HIGH COURT OF LESOTHO
THABO MOCHEBELELE Accused Number 1
T. MOLAPO Accused Number 2
the Honourable Mr. Justice T. Nomngcongo On the 5th of February 2008
accused are charged with the crime of bribery in that over the period
14th January 1988 to 31st December 2003, they accepted
totaling Ml,869,769.05 and DM500.00 paid to them by Lahmeyer as
described in the particulars and preamble to the
amount is broken down as follows:
or about the 14th January 1988 M20,000 as a gratuitous payment in
order to cause Mr. Mochebelele and or Mr Molapo to be well
to Lahmenyer in the context of the LHWP going forward.
the period June 1992 to June 2003 Ml91,960.00 in the context of the
award and execution of LHDA contract 46.
the period June 1992 to March 1999 M657,710.00 in the context of the
award and execution of LHDA contract 51.
the period September 1995 to September 1997 Ml 10,205.00 in the
context of the award and execution of LHDA contract 1009.
the period 1997 to December 2003 M846,500.05 in the context of the
award and execution of LHDA contract 1024.
or about 24th March 1999 M43,394 in the context of the award and or
execution of the Lesotho Government contract referred to
paragraph 7.3 above (This refers to the contract by the Lesotho
Government awarded to the Lahmeyer Macdonald consortium (of
Lahmeyer was a partner) to review the feasibility of further phases
of the water project).
or about 10th May the second accused was paid an additional DM500.00
for one or other of the reasons in paragraphs [1 to 6]
alleged in the indictment these payments were intended for them to
use their influence as Lesotho delegates on the Lesotho
Water Commission ("the LHWC") to look after and/or advance
the interests of Lahmeyer in Lesotho; paid to them
pursuant to bribe
agreements concluded between Lahmeyer and the accused in respect of
the Lesotho Highlands Water Project ("the
LHWP") in general
and also in respect of the five contracts referred to above which
bribe agreements were concluded in
alternatively in Maseru alternatively in a place or places to the
Lesotho Highland Water Project (LHWP) is a dam project being built in
the mountains of Lesotho as a result of treaty between
South Africa entered into in 1986. The Lesotho Highlands Development
Authority (LHDA) is a statutory body charged with
project and among its functions is the award of contracts to
contractors and consultants for the building of the
matters incidental thereto.
treaty also created an entity called the Joint Permanent Technical
Commission (JPTC) which later changed its name to Lesotho
Water Commission ("LHWC"). It comprises of an equal number
of delegates from Lesotho and South Africa. Its
function was to
oversee the water project and had to be consulted and its approval
obtained for all important decisions of the
project. The LHDA and its
Chief Executive were ultimately answerable to it.
a component of the LHWC that was answerable only to the Lesotho
delegation and that was the element concerned with the
power development capacity of Lesotho.
accused were the Lesotho delegates of this powerful body - the first
accused, Mochebelele as the chief delegate and the second
ordinary delegate. The first accused held the position at all
material times until October 2002 and the second accused is
such a delegate.
upshot of the Crown's first witness Mr. Putsoane is to highlight the
influence that the JPTC exercised over all major decisions
to the Water Project. Mr Mochebelele and Mr Molapo therefore occupied
positions of great influence. The court was taken
through a number of
examples of such influence, for example:
Mochebelele had been involved in the appointment of Dr. Myer as a
Lesotho Delegate to the JPTC thus completing the full complement
Lesotho's number of delegates to the Commission.
examples of JPTC's influence included the award of contract 46. The
court was taken through the process of tendering, evaluating
awarding the contract and the involvement of the JPTC at every stage
and how it had insight knowledge of confidential cost
members of the JPTC were not voting members of the board of LHDA they
often sat on those boards because decisions taken
there would still
have to be blessed by them anyway.
the World Bank would not fund projects not approved by the JPTC, so
we heard from Mr. Putsoane. Such was the influence wielded
and 2nd accused by virtue of their positions.
Putsoane ended with a graphic presentation Ext "E" which
was admitted and handed in indicating that Lahmeyer ultimately
up executing a number of contracts over the years as follows:
Contracts 46, 51, 1009, 1049 and further phases contract.
next with the evidence of Pw2 Mr. Stock. He testifies that he was the
Chief Resident Engineer of Lahmeyer in Lesotho and
to one Dr. Zimmermann who lived in Germany but frequented Lesotho.
Zimmermann came to Lesotho he usually was in the company of one
Emsmann also of Lahmeyer, Walters and Elliot of Mott MCM Donald.
They came each year during March and September for five or six days
and the purpose of these meetings was to hold management meetings
site visits. During these visits they had meeting with the 1st and
the 2nd accused. Mr. Stock says "90%" of the time
meetings were held in "Mochebelele's Office".
meetings seem to have been very informal because the witness says
they would have a general chit-chat and talk about problems
might have occurred in the previous meeting and whether there were
any complaints and then something strange would happen:
would be given the nod, he would then know that it was time to leave
and he would do so immediately and hang around in
the reception area
while some business that was obviously not for his ears was being
discussed in Mr. Mochebelele's Office.
witness had no doubt that what was being discussed there was what he
called "commission" and upon being pressed under
cross-examination admitted it was in fact a bribe "if you want
to put it that way" as he qualified it.
further to say there were one or two other meetings attended just by
the second accused when he was also given the nod to
witness knew of these so called commissions that exchanged hands
during these meetings and they ranged from M20,000 to M350,000.
knew because he would always be instructed before hand by head office
in Germany to withdraw this money from Lahmeyer's account
ahead of the arrival of Zimmermann. He would then detail a member of
staff to collect the money from the bank and hand
it over to
Zimmermann before attending JPTC meetings.
withdrawals were entered in Lahmeyer records in Maseru and in due
course were forwarded to Germany. Some had been signed for
Zimmermann according to this witness.
had a habit of recording his activities in his diaries and he did so
with great detail regarding the payments that were
made in the
transactions at hands. A few examples will serve. He makes the
following references to his diaries.
February 1997 he phoned Zimmermann to discuss when he was coming to
Lesotho. On March 1997 he telephoned the first accused
to arrange an
appointment to see him. On 6 March 1997 there was a meeting between
the first accused and Zimmermann. On 7 March
1997 he scheduled an
appointment for Zimmermann to meet the first accused on either the
20th or 21st March 1997. He then reflects
the withdrawal of the sum
of M42,670 that was handed over to Zimmermann before the meeting with
accused number 1.
September 1997 and as usual Zimmermann was in Maseru and on 21
September Stock records in his diary two sums vis. M22,925.00
M56,900.00 were withdrawn. His diary further reflects that the total
of M79,825.00 was handed over to Zimmermann on the 23rd
25th September it was paid over to the 2nd accused at Lesotho Bank
Towers. It was accounted for in the Laymeyer cash
books in Germany.
witness then refers to entry of the sum of Ml 5,601 in January 1998.
The money was recorded as commission for accused 1 and
2 and handed
over to Zimmermann. This money's movement from the bank appears from
the statement of that bank and is also reflected
in the cash books in
for Stock's diaries.
Stock makes special mention of the particularly large single sum of
money of M356,535.00. The events relating to this money
took place in
March of 1999 during one of Zimmermann's regular visits to Lesotho in
that month. As usual he arranged that this
money be made available
ahead of his visit. Such money was labeled either "promotion"
or "commission". On the
stub of this cheque Stock however,
wrote that the money was for the purchase of a "BMW". He
knew that this was not true
and that the truth was that it was
"commission" for the 1st and 2nd accused. This item was
entered as a car purchase
in the "cash voucher" on which
Stock himself had made the following entry:
"The above amount has been certified as a car purchase, however
if you do not agree then ask Zimmermann "
explains that he did this in response to a query from the accountant
and that it was also done for the benefit of the chief
is then made to a letter written by a Mr Rath of European Union who
had apparently been approached for the funding of
Phase I of the
further phases project. In it they express dissatisfaction with the
price quoted by LMC. The letter is addressed
to Mr. Mochebelele,
Chief Delegate, J.P.T.C.
then testifies that prior to that there had been a meeting attended
by Walters, Zimmermann, Mochebelele, Molapo and where
happened to be in attendance although initially he had been there for
other business. What he had understood at that meeting
was that the
further phases project would "not be funded", it would be
paid for by the Lesotho Government. Well, I suppose
for some people
if it is not foreign funded it is not funded.
events indicate that the matter was rectified because the witness
makes reference to a letter that was dispatched to
marked for the attention of Zimmermann relating to invoice numbers
31.4108/3 which the witness said were in Lahmeyer's, LMC's
These related to payments in respect of further phases.
cross-examination this witness admitted as earlier indicated that the
monies that Zimmermann regularly asked him to withdraw
from the bank
and which he called commission and were entered as such in Lahmeyer's
books of account, were in fact bribes. He specifically
he, Zimmermann and Emsmann also knew that the so called commissions
were bribes intended, no doubt, for accused 1
and 2. He went on to
add that it's a common practice in this type of business all over the
world. What a shock, especially because
he appeared to mean every
word of it and he said without flinching!
continue with the cross-examination, the witness was taxed about the
M356,535. He admitted that they had falsified Lahmeyer's
this regard. The reason was to avoid too many prying questions by
external auditors. It was also put to him that in
the same breath
they would also be defrauding the Receiver in that the entry might be
misconstrued as legitimate expense where
as it was not and the
witness admitted this.
question whether the internal auditors knew whether this was bribe
money he replied that he imagined it was so, otherwise "how
they follow instructions from Zimmermann"
did not know whether there was any representative agreement concluded
with either of the accused. In his own words - he
had never seen one.
question of the money itself it was asked whether the last he saw of
it was when he handed it to Zimmermann or Emsmann and
he said yes.
Asked if he would know then if it had been given to its intended
beneficiaries he replied in the negative because
as he said it was
none of his business and in any case he knew why it was collected. In
short he never witnessed the actual handing
over of any money except
"I know the money was taken there in a bag and when they came
out, the bag was never with them........ Because there was always
sweeties and other things for the girls there right?...... there was
always chocolates or sweeties for the girls outside but they
they never handed out nine times out often before they went into the
office and when they came they came out of the bag
was not with them
and this would be an airline bag, Dutyfree ".
deal now with the evidence of the two German witnesses with whom we
were able to communicate from that country through video
conferencing. In doing so, I must confess I will plagiarize the
crown's head's of argument which has provided excellent summaries
their evidence and I must hasten to add if the crown lay any claim to
a copyright, they must know that they surrendered it to
me when they
handed over the Heads of Argument!
Mr Hager's the 1st of two German witness's evidence:-He was employed
by Lahmeyer from 1975 to 1999 and from 1988 to 1999
he headed the
project Administration Department at Lahmeyer's head office. His
responsibility included the administration of international
including those with Lahmeyers overseas representatives.
power tunnel projects in Lesotho at the time fell under Dr.
Zimmermann and in conjunction with the head of the accounting
department, Hegemann, were in charge of paying representatives in
Lesotho and administering their contracts. Initially Lahmeyer's
in Lesotho were APCM and Bam and later also the 1st accused with whom
they had a verbal agreement as he put it.
I must say at once that
although Hager testifies that they had a verbal agreement with the
1st accused he had never seen nor met
the man Mochebelele except
perhaps on paper.
then goes on to the deal with, by way of example Annexure 6 on which
he was led by the crown. This is one Ranier Bothe's statement
had been handed in by consent and labeled Exhibit "B". It
had been admitted subject to the qualification that any
"payment to Mochebelele" therein be prefaced by the
adjective "alleged". Before Hager could proceed
further Mr. Semenya objected to him testifying on any Lahmeyer
document unless "the witness has personal knowledge
contents of the information reflected on it." Mr Penzhorn's
reply was brief and to the effect that the document was
because it was prepared under his supervision and in any case it had
been admitted. After this the court ruled that
in the interests of
expedition Mr. Penzhorn must proceed in the manner that he was; the
court would give its ruling in this, as
it would in other similar
objections, at the end of the case.
document refers to the Lahmeyer international project number 4725.
Under this the witness is led through references to ACPM
delivery contracts as well as "delivery tunnel south payment M".
and his initial answer as he is led through the
document is very
"M can be Maluti, but it is really .... (indistinct) in German
marks and British pounds and then I .... (indistinct recording)
witness is then led somewhat differently by counsel:
"I see where reference is made to marks it DM not M" - The
recording becomes indistinct but finally the answer comes
"M, it is Mochebelele."
confirming references in the admitted documents as references to
Mochebelele the witness is not so unequivocal as the crown
us believe. This equivocation also becomes evident when the witness
initially is asked to identify Zimmermann's handwriting.
and question go like this:
Q: "If you could possibly just read that handwritten note and
also [...] tell us whose handwriting that is if you know ?
A: Yes, this is a [the recording is indistinct] in German that means
.... that the representative [recording indistinct] and that
the [recording indistinct] by Dr. Zimmermann.
Q: Is that his handwriting ?
A: I am not sure, but I think so.
Q: Can you see there is a note at the bottom of that that reads in
English "pay attention etc - can you tell us, whose hand-writing
that is, do you recognize that ?
A: I think it is the same thing. It can be Dr. Zimmermann, but I am
really not sure. And now for the clue he is asked
there you see it is a document from Spiess and it looks like J.O.Z
Who would that be ?
the witness could comfortably identify Zimmermann's handwriting.
Hager also deals with the file that were kept which had
relating to arrangements with the first accused, Mott Macdonald's
contributions etc and how he or his department were
instructions under the hand of Zimmermann to effect payment at the
rate of 2.5 percent rather than 1.66 per cent which had
current rate up to that point. This payment was due to Mochebelele
and was recorded in Lahmeyer books.
witness also identified the signature of one Dr Lutkestratkotter who
was the managing director of Lahmeyer. It would appear
appended his signature to one of these transactions although it is
not very clear which one in particular.
made particular reference to the sum of M356,000 that was certified
in Lahmeyer books as a car purchase and was asked in examination
recall to-day whether in fact it was a car purchase he replied that
it was not but rather a commission for a representative
was written in German to the effect that a document would follow;
this was written by a Mr Wiekert.
cross-examination of this witness turned around the fact that he had
no "personal knowledge" of any agreements either
written between Lahmeyer and either of the accused and that what he
or those under him recorded in Lahmeyer documents
was all sourced
from Zimmermann or the accounts department and they all had no
personal knowledge about any of those things. Hager
then turned to the particularly large sum of R356,000 and elicited
some very interesting replies: it went, something
Q: Payment to Mr. Mochebelele through the bank, Barclays, you say
there is such a document.
A: No, that doesn't exist.
Q: Sir, I am asking another, the same question then. What other
document is proof of payment to Mochebelele.
A: He never signed a receipt, he never signed a receipt and he would
have been a fool to sign a receipt.
Q: I saw Mr Bam used to sign receipts was he silly? A: No, there was
a contract with Bam.
on, we once again observe the witness's vacillation:
Q: ".....You told us car purchase is not car purchase. So you
Documents in Lahmeyer
A: Yeas after some investigation because I asked Dr. Zimmermann. Q:
The expenditure voucher gets completed by Lesotho correct?
Q: In Lesotho when they write car purchase they are entering
falsehoods in the official records of Lahmeyer?
Q: Is that how it is done at Lahmeyer, to falsify documents?
A: I don't understand.
Q: Does Lahmeyer knowingly falsify official documents?
Q: Can you explain why then where there is a commission Lahmeyer
documents say it is a car purchase?
A: Because on the site the engineer, probably, Ray Stock, just put
down car purchase and he is an engineer and not commercially
and we knew it was not correct.
Q: Oh, you knew it was not correct, did you know Mr Hager it was not
Q: You knew it to be a corrupt payment
then for Mr Hager evidence and his cross-examination.
once again, from Germany by way of video conferencing the evidence of
Mrs. Pietsch which again in the main can conveniently
as gleaned from the crown heads of argument as follows:
employed by Lahmeyer from 1970 until the end of 1995. From the early
80's until her retirement she worked in Lahmeyer's
Administration Department in Frankfurt. Initially she was responsible
to a Mr Jager but later to Mr Hager. Her primary
duty was the
administration of Lahmeyer's contracts in different parts of the
witness remembers that she dealt with one project in particular. She
that regard that "I only want to add that I was primarily
involved in supervising that terms of contracts were compiled
And she also goes on to say: "I only know Mochebelele with the
Company ACPM".Then she goes on to say on
that she cannot recall whether "there were two separate
contracts or there was just one". These were
the 'Muela and
tunnel projects. She confirmed that the abbreviation is in the
context of payments for Delivery Tunnel South"
general Mrs Pietsch compiled payment schedules and filed documents
relating to these contracts. She also engaged in correspondence
the likes of Zimmermann, Hager, her supervisor, Becker, Spiess and
others in management during the course of her duties relating
examples of correspondence that emanated directly from this witness
15/06/1992 Pietsch and Ludwig wrote a memo to Zimmermann in relation
to contract "4725 - delivery tunnel, Lesotho, payment
Mochebelele. The memo encloses a table reflecting amounts payable to
- re above contract". It goes on to show that Mott Macdonald
international's portion of the payment would be only
being 1.5% as from 1992, the rest would be paid by Lahmeyer
International. The memo ends with a note - "P.S.
4612 Muela a total of M414,755 has to be paid to Mr Mochebelele. The
exact details to be established between LI and
the 30th June 1992 Pietsh and Ludurg write a memo to Zimmermann and
Emsmann regard contract "4612 Muela Hydropower
payments to ACPM and Mr Mochebelele. Pietsch remits an attachment to
Zimmermann and Emsmann being "the requested
details: re payments
to be made to Mr Mochebelele ".
significantly in that memo Mrs Pietsch makes the following inquiry
"What agreements were made with Mr. Mochebelele re:
Nothing on record indicates that there was any response to that
simple inquiry. In the meantime Mrs. Pietsch went
about her duties
and received instructions compiled schedules and did reconciliations
which sometimes showed overpayments or under
payments to Mr.
Mochebelele or ACPM as the case might be.
attack of Mrs Pietsch evidence under cross-examination, in essence
went along the same lines as that of Mr. Hager. It simply
show that she regurgitated what she got from Zimmermann, Ensmann,
Spiess or Hager her immediate superior. She conceded
witness although not in that order as they testified in court is Sean
Trevor White. He is a Chartered Accountant and Forensic
testifies that as such he is a specialist in the field of Forensic
Auditing. He has extensive experience in analyzing,
verifying financial information and accounting records. As an example
of his experience he cites chairing three Commissions
of Inquiry into
Corruption in the Kingdom of Swaziland. He is presently a director in
the firm PricewaterhouseCoopers which was
appointed by the Attorney
Genera!, on behalf of the Lesotho Government on 22nd February 2006 to
undertake a forensic audit into
the relationship between Lahmeyer
International GMBH and Reatile Thabo Mochebelele and/or Letlafuoa T,
Molapo. He says the objective
of the investigation was to ascertain
whether such relation was linked to any specific Lesotho Highlands
contracts, whether any payments were made by
Lahmeyer to Mochebelele and/or Molapo, whether
payments could be linked to LHDA contracts and whether these payments
could also be linked to payments made to Associated
Project Managers ("ACPM"), Zalisiwonga Mini Bam, or Masupha
witness did was to reconcile all the memos, expenditure vouchers,
bank documents, cash books payment schedule, any accounting
records of Lahmeyer relating to his mandate. From that he came to
certain conclusions as an expert in his field. He referred
instance to expenditure voucher 9, dated 25 January 1993 that was
part of a payment of M135,000 which included payments for
4612 and 4725 for ACPM and Mochebelele. A memo dated the 15th April
1993 makes reference to this transaction and a split
between ACPM and
Mochebelele regarding those contract.
his reconciliations the witness was sometimes able to see a link
which might not have been immediately obvious to an untrained
observer. He observed for instance in one of several examples that in
a memo in German dated the 8th June 1993 from Becker to Schlafer
request was made for the transfer of the following payments to ACPM
in respect of contracts
4725, M75,000 and M87,000 Total M162,000. There was no discernible
link between the expenditure voucher and Mr Mochebelele.
payment schedules for ACPM and Mochebelele reflect that ACPM was paid
R50,000 and M37,600 in respect of contracts 4612
respectively and Mochebelele was paid also M25,000 and M50,00 in
respect contracts 4612 and 4725 respectively. TOTAL 162,000.
turned out in most of the instances testified to in this report,
although the expenditure voucher requested payments for ACPM,
payments schedules did not reflect any payment at all to that entity
but rather to Mochebelele and there were more than ten
for amounts ranging from Ml0,000 to M 100,000.
again under cross-examination it was put of to white that he had no
personal knowledge of the contents of what he was testifying
short he could do no better than Hager or Pietsch. There was no way
that this witness could deny this. He did not.
constitutes the essence of the viva voce evidence led on behalf of
accused then elected to give evidence in their defence.
Accused, Mr Mochebelele graduated from the University of Botswana,
Lesotho and Swaziland in 1973; obtain a degree in Agriculture
the University of Texas in the United States and again a Master's
Degree in Agriculture from the University of Nebraska in
country. He describes himself as an engineer.
had a long illustrious career in civil service spanning the years
1975 to 2002. He advanced through the stages until became
Secretary in the Ministry of Water, Energy and Mining in 1984. In
1986 he worked on secondment on the Azores Islands.
presumably where he was appointed to work on the Joint Permanent
Technical Commission (JPTC).
Molapo, the second accused for his part holds a Bachelor of
Engineering Honours Degree in Mining Engineering from Canada.
Accused, while admitting that meetings took place between them and
officials of Lahmeyer at various times and that they were
Zimmermann, and Emsmann on behalf of Lahmeyer and Elliot on behalf of
Mott Macdonald, they deny that money ever passed hands
meetings. In fact they deny ever having received any kind of money
from Lahmeyer or Mott Macdonald through the agency of
anyone else. Any reference to them in the Lahmeyer records is written
off as untrue and they had no hand in the compilation
or/generation of any of Lahmeyer's documentation. It was not copied
to them and the first they ever knew of the documentation
they picked up bundles of it at the offices of the Anti-corruption
admit that they traveled to Germany at the invitation of Lahmeyer.
However they deny that they received a daily allowance in
the sum of
DM2,300 each as recorded in the memos of Lahmeyer.
of these witnesses elicited a denial of everything in the Lahmeyer
documentation that made mention of their names
in connection with
payment or even, in particular with regard to Accused 1, Mr
Mochebelele, the mere possibility of such payment.
suggested to him for instance that being a chief delegate, he was in
a position to help, that is he "could" help
insisted that he "would" not help notwithstanding that it
was emphasized that the question was whether he
could and not whether
he would. I don't think he did not understand this distinction.
interesting answers on issues that appear controversial were elicited
they had honoured the invitation by Lahmeyer to be their guests in
Germany in the middle of the tender process for contract
Mochebelele replied that they had simply gone along with the
invitation that had been extended through Mr Sole the Chief
of the LHDA and anyway "the contract was between LHDA and
Lahmeyer, not between the commission and Lahmeyer".
is in spite of the fact that, so were all the other contracts and in
any case the commission was always involved one
way or another in the
process. For instance, the World Bank and the European Union always
sought the approval of the commission
for any contract they funded.
about a meeting that was recorded in Lahmeyer documents as having
taken place on the 27th September 1994, all accused 1 can
say is that
he might have attended this meeting with one Rafoneke, who was a
senior engineer and at one stage head of Construction
Division of the
LHDA. This meeting was with Dr. Lutkestratkotter, Lahmeyer's top man
in Germany. It is recorded in the memo that
Rafoneke had indicated
that there was an insufficient budget available for extending Dr.
Spiess office in Maseru. It is noted in
the memo that M (referring to
Mochebelele) will clarify this with Zipburgh, the EU delegate in
Mochebelele readily admitted that Zipburgh was the EU ddelegate in
Maseru but he did not recall clarifying the matter with him.
as to whether this could have happened he replied that he could not
recall it. Pressed further the question and answer
went like this:
"Q: And told Lutkestratkotter about this meeting
A: He may have asked me about it"
Mochebelele is asked about another memo from Lutkestratkotter
Q: M considers it important that there is a coordinating office in
Maseru for the entire compilation of 'Muela.............
A: M' Lord, I do not recall [that I said so] but I would have found
no reason not to say so if asked.
the same type of equivocal answers from Mr. Molapo regarding for
instance his stay as Arabella Grand Hotel in Frunkfurt Germany.
it is absolutely not in dispute that he and Mr. Mochebelele were
quests of Lahmeyer in Germany, he is quite equivocal about
might have stayed there during his sojourn. He is contend with saying
he could have stayed there.
both accused know of no reason why these witnesses sitting out
Germany could have written all the "nasty" things
wrote about them. In fact they did not even know some of the
witnesses such as Hager and Pietsch. They knew Zimmermann,
and they had no quarrel at all with him; specifically he came through
to Mr. Molapo as a same man -Lahmeyer was a good
firm that did its
job professionally and that is why it succeeded in containing the
final contract for further phases. A better
relationship there could
basically the defence case:
and the defence case were built on the back drop of the following
admissions made on behalf of the defence at the commencement
statement of one Mr RYNO BOTHE whom the crown intended to call as
its first witness. The statement was to the effect that
is a German who holds a position with RWE solutions which, at the
time he made the statement, was a shareholder Lahmeyer
International. He goes on to say that annexures Al - A45 were
documents extracted from Lahmeyer International records appearing
a large number of diverse files. This was done by himself and staff
instructed by himself and the management of Lahmeyer International
in compliance with the request by Lahmeyer international's legal
representatives to extract documents reflecting any dealings
Mr. Mochebelele and any payments to him.
confirms that these are Lahmeyer International records and has no
reason to doubt their authenticity and that they are Lahmeyer
documents held in the ordinary course of business. The documents
of Lahmeyer International system of accounting and record keeping.
From the records it would appear to him that the reason
payment made by Lahmeyer to Mochebelele was for assisting them in the
Lesotho Highlands Water Scheme.
Semenya S.C. admitted this statement of Bothe with the qualification
that wherever reference is made to payment to or dealing
Mochebelele it be prefixed with the word "alleged"
It may be
mentioned here that annexures A1 - A45 are extracts from VOL 1 - 4 of
the 41 arch - lever volumes that were placed before
Lahmeyer International documents in this matter.
contained in volumes 9 to 40 totaling 16, 102 pages were by
agreement placed before the court "as being what they
to be" and this was agreed to mean that if the document said on
the face of it that it was a bank record or an invoice,
was what it appeared to be on its face. Volume Vol. 41 really mostly
comprised the German /English of some of the documents
Volumes 9 to 40 including, Vol. 1 -8.
the documents contained in volumes 1 — 8 are in like manner
admitted as authentic documents kept in the ordinary
business. Mr Semenya emphasized that the admissions made were no
more than that and specifically that the documents
could not, and
were not admitted to prove the truth of their contents. The crown on
the other hand was at pains to point out
that, that was not the
purpose of the crown, the purpose being to prove an agreement
between Lahmeyer and the accuse, invoking
the doctrine of common
purpose. This was to bedevil the proceedings in this matter no end.
addressing these matters, I have to mention certain further
admissions that were made namely, the telephone numbers of
Molapo appearing in Vol. 4 p.1291 of the Crown's bundle. It is his
home telephone number.
both accused were invited by the investigating officer to make a
statement relating to the charge and they elected to remain
the statement of Emily Thamae to the following effect:
employed by the Lesotho Government in the Ministry of Natural
Resources, Department of Energy, where is a secretary in the
she was employed by Lahmeyer from 1996; she was Raymond Stock's
secretary. On occasion Stock would instruct her to cash
the bank from 1998. He usually asked for the cash in SA currency and
Maluti only if it was not available. The cheques
were drawn on
Standard Bank Lesotho in the name of Lahmeyer Macdonald Consortium.
These would be encashed and placed in an envelop
which she would then
deliver to Stock. The cheques were usually for large amounts ranging
from M10,000 to R40,000. Because the
amounts were large she would
always park at the back of the bank and leave by the rear exit of the
bank. She would sometimes be
in the company of a driver who himself
would also sometimes be entrusted with encashing the cheques for
witness knew Zimmermann. She knew that he periodically came to
Lesotho to, usually, attend management meetings for which she
make arrangements as well as for Mr. Zimmermann's accommodation in
Maseru. She typed minutes of the management committee
they were to
She had been shown a cheque stub for M40,000 marked "cash -Dr
Zimmermann ". She did not know why this cash was
paid to him.
Criminal Procedure and Evidence Act 1981, section 273 (1) deals with
formal admissions and provides:-
"An accused or his representative in his presence may, in any
criminal proceedings, admit any fact relevant to the issue and
admission shall be sufficient evidence of that fact".
interpreting a similar provision the then Appellate Division of the
South African Courts had this to say in S v MJOLI AND ANOTHER
(3) SA 1233 at 1247 A-B
Sufficient proof has been judicially interpreted not to mean
conclusive. S. v Seleke en 'n Andre 198(3) SA 745(A). By reason
the fact that an admission formally made by or on behalf of the
accused is 'sufficient evidence', the effect is that such fact
virtually becomes conclusive proof against him because the accused
himself or his legal representative on his behalf has made the
admission and any effort by him or his legal representative to adduce
evidence countervailing such fact would be unconsistent with
having made the admission "per Viljoen J.A.
is again relieved of the onus of proving the admitted facts in other
way (see The South African Law of Evidence- Hoffmann
4th Ed.p431D and the authorities therein referred to)
present case Mr. Semenya S.C on behalf of the accused admitted
virtually the entire documents of Lahmeyer International as
documents being Lahmeyer records produced in the ordinary course of
business. Now, when the crown sought to lead the
witnesses on these documents such as that of Trevar White, the
forensic auditor, Mr Semenya S.C. sought to exclude
altogether. He argued that White could not testify to these documents
because he could not vouch for the truth of
their contents. These
documents so, the argument went would serve nothing but to introduce
inadmissible hearsay. Mr Penzhorn S.C.
for the crown contended and he
did throughout that he did not aim to prove the truth of the contents
of the documents but rather
that there was an agreement and or a
common purpose to commit the offence of bribery between the accused
ruled that White proceed with the evidence that the crown intended to
lead 1 referred to the case of WEINTRAUB v. OXFORD
LTD 1948(1) SA 1090(T) at 1093 where Price J observed:-
"A letter is only evidence of the fact that it was written by
the person who wrote it and that that person said what the letter
contains. It is not evidence that what he said in the letter is true
We are in
any view in an analogous position here. It was admitted on behalf of
the defence that Lahmeyer records were authentic
business records of
that entity. This is therefore evidence that they were written by the
persons who purportedly wrote them, and
they say what they say, that
is to say, if a document says I paid Mochebelele or Molapo so much on
such and such a date, we entitled
to take cognizance of what is thus
recorded. Whether it is factually true or not that Mochebelele or
Molapo have been paid, is
entirely another matter that has to be
proved by competent evidence if it is left in issue as it has
abundantly been made clear
by Mr. Semenya S.C.
of their admission therefore the defence were precluded from
attempting to exclude the Lahmeyer records as testified to
called on behalf of the crown, if only to show that someone did make
those statements and no more.
has been held in R v MILLER AND ANOTHER 1939 A.D. 106 at 112 per
" But statements made by non-witnesses are not always hearsay.
Whether or not they are hearsay depends upon the purpose for
they are tendered as evidence. If they are tendered for their
testimonial value (i.e, as evidence of the truth of what they
assert), they are hearsay and are excluded because their truth
depends upon the credit of the asserter which can only be tested
his appearance in the witness box. If on the other hand, they are
tendered for their circumstantial value to prove something
the truth of what is asserted, then they are admissible if what they
are tendered, to prove is relevant to the inquiry".
echoed by the Court of Appeal in the Kingdom in EMPHRAIM MASUPHA SOLE
AND CROWN C. OF A (CRI) 5 OF 2002 CRI/T/111/91 per
he observed albeit obiter at p. 49.
"In this court it was submitted that the appellant's statements
in earlier proceedings were inadmissible for the purpose of
the truth of what he had said. As a general rule this is correct.
However, the evidence was not tendered for that purpose,
adduced for the crown only as proof of what had been said."
offence with which the accused are charged is bribery. By its very
nature the offence must involve at least two parties, the
the bribee, both of whom may be convicted of the offence. It is
common cause that the crime of bribery essentially involves
agreement between those parties and it is complete upon proof it. See
R v MASUPHA SOLE AND OTHERS CRI/T/111/99 p.14 per. Cullinan
he then was) (unreported). The parties to this agreement have been
said to have ...." A common purpose being that
the one party
might receive bribes and the other to give them." Per Curlevis
J.A. in R V. LEVY AND OTHERS (Supra).
J.A. in that case went on to say "It seems to me that it is open
to the crown to prove acts done in furtherance of
purpose, provided first it first establishes, or rather lays down a
foundation of the common purpose, by some evidence
leading the court
to think, if there is nothing else to upset it, that there was some
conspiracy between the parties".
develops this argument to press home what it has maintained
that it was leading much of its documentary evidence not to prove the
truth of its contents but to prove the agreement
and therefore a
common purpose by referring to( Phipson on the Law of Evidence 6th
Ed. P.62) where it stated.
"On charges of conspiracy, the acts and declarations of each
conspirator in furtherance of the common object are admissible
against the rest; and it is immaterial whether the existence of the
conspiracy, or the participation of the defendants be proved
though either element is nugatory without the other.......The above
rule holds, although the acts and declarations proceeded
conspirators not charged; or were done in the absence of the party
against whom they were offered or without his knowledge.
At p. 94
Phipson goes on to say:-
"To prove the conspiracy there need not be evidence of direct
concert, nor even of any meeting together of the defendants;
agreement may be inferred from collateral acts raising a presumption
of the common design. "
here to remark that this is what crown contends that this court must
do in the admitted absence of any written or overt
between the accused and Lahmeyer or for that matter Mott MacDonald. I
will come to this later.
further relies on "THE SOUTH AFRICAN LAW OF EVIDENCE by Zeffert,
Paizes & Skeen, 2003 pp. 20 - 23 where the authors
"If A,B and C form a common purpose to achieve a particular
objective, then evidence of any act or declaration performed or
by any of them, say A, will be admissible against any of the others
if that act or declaration was performed or same in furtherance
the common purpose ".
authors say the rationale for the reception of such evidence lies:
".....it seems ....once more in the substantive law and the
Principles governing relevance. (my underlining).........and not
some think on the basis that they constitute exceptionally received
vicarious admissions "
statements in a common purpose thus each attributed or attributable
each to the other in the pursuit of that objective are only
as long as they in are furtherance of that purpose. They are then
referred to as executive precisely because they are
statements or as
they are often called in English law declarations done in the
execution of the common objective. They are distinguished
narrative statements or declarations which are mere records of, many
times, what has already been accomplished and
do nothing to advance
the common purpose. The example is given of R
(6.Q.B.126) (115 E.R. 49) where T and B were charged with conspiring
to pass goods through the Custom House without paying
full duty. T
did not appear in court and B pleaded not guilty. False entries made
by T. in his books for the purpose of carrying
out the fraud were
held to be admissible against B. The false entries made in the day
book by T. were held to be admissible because
they were done in the
course of the transaction. They were thus executive declarations.
What T. did afterwards on the stubs of
the day books, we have done in
the execution of that transaction could not be admissible because the
event had passed and therefore
it could be said that it was in
furtherance of it. The declaration was therefore merely narrative.
been asked to rule whether the documents appearing in volumes 1 to 8
are executive documents or not. The crown has submitted
''indeed executive statements and therefore constitute evidence of
what is what is contain therein" (my underlining). It appears
then that the crown wants this court to make a blanket ruling on all
the various documents that are in those volumes. It seems
to me that
the crown cannot be permitted to do this, if not to overwhelm the
Judge, at least not to embarrass the defence which
has to know
exactly what case to meet.
In the present case the documents that were generated by people such
as Mrs Pietsch and Mr Hager who by the very nature of their
could never be said to be executive by any stretch of the
imagination. They simply prepared records of what they regarded
contracts which they played no part in bringing into existence. The
contract itself, the agreement, which is the basis of bribery,
offence charged herein was driven and completed elsewhere. That is
where one would look for "conspirators" and therefore
capable of making executive declarations in furtherance of the common
objective. The two do not appear to have made common
anyone to commit bribery.
What the witness White does really is to comment on the documents of
Lahmeyer from an expert's point of view. The comments and
that he draws depend on the admissibility of those documents.
Otherwise sound as they may appear, they are quite irrelevant
"conspiracy". I am not prepared to say that his report was
on any account an executive statement anyway.
It may be said that some of the statements attributed to Zimmermann
may be of an executive nature. I specifically refer to Zimmermann
because he appears to have played a central role in the present
bribery configuration as the Lahmeyer part of it. It may be an
arduous job to pin-point the particular statements by way of memos
and other instructions possibly proved by evidence of Pietsch,
view of the overwhelming nature of the evidence on which I have been
asked to rule as I have earlier alluded to. I have to say
fairness to the crown they have painstakingly prepared a very helpful
schedule detailing the letters, communications,
memos, telexes, faxes
etc. to and from various players contained in volumes 1 - 8.
Thankfully it may not be necessary to refer to these in view of the
viva voce evidence of Stock which in my view captures the essence
the activities of Zimmermann especially when he was within the
jurisdiction of this court. I say this because some, in fact
the documents relate to activities, although their effects extended
to Lesotho, were possibly considered as not criminal
in Germany where
they were executed. Why, it was even suggested that they even
attracted tax rebates. In fact the witness White
says in this regard:
"I understand it was legal in Germany prior to some time in
1999 to pay foreign officials. It was not a crime in Germany and in
fact it was deductible for tax purpose M' Lord".
Penzhorn S.C. concluded his argument for the admissibility of the
documents and I quote him in full:
"All that remains is for the court to rule, if the court does
consider it appropriate at this stage, is whether these documents
indeed executive statement and therefore constitute evidence of what
is contained therein. On the basis of the submissions
above it is the
crown's submission that clearly such a ruling should be made. (My
this is not an argument for admitting these documents to prove the
truth of what they assert, then I do not know what meaning
is to be
attached, to it at all. It seems to contradict what the crown had
said all along that it was it had not set out to do
reminded in this regard that all the authorities that I have been
referred to are South African and that South African jurists
Judges alike have always rebelled at the formalistic and rigid nature
of the rule against hearsay. HOFFMANN AND ZEFFERTT -
AFRICAN LAW OF EVIDENCE 4th Edition p. 126 say:
"The irritating thing about the common-law rule is the rigidity.
All hearsay which does not come within some established exception
excluded, no matter how reliable it may have been. Sometimes the
result could have been a grave injustice...........In South Africa,
these ... considerations have led to a novel and fundamentally new
impression of that approach was that it was just an attempt to
circumvent what is otherwise clearly hearsay evidence at common
law. Like Mr. Penzhorn S.C. in the present case, Squires J. in THE
STATE v SCHABIR SHAIK AND OTHERS CASE NO. CC27/04, was constrained
recognize the hearsay nature of extra - curial statements made by a
person who is not a party to the suit. In that Shaik case
encrypted documents whose probative value depended on someone else
other than the person who put them in thus making
them hearsay. He
said such a statement is excluded.
"....because it is hearsay; and such a statement is only
admissible it qualifies as an exception to the hearsay rule. One
those exceptions is relevant acts as declarations made in furtherance
of a common purpose and that exception is based on the
fact that such
persons Here he seems to contradict the authors Zeffertt, Paize &
Skeen p.2003 that I earlier referred to who
rejected the notion that
the evidence was admitted on "...on the basis they constitute
exceptionally received various admissions
case (supra) went on appeal to the Supreme Court of Appeal, the court
there refused to endorse Squires J's view that there
was such an
to the common law rule and decided the matter on an amendment to the
South African Criminal Law and Procedure Act. Mr
Penzhorn S.C. argues
that the court did not say he had wrongly decided that it was such an
exception, and that therefore they agreed
with him. I disagree. It
seems to me more likely they avoided to be unnecessarily drawn into a
debate on such an "irritating"
subject as the hearsay rule.
I am not aware of any such exception not was it argued before me.
brings me to the law on hearsay as applicable to Lesotho. It is
governed by section 225 of the Criminal Procedure and Evidence
1981 it reads:
"No evidence which is in the nature of hearsay evidence shall be
admissible in any case in which such evidence would be inadmissible
in any simitar case depending in the supreme court of judicature in
England prior to the fourth day of October 1966".
Supreme Court of judicature in England is of course, the House of
Lords. The most definitive exposition of the law on the rule
hearsay, prior to 1966 that I am aware, from that court was in the
case of MEYERS v D.P.P. 1964 (2) 881. It was a matter
undeniably reliable evidence was sought to be introduced by the
prosecution claiming as in the present
it was not for its probative value. In the relevant passages Lord
Reid said at p.886E-F
"At the trial counsel for the prosecution sought to support the
existing practice of admitting such records, if produced by
in charge of them, by arguing that they were not produced to prove
the truth of the particulars but only to prove that
records kept in the normal course of business. Counsel for the
accused then asked the very pertinent question - if they
intended to prove the truth of the entries what were they intended to
prove? I asked what the jury would infer from them:
they were probably true. If they were not capable of supporting an
inference that they were probably true records,
then I do not see
what probative value they could have, and their admission was bound
to mislead the jury. "
reason for sustaining the admission of the records in that case,
given by the court a quo that the probative value of the records
not depend on the credit of the person's who made them, in that case
unidentified workmen, but on the circumstances in which
was maintained and the inherent probability that they were true
rather than false, was rejected. His Lordship, Reid
said in so doing
that although this was undeniable as a matter of common sense but it
could not be reconciled with existing law.
in Lesotho regarding hearsay must follow MEYERS V D.P.P. (supra).
Like Lord Reid, in this case we can only implore the legislature
intervene as it has done in South Africa and overhaul this aspect of
the law before, or it if has not already wreaked untold
now we simply
apply it as stands - frozen from 1966. While other jurisdictions have
advanced with the times.
that the documents Volume 1 to 8 are inadmissible as being hearsay in
nature. As such they can never form a basis for the
there was an agreement between Lahmeyer and the accused. The crown'S
anguished plea that the labours of Mrs Pietsch
and Lahmeyer employees
in compliling meticulous records pointed to some such agreement is
simply an argument that the circumstances
under which the documents
were made, are such that they reflect the true state of affairs
rather than not. That argument as we
have seen was rejected by the
House of Lords in Meyer's case (supra).
leaves us with the evidence of Stock. That evidence does not present
much difficulty. He says Zimmermann came to Lesotho prior
to that he
would have received instructions to withdraw monies which he did
withdraw. There seems to be no quarrel with this evidence.
He says he
would give this money to Zimmermann and they would proceed to a
meeting in Mochebelele's office. During the meeting
he would leave
the meeting. He assumed that at this stage money would pass hands. In
fact what Stock says is that although the
moneys that he withdraw
the arrival of Zimmermann in Lesotho were labeled he knew that they
were in fact bribes intended for Mr. Mochebelele and
he assumed that,
it was these bribes that passed hands during these occasions. He is
emphatic however that he never actually saw
the money pass hands. He
says at the end, and I must say this does not appear any earlier or
for that matter in his statements
in the possession of the
prosecution, that when Zimmermann went into these meetings he would
be carrying a bag and when he came
out would not be there and the
girls would then be handed sweeties and things. Presumably these
would be the girls at the reception
where Mr Stock would have retired
after leaving the meeting upon a signal. Well we don't know where the
sweeties and other things
that were distributed to the girls came
from. For all we know they may have constituted the contents of the
bags that Zimmermann
carried into Mochebelele's office. After all
Stock never examined or saw the contents of that bag.
serious note, a very pertinent question, if I may borrow Lord Reid's
turn or phrase in Meyer's case (supra) was asked by Mr.
why if everyone, Mr Stock, Dr. Zimmermann and of course the bribees
knew that bribe money was going to pass hands
in Mr. Mochebelele's
office would Stock be shown the door at the crucial moment of handing
over the money.
could do no better than to say it was because it was an "open
secret" between Mr. Mochebelele and Lahmeyer's
management. That simply begs the question.
with Mr Stock himself, he is a self confessed accomplice in the saga.
He says he collected money and handed then to Zimmermann.
that these moneys were intended as bribes as, according to him, did
Zimmermann. Now Mr. Semenya has drawn the attention
of the court to
the requisite caution in approaching evidence of persons like Stock
and of Zimmermann if he had testified. If not
approached with caution
it may result in a wrongful conviction. See Holme J.A. in HLOPEZULA
AND OTHERS 1965 (4) SA 439 at 440 (D)
As if it
is not enough that Stock has admitted to participating in corruption
he has admitted to lying as well. He according to
him aided and
abetted by Zimmermann withdrew a large amount of money viz. M356,
536.00. This money was requisitioned as a purchase
for a "BMW".
Stock himself wrote on the cheque for the amount "car purchase
BMW". He confesses that this was
false. It was in fact meant for
a bribe. Stock and Zimmermann were, on the evidence before me, quite
shady characters. It is not
beyond them to
money from their employer by false pretences. How do we know where it
started and where it ended?
face of such evidence we have the denial of the accused that they
received any monies from Lahmeyer or anyone for that matter.
that we have the evidence of Trevor White who exceeded his mandate of
"receiving all the documentation provided by
and to "prepare a report summarizing his findings". He went
beyond his mandate for unexplained
reasons and checked Mr.
Mochebelele's financial records and property dealings. He found
nothing untoward and that his life-style
did not reflect that he
lived beyond his means. He did not include this in his report but
some strange things came out in this
uncalled for investigation of
Mr. Mochebelele. Mr White somehow came to mistake Mr Sole's foreign
account with that of Mr Mochebelele.
This emerged in
Mr. Stock was an unreliable witness. Mr Zimmerman for his part has
completely refused to give evidence before this court.
CONCLUSION: The documentary evidence that was placed before me was
inadmissible; it therefore could not support the conclusion
agreement between Lanmeyer and the accused that one should give a
bribe and that the other should receive it.
viva voce evidence led was unreliable and it could not prove beyond
reasonable doubt that either Mr Mochebelele or Mr Molapo
therefore finds you not guilty and you are discharged.
Crown: ADV G H PENZHORN S.C.
ADV H H T WOKER
Defence: ADV I SEMENYA S.C.
ADV K. MOPHETHE
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