CRI/T/97/2004
In the matter between:
vs
TSABO JACOB MACHESA
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 20th August, 2007.
The accused appeared before Court charged with the offence of Bribery or alternatively contravening the provisions of Section 22 (1) of the Prevention of Corruption and Economic Offences Act of 1999. The allegations were 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 by facilitating payments of invoices submitted by Millenium and East West to the Department of Health, alternatively was in a position to do so.
This case was first set down for hearing on the 9th august, 2004 but suffered so many postponements due to the accuseds ill health. Today when it finally came before me the accused was present but still looked sickly. He could not even afford to stand up for anything more than five minutes.
After the main and the alternative charges were read to him, he pleaded guilty to the main charge and the defence counsel conceded that the plea was in accordance with his instructions. There was no need even to make an outline of facts as the indictment had been informative enough to have covered all the relevant facts surrounding the case.
The indictment revealed that the accused had received from Millenium and East West travel agencies cash cheque payments totalling M70 060.00 in his capacity as an Accountant, which monies were intended to influence him. When such payments were so received by the accused, he accepted them wrongfully, intentionally and corruptly.
The facts as contained in the indictment which were admitted by the accused disclosed the offence of Bribery and the accused was thus found guilty as charged in the main charge, and my assessors agreed with my finding.
The accused was found to be a first offender.
In Mitigation of sentence counsel for the accused cited cases similar to the present where the accused though had pleaded not guilty were found guilty as charged and sentenced to a term of five years imprisonment with an option of a fine or suspension of part or the whole sentence. Cases at issue being CRI/T/96/2004 Rex vs Letsolo Peter Kholoane (unreported) where the accused had received monies from Millenium Travel with corrupt intent. He had pleaded not guilty but was found guilty and sentenced to a term of five years imprisonment with an option of a fine.
Again in Masehlooho Kao vs Rex 1993 94 LLR &LB 483 the Appellant had been convicted on her own plea and sentenced to a term of five years imprisonment for unlawfully and intentionally
communicating an official secret file to a foreign agent. As can be observed from these authorities there has been some element of dishonesty in the conduct of the accused persons.
The cumulative effect of the mitigating factors such as the fact that the accused pleaded guilty to the charge and that his health is failing him should surely substantially mitigate the objective seriousness of the offence as was the case in Kaos case supra. Three medical reports were handed in as exhibits from three different doctors. The reports all show poor health condition of the accused with a heart problem. The last doctor who attended the accused recommended that the accused could stand trial but not fit for adverse environmental and stressful physical situations.
The proper sentence therefore under the circumstances of this case would be a term of five years imprisonment, wholly suspended for a period of three years on condition that the accused is not, during the period of suspension found guilty on a similar offence involving dishonesty. A further condition being that the accused should cooperate fully with the Crown in other anticorruption cases and be willing to testify whenever required to do so.
M. HLAJOANE
JUDGE
For Crown: Mr Surh
For Accused: Mr Shale
Assessors: Mr Kolobe & Mr Makhera
