had signed the M660 000.00 CGM cheque. Once the forgery was discovered the Lesotho Bank, on whom the cheque was drawn, returned the M660 000.00 CGM cheque unpaid to
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Nedbank. This took place on 19 July 2001. By then Nedbank had already paid out a total amount of M245 000.00 in respect of three cheques drawn by the Catholic Cathedral on the strength of the fictitious credit created by the deposit of this forged M660 000.00 CGM cheque.
[13] I find it strange that nobody at the Lesotho Bank or Nedbank seemed to have noticed the discrepancy between the amount in figures and the amount in words as they appear on the M660 000.00 CGM cheque. The amount expressed in figures is M660 000.00 while the amount expressed in words is only M66 000.00. It must in any event have been clear to the bank that the M660 000.00 CGM cheque, which was drawn on the wage account, could not have been in respect of wages.
[14] The witnesses Palesa Kitleli ("PW4") is the only witness who implicated accused 2 in an offence. It is on the strength of her evidence alone that the court a quo convicted accused 2 of the fraud charged in count 6 in respect of the M660 000.00 CGM cheque. PW4 was a young typist who worked for a secretarial service when she was approached one day during July 2001 by accused 2, accused 3 and a third person. She knew accused 2 since 2000 as a customer of her mother while accused 3 was known to her since childhood. The third person was unknown to her. Accused 2 handed her a blank Lesotho Bank cheque with signatures thereon and instructed her to type the date, the words "Catholic Cathedral" and the amount in words and figures on the
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cheque, which she did. It is her evidence that she made a mistake when she typed the letters "ZE" instead of "SI" on the cheque. She said that she told accused 2 that she was unable to rectify the typing error. They then paid her M5,00 for the typing and left. She was not subsequently asked to correct the mistake on the cheque.
[15] PW4 testified in chief that exhibit G was a photocopy of the M660 000.00 CGM cheque she was asked to fill in. Counsel for accused 2 however submitted that PW4 was unable to properly identify the original cheque which she alleged she had filled in. He pointed out that her identification of the original cheque followed after she had had the opportunity of looking at exhibit G, which contained all the identifying features to which she referred. I agree with counsel for the accused that her identification of the original cheque under those circumstances is analogous to a dock identification and of very little probative value.
[16] What PW4 could not tell was what the cheque number of the original cheque was. That number would have provided an indisputable identification. It should be borne in mind in this connection that two blank CGM Lesotho Bank cheques had been stolen from the CGM wage office. These cheques bore the numbers 014876 and 014877. The Crown has proved that exhibit G is a photocopy of the original M660 000.00 CGM cheque bearing number 014876. It should further be borne in mind that count 6, of which accused 2 was convicted, related specifically to cheque number 014876, and not to cheque number 014877. There
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is no evidence to show what has happened to cheque number 014877. It is quite possible that cheque number 014877 was the cheque on which PW4 had typed "ZE" instead of "SI" and that the culprits then used the other Lesotho Bank cheque, cheque number 014876, for their nefarious scheme. It is of some significance that exhibit G showed no sign of any typing error or the correction of the mistake on the original cheque. It is further unlikely in my view that any bank would have accepted a cheque for M660 000.00 on which a "ZE" has been changed to "SI".
[17] PW4 conceded during cross-examination that "it is not possible to conclude" that exhibit G is a copy of the original cheque which accused 2 brought to her for typing. That concession was properly made in my view. It follows that it is quite possible that the cheque which accused 2 brought for typing was cheque number 014877 and not cheque number 014876 which was eventually used to commit the fraud charged in count 6. Cheque number 014877 was of course one of the stolen cheques and accused 2 must have been aware of it, but he was not charged with any offence involving cheque number 014877. His appeal must accordingly succeed.
[18] Accused 4 was convicted on count 6 (fraud in respect of the M660 000.00 CGM cheque), count 7 (fraud in respect of a M14 200.00 CGM cheque) and count 2 (theft in the amount of M13 800.00). The Crown's case against accused 4 rests mainly, but not entirely, on the evidence of the Reverend Father Anthony Thabo Monyau ("PW10"). PW10, who was in charge of the Roman Catholic
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Church in Maseru, was a co-accused in this matter. He had pleaded guilty and had been convicted of theft and fraud. He had been sentenced to a term of imprisonment which was suspended on condition that he repaid an amount of M245 000.00 within a period of one year.
[19] It is the evidence of PW10 that he knew accused 4 whom he had met on two previous occasions. Accused 4 handed him the M660 000.00 CGM cheque on 14 July 2001 and asked him to deposit the cheque into the bank account of Catholic Cathedral at Nedbank so that they could withdraw money on the strength of the deposit. PW10 asked a young man who worked with him. one Peter Nunu, to deposit the cheque as arranged, and this was duly done on the same day. Accused 4 phoned him a few days later to enquire whether the M660 000,00 CGM cheque had been cleared by the bank. As soon as that happened PW10 withdrew a total sum of M245 000,00 in cash on 19 July 2001 from the Catholic Cathedral account at Nedbank. This was done by means of three Catholic Cathedral cheques drawn by PW10 in favour of associates who brought him the cash. It is the evidence of PW10 that he handed the M245 000,00 to accused 4, who had actually asked for M300 000.00. The witness Nchela Motemekoane ("PW6") testified that he cashed a Catholic Cathedral cheque for Ml70 000,00 at the request of PW10. When he handed the cash to PW10, PW10 gave him M4 000,00 which PW10 owed him. PW10 however denied that he had made such a payment.
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[20] The M660 000,00 CGM cheque was dishonoured by the bank on 19 July 2001 after the M245 000,00 had been paid out. Nedbank informed PW10 the next day that there was a problem in connection with the signatures on the M660 000,00 CGM cheque and the bank handed him the cheque in order to have it properly signed. PW10 testified that he phoned accused 4 who collected the cheque that same day to rectify the position. PW10 asked accused 4 to return the cheque as soon as possible since the bank account of Catholic Cathedral was overdrawn, but accused 4 never returned the cheque. Inspector Lebetsa, (PW13) later found the M660 000,00 CGM cheque torn up into many pieces.
[21] Inspector Lebetsa, PW13, interviewed PW10 at the police station on the morning of Monday 23 July 2001 and asked him about a M660 000,00 forged cheque. PW10 explained to the police how he had become involved in the fraudulent scheme and he told them of the role which accused 4 had been playing. PW10 then phoned accused 4 at the instance of the police and asked accused 4 to come and talk to him about the cheque at the church. It is the evidence of PW10 that accused 4 suggested that they should rather meet at the Lakeside Hotel. The police arrested accused 4 shortly thereafter at the Lakeside Hotel.
[22] The evidence of PW10 about his telephone discussion with accused 4 and the consequent arrival of accused 4 at the Lakeside Hotel is corroborated to a great extent by the evidence of
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Inspector Lebetsa, PW13. He was present during the telephone discussion and heard that PW10 said to the person on the other end that he should come to the church to collect the balance of the money. PW10 told PW13 that accused 4 was not coming to the church but that he had arranged to meet accused 4 at the Lakeside Hotel. The fact that accused 4 turned up at the Lakeside Hotel shortly after the telephone conversation lends support to PW10's evidence that accused 4 was involved in the fraudulent scheme.
[23] PW10 testified that accused 4 gave him a second cheque on 14 July 2001. This cheque was also dated 13 July 2001. It was ostensibly drawn by CGM on Nedbank for the sum of M14 200,00 and payable "to the order of cash' ("the Ml4 200,00 CGM cheque"). Exhibit H is a photocopy of the original M14 200,00 CGM cheque which was lost whilst in the custody of Nedbank. It is not in dispute that the signatures of the authorized signatories of the drawer of the Ml4 200,00 CGM cheque were forged. Accused 4 required the sum of Ml 4 200,00 in cash but PW10 did not have that amount of cash available. PW10 asked the witness Lepipi Motanyane ("PW5"), who was working for Nedbank at the time, to cash the cheque, but it appeared that there were insufficient funds in the CGM Nedbank account to meet the M14 200,00 CGM cheque. PW10 then arranged to deposit an amount of M400,00, which he provided, into the CGM account at Nedbank, whereupon PW5 cashed the M14 200,00 CGM cheque and gave the money to PW10, who in turn gave Ml3 800,00 (M14 200,00 less M400,00)
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to accused 4. The actual amount that was stolen in this manner therefore came to Ml3 800,00.
[24] Counsel for accused 4 submitted that the evidence of PW10 should be treated with caution, seeing that he is an accomplice. Section 239 of the Criminal Procedure and Evidence Act, 1981 ("the Act") provides that a court may convict a person of any offence on the single evidence of an accomplice, "provided the offence has, by competent evidence other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of the court to have been actually committed". This proviso has been complied with. It is true that PW10 is a self-confessed criminal, but it was not suggested to PW10 in cross-examination, or alleged by accused 4 in evidence, that the alleged friction between them caused PW10 falsely to implicate accused 4. There is further no suggestion that PW10 was trying to substitute accused 4 for the real culprit. PW10 had in any event been convicted and sentenced by the time he testified and there could therefore be no hope for clemency.
[25] Counsel for accused 4 further submitted that accused 4 was not only an accomplice but also a single witness whose evidence contained a number of unsatisfactory features. There are indeed certain defects and contradictions in the evidence of PW10, but the learned trial judge was alive to these shortcomings when he accepted his evidence as truthful. It has been held that a court may convict on the evidence of a single witness even where the
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evidence of the single witness is not clear and satisfactory in every material respect. Diemont JA remarked as follows in this regard in S v Sauls and Others 1981 (3) SA 172 (A) at 180 E-G:
"There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness
(see the remarks of Rumpff JA in S v Webber 1971 (3) SA 754 (A) at 758). The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told."
[26] I am satisfied that the evidence of PW10 is basically true. What is more, this evidence is corroborated to a certain extent by the evidence of PW13 (set out in paragraph [22] above) implicating accused 4 as a person involved in the fraudulent scheme. It should further be borne in mind that accused 4 did not testify but chose to remain silent in the face of the evidence implicating him. It was held by Langa DP in S v Boesak 2001 (l)SACR l at 11 that-
"a court may well be entitled to conclude that the evidence is sufficient, in the absence of an explanation, to prove the guilt of the accused."
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I am therefore of the view that accused 4 was properly convicted on counts 2, 6 and 7 and that his appeal against his convictions should accordingly be dismissed.
[27] I shall next deal with the Crown's cross-appeal against the acquittal of accused 1 and accused 3. The Crown abandoned its cross-appeal
against the acquittal of accused 1, and correctly so in my view. Then there is the cross-appeal against the acquittal of accused 3. The only evidence which could possibly implicate accused 3 is that of the young typist, PW4. She said that although accused 3 came along with accused 2, accused 3 was not present when accused 2 told her what to type on the M660 000,00 CGM cheque. The evidence of PW4 was in any case found to be insufficient to convict accused 2. That evidence is certainly insufficient for a conviction in the case of accused 3. The Crown's cross-appeal on this aspect should accordingly be dismissed.
[28] The Crown also noted a cross-appeal against the refusal of the court a quo to admit certain statements made by the accused to policemen. We have not seen any of these statements and cannot comment on whether they are confessions or not. Section 228 (2) of the Act provides that if a confession is shown to have been made to a policeman, it shall not be admissible in evidence unless it is confirmed and reduced to writing in the presence of a magistrate. The court a quo refused to admit the statements on the basis that they were confessions made to policemen and not to magistrates. The Crown conceded at the trial that looking at all the
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evidence accused 2 could be found guilty on what he had admitted in his statement to the police. The learned trial judge cannot therefore be faulted for refusing to admit his statement. The court a quo also rejected the statement made by accused 3 to the police on the ground that it is an inadmissible confession. The learned trial judge had the opportunity to look at the statement of accused 3 and concluded that it contained an unequivocal admission of guilt. The evidence of PW4 against accused 3 is in any event so inadequate that his statement can only assist the Crown if it amounts to a confession. The Crown no longer needs to rely on the statements made by accused 4 seeing that he was duly convicted.
[29] There remains the Crown's cross-appeal against the sentences imposed by the court a quo. We are no longer concerned with the appeal against sentence in the case of accused 2 since his appeal against conviction is successful. The sentence of three years imprisonment which was imposed upon accused 4 is certainly not a heavy sentence, but I do not agree with counsel for the Crown that the sentence should be increased. The court a quo took the personal circumstances of accused 4 into account, in particular that he was a first offender. The court a quo also took into account that accused 4 took part with many other people in a well planned fraudulent scheme. There is no allegation that the learned trial judge misdirected himself in any respect when he sentenced accused 4 and I do not regard the sentence, although lenient, as disturbingly inappropriate. The Crown's cross-appeal against sentence must therefore be dismissed.
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[30] The following order is made:
The appeal of the first appellant in the appeal (G.T. Serobanyane) against his conviction is upheld and his conviction and sentence are set aside.
The appeal of the second appellant in the appeal (M.M. Mothakathi) against his conviction is dismissed, but the Crown's cross-appeal
against his sentence is also dismissed.
The Crown's cross-appeal against the acquittal of the third respondent in the cross-appeal (D Masiea) is dismissed.
The Crown's cross-appeal against the ruling of the learned trial judge to the effect that the statements made by the respondents in the cross-appeal were inadmissible confessions, is dismissed.
FH GROSSKOPF JA
I agree
JW SMALBERGER JA
N. MAJARA JA
20 Delivered at Maseru on 4 April 2007
For the first and second appellants in the appeal and the second and
fourth respondents in the cross-appeal: Adv. JWB Wolmarans
For the Crown as respondent in the appeal and as appellant in the cross-appeal : Adv. H. Louw For the first respondent in the cross-appeal : No appearance
For the third respondent in the cross-appeal : Adv Z. Mda
