IN THE HIGH COURT OF LESOTHO
In the matter between:- CRI/T/13/08
REX CROWN
VS
MOTLATSI MOTSAMAI ACCUSED
RULING ON DISCHARGE IN TERMS OF THE PROVISIONS OF THE CRIMINAL PROCEDURE AND EVIDENCE ACT NO. 9 OF 1981
Delivered by the Honourable Madam Justice M. Mahase
On the 13th November, 2009
Criminal Law – Bribery – what constitutes same – Contravention of Section 22 (1) of the Prevention of Corruption and Economic Offences Act No. 5 of 1999.
The accused appeared before this court charged with having committed the following crimes:-
Count 1 - Bribery
Counts II and III - Contravention of the provisions of section 22 (1) of the Prevention of Corruption and Economic Offences Act of 1999.
The accused who is a Public Prosecutor at the Leribe (Hlotse) Magistrate Court is alleged to have committed the above-shown crimes upon or about the 16th day of August 2007 and at or near Hlotse in the district of Leribe.
Particulars to these charges are clearly spelt out on the charge sheet. Facts to this case have been summarized by the defence counsel in its heads of argument.
Suffice it to mention that the sums of money involved in these counts are:
M3,500.00 in count I
M3,500.00 in count II
M2,950.00 in count III
TOTAL M9,950.00
The crown evidence is based on the evidence of the four crown witnesses, three of whom are police officers, while only one of them is a civilian/ordinary member of the public, PW1 one Malisebo Khosi.
The three police officers are:
No. 4997 - P/W Nthabiseng Metsing (PW2)
No. 50390 - D/Tpr. Thamae (PW3)
No. 11231 - Tpr. Lechato (PW4)
PW1 described in her evidence in chief that she and one Johannes Molopo Sello her boyfriend were charged with having committed the crime of stock theft and that subsequent to their arrest they were remanded on that charge at the Leribe (Hlotse) Magistrate’s Court.
The Public Prosecutor who was handling this case was the accused person before court, Motlatsi Lillo Motsamai. She testified that while she was attending remands, the accused approached her and informed her that the case in issue could result in her being imprisoned for a long time should she be convicted.
Her evidence is that the accused went further to suggest to her that she should pay to him the sum of six thousand (M6,000.00) Maloti so that he could then decline to prosecute this case.
Since the said PW1 indicated to the Public Prosecutor (accused herein) that she did not have and that she could not raise that amount of money, the accused finally, after some protracted negotiations settled for the sum of M3,500.00. Subsequently and on the day that PW4 Tpr. Lechato of the Maputsoe police went to serve her with the summons in respect of this case, she (PW1) informed Tpr. Lechato about the accused’ s proposal.
Having been so informed of the accused’ s proposal, PW4 arranged for PW1 to meet Senior Superintendent Mokhele to whom the matter was reported. A police trap was then set up for the accused.
PW1 and PW4 then together went to the Hlotse Police Station where at the instructions of Senior Superintendent Mokhele a police trap was set up for the accused on the 16th August, 2007.
While at the said offices, PW1 was asked to call the accused on her cellphone whose loudspeaker had been activated for all the police officers who were in that office of Senior Superintendent Mokhele to hear the conversation between PW1 and the accused regarding this request for and payment of bribery.
Those present in that office including Senior Superintendent Mokhele were PW1, Troopers. Seisa, Kasane, Lechato, Thamae Metsing. They then, and after having been ordered to set up a police trap, agreed to meet at a certain specified place where PW1 would then hand to accused the said money. The money to be so used in that exercise was contained in a white envelope and it amounted to M2, 950.00.
I must mention at this juncture that the above money was made up of:
14 x R200.00
1 x R100.00
1 x R 50.00
Of importance is the fact that the R200.00 and R100.00 notes were all fake money. Only the R50.00 was real money. I will address the issue of fake money being kept and used by police to set up a police trap in due course. The envelope in which this money was contained when handed into court was written on it the following:
R.C.I. 61-08-07
The names and addresses of the accused
It also had attached to it an L.M.P.S. 39 exhibit label, the above were marked exhibit1 collectively.
The crown further evidence is that, having so provided money for police to set up this trap, Senior Superintendent Mokhele ordered the police officers to go out to execute that trap. They went out to the main street of Hlotse where on arrival they positioned themselves at different locations as agreed but where they would be able to see when PW1 handed the envelope containing the said sum of money to the accused. They would then have him arrested once he had received same.
Each of the police officers who went out there, described in detail at what distance they walked from PW1 who was immediately followed after by PW2 at a distance estimated as being between 10 - 20 paces.
According to the evidence of PW1, it had been agreed between her and the police in the presence of Senior Superintendent Mokhele that she would hand over that white envelope containing that money by touching her head after handing the envelope to the accused so that once she did so, the police could then apprehend the accused.
There is however, conflicting or contradictory evidence adduced by the crown witnesses as to the hand sign PW1 was ordered to make for police officers to see once when she handed the money to the accused and or once when she had done so.
Contrary to what PW1 told this court, the other crown witnesses (the police) say that PW1 had been ordered to raise up her hand above her head when she handed that envelope in which that money was contained for all to see that she actually handed it to him.
Be that as it may, the evidence is that PW1 ultimately met with the accused and handed him that envelope. Accused denies that he was handed such an envelope. Crown witnesses testified that immediately thereafter, and as the accused had just turned away to go back to his office, he was seen by the police officers who had positioned themselves at different places around the place where PW1 and the accused met, throwing that envelope away presumably when he realized the police officers’ presence around that place. This the accused allegedly did before any of the police officers could reach him.
It is the crown’s further evidence that PW2 who had seen when the accused threw that envelope away approached Trp. Seeisa and informed him that the accused had thrown that envelope away. She pointed to Seeisa the place at which she said the envelope has been thrown at. This was picked up by Seeisa who then later took it to the office of Senior Superintendent Mokhele, without having confronted the accused about the envelope.
I note with dismay that Troopers Seeisa and Kasane have not at all been called to testify as crown witnesses in this case. This is so despite the fact that it was Trooper Kasane who gave accused the charge herein, and despite the fact that it was Seeisa who had picked up the said envelope from where it was allegedly thrown by the accused.
The accused denies ever having been handed the said envelope by PW1, and in fact he says that the sole purpose for his having gone to meet PW1 was so as to help her to go to the new offices of the Prosecutors which had recently been moved to the offices of T.E.B.A at Hlotse. It is his story that PW1 had informed him that she did not know the location of the said new offices. The accused also denies that he did, at any time solicit payment of a bribe from PW1. In fact he denies having committed any of the crimes with which the crown has charged him.
I must also note that both PW1 and PW4 never went back to the office of Senior Superintended Mokhele to report about the exercise that they had gone out to execute as per orders of Senior Superintended Mokhele.
Also, and notably to this court, is the fact that Senior Superintended Mokhele has also not been called to testify in this case even though she played a pivotal role in setting up this trap and providing the trap money made up of fake (counter feit) money notes.
It is a matter of common cause that no serial numbers of the said money used as police trap were written down anywhere by any of the police officers who were involved in this exercise.
Put differently, none of the said “money” notes had any peculiar or distinctive marks for it to be positively identified later in court as being the same money that was used as trap money. How then, even assuming without conceding that this is so, is this court expected to say without doubt that these money notes are indeed the ones which had been used as police trap money as the crown alleges?
It should be recalled also that the said envelope allegedly containing those fake money notes and allegedly handed to the accused by PW1 (which fact the accused denies) was not found upon the person or in possession of the accused. Trooper Seeisa, who allegedly picked up this envelope from where PW2 allegedly saw it been thrown by accused, has not testified in this trial. What this means is that PW2’s evidence in this regard has not been corroborated.
This is not the only hurdle in the evidence of the crown. Of significance are also the following facts:
Firstly, there is no iota of evidence to proof that the accused did solicit a bribe of M6,000.00 which was allegedly later reduced to M3,500.00 when PW1 had attended a remand for the second time.
Secondly, there is also no iota of evidence tendered by the crown to proof or suggesting that PW1, on the 16th August, 2007 had a telephone conversation through her cellphone with the accused wherein the issue of her going to hand the bribe money was discussed between them. The cellphone numbers of PW1 and accused still remain a mystery to this court.
The police could have easily obtained a printout from
vodacom to at least proof that either one of PW1 and accused had telephoned each other on that particular day. This has not been done. It has already been indicated above that Senior Superintended Mokhele has not even testified in this trial against the accused even though she played a central and an important role in organizing this police trap. It is to be recalled that Trooper Lechato (PW4) is the one who firstly reported this incident to Senior Superintendent Mokhele, and that all the police officers herein involved in this trap exercise were answerable to her.
As it were, what this court has before it on this issue of accused having solicited a bribe is the word of PW1 and the police against that of the accused. The accused denies having solicited a bribe from PW1. His story as put to crown witnesses by his counsel is merely that he went to meet PW1 after PW1 had indicated to him that she did not know the location of the newly acquired offices of the Public Prosecutors at Hlotse. His story in this regard has not been gainsaid.
None of the crown witnesses, in particular, the police officers, have denied that the offices of the Public Prosecutors at Hlotse where the accused was stationed, had recently and around August, 2007 been relocated to TEBA building at Hlotse.
Thirdly, there is some discrepancy and or conflicting prosecution evidence as to the narration of events especially on the manner in which PW1 was to hand that white envelope to the accused.
It is PW1’s evidence that she had been instructed by the police to raise up her hand above her head as a clear sign for the police to see that she was handing that envelope to the accused.
However, and in sharp contrast, all other crown witness say PW1 was to touch her head after she had handed that envelope to the accused.
Fourthly, PW2 told this court that the said serial numbers of trap money, which was handed to PW1 by Senior Superintendent Mokhele, were written down.
She is the only one of the crown witnesses who said so. This she said even though no such record was produced nor availed to court until at the close of the crown case.
Fifthly, crown witnesses’ testimony is contradictory as to the place where PW1 and accused had agreed to meet for purposes of PW1 handing that envelope which allegedly contained bribe money. PW1 says it was at or along Metro wholesale while other crown witnesses say it was near or at cashbuild at Hlotse.
Further still, the crown witnesses contradict each other as to what actually was the subject-matter of the conversation between PW1 and accused over the telephone. Some say PW1 had referred to her going to give accused money; while on the other hand others say PW1 had referred to going to give accused a parcel (whatever this means).
The fact/issue about PW1 having said that she was going to give money to the accused does not even appear in the reports of the crown witnesses.
Crown witnesses’ evidence is also contradictory as to the reason advanced by PW1 pertaining to the reason why PW1 could not go to the accused’s office.
Some say PW1 had indicated over the telephonic conversation that she did not know where the accused’s new offices were located, while on the other hand, others say that PW1 had informed accused that she could not go there as she had to attend to the funeral services arrangements at the Lesotho Funeral Mortuary at Hlotse.
These discrepancies in the crown witnesses’ evidence cannot be overlooked nor can they be lightly disregarded. They go to the very crux of the charges which have been preferred by the crown against the accused.
It is trite that the onus of proving a case in a criminal case against an accused person rests upon the crown. It is to be so proved beyond a reasonable doubt. This is so even at the stage of the close of the crown case and where an application for the discharge of an accused person is moved.
This court is enjoined by the provisions of Section 175(3) of the C.P. and E. Act No. 9 of 1981 to consider, at the close of the prosecution case, whether there is evidence adduced indicating that the accused has committed the crime with which he stands charged.
Should there be no such evidence on record, and upon which a reasonable court might not convict, a Judge or trier offact will exercise his discretion in favour of the accused and return a verdict of not guilty. The inquiry is whether there is a prima facie case on which a reasonable court might convict.
It is a fundamental principle of our law that the rule against self-incrimination demands that the accused person should not be
compelled to testify with the hope that where the crown case is weak it might be strengthen thereby.
The court is expected at this stage of the proceedings to consider the evidence adduced and or admitted by the crown and ask itself the question whether or not on the face of it such evidence establishes a prima facie case for the accused to answer.
Both counsel in the case in casu have ably made their arguments in their heads of argument for and against the application for the discharge and acquittal of the accused at this stage. This court is most indebted to them for their assistance to it.
It has been submitted on behalf of the accused that, and for reasons therein stated on the heads of argument that the crown has failed to discharge the onus of establishing the existence of a prima – facie case for the accused to answer. Reliance in this regard was placed on the following cases Rex v. Sekhobe Letsie and Another CIV/T/90/1990
Rex v. Thoabala
Rex v. Nsabimahna Shabani and Others
S.V. Mathebula 1997 SAER Page 10
The crown, on the other hand has opposed the granting of this application for reasons spelt out on its heads of argument.
It has been submitted by the crown that on the facts and circumstances of this case, and also on the evidence herein tendered by crown witnesses, the crime of bribery was completed when the accused solicited the bribe and the acceptance was conveyed to him by PW1. Vide South African Criminal Law and Procedure Vol. II by Hunt Pages 211 and 215.
- Acres International Ltd v. The Crown LAC 2000 – 2004
page 677 at 703 B.
Having analyzed the facts, evidence and the submissions by both counsel in this case, it is the considered view of this court that in view of the discrepancies, the insufficiency and the conflicting prosecution evidence analysed this far, the crown has failed to discharge the onus placed upon it of establishing the existence of a prima facie case against the accused for the accused to answer.
In the premises, the accused is accordingly acquitted and discharged,
Vide – ‘Matumo Tlelai v.Rex LLR 1974 – 75 page 304.
Benjamin Chokwe and 2 others v. The State, case No. 96/03 (High Court of S.A. Bophuthatswana Provincial Division) page 8
Mofokeng – Page 190
This court has not been addressed on the issue relating to the counterfeit money used by the police in this case to set up a trap for the accused. While this may not be of any consequence, one may only observe that it is highly desirable that in executing their lawful duties, police must at all times use lawful means.
M. Mahase (Mrs.)
Judge
For Accused - Adv. P.S. Ntšene
For Crown - Adv. T. Matooane
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