CRI/T/53/06
IN THE HIGH COURT OF LESOTHO
In the matter between: -
REX
Vs
CITY CENTRE MASERU TRAVEL AGENCY (PTY) LTD
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 28th August 2007
The accused company was brought before this Court on a charge of fraud. According to the indictment, on or about the dates set out in column 3 of schedule A hereto and at Maseru, starting from 2002 to 2004, the accused company did wrongfully, unlawfully and with intent to defraud, misrepresent to the Departments of government as set out in column 4 of the schedule and/or the Government of Lesotho, by submitting the invoices as set out in column 2 of the schedule to the said Department for payment, that the cost of the air ticket was the amount as set out in column 6 of the
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schedule, and did thus induce the said Department and/or the Government of Lesotho, to pay to the accused the amounts as per the payment vouchers as reflected in column 10.
The indictment reads further as follows; whereas the accused, when it made the said misrepresentation, knew fully well that the price of the said air ticket was in fact the amount as set out in column 5. In so doing the accused caused prejudice to the Government of Lesotho in the amounts as set out in column 7 of the schedule. The accused is represented by its Director, Ms 'Mampe Khaebane and she pleaded not guilty to the charge on its behalf.
Before I deal with the merits of the case I find it convenient at this stage to state that in her closing address and heads of argument, Ms Kolbe, Counsel for the accused company made the submission that from the onset, this case was riddled with irregularities the cumulative effect of which rendered the trial unfair and entitle the accused to an acquittal. She stated those irregularities as follows;
That firstly, no evidence was placed under oath that an offence had been committed prior to the issuing of the search warrant or institution of the proceedings which she contended prejudiced the accused in preparation of its defence and that this issue was placed on record at the outset.
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Further, that a request for all statements in possession of the prosecution in terms of a letter dated 21st June 2006 addressed to Mr. Penzhorn and handed in and marked Exhibit "L" bore no fruit. In addition, that it was also placed on record that no such affidavits or statements had been furnished.
The second point that was raised by Counsel for the defence was that in the absence of evidence on oath that an offence has been committed, there can be no proper exercise of discretion by the Director of Public Prosecutions to indict in a summary trial in terms of the provisions of Section 144 of the Criminal Procedure and Evidence Act 1981. The third point was in relation to admission of evidence that she contended was unlawfully obtained including the search warrant Exhibit "C", all the documents that were seized at the premises of the accused pursuant to the search warrant namely Exhibit "A", as well as evidence in respect of a meeting of the 21st June 2007 that was held between Ms Hemraj Crown Counsel, Mr. White the forensic auditor and Ms 'Mampe Khaebane inter alia.
Counsel's lastly submitted that there was no independent investigation for the reason that, per her contention, all
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persons involved in the investigation were paid contractors, which detracts from the independence of the investigation.
Ms Kolbe concluded that considering that the institution of the proceedings was irregular, in that the documents were obtained in an unlawful manner and that the evidence in respect of the meeting should have been ruled inadmissible, all derivative evidence is tainted and it is at once clear that there is no admissible evidence on record.
I proceed to deal with all the above points seriatim. That there was no complaint made on oath before the search warrant was sought is common cause. Even the evidence of P.W.I Mr. Thibeli, the Chief Investigating Officer of the Directorate on Corruption and Economic
Offences (DCEO) especially in cross-examination, was to the effect that when the search warrant was sought before the Magistrate no statement or evidence was placed before him on oath. (See page 36 of the record).
The requirement that there should be evidence placed on oath before a judicial officer can issue a search warrant is indeed provided for in our Criminal Procedure and Evidence Act of 1981 in its Section 46 which provides in parts and in so far as is relevant to this point that:-
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"If it appears to a judicial officer on complaint made on oath that there are reasonable grounds for suspecting that there is upon any person or upon or at any premises or other place or upon or in any vehicle ore receptacle within his jurisdiction
a)................; or
anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any offence; or
.................he may issue a warrant directing a policeman named therein or all policemen to search any such person, premises, other place...."
I have already stated that the evidence has established that the provisions of the above section were not complied with. This in turn begs the question whether or not this failure constituted an irregularity and if so whether it was of such a nature that it resulted in a miscarriage of justice. In order to answer this question, the first point for consideration by this Court is whether or not the accused was prejudiced in its defence.
Save for the defence to submit that the search warrant was irregularly obtained it was not suggested that the document was in itself
irregular either in form, substance and/or content which would in turn result in the accused company having difficulty appreciating
what its nature and purpose was. In my view, it is only in that event that that was shown to have been the case that it could correctly be argued that the accused suffered prejudice in its defence in that it did not
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know what case it was facing. It is therefore my opinion that, although Counsel for the defence made the submission that the accused did not properly prepare her defence due to the Crown's non-compliance with the provisions of Section 46, she failed to show in what manner especially because at that stage, the company had not been indicted as yet.
The further submission that the investigations against the accused herein came about as a result of allegations by the legal representatives of Millennium Travel, to the effect that travel agencies have a tendency to inflate ticket prices as well as the contention that the Government never complained to the Director of the accused does not in my opinion take this point any further. It is my view that even if this may be the case, this factor did not per se constitute an infringement of the accused's right to a fair trial. It is trite that prejudice must not only be alleged, but that it must be proved.
For these reasons, it is my opinion that the irregularity in the form of non-compliance with the provisions of section 46 is only formal in nature and does not really affect the question of proper preparation of the defence by the accused, especially once the indictment had been served on them setting out the charge they were faced with.
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In addition, it should be remembered that preparation of one's defence is not dependent on what might be contained in a search warrant. For instance, many criminal cases are instituted without there having been any preliminary processes in the form of search and seizure in terms of the provisions of the said section. In such cases, the charge will come about as a result of investigations which do not necessarily entail the process of search and seizure after which the accused will still prepare for his defence. I therefore do not think that it would be correct for anyone to suggest that in such cases, the accused is unable to can properly prepare his defence.
Further, it is my view that the issue of evidence on oath as envisaged by section 46 of the CP & E is basically meant to guard against and curb possible incidents of arbitrary search than for any other purpose. It is a necessary precaution that is meant to guide the judicial officer before whom the application for a warrant is made to satisfy him-self that reasonable grounds exit which justify that he issues a warrant. In light of the above, I find that the formal defect is not of such a nature that it can correctly be found to have prejudiced the accused herein in preparation of its defence.
On the next issue that this case has been summarily tried in the High Court in terms of Section 144 of the CP& E, Ms
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Kolbe made the submission that in the absence of evidence on oath that an offence has been committed there can be no proper exercise of a discretion by the DPP to indict in a summary trial because the said evidence on oath would have been presented at the preparatory
examination setting out in detail the case it has to meet in the High Court.
I have already shown that the purpose of section 46 is to arm police officers with a search warrant for purposes of searching any person or premises and seizing any item which it is believed can afford evidence as to the commission of any offence. I therefore do not accept the submission that the evidence that is placed on oath before a judicial officer in terms of section 46 is the evidence that is presented at the preparatory examination.
Further, a preparatory examination is not a mandatory process in all criminal proceedings as it is instituted at the request of the public prosecutor in accordance with the provisions of Section 60 of the CP& E. The section reads in parts and in so far as is relevant to this issue as follows:-
"At the request of a public prosecutor who has decided to institute a preparatory examination against any person not in custody,...." (my underlining)
In my view, the wording of this section is illustrative of the fact that a preparatory examination is not a mandatory pre-
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requisite to a trial. In addition, the evidence that is presented at the preparatory examination is that of witnesses who testify before the Court to prove the guilt of the accused whereas evidence that is placed on oath before a Magistrate in terms of Section 46 is meant for a judicial officer to satisfy himself that before he issues a search warrant, reasonable grounds have been placed before him justifying the granting of search and seizure of any person, receptacle or other property.
Thus, the evidence referred to in section 46 is really meant for the judicial officer at that stage and not necessarily for the trial Court in the event that a charge is eventually preferred against anyone as a result of the process. The submission that such evidence is the same that is placed before a magistrate at the preparatory examination is therefore in my view incorrect. It should also be borne in mind that after the process of search and seizure a case might not even be instituted against anyone.
Over and above that, the DPP directs time and again that people be tried summarily in the High Court without the holding of a preparatory
examination. Under those circumstances, the defence prepares its case on the basis of the indictment and nothing else.
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This in my further opinion means that the fact that a summary trial can be instituted in the High Court at the instance of the DPP does not really have much to do with the provisions of section 46. Instead, as the section provides, it has to do with the DPP exercising his discretion in order to protect witnesses from interference or intimidation or if in his opinion he considers it to be in the interest of the safety of the state or in the public interest as the section so provides.
Therefore, even if such discretion is not exercised properly in that those provisions have not been satisfied, that factor per se does not in my view prejudice the accused in his defence nor does it constitute an infringement of its right to a fair trial. Thus I wish to respectfully align myself with the decision of the Court of Appeal in Millenium Travel & Tours and 2 Others v DPP C of A (CRI) No. 15/06 p6 quoted to this Court where the learned Smalberger JA had this to say:-
“In any event the exercise by the DPP of his discretion under section 144 of the Act to order a summary trial cannot per se constitute an infringement of the applicants' right to a fair trial. A preparatory examination is not an essential pre-requisite for a fair trial; equally a summary trial cannot per se be labeled as unfair."
Even the submission that the Crown made up its case as the matter proceeded is not enough to find that the accused was 'severely prejudiced' per Ms Kolbe's contention for the reason that the provisions of Section 202 of the Criminal Procedure
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and Evidence Act of 1981 empower the Court to subpoena or cause to be subpoenaed any person as a witness or examine any person in
attendance though not subpoenaed as a witness, if his evidence appears to it essential to the just decision of the case at any stage of a criminal trial.
This section gives the Court wide latitude in order to ensure that a fair and expeditious decision is reached in any trial. This means that where the Court is of the opinion that the evidence of a particular witness is crucial, it can call such a witness regardless of whether or not either side had intended to call him/her.
I am therefore of the view that if witnesses who had not given statements prior to the commencement of the trial can be called at the instance of the Court, it cannot be correct to suggest that any evidence that flows thereof, is per se prejudicial to the accused. By the same analogy, if either side decides to call a witness who had not previously given a statement in the course of the trial that does not per se constitute an irregularity that would vitiate the proceedings. What is of utmost importance is for the Court to arrive at a fair and just decision based on all the available evidence placed before it. See rny comments in the case of R v Khosana Tlapana CRI/T/57/2002 (unreported) p 6-7.
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In addition, whilst at the start of the trial Ms Kolbe indicated that there were statements which the defence never received, she did not specify which statements those were especially when considering the fact that Mr. Penzhorn's response was that the defence had been furnished with all the documents. As a result, while I am aware that certain witnesses were called without having previously made and/or signed any statements, I am unable to conclude that the defence was as a matter of fact not furnished with the documents that were available before this trial commenced.
I now proceed to deal with the next submission to wit, that this Court admitted evidence that was unlawfully obtained. It was Ms Kolbe's submission that the documents that were seized from the accused's premises were inadmissible for the reason that they were obtained on the basis of a search warrant which was irregular on the face of it in that it did not have the correct date stamp. Further that, contents of the meeting of the 21st June 2007 ought not to have been admitted for the reason that the accused was never told that the meeting was without prejudice.
With regard to the question of seizure of the documents, it is my opinion that by the same analogy as regards failure by the investigating
officers to comply with the provisions of Section 46 of the CP& E, an improper date stamp is a defect of a
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formal nature which does not necessarily go to the heart of the matter thereby resulting in the accused suffering prejudice unless such prejudice can properly be established.
On the issue that this Court admitted evidence from the meeting of the 21st June 2005 which it ought not to have admitted, this was in specific relation to the evidence of Mr. Sykes regarding what he said he was told by Ms Khaebane in several conversations that they had had together during the investigations, including the meeting of the 21st June 2005 prior to the accused being charged. Ms Kolbe suggested to this witness that he never on any one of those occasions warned Ms Khaebane that whatever she said would be used in Court against her. Further, that this Court ought to have ordered that a trial-within-a-trial be held to be able to determine the admissibility of what was said.
Indeed, Ms. Kolbe raised an objection to the evidence in respect of the meeting being admitted to which Mr. Penzhorn responded that the statement was an exculpatory one and thus admissible. I overruled the objection and allowed the Crown to adduce the said evidence. The essence of the evidence in question is that during that meeting, Ms Khaebane made a statement to the effect that someone at treasury and/or government knew and approved of what the
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company was doing and promised to provide the name(s) of that person for Mr. Sykes to interview.
In my opinion, this statement did not amount to a confession and/or unequivocal admission to the commission of any offence but was
rather, an explanation negating any wrongdoing on the part of the company. It was as such, exculpatory in nature. The question whether such names were eventually provided or not is a different matter altogether which I am going to deal with later on in this judgment.
In this regard, the case in point is that of R v Hanger 1928 AD 459 and other authorities referred to therein where the Court found that the statement by the appellant was not a confession because it excused his act by indicating that he did not intend stealing the property. Likewise, in casu, the statement by Ms Khaebane was in my opinion indicating that the accused company was not defrauding the Government of Lesotho in that what it was doing was in terms of an agreement between them which means that the company did not have the requisite mens rea. It is under these
circumstances that I did not order a trial-within-a-trial whose purpose is to inter alia, determine whether a confession was freely and voluntarily made by a person in his sound and sober senses and without having been unduly influenced thereto.
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The case of S v Mhlakaza en Andere 1996 (2) SACR 187 ©
quoted to this Court dealt with the issue of admissibility of evidence of the identification parade after the defence had opposed it on the ground that the accused were denied their constitutional right to legal representation. The right to legal representation at a parade is provided for under the Rules of Police Practice.
In my view, that case would only be applicable in casu, if the statement of the Ms Khaebane amounted to confession as envisaged by the provisions of section 228 of the CP & E.
As I have already stated, I did not find the statement to amount to an unequivocal admission of guilt for the reason that it was not an admission to the commission of an offence but rather a statement showing that the offence of fraud could not have been committed
because of the existence of an agreement between the accused company and the government. It is for this reason that I am of the view that the two cases are distinguishable.
I also do not think that every issue of the admissibility or otherwise of certain evidence will always result in the Court ordering that a trail-within-a-trial should be held. For instance, the issue of admissibility or inadmissibility of
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hearsay evidence is always decided outside that procedure because it is a question of fact.
The last preliminary point that was raised by the defence was that there was no independent investigation for the reason that all the persons involved therein were paid contractors. Further, that there was no objective investigation in that Messrs Sykes and White limited their investigation to only showing that the documents in possession of the accused contained more information than the documents forwarded to the government.
With regard to the first leg of this above submission, there is evidence before this Court that some members of the investigation team are officers from the DCEO which office is charged with inter alia, investigation of fraud and economic offences. This means that they were not paid contractors as was the case with Messrs Sykes and White respectively. As a result, I find the submission that every one in the team was a paid contractor to be inaccurate.
Secondly, even assuming that to have been the case, it is my opinion that paid contractors fall under the category of expert witnesses who are usually brought in by either side, when their specialized services are needed. This is not unusual in all forms of litigation. At any rate, expert evidence is
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admissible as a general rule. I am therefore unable to find that even if the contention by the defence was correct this factor would have really affected the independence of investigations.
On the second leg of the submission, that the investigation was limited to certain documents only, I hold the view that indeed it is only the documents that were relevant to the present matter that ought to have been looked into and not every document in the possession of the accused. Anything else would have been irrelevant and might have even amounted to a witch hunt that could have prejudiced the accused.
For all the above reasons, I find that while indeed there were certain irregularities, such as how the search warrant was acquired and the fact that the trial was instituted summarily through the directive of the DPP without his having satisfied the provisions of the Section 144, the said irregularities were formal in nature only and were thus not prejudicial to the accused's right to a fair trial and could not vitiate the proceedings in this matter.
I turn now to deal with the merits.
The evidence of the crown consisted of the testimonies of the Chief Investigating Officer from the DCEO, Mr. Thibeli, the
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two paid contractors, Messrs Sykes and White, Mr. Letsoela
the Deputy Accountant General, four witnesses from the treasury department and Ms Tlali, the Chief Accountant of the Lesotho Revenue
Authority.
P.W.1's evidence was to the effect that he is the one who executed the search warrant at the offices of the accused whereupon various books and documents were seized and an inventory compiled. The originals which were contained in 20 boxes were handed in and marked exhibit "C" collectively whereas the inventory was marked exhibit "B".
The following suggestions were made to this witness; that in their investigations, no statements were taken from anyone who received the invoices from the accused and that documents reflecting payments to the accused were obtained from the Treasury department. Further that the accused was entitled to be paid for the services it offered for travel for government officials and that the accused had to work in a percentage for late payment on the submitted invoices by government. In addition, that nothing ex facie the invoice indicates to the government that the price thereon is the price the accused paid for the ticket.
The evidence of P.W.2 David Sykes was to the effect that he was present when the search warrant was executed on the
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premises of the accused and that he further obtained documents from the treasury office and Mr. Letsoela which are included in exhibit "D". He collated the documents and compiled the 23 volumes comprising exhibit "E" all of which he forwarded to Price Water House Coopers for a forensic audit.
It was his further evidence that at some stage he was shown a letter from the attorneys of the accused which states, "All amounts charged to the Lesotho government by our client were by agreement between the parties in terms of transactions which were done at arm's length." He added that upon investigation, he could not find any evidence of such agreement. He also told the Court that Ms Khaebane had requested him to furnish her with copies of documents that had been seized and during a conversation thereat, had told him that there were people at treasury that knew of the agreement and tactic that she used when invoicing.
Ms Kolbe made the following suggestions to this witness in cross-examination; that there is no evidence of any misrepresentation because there were no statements from any of the persons who received the invoices or who ordered the tickets or the actual travelers. The witness was also asked whether he knew which individual in which department had been defrauded to which he answered in the negative.
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It was also put to this witness that the price on the invoice is what the accused charges government for the ticket and it does not say that is the price that the accused paid to the airline for the ticket. Further that the invoice and the ticket are sent to the same department and that the difference in the price would be apparent to anyone who compared the two which means that no fraud was perpetrated. Mr. Sykes replied that the ticket was given to the traveler whilst the invoice was sent to the relevant department. The witness was also asked whether there was an agreement between the government and the accused to disclose the extra charges on the invoice and he replied that he was not aware of it.
Mr. Trevor White, the forensic expert testified as P.W.3 and his evidence was to the effect that upon request, he prepared a summary of invoices and compared each one with a ticket and checked the schedule to the indictment. Further that he also compiled schedules from the information supplied to him and indicated the amounts and percentage of the overcharge.
It was his further evidence that the patterns of overcharges changed from around September 2004 when the percentage dropped to approximate one percent and then to nil in December 2004. Further, that he found consistent overcharging from January 2002 until September/October
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2004. By way of example he referred to page 100 of annexure "A" of his report where it reflects that invoices issued to government for the last few days in September 2004 have a 6% overcharge, whereas those in October 2004 have an overcharge of 1%.
This witness added that he could find no document that explained the difference in the overcharge nor was he aware of any change in the tax law that could have been the basis for such a difference. According to his evidence, the total overcharge from January 2002 to December 2004 amounted to M2 541 996, 49 and in the year 2004, there was and excess of M1 million charged in nine months as demonstrated by the table at paragraph 8.004 of his report.
He added that when he started the process, he dealt only with invoices issued between January 2002 and December 2004 although the indictment covered a period of five years. For the whole period, including 2000 and 2001 he found a total overcharge in excess of M2, 6 Million.
In addition, Mr. White told the Court that he attended a meeting with representatives of the accused at SA Airlink's offices in
Johannesburg regarding the trend of adding around 6% to the price of the ticket when invoicing the government and not disclosing same on the white copy that was submitted
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whereas the blue and yellow copies retained by the accused had notations of source tax and other service charges in various amounts.
It was his further testimony that Ms Khaebane disclosed that their invoices are prepared by four consultants and that when deduction of source tax was introduced accused through its representatives approached government and told them that the company could not exist if 5% was deducted as they only received 7% commission from the airlines. That the response was that the 5% was a prepayment of income tax. Further that this presented cash flow problems, so they increased the ticket price by 5%.
The witness further told the Court that the accused's representatives at the meeting said they wrote letters to government but did not receive any response but failed to produce copies thereof. They also undertook to supply the names of the persons within government who knew of the added amounts to the cost of the tickets on the invoice but never supplied same.
The meeting further revealed that the 5% had not been charged since September 2004 due to the decision taken by the board to stop
charging once it became clearer what source
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tax was but that they were still charging 1% handling fee to which they are entitled.
During cross-examination of this witness the following were suggested; that representatives of the accused who were present at the meeting would come and testify that when the meeting was called they had asked if there was anything to worry about and whether what they said was going to be used against them or if the meeting was without prejudice to which he replied that he never heard the words without prejudice hence they did not appear on his notes. When asked whether he could produce the notes he replied that he had them in his briefcase.
When asked what the policy was about source tax, when it was introduced and on what terms, he replied that he had no knowledge thereof save to add that it was in existence during the period of the indictment. The witness showed that if he had been provided with the names of the persons in government who were allegedly aware of the additional amounts being added to the cost of the ticket price he would have followed this information up and upon confirmation from them this case might not even have been instituted.
The next witness to take the stand was P.W.4 Mr. Richard Letsoela, the Deputy Accountant General in the Treasury
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department. It was his evidence that he handed the documents comprising exhibit "D" to Mr. Sykes and that these are originals that appear in exhibit "E", namely the payment voucher, the passage requisition and the invoice from the supplier all of which are stapled together. He explained the procedure as follows, that the payment voucher originates from the line Ministry and is submitted to the Treasury Examination Department before payment can be authorized.
Further that the claim is then presented to the department which upon receipt of the invoice will merge it with the passage requisition after which a payment voucher will be issued, authorized and paid by Treasury. It is then taken to the authorizing officer who checks amongst others, arithmetic accuracy, whether procedure was followed and whether the goods were ordered and received.
The supervisor in the Examinations Department then has the authority to pass it for payment by appending his signature next to the words 'passed by' wherefrom it will go to the payment section and a cheque will be issued based on the amount that appears on the invoice. Upon being shown the invoice books of the accused where the right hand side indicated source tax and services charges he said that payment would not have been authorized had the information appeared on the white copy of the invoice sent to government.
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He added that no-one from the accused company made him aware of this practice which he only became aware of when approached by officers from the DCEO. He added that payment was authorized without a copy of the ticket being attached because they assumed that what appeared on the invoice was the cost of the ticket.
It was Mr. Letsoela's further evidence that at the end of the trip the traveler forwards his copy of the ticket to Treasury when he claims his allowance or his per diem expenses and that the invoice and the ticket are not collated or compared because they reach Treasury at different stages and as part of different processes. The payment of the ticket is done on the basis on the invoice before the copy of the ticket reaches them and the two documents go to different sections to be processed for payment.
The defence Counsel suggested the following to this witness during cross-examination; that treasury has copies of all the airline
tickets and itineraries which he agreed he could produce. Further that the only reason why the ticket copy is not attached to the
invoice is because of his department's internal arrangement.
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Further that he dealt with many queries with the accused and other service providers and had held meetings with the accused about source tax. He responded that at the time he did not know that the accused added amounts onto the cost price of the ticket on the invoice until when he was approached by the DCEO. He said that he was not aware of any agreement between the government and the accused that the accused may not charge for any service.
The witness further stated in re-examination that the document exhibit "J" was a result of his instructions to him to pay all the outstanding bills to the accused and that due to pressure and limited time, source tax was not deducted and some claims were paid again. He added that if the accused had invoiced other charges they should have disclosed this so that government could decide whether to pay them or not. He stated that he would not have agreed to any suggestion that source tax be added to the invoice.
The next four (4) witnesses were employees from the different treasury sections respectively, who had been with the department at some stage during the period stated in the indictment. But for a few variations, mostly due to the different roles they played, their evidence was basically to the effect that they did not receive the invoice and copy of the ticket at the same time albeit with the acknowledgement that
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at some stage all the documents would be in the possession of the treasury.
They also testified that at the respective times when they received the invoices, they understood the amount thereon to be for the ticket. For instance P.W.5 Mpatile Mohafa testified that as a senior inspector in the examination section she authorized payment for some of the claims in exhibit "E" and indicated to the Court where her signature appears on the payment vouchers.
Upon being shown the white invoice submitted to government and the corresponding green copy from the accused's invoice book she stated that if she had known that the amount reflected on the invoice included source tax and other charges she would not have authorized payment. She added that she would not have had occasion to compare the claims for the ticket and the per diem expenses as they came in at different times.
It was put to her in cross-examination that it was easy for them to compare the invoices and the per diem claims to which she responded that the sections that receive them are different although they are housed on the same floor. She added that per diem is claimed before the trip because the traveler has to use the money on the trip and that the copy of
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the ticket will got to the below line section after the trip has been taken.
In the same manner P.W. 6 Mookho Motopi testified that as a senior accountant when she received payment vouchers there was no ticket
annexed and she relied on the invoice for the amount to be paid which she understood to be the amount for the ticket. She added that if she came to know that the amount on the invoice was the price of the ticket plus source tax she would not have passed the invoice for payment.
With regard to the per diem claims, it was her evidence that she would not receive a copy of the ticket until the traveler cleared the trip afterwards. Further, that there would be no reason for looking at the per diem claim when processing the invoice or vice versa.
Under cross-examination she stated that the itinerary is only used to calculate per diem claims and no reference is made thereto when payment for the ticket is made and that the documents were never put together to calculate the cost of the trip because once the claims were paid the document was sent for filing.
The testimony of P.W.7 Mrs. G. Mapola was to the same effect as that of P.W.6 to wit, that the per diem claims and payments
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for travel were received at different stages with the copy of the ticket only reaching her section if the officer traveling was not paid in advance. So was the evidence of P.W.8 Leomile November. They also stated that if they had known that the amount on the invoices included source tax, they would not have authorized payment. Similar suggestions were made to these witnesses and they remained adamant that they would not have paid the invoices if they knew of the additional charges.
The next witness to take the stand was Ms Kabanyane Tladi the Chief Accountant with the Lesotho Revenue Authority who testified that her department often used the services of the accused company. She stated that sometime at the beginning of 2004 an invoice from the accused was brought to her attention and the figures on the purchase order and those on the invoice differed. She added that her department does not work via treasury but handles its own payments.
She called Ms Khaebane about this and in a meeting which she described as cordial especially because Ms Khaebane is an aunt of a friend of hers, the latter explained that the difference was because source tax had been added to the invoice. The witness then told her that source tax is deducted from the payment and forwarded to the income tax division
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from where she could get a tax certificate so that they could reduce their tax liability at the end of the year by that amount.
She further told the Court that Ms Khaebane explained that they were working on a very small profit margin as their prices were regulated with the result that when source tax is deduced their cash flow is reduced and they are unable to manage their company profitably. The witness however insisted that she submits another invoice without the addition of source tax which she did and payment was effected.
It was suggested to this witness that Ms Khaebane would say that she was the first person to clarify the issue of source tax with her. She did not deny this but however disputed that she had told Ms Khaebane that it did not matter if she added on source tax to her invoice or not. She instead told the Court that she told her that it was wrong to add source tax to the invoice.
The defence's evidence consisted of the sole testimony of Ms Khaebane. She did not dispute the documents in question or that the white copy sent to government does not have the right hand portion which the yellow and green copies have and which contain details of additional charges that are omitted on the white copy.
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She stated that there was never an indication from government that the accused was not entitled to charge a fee for services rendered.
Further, that if government wished, it could have compared the invoice with the ticket and found the difference in the amounts. She added that the intention with the invoice was to convey to the government the cost of the whole purchase.
She further testified that the right hand side of the white copy was detached and retained for accounting purposes and that the
calculations on the right hand side were for their purpose and not for anyone else to see.
She explained that the difference between the charges to government and those to private clients was because government takes a long time to pay. It was her further testimony that she told P.W.2 that she spoke to somebody at the LRA namely Ms Tladi and that she gave him that name. She denied that she ever promised to furnish the name later and never did.
Under cross-examination, Ms Khaebane stated that the accused earns a commission from the airline and agreed that it would be reasonable
for a traveler to assume when receiving an invoice that the price thereon would include the agent's commission.
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With regard to the charges that appear on the green and yellow copies but not on the white copy sent to government, she explained that there is no need for the accused to disclose its mark up. She added that in any event, the government receives both the invoice and ticket and that they could compare the two so that that it is wrong to suggest that government was misled.
The witness for the accused company also stated that nothing was written on the right hand side of the white copy and that there was only one batch of documents from the printers which mistakenly had the right hand side the same as the yellow and green copies which they detach before sending it to treasury. She also explained that they detached that portion because that is not what a normal invoice should look like because it is not meant to have the right hand side.
Her response to the suggestion that as deduced from several of the documents, the invoice to the government is dated at a time when the government official is still traveling and still has the ticket in him with the net effect that the two documents could not have reached the government at the same time thus allowing them to compare was that, her responsibility ends with giving the department the ticket. She added that she does not know what they do with the documents given to them
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and what their procedure is and that none of those are her responsibility and/or problem.
With regard to the issue of addition of source tax, the witness agreed that where VAT is added, it would normally be reflected. Her response to the question why the accused company does not just disclose the addition of source tax on the invoice was that this was a service fee which they only called source tax to identify what the problem area was regarding their cash-flow. She further added that she went to various offices in government seeking clarification on how source tax works and nobody understood how it works. She further stated that due to the cash-flow problem they had to do something in order to break even and to try and save the company.
In her response to the question whether she disclosed to any of the senior government officials the fact that they were adding source tax to their invoices was that she did not say they are adding source tax but said they have to add a certain percentage to recover for the things she mentioned, including source tax, the fact that government pays them late and payment of bank charges.
She was emphatic that government knows that they charge extra whatever they may call it. She imputed the same
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knowledge to the Minister of Finance whom she added also knew that they had a problem which even they did not know how to address and that by adding source tax they were solving a tax problem. Regarding the board's decision to stop adding source tax, Ms Khaebane explained that the decision was not to stop the service fee but rather to stop calling it source tax and to call it something else such as a handling fee.
I now proceed to deal with the issues pertaining to the charge as set out in the indictment vis-a vis the evidence that has been placed before this Court. In my view, in light of the fact that the accused does not deny the contents of the documents and having added additional charges save to give an explanation for so doing, the main question for consideration by this Court is whether by not disclosing this fact to government, the accused had the intention to and did defraud the government.
According to the defence, the accused had everything right to mark up its price and had no obligation to disclose this to government. On the other hand the Crown argued that there was a contractual relationship between the two parties which obligated the accused to disclose the additional charges and that if government had known about them it would not have paid the accused. Further that failure on the part of the
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accused to disclose this information amounted to a misrepresentation, thus constituting fraud. A plethora of authorities define fraud as follows:- 'fraud consists in unlawfully making, with intent to defraud, a misrepresentation which causes actual prejudice or which is potentially prejudicial to another'. This definition is also contained in the work of JRL Milton; South African Criminal Law and Procedure Volume II, Common Law Crimes 3rd Edition at p701.
That this is the standard definition of fraud is trite, albeit with the rider that some scholars construct the definition in different words. However, suffice it to say that in all the accepted definitions both under the common law and through decided cases the offence consists of all the elements contained in the above definition. Further, it is also generally accepted that the element of potential prejudice is an essential as it was stated in inter alia, the case of S v Friedman (1) 1996 (1) SACR 181 (w) at 195 d-e and other authorities referred to therein. It is also trite that misrepresentation can be by words, conduct, silence or opinion.
In casu, the accused is charged with fraud because it is alleged by the Crown that 'it submitted' to treasury invoices with additional charges to government but failed to bring this fact to the attention of the government despite the contractual
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relationship that exists between the two. It is the case of the defence that the accused did not have the duty to disclose same to government.
Ms Kolbe argued in her submissions that the Crown is bound by the case of fraud as pleaded and should adhere strictly to the case and not be allowed to depart from it and set up a different case. Her submission was based on the fact that whilst the indictment charges that accused wanted the government to belief that the amount on the invoice was the cost of the ticket, the word 'cost" does not appear in a single invoice referred to in the indictment and that the Crown did not call any of the persons to whom the invoice was submitted to say that he was misled to the prejudice of the government and as such there was no misrepresentation.
The next issue to determine at this stage is in my view, what is meant by the term misrepresentation. It has been stated to mean 'a perversion or distortion of the truth..' and that it may be made by words (spoken or written) or by conduct. To this end see the work of Milton (supra) at p 708. In other words, according to this definition, a misrepresentation can be made even if no words are uttered or written if the recipient is given the impression that a fact exists, which in reality does not. It is therefore without doubt that the accepted legal definition of
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the word misrepresentation is inclusive of either words or conduct.
In the present matter it was not the evidence of the Crown that the accused made a misrepresentation by speaking or writing the words. The indictment states that 'by submitting the invoices' in question, the accused by conduct misrepresented that the cost or the air ticket was the price set out in column 6. This means that the fact that the word 'cost' does not appear on the invoice is neither here nor there because the indictment reads 'by submitting' which means the fraud was committed through misrepresentation by conduct.
For this reason, while I do not disagree with the position as stated in the case of S v Rosenthal 1980 (1) SA 65 9A0 at 89 E-G quoted to this Court to support Ms Kolbe's submission, I do not think that the same position applies in the present case for the reason that the evidence that was led by the Crown was not extraneous the elements stated in the indictment.
With regard to the submission that no-one was called by the Crown to say that he was misled to the prejudice of the government, I fully agree. However, the provisions of Section 139 of the Criminal procedure and Evidence Act 1981provide that it shall be sufficient in a charge for inter alia,
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obtaining anything by means of a fraudulent trick or device or any other fraudulent means, to allege that the accused did act with intent to defraud, without alleging the intent of the accused to be, to defraud any particular person.
In the light of this provision, it is my view that such evidence was not necessary in this case. In other words on the basis of the above provision, the evidence that was adduced by the witnesses did not need to state that any particular person was prejudiced. At any rate, the indictment specifies that it is the government which was defrauded.
Ms Kolbe also made the submission that it is not the State's case that the accused failed to disclose certain information. This submission is also correct because as I have already shown, the indictment states that the fraud was committed 'by the submission of the invoices' etc. However, the question of the duty to disclose was brought up both in cross-examination of the Crown witnesses and in their evidence in chief as one of the accused's defences. I will however deal with this issue later.
I turn now to deal with the suggestion that the Crown cannot rely on the so-called contractual relationship. In our law, it has been stated that where the contract or other relationship between the parties is one 'uberrimae fidei' then there is a
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duty to disclose. It has been further stated that where a person knows that the other is mistaken about some point in their contract and that the latter is being materially influenced by this mistake, then the one owes the other the duty to disabuse him of the error, unless their relationship is such that the one is entitled to assume that the other risked his own ignorance.
The defence argued that while they did not deny the suggestion that the documents do not reach treasury at the same time it was their case that at some stage, government had both the invoice and the copy of the air-ticket in its possession so that nothing stopped it from comparing the information on the two. By this, they meant that the information was not exclusively open to them i.e. the accused.
While I was almost persuaded by this submission, there is however the matter of the evidence before this Court to the effect that government through some of its officials knew of and approved these additional charges, which in turn begs the question; if that was so, why did the company bother to detach and/or not reflect this information on the white copy submitted to the government. In my view, the only inference that can be drawn from this conflicting evidence is that the company did not want government to see this information at the time the invoice was submitted. This is further buttressed
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by the fact that no names of the officials who allegedly knew and agreed to these additions were supplied nor were such official called by the defence to support its case to date.
In addition, it is also the position of the law that in a contractual relationship, there is a duty to disclose in a situation even though the information cannot be said to be exclusively open to the one party. Per Milton (Supra) p 713. In my opinion, the latter statement obtains in casu.
Although it was suggested to Ms Tladi from the LRA that she was told about the reasons for adding the source tax and that she responded that it did not matter whether or not source tax was added, she denied this in her evidence before the Court and went on to show that instead, she told Ms Khaebane that what she was doing was wrong and asked her to submit a different invoice which the latter did. This aspect of her evidence was not disputed and in my view it confirms her evidence that she did not say it did not matter whether or not the accused added source tax because if that was true, she would not have bothered to query the initial invoice and insisted that another one be submitted.
I have already shown that it was also the case of the defence that the company had no duty to disclose its mark up price to government. It is my opinion that the submission made by
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Mr. Penzhorn is correct that even if that might have been the case that would only apply in so far as the handling fee or other charges was concerned other than source tax. In other words, the problem with this defence is brought about by the addition of 5% source tax on the invoice.
I wish to deal first with the issue of the handling fee and other charges excluding source tax. Undisputed evidence was led to the effect that travel agencies make their profit by having a certain percentage of commission included in the price of the ticket, according to the IATA regulations. That may well be so. However, in the absence of any direct evidence from IATA or other relevant person that according to their regulations and or Statute(s), travel agencies cannot add any additional charges over and above that which includes the commission, I can only accept Ms Kolbe's contention that there is no evidence in this case that the prices of airline tickets were regulated.
In addition the Court did not have the benefit of seeing the particular law upon which the Crown relies in this regard. Further, the evidence established that in the past the commission due to the Travel Agency used to be included in the ticket but that this practice has since ceased. All these factors left me in some doubt whether in so far as the handling fee and other charges (other than source tax) are concerned
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the Crown has successfully discharged its onus of proof beyond a reasonable doubt.
Needless to mention, the general rule is that the onus of proof lies with the Crown to prove all its allegations beyond a reasonable so that what lacks in their evidence cannot be remedied by the defence. This is trite law. For this reason, I am of the opinion that the accused should be given the benefit of the doubt with regard to the addition on the invoice of the handling fee even though there is evidence that the accused eventually stopped adding the charge.
I now proceed to deal with the question of the additional charge of source tax as it appears on Exhibit "C". It was argued on behalf of the company that it could call this additional charge anything. However, in my opinion, the evidence before the Court including the document on the face of it supports the conclusion that based on the exact percentage of the source tax that was added up until September 2004 when the board made the decision that the company should stop adding it, the additional charge was as a matter of fact source tax.
In my further view, if this was not the case, then the company would have continued to charge it and simply call it something else. I therefore have no doubt in my mind that based on the
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exactness of the percentage and the fact that the board decided that it be stopped, the additional charge was indeed source tax.
This then leads to the next question which is whether the accused company was entitled to add source tax on its charges to the government. In its defence as it was testified to by Ms Khaebane, the accused company stated that there was some confusion with regard to how source tax worked on the one hand and that on the other, that it was causing them problems of cash-flow so that they had to do something to break even.
Assuming the first suggestion to have been the case, it is my view that if their reasoning that there was some confusion with regard to how source tax worked is to be believed, and they did not intent to prejudice the government, they would have disclosed this information to them at the time they submitted the white copy of the invoice. In other words, if the additional charge had been added innocently due to any alleged confusion, then there was no reason to detach it from and/or not omit this information on the white copy of the invoice submitted to government.
For this reason I accept the submission by Mr. Penzhorn that apart from the fact that trying to get by' and entitlement to
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earn an income are no defences to a charge of fraud, if this was indeed the case, the question arises why the accused did not then simply disclose to the government what it was doing and why it was doing it. Instead it withheld this from the government by deliberately
detaching that part of the invoice which would have informed the government of what it was doing.
To this end the locus classicus is the case of S v Judin 1969 (4) SA 425 at 441 (G) wherein Jansen JA stated as follows:-
"If the charge related merely to an alleged omission and nothing more, it might well have been a question of considerable difficulty to determine whether the duty in issue existed. The gravaman of the charge, however, relates to the failure to mention in the prospectus
the facts set out in the charge, which brings the "concealment" alleged within the ambit of that form of active misrepresentation
where "the withholding of that which is not stated makes that which is stated absolutely false"."
This takes me back to the submission made by the defence that both the invoice and the ticket eventually came into the possession of treasury which in turn begs the question why if that was the case and the fact that as they allege, there was an agreement between the company and government to include the additional charges, they went to the trouble of detaching the right hand side that reflected the information, especially in light of the fact that they had the same
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information on the green and yellow copies which they could use for their accounting purposes as they alleged? In my opinion, there is only one inference that can be drawn from this fact and this is that the company did not want the government to be privy to this information thereby representing a perversion and/or distortion of the truth.
In addition, there is undisputed evidence before the Court that invoices that were sent to private clients did not have these additional
charges added to them. If the contention that the charges were a legitimate mark-up to which the company was entitled one would expect it to apply to all clients across the board and not be selective in nature. I am cognizant of the fact that Ms Khaebane stated that government takes a long time to pay with which I fully sympathize.
However, I do not think that the accused could unilaterally decide to add the charges without disclosing this to the government as this was a deviation from practice. This cannot therefore stand as a legitimate defence. Further, while I fully appreciated and sympathize with the fact that the source tax was causing the company problems of cash flow that factor was unfortunately no justification for it to charge the government source tax with the net effect that when government eventually charged them the five percent, effectively the company had evaded it.
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I have already shown above that, despite the contention that an agreement existed, no names were furnished nor were the officials concerned called to testify on this fact for the defence. It is therefore my firm belief that if such an agreement existed, then it would have been furnished to this Court either in the form of a document or by calling the persons who entered into the agreement with the accused on behalf of the government to come and testify to this fact. Further, I have stated that I accept the submission made by Mr. Penzhorn that these two statements are contradictory of one another. That is, that there was an agreement between the two on the one hand, and that the company did not have the duty to disclose the charges to government on the other.
Under these circumstances, it is my view that the only conclusion that can be reached is that the information on the white copy of the invoice was meant to be concealed from the government to its actual prejudice. This was therefore not in my opinion, a mere and/or innocent omission. See again the case of S v Judin (supra).
I now turn to deal with the next question; at what stage was the misrepresentation and or fraud committed especially in the light of the submission by the defence that all the documents came into the possession of treasury? I have
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already stated that it has become generally accepted that even mere potential prejudice is an element of fraud. This means that at the time the misrepresentation is made, fraud is completed. For instance in the case of S v Friedman (Supra) the learned judge had this to say:-
"I find nothing objectionable in the approach which punished fraud not because of the actual harm it causes, but because of the possibility of the harm or prejudice inherent in the misrepresentation.... The type of prejudice relied upon by the State,
and hitherto accepted by the courts, is not in my view so repugnant to, or so far removed from, what I conceive to be the moral values of the man in the street, that a reappraisal of the common-law definition of fraud is either warranted or necessary."
The case of Uys v Rex 1949 (1) PH H99 further supports this my finding and is on all fours with the Friedman's case in which latter case an employee had presented to a pay clerk a pay voucher which purported to reflect the net amount of pay due to him, and the Court found that there was an expressive representation by conduct that the amount was due to him. This means that the discovery of the misrepresentation even if it is at the stage before the amount is actually paid will not excuse and or negate that fraud was already committed. The Uys' Case p 167 puts this matter beyond doubt with the following words by Herbstein J:-
"In all the circumstances, the element of potential prejudice, as that has been defined in many decided cases was abundantly made out The fact that the
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claim so advanced was capable of being easily discovered was immaterial, as was the clumsiness of the request and the probability
of its being detected."
It is therefore by the same analogy that I do not think that the fact that the ticket eventually came into the possession of government
exculpates the moral blameworthiness of the accused company because by that rime, the fraud was completed. This means that even if the difference in the price could have been discovered by comparing the invoice with the ticket when it eventually reached treasury, the legal position per the decided cases is that the offence would already have been completed especially because by the time the copy of the ticket reached treasury, the amount would have already been paid out to the accused company.
In the light of the above, I did not find it necessary to determine the rest of the submissions because in my view, they do not take this matter any further.
For all these reasons, I find that the Crown has successfully discharged its duty of proving fraud beyond a reasonable doubt but only with regard to the additional charges to the invoices of source tax and not the handling fee.
My assessor agrees.
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The effect of this Court's finding is that we had to rework the amounts as they appeared in the schedule to Mr. White's report in order to come up with the correct total by which we find the government to have been defrauded. The worksheet together with its explanatory note regarding the calculations is attached to this judgment for ease of reference.
SENTENCE
That sentencing is the most difficult part of any criminal case is gospel. This is especially true in a case of this nature where it is a company that is being sued rather than an individual in which latter case, the difficulty would be somewhat lessened by the existence of alternative types of punishment that can be meted out once a verdict of guilty is returned. In this case the Court can only impose a fine against the company.
This position is provided for in our Criminal Procedure & Evidence Act 1981 through its Section 338 (2) (b) which reads as follows :-
"If the person representing the corporate body is convicted, the court convicting him shall not impose on him in his representative
capacity any punishment, whether direct or as alternative, other than a fine..., and such fine shall be payable by the body corporate and may be recorded by attachment and sale of property of the corporate body."
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In the present case, in her plea in mitigation as led by Ms Kolbe, Ms Khaebane testified that it is pointless for this Court to impose a fine on the accused company for the reason that as she put it, they will just have to close down. She added that they are owed a lot of money by the Government of Lesotho for services rendered so that they have not been able to declare dividends although they have shown profit.
It was also her evidence that the company is currently engaged in talks with the Lesotho Revenue Authority regarding refunds for having overcharging them in taxes. She further testified that while she respects the decision of the Court, she is not contrite for the fraudulent overcharging by the company for the reason that government refused to discuss the issue of source tax with them.
She further added that the accused company never benefited from the addition of the extra amounts it levied on the government. Her
evidence in mitigation also revealed especially under cross-examination by Mr. Penzhorn, that other than her and 2 other people, 51% of the company shares are held by Airlink. Further that the total amount that the government with which they are still in business owes the company is in the region of M5, 000 000. 00.
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In her submissions, Ms Kolbe stated that the judgment of this Court, per the figures on the schedule is based on unreliable evidence. She added that government is to blame for this state of affairs for the reason that (so she submitted), had it not been for the incorrect withholding of the amounts referred to in column 9 of the schedule to the indictment, no extra service fee would have been charged by the accused to compensate for the fact that the payment it received was less than the cost price of the ticket and the accused would not have been convicted. She further asked the Court to impose a suspended sentence.
In turn, Mr. Penzhorn submitted on behalf of the Crown that, the evidence adduced in mitigation should be disregarded by the Court because nothing was produced as proof to the true financial position of the company. He added that for the fact that 51% of its shares are owned by Airlink the company is in good financial health.
Counsel for the Crown made the further submission that the suggestion of a possible set off between the accused and the Receiver of Revenue has nothing to do with the proceedings before this Court since everyone gets a refund for having been overcharged by the Authority. That in addition, the idea of punishment is to deter others from committing similar acts so
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that if imposition of an appropriate fine means closure of the company then so be it.
It was Mr. Penzhorn's further submission that a company cannot be allowed to benefit from its own fraud especially where its representative tells the Court that she is not contrite. He suggested that over and above the Ml, 400, 000. 00 found to have been the actual amount by which the government was defrauded and which has to be returned, the company should be fined another Ml, 000, 000. 00 penalty for the offence.
I have considered all these submissions from the two sides in conjunction with the fact that one of the basic duties of the Court is to punish crime where a conviction has resulted. I have already shown that in a case such as the present one, the Court has no choice but to impose the sentence of a fine. The next question is what would be the appropriate amount in this regard?
Whilst the Court was told that the company cannot afford to pay any amount at all, it is also a fact that nothing was placed before it to support this assertion. Secondly, the Court was also informed that the company has been making profit, albeit with most of its money still being in the hands of the government i.e. in the amount of M5, 000 000. 00. This means that though the said amount is not in its possession,
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the company does have money from which if and when collected, it can afford to pay a fine imposed by this Court and still be left with a healthy balance to stay afloat.
I am also aware that fortunately for the company, although it is the complainant in this case, government has not ceased its operations
with them so that it cannot even be said that since the inception of this case, the company has lost one of its main clients, although
admittedly, the latter does not pay on time and as such does cause some inconvenience to the company.
In addition, having listened to Ms Kolbe during her submissions in mitigation, I am of the opinion that she mostly advanced reasons why she thinks this Court should not have arrived at its decision. Surely such an experienced defence Counsel should have known better than to have made such critical suggestions to the Court's face. I can only add that where I come from, once a Court of law returns a verdict of guilty, it is imperative on the defence Counsel to advance factors aimed at convincing the Court to be lenient towards his/her client instead of getting into the reasons why he/she thinks his/her client should not have been convicted. Indeed those are best left for an appellate court.
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Further, it is indeed true that had the accused been an individual, he would not be lightly dealt with by the Court under similar circumstances such as obtain in casu. It would therefore be inexcusable for this Court to be seen to be adopting a lenient attitude in this case simply because the accused is a legal persona especially in view of the fact that there was no plea advanced in mitigation properly so-called.
Having said this, I also cannot ignore the fact that whilst the company did overcharge the government with the amount of 5% per invoice, its intention was not really to enrich themselves in as much as it was basically to address the problem which they identified as being caused by it. The evidence before this Court clearly shows that indeed they did not charge a penny more. I therefore think that this factor should be taken as a mitigating one that tends to lessen their moral blameworthiness.
For all the above reasons, I find that the appropriate sentence would be for the company to pay a fine of M2, 000 000.00 which would be the actual amount that the government was defrauded i.e. Ml, 400 000. 00, plus a penalty amount of M600, 000. 00.
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EXHIBITS
At the close of the case, Mr. Penzhorn moved an application for an order releasing the exhibits i.e. the articles that were seized from the premises of the accused company to them. I therefore, so order.
JUDGE
For the Crown : Mr. Penzhorn, Ms Hemraj
For the defence: Ms Kolbe Assessor : Mr. N. Monyane
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