CRI/T/13/86
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
v
SIXTUS SETHO SENTLE
MAKHOABE MOHALEROE
Before the Honourable the Chief Justice Mr. Justice B.P. Cullinan on the 18th and 19th days of October, 1988.
For the Crown : Mr. G.S. Mdhluli, Director of Public Prosecutions
For the Accused : Mr. L. Pheko
Persons
JUDGMENT
Cases referred to: (1) Annama v Chetty & Ors. (1946) A.D. 142
(2) R v Pifford (1937) A.D. 370
(3) S. v Jaffer (1988)2 S.A. 84
(4) S. v Singh (1975)1 S.A. 227
(5) S. v Munyai (1986)4 SA 712
(6) S. v Kubeka (1982)1 SA 534
(7) Makalo Khiba v R (1981)2 L.L.R.10
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The Lesotho Sun Hotel (Lesotho Sun (Pty) Ltd., hereinafter referred to as "the Hotel") maintains a current account No.0140215072,
designated "No.l Account" ("the Hotel account"),with the Lesotho Bank, Main Branch, Maseru. On 15th March,1985 the Bank issued a cheque book of 200 forms (numbered 274801 to 275000) on the basis of a proforma request therefor(Exhibit "A")- it is convenient in places to refer to some documents by their Exhibit number - which proforma was apparently extracted from a Hotel cheque book, as it bears the printed Account No.0140215072: the Crown alleges that the proforma was forged: it is also alleged that the cheque book was never received by the Hotel's accounting staff, and I shall refer to it as "the missing cheque book". Three days later, on 18th March, an account was opened in the main branch of Lesotho Bank, Maseru, ("the Bank") by one Mahase Peter Seleke, whose address was stated on the form of application for the opening of a current account (Exhibit "G") to be
"Matelile 486
Mafeteng".
The completed form indicated that Mr. Seleke was a self-employed businessman. The account ("Seleke's account") was opened
with a deposit of Ml80.
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The following day, 19th March, a lodgment (on lodgment slip Exhibit "F") to the value of M33,123. was made to the credit of Seleke's account. It consisted of two cheques dated 15th March (Exhibit "B") and 18th March (Exhibit "C") 1985, purporting to be made out by two of the signatories on the Hotel's account (Mr. Matsoha and Mr. Contini) in favour of "M.P. Seleke", in the amounts of Ml7,654 and Ml5,469 respectively. The two cheques were both drawn from the missing cheque book. The Crown alleges that they were both forgeries. On the same day,Seleke's account and the Hotel account were accordingly credited and debited respectively with the amount of M33,123.
On 20th March another lodgment (on lodgment slip Exhibit "E") to the value of Ml9,225 was made to the credit of Seleke's account consisting of a cheque (Exhibit "D") dated the same day in the same amount, again purporting to be made out by the same two signatories on the Hotel account in favour of "M.P. Seleke". Again, the cheque was drawn from the missing cheque book. The Crown alleges that the cheque was forgery. On the same day, Seleke's account and the Hotel account were respectively credited and debited with the amount of Ml9,225. Thus Seleke's account, opened on 18th March with an amount of M180, was within two days credited with
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a total amount of M52,348.
The total credit balance was never allowed to reach that figure however. No sooner was the M33,123 deposited on 19th March, than two cheques in the amount of M7,500 (Exhibit "J") and Ml7,000 (Exhibit "I") both dated 19th March, were drawn on Seleke's account, purportedly by Seleke, on the same day: the first cheque, made out to "Mokheseng Makhooane", was presented by the first accused through the agency of the payee himself: the second cheque, made out to "M. Mohaleroe", was presented by the second accused himself: the first cheque was duly cashed, the second being deposited by the second accused in an account.
On 20th March, the first accused presented and cashed another cheque, made out to "Cash", in the amount of M7,000 (Exhibit "H"), purportedly drawn by Seleke on his (Seleke's)account on the same date. Again, on 26th March the first accused presented another such cheque, made out to "Cash", in the amount of M8,502 (Exhibit "L"), and the second accused presented two cheques in the amounts of M3,500 (Exhibit "K"), made out to "M. Mohaleroe," and M9,000 (Exhibit "M"), made out to "Cash": the respective amounts were debited to Seleke's account on 29th March. Thus between 19th and 29th March, six cheques were cashed to the total of
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value of, and Seleke's account was debited to the extent of M52,502. Allowing for various service charges of M5.16, Seleke's account, with total deposits of M52.528 within a matter of two days, was then reduced to a credit balance of M20.84 by 30th March. Effectively the relevant transactions were carried out in the space of a week, that is, from 19th to 26th March.
It seems that the Bank's staff were alerted as early as 26th March, as on that date they summoned the police. Both accused were apprehended within 24 hours.
Lt. Mokhele of the Special Investigation Squad of the Royal Lesotho Mounted Police interviewed both accused. On 27th March the Lieutenant
searched the first accused's home and office. The Lieutenant testified that the latter Ted him to his home. He also testified that
in the first accused's home he found a photostatic copy (Exhibit "N") of a cheque drawn on 23rd March, 1985, by the same two signatories on the Hotel account (Messrs. Matsoha and Contini), in favour of one "John Stevenson", in the amount of M2,570. The copy bears the endorsement of "Lesotho Sun (Pty) Ltd." as drawer: However the account number was torn from the photostatic copy.
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Lt. Mokhele testified that he asked the first accused where his office was, and the latter informed him that it was in the Lesotho Bank Tower. The accused led him to the office and unlocked the door. The Lieutenant searched the desk within. He found the following documents in the desk.
Exhibit "0": a blank Lesotho Bank cheque (Maseru) numbered 274803, bearing the account number 0140215072, that is, the Hotel account number, apparently taken from the missing cheque book;
Exhibits."P"& "Q": two Standard Bank cheques (Ladybrand) numbers 112785 and 112787, bearing the same account number 04 203 6399, both incomplete as to date, drawee, and amount, but bearing the purported signatures of Messrs. Matsoha and Contini;
(iii) Exhibit "R": an invoice book, invoice No.25 thereof purporting to reflect the payment of M8,900 on 20th March, 1985 by
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"M.P. Seleke
Box 486
Mafeteng."
in respect of the purchase of a diamond valued at M14,550, leaving a balance of "M5,550" (sic);
Exhibit"S": a Lesotho Bank lodgment slip in duplicate, dated 19th March 1985, disclosing a contemplated lodgment of Ml7,000 apparently in the form of a cheque drawn by "M.P. Seleke" on a Maseru bank. The account or the person to be credited is not entered however; neither is the slip signed.
Exhibit "T": a Standard Bank cheque (Maputsoe) number 226221, signed (acknowledgly by the first accused) on behalf of "Les Imports & Exports", (a concern in which the first accused is involved), in the amount of Ml50 in favour of "L.T.C." (Lesotho Telecommunications Corporation). The amount is not entered in words however and the cheque is undated.
(vi) Exhibit "U": a cheque similar to Exhibit "T" (signed by the first accused
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for the same concern), in the same series numbered 226232, dated 12th January 1985 in the amount of M90. Neither the name of the drawee nor the amount in words is entered thereon.
Lt. Mokhele interviewed the Accountant at Lesotho Bank, before whom Seleke had completed the application form to open an account (Exhibit "G"). Acting on the Accountant's description of Seleke, the Lieutenant tried to trace the Tatter, without success. he testified that the first and second accused informed him that Seleke was "an Indian person", which differed from the Accountant's description of Seleke; the first accused told him that he did not know where Seleke's home was located: he had last seen him near the Post Office in Kingsway, Maseru and also at Mafeteng Hotel.
Lt. Mokhele caused Seleke's name to be published in the Lesotho Police Gazette as a wanted person: such publication yielded no results. In particular, the Lieutenant made enquiries at Post Offices at Mafeteng and Matelile. He discovered that each Post Office contained post office boxes whose numbers terminated at 300 and that neither Post Office had a box numbered 486. He made enquiries at the two Post Offices concerning
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Seleke without success. Again, he consulted a number of Chiefs in the Matelile area. He learnt of people in that area with the surname
Seleke, but was unsuccessful in his search for the particular individual.
I turn then to the indictment. It is a 12-page document, consisting, as I have said, of 12 counts. Counts 1, 3 and 5 are each divided into two paragraphs (A) and (B) and constitute in fact six counts (that is, of forgery and uttering, in adherence to the precedent contained at pp.754/755 of Vol. II of Hunt's South African Law And Criminal Procedure (1970)). Those three,or rather six counts concern the alleged forgery and lodgment of the three cheques purported to have been made out by the Lesotho Sun Hotel in favour of M.P. Seleke, namely Exhibits "B", "C" and "D". Counts 2, 4, and 6 are expressed however to be alternative to counts 1, 3, and 5 respectively: they are based on the presentation of the three cheques, Exhibits "B", "C" and "D" and allege fraud. Thereafter the six counts 7 to 12 concern the transactions of presenting the six cheques purporting to be signed by M.P. Seleke, namely, Exhibits "H" to "M" inclusive, and allege theft by false pretences.
The counts can thus be summarised as follows:-
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C0UNT 1 (A): It is alleged that the first accused between 15th and 20th March. 1985 forged the cheque, Exhibit "B", in the amount of Ml 7,654. The second accused is alleged to have counselled the said offence.
COUNT l (B): The first accused is alleged to haveuttered the said cheque on 20th March, through the agency of one Phillip Phamotse, the second accused counselling such offence.
COUNT 2 (Alternative):
It is alleged that the first accused, through the agency of Phillip Phamotse, in presenting and depositing Exhibit "B"
defrauded Lesotho Bank of Ml7,654, the second accused counselling such offence.
COUNT 3 (A):
The first accused is alleged to have forged Exhibit "C" (M15,469) between 15th and 20th March, the second accused counselling
the offence.
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COUNT 3 (B): It is alleged that the first accused on 20th March uttered Exhibit "C", through the agency of Phillip Phamotse, the second accused counselling the offence.
COUNT 4 (Alternative):
The first accused is thus alleged to have defrauded Lesotho Bank of M15,469, the second accused counselling the fraud.
COUNT 5 (A): The first accused is alleged to have forged Exhibit "D" (M19,225) between 15th and 20th March,the second accused counselling the offence.
COUNT 5 (8): It is alleged that the first accused on 20th March, through the agency of Phillip Phamotse, uttered Exhibit "D",
the second accused counselling such offence.
COUNT 6 (Alternative): The first accused is thus alleged to have defrauded Lesotho Bank of Ml 9,225, the second accused counselling
the fraud.
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C0UNT7: The first accused is alleged, during March 1985, through the agency of one Mokheseng Makhooane, to have represented to Lesotho Bank that the account in the name of M.P. Seleke was a valid account, standing in credit, and by the presentation of the cheque Exhibit "J" obtained the sum of M7,500, committing theft by false pretences, the second accused counselling the theft.
COUNT 8: The second accused is similarly alleged to have committed theft of M17,000 by false pretences, by the presentation of Exhibit "I", the first accused counselling the offence.
COUNT 9: The first accused is alleged to have committed theft of M7,000 by false pretences, by the presentation of Exhibit "H",
the second accused counselling the theft.
COUNT 10: The second accused is alleged to have committed theft of M3,500 by false
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pretences by the presentation of Exhibit "K", the first accused counselling the theft.
COUNT 11: The first accused is alleged to have committed theft of M8,502 by false pretences, by the presentation of Exhibit "L",
COUNT 12: The second accused is alleged to have committed theft of M9,000 by false pretences, by the presentation of Exhibit "M",
the first accused counselling the theft.
The Crown led direct evidence of some of the transactions involved through two witnesses, Phillip Phamotse and Mokheseng Makhooane. The former, aged 22 years at the time, a cousin of the first accused's wife, was working in his father's laundry-business at the L.N.D.C. Centre in Maseru. He testified that on the morning of 19th March, 1985 his mother informed him that the first accused had requested that he "go to the bank on his (the first accused's) behalf"; he had known the first accused since 1978, and while he had not run errands for him previously, he had apparently washed
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the first accused's car for him.
The witness testified that he went to "Sentle's office", as he described it, in the Lesotho Bank Tower. he had been there on one previous occasion in 1985, when he had carried the first accused's bag for him. He found Mokheseng Makhooane in the reception area. When ushered into the office by a secretary, he found both accused together inside. The first accused handed him a bank deposit book, containing two cheques, Exhibits "B" and "C", therein. He observed that a deposit slip (Exhibit "F") had been filled in, but he did not observe who had filled it in. The witness left the office. On his way out through the reception area, bearing the deposit book, he again encountered Mokheseng Makhooane. He duly went to Lesotho Bank Main Branch, where he deposited the two cheques. On his return to the office he again found Makhooane in the reception area with the receptionist, and both accused in the office. He returned the deposit book, containing the duplicate deposit slip,to the first accused and left.
On the following day the first accused again approached the laundry in his vehicle, in which the second accused was a passenger,and asked him (Phamotse) to go again to the Lesotho Bank on his behalf. Both accused drove off. The witness testified that after
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20 minutes he went again to the particular floor in the Lesotho Bank Tower,where the receptionist admitted him into the office,wherein he found both accused. Again the first accused gave him the deposit book containing a completed lodgment slip (Exhibit "E") and one cheque (Exhibit "0"). He duly deposited the cheque, and on returning to the office found both accused therein. He returned the deposit book, containing the duplicate deposit slip, to the first accused and left the office, the witness at first testified that Mokheseng Makhooane was again in the reception area of the office on 20th March, but subsequently said that he was not sure, due to the lapse of time, that such was the case.
Mokheseng Makhooane, aged 33 years, testified that he had known both accused for more than seven years, that the first accused was his friend, with whom he had worked together for more than six years in the business of buying and selling diamonds, the witness working on a commission basis. On the morning of 19th March, 1985 the first accused approached him at his home at 7.30 a.m. approximately. He instructed the witness that after he (Makhooane) had left his (Makhooane's) wife to work "I should go to his office at Lesotho Bank Tower and bring my passport with me, so as to go to Ladybrand". The witness complied with this, and upon
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arrival at "his (the first accused's) office" about 8.30 a.m.,he found both accused together in the office. The first accused in the presence of the second accused said he would give the witness money for petrol, presumably to compensate him for the journey to Ladybrand. "He (the first accused) took out diamonds, with a certificate", he said. "He said to take them to a certain Afrikaner in Ladybrand". The first accused then told him to wait in the reception area, and he would thereafter give him money for petrol.
When the witness went into the reception area he encountered Phillip Phamotse. The latter went into "Sentle's office", he said. He emerged bearing a deposit book and left. That was about 10 a.m. The witness was then summoned into the office by the first accused. The latter received many telephone calls while the witness was in the office. Phillip Phamotse returned about 11 a.m. to 11.15 a.m., bearing the deposit book. Mokheseng Makhooane was instructed by the first accused to remain in the reception area while Phillip Phamotse entered the office. The latter left after some ten minutes and the witness re-entered the office. The second accused left the office at noon, he said.
At 12.30 p.m. the first accused spoke to someone
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on the telephone, negotiating the purchase of diamonds. The accused did not agree with the proposed price and ultimately said he would pay no more than M7,500. Thereafter the witness' evidence reads:
"He (the first accused) said " I am instructing my person to write down a cheque right now for M7500. He handed me the cheque. He signed it in my presence. It is the same cheque in my hand, Exhibit "J". There were no particulars on cheque. He just signed it and told me to fill in the amount. I filled in M7500 - in words and figures. I didn't complete name of payee. The handwriting on cheque is mine. The signature is not mine."
The witness testified that the first accused then told him to hurry up, as it was late. The accused then drove with Mokheseng Makhooane as passenger, to the Sixty Minutes Branch of the Lesotho Bank. The accused explained on the way that he had "forgotten about this cheque, the owner is coming", an apparent reference to the necessity to cash the cheque before the bank closed for lunch, in order to pay cash for the purchase of diamonds. The accused informed the witness that he should go into the bank to cash the cheque. At that
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has already made money. This man is dangerous", a jocular reference to the witness. The second accused remarked, "Chief, you mean Chief Makhooane has already made a bag?" The first accused replied, "I told you that Makhooane would do it. It is a bag Chief, let us go down (town)". The witness testified: "It was such an excitement, as if a baby boy had been born". Sufficient to say that such excitement put the witness on enquiry.
All three arrived back at the office in the Lesotho Bank Tower. The second accused carried the money in the plastic bag up to the office, where he handed it to the first accused,who put it in a drawer.
Then the first accused produced another bag and said to the witness, "Chief, it's now 10 to 1. Run down to the Bank and bring another bag ... here is another cheque and bring money". Mokheseng Makhooane declined, insisting that "you put me in the picture. I am confused". The first accused told him that he was'argumentative". The witness' evidence continues:
"He (the first accused) took out another leaf. Sentle signed. He handed it to the second accused and said, "Bring the money."
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Then they talked between themselves whether it should be M20,000 or M30,000 and then they said "no", it should be between M15,000, M16,000 or M17,000. Makhoabe (the second accused) wrote out the amount and then went down with the cheque,
I then asked the first accused how about this Afrikaner at Ladybrand. He said "What money do you want? Here is money, right down at the Bank," pointing down to the main branch of the Bank underneath. I then dropped the matter of Ladybrand. I went out through the door and left. I was given nothing as I had refused to go and cash the Ml 7,000."
In cross-examination the witness explained that the first accused had taken out the cheques, and not a cheque book, from a brief case on the desk, which brief case the first accused had earlier carried to the bank. He added that after the second accused had left the office, he asked the first accused, "What's going on here?" It was then that the first accused told him that, as a matter of joint venture between him and an Indian in Johannesburg, the latter had left money with
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stage the payee's name had not been entered thereon, an aspect to which Mokheseng Makhooane referred. The accused explained that "if we write "Cash", as it is a Tot of money they won't cash it". The accused then said "You write your name there. You won't have any problems as you have your passport with you".
Mokheseng Makhooane complied with this suggestion. He entered the Bank, where he entered his own name in full on the cheque as payee. He approached a teller, whom he knew by sight and tendered the cheque. The teller asked for his passport which he produced, the teller endorsing the back of the cheque with his passport number "LP H008475". The witness signed the back of the cheque and was duly paid M7500 in cash. While he was counting the money, the first accused entered the bank. They left when the witness finished counting, and drove back towards the city.
They had driven but 70 to 80 metres towards the City centre, when they encountered the second accused along the way. The first accused
stopped the vehicle and the second accused got into the back seat. The money was contained in a plastic bag which the witness had
obtained from the bank teller. The witness testified that the first accused took the bag and threw it into the back seat saying, "Chief, Mr. Makhooane
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him to buy diamonds, and he wished to utilise all of such money in the bank before the latter's arrival in Maseru.
As to subsequent events, that is, the arrest of both accused, Mokheseng Makhooane's recollection, no doubt after the lapse of time, is impaired; he put the date as early as 21st March. He testified that on the latter date in the evening he was in the Casino at the Holiday Inn when the second accused called him outside and informed him that the first accused had been arrested. He testified that "He (the second accused) said should the police come to me I should not say I received the cheque from Sentle but from Seleke". Within a matter of minutes a number of police officers arrived at the scene and arrested the second accused.
The Crown called Mr. Patrick Matsoha, the Chief Accountant at the Lesotho Sun Hotel. Mr. Matsoha testified that the Assistant General Manager, Mr. Contini, and he were but two of five signatories on the Hotel account. He testified that Exhibits "A", "B", "C" and "D" were forgeries, that they did not bear his signature nor that of Mr. Contini,with whose
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handwriting he was familiar. Exhibit "A" indeed bore but one signature, and should have borne two signatures before being accepted by the bank, he said. The Hotel had not received the cheque book issued by the Bank, upon application made on Exhibit "A". He knew of no Mahase Peter Seleke, nor of the Hotel having any dealings with any such person.
Mr. Matsoha testified that the signatures on Exhibit "N", or rather the original thereof, were genuine signatures. Indeed the cheque bore two sets of signatures, as there was an alteration in the date: it may be that the double set of signatures thereon attracted the attention of a would-be forgerer. In any event,Mr. Matsoha testified that the particular cheque had been originally made out in the amount of M19.60 to "Freight Services" in Johannesburg, to whom the cheque had been despatched. He could offer no explanation as to the alteration in the name of the payee's name and the amount involved. To his knowledge, however, the particular cheque had never been presented -either in the amount of M19.50 or M2,570 for that matter. The particular cheque book from which the cheque had been drawn, or rather the stubs thereof, could not be found by the Hotel.
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As far as the Court is concerned, the evidence concerning Exhibit "N" raise only two issues for determination, firstly whether the signatures thereon are genuine signatures, and secondly whether the photostat was found in the possession of the first accused or not. As to the first issue, I completely accept Mr. Matsoha's evidence on the point, supported as it is, as will be seen, by expert handwriting opinion in the matter. The second issue must be reserved for the moment.
Lt. Mokhele asked the first accused for samples of his handwriting, which the latter provided. He sent those samples (Exhibits "V"
and "W") and other documents to a handwriting expert in Pretoria. The Lieutenant, on examination of the second accused's
handwriting, formed the opinion that such handwriting "wasn't the handwriting involved", and so decided not to send any sample of the second accused's handwriting to the expert. The latter, Capt. James Quinton of the South African Police, who is a Document Examiner in the Forensic Science Laboratory of the South African Criminal Bureau in Pretoria, has had fifteen years experience in the analysis of handwriting and in document examination, and deals with up to 300 cases thereof each year. Suffice it to say that I consider him sufficiently expert in the matters on which he opined.
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Capt. Quinton was unable to form an opinion in the comparison of some of the documents sent to him. He was however of positive opinion in some areas. Firstly, he formed the opinion that Exhibits "A", "B"."C", "D", "P" and "Q" were forgeries, as the signatures thereon, when compared with numerous samples of handwriting and signatures supplied by Messrs. Matsoha (Exhibit "Z") and Contini (Exhibit "AA"), showed characteristics normally found in forgeries, such as poor line qualities, lack of rhythm or fluency, hesitancy, the existence of double lines (indicating tracing), and lack of normal variation from one signature to another. As to the aspect of tracing, Capt. Quinton supplied the Court with photographic enlargements (50 times) of the disputed writings showing clearly in places the existence of two Tines in different colourings. He testified that such colouring could not arise from varying degrees of absorption of ink by the paper written upon.
More particularly, Capt. Quinton opined that Exhibits "B", "C" and "P" had been forged using Exhibit "N" as a model, the signatures on which Tatter cheque (or rather the original thereof) he opined were not not forgeries. The witness prepared transparencies of the four cheques and mounted them one on top of the other. The method immediately commends itself to the naked eye: when looking at the four transparencies one sees only one set of signatures. Each of the four signatures on the left (Mr. Matsoha's) are pictorially
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identical: the same can be said of the four signatures on the right (Mr. Contini's). Capt. Quinton testified that no one ever writes his signature twice completely alike. The normal variation in handwriting was not to be found in the two sets of signatures. Further and more importantly, each signature was made at exactly the same place on Exhibits "B", "C" and "N" (Lesotho Bank cheques) and at exactly the same distance apart on Exhibits "B", "C", "N" and "P" (a Standard Bank cheque), multiplying the impossibilities involved. Again, the duplicated amending signatures on Exhibit "N" are repeated on Exhibits "P" and "B" (on which the date has been altered, giving it the appearance of authenticity): all three sets of duplicate signatures are pictorially identical: more importantly each duplicate signature is placed at exactly the same distance from each other and from the two signatures on the bottom of each cheque.
Similarly, Capt. Quinton opined that Exhibits "A", "D" and "Q" were forged from the one model, though he could not say what model. The transparencies of the three documents mounted one on top of the other reveal an identical signature purporting to be that of Mr. Matsoha.
Captain Quinton also compared samples of the first
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accused's handwriting, presented on fifteen Lesotho Bank lodgment slips, (Exhibit "V"),with Exhibit "E" (the lodgment slip dated 20th March, 1985 to the favour of "M.P. Seleke"). Capt. Quinton found fourteen points of similarity between the two handwritings. Three of those similarities were to be found in three numbers, rather than letters, on the documents but such numbers were chosen from a total of seven numbers on the documents. Suffice it to say that Capt. Quinton's evidence on the point was to opine that the person who wrote Exhibit "V" had written Exhibit "E".
Both accused gave evidence. The first accused, aged 34 years, testified that he was involved in the business of diamond polishing, he being one of three directors of a Company incorporated for such purpose, whose office was on the 6th floor of Lesotho Bank Tower. He knew Mr. Monyane, who dealt with Exhibit "G", for many years, but he had never appeared before him as a Bank officer, and had had nothing to do with the particular application form, Exhibit "G".
He had known Mahase Peter Seleke, who lived in Hillbrow, Johannesburg, since 1983, when he met him at a squash tournament. Thereafter he used to see him at Mafeteng. Subsequently Seleke developed an interest in diamonds. Whenever he came to Maseru he used to tell the accused that he stayed at the Maseru Sun Cabanas where he frequented the Casino. On occasion
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the first accused accommodated him. He informed the first accused that he had a current account in Lesotho Bank and used to pay the accused for diamond purchases by means of cheques.
The first accused testified that he recalled Exhibits "B", "C" and "D". He recalled Seleke coming to the Company's office with a completed deposit slip (Exhibit "F") in a deposit book, and also the two cheques Exhibits "B" and "C", all contained in a canvas Bank bag. Seleke informed him that there was a long queue in Lesotho Bank main branch and requested him to effect the deposit on his behalf. The first accused replied that he equally disliked queues but that he would get another to effect the lodgment.
The first accused left the office to find the second accused awaiting him in the reception area. They both drove in the first accused's car to Phillip Phamotse. The latter returned with them to the office where the first accused handed him the deposit book and cheques, apparently contained in the bank bag, while the second accused sat in the reception area.
The first accused testified that the following day Seleke arrived with the cheque Exhibit "D" making
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the same request, the queue in the bank being even worse. The accused remonstrated with him for such short notice in the matter but "said he (Seleke) should leave them with Thandi (Secretary) .....
He (Seleke) left this cheque Exhibit "D" and his deposit book with Thandi". As to the lodgment slip Exhibit "E", the first accused testified that that is "what Seleke came with". The accused then drove to the laundry where he collected Phillip Phamotse. he took the latter back to the office where he examined and then replaced the contents of the bank bag, handing the bag containing the deposit book and (Exhibit "D") to Phillip who then left for the Bank.
Specifically the first accused denied having had anything to do with the making of Exhibits "A", "B", "C", "D", "E", "F" and "G". He testified that he was arrested on the morning of 27th March, 1985. Just before noon he was taken to the cells in the Central Charge Office where he found the second accused.
As to the items allegedly found in the possession of the first accused, the latter testified that the suite of offices on the 6th floor of Lesotho Bank Tower consisted of four rooms, that is, the reception area, an office used by Senqu Diamond Cutting Works, another used by a diamond cutter and the central office used by his company, which contained inter alia one large executive desk "used by anybody
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who wanted to".
As to Exhibit "N" the first accused testified in effect that Lt. Mokhele had not found the document in his home, but had merely drawn his attention to the document when it was already in his (Lt. Mokhele's) hand. As to the items found at the office, Lt. Mokhele did not "do those things which surprised me at my home", he said, but visibly produced the various items on searching the desk, that is, Exhibits "0", "P", "Q" and "R". Exhibit "S", he said, was found in the Secretary's tray: he knew nothing of those documents, that is, other than the Invoice Book Exhibit "R".
As to Exhibits "T" and "U" however, which he acknowledged had been drawn by him, he could not recall the Lieutenant finding them at the office. Due to the lapse of time he only remembered the Lieutenant "taking something from the office" and he being made to sign the Lieutenant's notebook.
The first accused's version of events was different to that of Mokheseng Makhooane. The first accused testified that the second accused knew little about diamonds and he (the first accused) had therefore advised him to first consult him in the matter of any purchase or sale thereof and further, never to sell
30
diamonds except on a cash basis. He retained the second accused's diamonds in the safe in his (the first accused's) company office,for safe keeping. On 18th March Seleke and another or others approached the second accused and he at the squash courts, presumably in Maseru. Seleke expressed an interest in diamonds which the second accused had apparently previously shown to him. All three, Seleke, and both accused departed for the first accused's office: this was after working hours. On arrival at the office the second accused showed the diamonds to Seleke: they agreed on a price of M17,000. Seleke produced a cheque book. The first accused advised him that there could be no delivery of diamonds until any cheque made out in payment was cashed. His evidence then reads:
"The cheque (Exhibit "I") doesn't bear the date 18th March. This is how Seleke wrote it out. As far as I was concerned it was post-dated".
The first accused denied that the second accused had written out Exhibit "I", saying that Mokheseng Makhooane was not even present when the cheque was written out. Indeed, he testified that the second accused's handwriting, with which he was familiar, was not on the cheque. The next morning, the 19th March, the second accused came to the office a little after
31
9 a.m. to inform him that he had cashed Seleke's cheque for Ml 7,000.
As to the cheque for M7.500 (Exhibit "J"), the first accused testified that Seleke had signed the cheque in blank and given it to him, immediately before or immediately after the second accused's diamonds had been sealed after inspection,on the evening of 18th March: Seleke had seen diamonds in the first accused's possession and had expressed an interest therein: the first accused informed him that a particular diamond was the property of another, and he could not therefore agree a price without consultation. Seleke had left the blank cheque as a sign of good faith. When Seleke telephoned him the following day, in Makhooane's presence, he (the first accused) apparently then telephoned the owner of the diamond, and conducted negotiations between owner and purchaser on two telephones simultaneously. As he was thus preoccupied with a telephone in each hand, he instructed Makhooane to fill in the agreed price of M7,500 on the cheque.
He instructed Makhooane to "complete the cheque and take to the bank." He left Makhooane at the bank while he drove to a garage for petrol. Thereafter he
32
stopped his vehicle at a Secretarial office near the Cathedral,in order to pick up Makhooane. He explained that he stopped when he saw the second accused, who was coming from a butchery at the time.
The first accused denied Makhooane's evidence of the elation and ensuing conversation in the vehicle: the M7,500 cash was the property of the owner of the diamond, who was ultimately paid. "When we (he did not say whom) got to the office", he said, "Seleke had to come to get his diamonds".
He agreed in particular that he had instructed Makhooane early that morning to bring his passport with him in order to take diamonds to a certain Afrikaner in Ladybrand. On his return to the office from the bank, he telephoned the prospective purchaser and spoke to his wife. Makhooane in fact went to Ladybrand the following day, as the purchaser was not available on the 19th March.
As to the cheque for M7,000 (Exhibit "H") the first accused recalled that
"..... Seleke once paid me by cheque in an amount of M7,000. He was paying for diamonds. He made out that cheque and signed it."
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He said he could not be positive that Exhibit "H" was the cheque. Nonetheless he accepted the evidence of the bank official that it was he who had cashed the cheque. Indeed, he enlarged upon his evidence to say that he took the cheque to the bank. He did not wish to queue at the bank - only to find there might not be any money in the account (previously a cheque of Seleke's had been dishonoured). So he gave the cheque to the bank official, who could readily cash it for him without delay.
The first accused testified that the cheque for M8,500 (Exhibit "L") had been paid to him by Seleke in respect of a purchase of diamonds from him, and that "it was paid at the offices in Lesotho Bank". As to the cheques for M3,500 (Exhibit "K") and M9,000 (Exhibit "M"), he knew nothing whatever about them, and had never seen them before.
The first accused's evidence that a cheque drawn by Seleke had been previously dishonoured, touches upon another document found by Lt. Mokhele in the office, at Lesotho Bank Tower, that is, a carbon duplicate of an invoice (Exhibit "R") No.25 dated 20th March 1985, made out to "M.P. Seleke, Box 486, Mafeteng". It represents a sale of a 1.27 carat diamond for the price of M14,550. The invoice in part reads:
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Price 14,550.00
Paid Dep. M 8,900.00
Dep. 8,900.00
Value M 14.550.00
8,900.00
Balance M 5,550.00
CHEQUE NO. 9363
LESOTHO BANK
Bal. 5,550.00
(Signature)
The unused original invoices in the invoice book are printed in the name of "SENTLE DIAMONDS". Those used (26 of them) reflect business transactions as far back as August 1979. The first accused explained that "each (presumably each Director) should have an invoice book that he uses, that bears the surname of that particular user". In particular the first accused testified that Seleke's cheque for M8,900 was dishonoured: he thereafter returned the cheque to Seleke appraising him of the bank's action.
That summarises the first accused's evidence in chief. The second accused, aged 32 years, described himself as business man who operates a shop, selling male and female clothing, with "diamond dealing as a
35
sideline". He knew the first accused fairly well, and used to visit the letter's office, where the first accused "wasn't working alone", once or twice a month.
He knew nothing whatever about Exhibits "A", "B", "C" and "D" and saw them for the first time in court. He recalled Phillip Phamotse being once given a (bank) bag in his presence in March 1985, but he was unaware of its contents.
At one stage the second accused had been a professional footballer, playing with a team called "Celtic" in Bloemfontein, where he lived during the years 1978/1980. He first met Seleke in 1979 in Maseru, where the latter informed him that he was a football "fan", his favourite team being "Celtic". It was thus that he came to know Seleke, who informed him that he lived in Mafeteng but worked in Bloemfontein. He last knew him to work at a garage in Bloemfontein called "Orange Toyota". He used to meet Seleke in Bloemfontein. After 1980 he used to meet him in Lesotho and again in South Africa. When he left Bloemfontein however, he couldn't be sure if Seleke still worked there.
He recalled both Seleke and he approaching the first accused about 5 p.m. at the squash court at Maseru
36
Club on 18th March, seeking the first accused's assistance in negotiating the sale of a diamond to Seleke. When the first accused had finished the game he was playing, the three of them went to the first accused's office. The second accused left the office to go to his home, from whence he collected the diamonds, presumably returning to the office where he showed Seleke the diamonds in the first accused's presence. Eventually he agreed on the price of M17,000, whereupon Seleke completed and signed a cheque (Exhibit "I") in that amount. He denied Mokheseng Makhooane's evidence on the point, saying that Exhibit "I" was not in his handwriting and had not been signed by the first accused.
He recalled that Seleke also gave the first accused a cheque. "All I remember is that Seleke signed it and left it with the first accused", he said. "Other than the signature I don't remember anything else ... I do not know the circumstances of the signing of the cheque in blank". He testified that he saw Exhibit "J" "for the first time again here" in court: he knew nothing about it's encashment and did not know it had been given to Makhooane.
He denied awaiting the first accused at the
37
Cathedral Circle. He had attended to some matters in town, e.g. the payment of an electricity bill, and was walking in the direction of his shop, from the city centre, when he saw the first accused's vehicle approaching, and hailed the vehicle. He then informed the first accused that Seleke "could go and collect the diamonds", as the cheque for M17,000 (Exhibit "I") had been honoured.
The second accused thereafter testified that on the morning of 19th March he had gone to the Main Branch of Lesotho Bank. He lodged the cheque for M17,000 to the credit of his wife's account. On enquiry the teller informed him that the cheque "didn't appear to have any problems: it was honoured". He then went to the first accused in his office. His evidence then reads:
"I informed him that the cheque had been honoured. I had some family business to do in town and after that I would come back to his office to tell him I am through: we could then see Seleke. I attended to family matters. I did not find him (the first accused) at the office (on the second accused's return thereto). It was then that I met him near the Circle on the way to my shop ..... I told him (the first accused) I was through and we could proceed towards Seleke, or alternatively if they wanted me they could get me at the shop. ... He (the first accused) asked whether it wouldn't be wise to finish with Seleke so that we could both
38
be released. I then got into the vehicle."
The second accused testified that when he left the bank en route to the first accused's office, he 'found' either Phamotse or Makhooane; he was not sure whom. He found Makhooane in the first accused's vehicle at the Circle. He denied the latter's evidence of the conversation in the vehicle and the alleged elation of both accused.
He testified that on arrival at the office area from the Cathedral Circle he remained in the reception area while the other two went into the office. After a while Makhooane emerged and he in turn went into the office. The first accused and he telephoned "the hotel" to ascertain Seleke's whereabouts. Ultimately they 'found' Seleke on the 19th march. He handed over the diamonds to Seleke on that date.
The second accused testified that after the 19th March he "started a deal" with Seleke. He couldn't remember whether the transaction was started or completed on 23rd March. "I think I met him again on 23rd March", he said. "We were in Bloemfontein. I am not sure whether he paid me on 23rd March or we just met". He then
39
testified that Seleke paid him and he in return gave Seleke diamonds. He recalled being paid by Seleke by cheque, namely Exhibit "K", in the amount of M3,500, which he Cook to the bank to deposit. Thereafter he had no further dealings as such with Seleke.
The cheque for M3,500 however,made out to "M. Mohaleroe", was brought to him by one Ismail Mohlala, on behalf of Seleke. On the same day he went to the bank to cash the cheque, dated 25th March, apparently on the 26th March, as the cheque bears a bank stamp for the latter date. He found Ismail Mohlala in the queue ahead of him at the bank. Mohlala had no form of identification with him, and so the teller serving him declined to cash a cheque in his possession, namely Exhibit "M" dated 26th March, in the amount of M9,000 made out to "Cash". Mohlala approached the second accused and "said he had to get money, he had to go and cash this cheque". The second accused took the cheque from him, and when served by the teller he deposited the cheque for M3,500 and cashed that for M9,000, handing over the cash to Mohlala.
The second accused testified that he knew nothing whatever about the cheques for M7,000 (Exhibit "H") and M8,502 (Exhibit "L"). With regard to the two cheques signed by the first accused in the amount of M150
40
(Exhibit "T") and M90 (Exhibit "U"), he testified Chat the police found those two cheques in his vehicle when he was arrested at the Sun Cabanas on 26th March. The first accused had asked him to go and pay his telephone bill (presumably with Exhibit "T" made out to "L.T.C."), but he was "arrested before reaching destination." Exhibit "U", he said, was "for payment at the (his) shop", he said, but the first accused had not given the cheque to him but to his (the second accused's) wife. In particular he denied ever meeting Makhooane at the Cabanas before his arrest.
That was the second accused's evidence in chief. Lt. Mokhele asked him for a sample of his handwriting which he supplied. The Lieutenant in cross-examination testified that,as I have earlier said, "from my observation it wasn't the handwriting involved". When asked by the learned Counsel for both accused, Mr. Pheko, as to whether he had got any expert opinion in the matter the Lieutenant replied that "it would be waste of money". It was the Lieutenant's evidence therefore that a specimen of the second accused's
handwriting was never sent to the handwriting expert. Further, and quite inexplicably, the six cheques by which money was drawn out of Seleke's account, that is, Exhibits "H" to "M" inclusive, were not sent to the expert either.
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A specimen of the first accused's handwriting was however sent. In this respect the first accused testified that Lt. Mokhele had never warned him, when requesting that he supply a specimen of his handwriting. Lt. Mokhele testified to the contrary, repeating in cross-examination that the specimen was supplied freely and voluntarily. The first accused himself never raised any issue of voluntariness as such. I am satisfied with Lt. Mokhele's evidence on the point. As to the aspect of warning the first accused, I consider that the latter clearly realised, in supplying a total of 25 documents with his handwriting thereon, the purpose for which the specimens were being sought and the possibility of self-incrimination. Lt. Mokhele testified, to which evidence the learned Counsel for both accused, Mr. Pheko, had no objection, that when shown the exhibits before the court and warned and asked to make a statement, the first accused replied that he was not prepared to say anything: if he was charged he would "speak in court". His evidence as to his handwriting specimens is contradictory, saying at one stage that Lt. Mokhele informed him that he "should" supply the specimens, and further on testifying that Lt. Mokhele "was requesting me to do that". I consider it naive for the first accused to suggest that he was not fully aware that he could decline to provide any specimen,
just as he might
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decline to make a statement. Even if Lt. Mokhele did not warn him in the matter, I cannot see that Che strict rules of admissibility would operate unfairly against the accused, and I decline to exercise my residual discretion in his favour. I decline therefore to reject the evidence arising from Exhibits "V" and "W".
When it comes to the expert evidence of handwriting, I observe that Cape Quinton was in Che witness box for more than a full day. He was vigorously cross-examined. He stressed that his evidence was based on cumulative identification, observing that he would not be surprised to find one or two similarities in two handwritings, but not the number of similarities which he had found.
As for the aspect of tracing, Mr. Pheko points to the fact that Capt. Quinton did not opine as to how any tracing was effected. I observe that Exhibit "N" bears no signs of any indentations on the front or reverse thereof, but then Capt. Quinton's evidence does not preclude the use of the original of Exhibit as a model, nor indeed a further photostatic copy of Exhibit "N" or of the original itself. I do not see that the Court must necessarily be satisfied as to the details of the method used. As 1 see it, the super-imposition of the transparencies points inevitably to
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to tracing. Mr. Pheko points to pitfalls in the use of such transparencies,highlighted by the learned author Albert S. Osborn in
his work "Questioned Documents" (New York, 1940) (see e.g. pp.327/329 and 345/355), to which work (p.329) Capt. Quinton
referred. But then there is the further evidence of tracing,Clearly visible under enlargement, namely the presence of an additional line and an additional colour.
The first accused himself has pointed to dissimilarities in the signatures, such as a difference in end strokes etc. That may well be the work of a clever forgerer. The point is, as Capt. Quinton opined, the pictorial effect or form is virtually identical. Further, the poor quality of line, the lack of fluency, is evident to the naked eye in the disputed signatures, when compared with the authentic ones: this is particularly so with the purported signatures of Mr. Contini. Added to all this is the fact that in the case of Exhibits "B", "C" and "P" the two signatures are, as I have said, identically spaced on all three cheques, as are the duplicate signatures on Exhibits "B" and "P". Indeed, in the case of Exhibits "D" and "Q", I observe that while the purported signatures of Mr. Contini are not pictorially similar, they are nonetheless spaced identically from those purporting to be Mr. Matsoha's.
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Suffice it to say that I am satisfied beyond reasonable doubt that Exhibits "A", "B", "C", "D", "P" and "Q" are forgeries.
As for the comparison between the first accused's sample handwriting (Exhibit "V") and that on Exhibit "E", Mr. Pheko points to the test at p.388 of Osborn, namely that
"Identity is proved when two handwritings both contain a sufficient number of significant characteristics, qualities and elements so that it is unreasonable to say that they would all accidentally coincide in two different handwritings."
It will be seen that Osborn refers to a "sufficient number of significant characteristics .... etc.". For my part the
similarities between the handwritings are apparent to the naked eye. There is Capt. Quinton's evidence on the point. His evidence was rendered in a thoroughly professional and. impartial manner. His opinion in the matter is supported by photographic enlargement,
illustrating 14 points of similarity, such that the Captain's opinion was "that the person who wrote Exhibit "V" also wrote Exhibit "E". In this respect I am guided by the following dicta of Greenberg J.A. in the case of Annama v Chetty (1) at p.155:
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"His (the handwriting expert's) function is to point out similarities or differences in two or more specimens of handwriting
and the Court is not entitled to accept his opinion that these similarities or differences exist, but once it has seen for itself
the factors to which the expert drawns attention, it may accept his opinion in regard to the significance of these factors. Thus, to take an instance relevant to the present case, where the Court sees absolute identity between two signatures, an expert's opinion as to the unlikelihood of such an identity in two genuine signatures is an opinion by which the Court may be guided. If he is an honest witness and has devoted many years to the study of handwriting then his opinion on such a point may well be of assistance to the Court. Some authority for this view is to be found in Taylor on Evidence (12th ed., secs. 1417 and 1877), where it is said that if the question is whether a paper is written in a feigned or natural hand, the evidence of witnesses whose duty it has been to detect forgeries will be admissible on the ground that such persons are supposed to be more capable than ordinary men of pronouncing a safe opinion on a subject of this nature. (See also Phipson (7th ed., p.376.)"
As I have said,one can observe the similarities between the two handwritings (Exhibits "V" and "E") with the naked eye. The opinion of Capt. Quinton points to the significance of the various similarities, namely, that "all these characteristics and combinations will not be found in the handwriting of two different persons". I accept that opinion. I am satisfied beyond
reasonable doubt therefore that the first accused completed the lodgment slip Exhibit "E".
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When it comes toissues of credibility, there are the three main witnesses for the prosecution, Lt. Mokhele, Mokheseng Makhooane and Phillip Phamotse. As to the Lieutenant, 1 found him to be an honest indeed ingenuous, straightforward witness, of impressive demeanour. These qualities are but typified by his opinion that it would have been "a waste of money" to send a specimen of the second accused's handwriting to the expert. The only point in his evidence where a direct conflict arises with that of the first accused,is the finding of Exhibit "N" at the latter's home. I cannot imagine why the Lieutenant would seek to falsely produce the photostat at the first accused's home, rather than his office,where one would expert the presence of more papers, facilitating false production. As will be seen, it was the second accused's evidence that Exhibits "T" and "U" were found in his car, of which I shall have more to say. If that was the case, then I do not appreciate why the Lieutenant should seek to falsely produce Exhibit "N" at the first accused's home, without at the same time falsely producing Exhibits "T" and "U": why should he then wait to produce the latter two exhibits at the office?; alternatively, why not falsely produce all three Exhibits at the office? Exhibits "T" and "U" were not on their face necessarily incriminating: as far as the Lieutenant was concerned they contained nothing
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more than a sample of the first accused's signature. Yet he testified to finding those exhibits along with those which clearly implicated the first accused. Indeed, Exhibit "R", on its face, could well be regarded as supportive of the first accused's evidence. Yet the Lieutenant produced it is evidence. The first accused's evidence on the finding of the various documents left me with the conviction that he sought to flatly deny the finding of any document at his home, where incrimination was unavoidable, but was obliged to admit to the finding of a number of documents at his office, where the sheer number thereof militated against false production by the Lieutenant, nonetheless avoiding incrimination by the device of denying that the office was "his" office as such.
As to Mokheseng Makhooane, I found him to be an equally impressive witness. I cannot say that he was shaken in cross-examination, and he consistently maintained his position throughout his evidence. There are of course conflicts between his evidence and that of the two accused, to which I shall return. For the moment suffice it to say that there were no conflicts within Makhooane's own evidence, nor any inherent improbabilities. The same can be said of Phillip Phamotse's evidence who impressed me as being a truthful witness.
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Mr. Pheko submits that Capt Quinton never identified the handwriting of the second accused on the cheque for M17,000 (Exhibit "I") so that Mokheseng Makhooane's evidence on the point is false. Lt. Mokhele testified, as I have said, that he never sent a sample of the second accused's handwriting to Capt. Quinton. The learned Director of Public Prosecutions, Mr. Mdhluli, in his closing address submitted that Lt. Mokhele must have been honestly mistaken, due to the number of documents forwarded to the expert. A document, described as a single sheet of ruled foolscap paper (marked ID33 for identification purposes), was in fact put to Capt Quinton by both Counsel. The witness acknowledged having received it with the other documents. The document was not however subsequently tendered in evidence as an exhibit, and neither I or the Assessors ever inspected the document therefore. It may well be that Mr. Mdhluli refers to ID33, as containing a sample of the second accused's handwriting. If that is the case, then the only evidence that I can, in fairness to the second accused, place any reliance upon, is that in cross-examination by Mr. Pheko, Capt. Quinton was not prepared to draw any comparison between the handwriting on ID33 and Exhibit "I", as the latter cheque had not been sent to him for examination, and he did not wish to offer an opinion in the matter
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without recourse to various expert techniques. It was put to the witness indeed, that the difference between the handwriting on both documents "sticks out like a sore thumb", but again he declined to give an opinion in the matter. In brief, if it is the case that ID33 did contain a sample of the second accused's handwriting, then the Court has, in effect, nothing but the opinion of defence Counsel to rely on. I cannot see that the credibility of Mokheseng Makhooane can thereby be weakened.
It was the evidence of both accused that Seleke wrote out and signed Exhibit "I". It is apparent, apart from the signatures thereon, that there are three different handwritings on Exhibits "H" to "M" inclusive. It is not disputed that Mokheseng Makhooane wrote Exhibit "J" (M7,500). The four cheques, Exhibit "I" (M17,000), "K" (M3,500), "L" (M8,502) and "M" (M9,000), were apparently all written by the same person. The first accused also testified that Exhibit "H" (M7,000) was also made out, signed and handed to him by Seleke. The handwriting on Exhibit "H", however,is clearly different to that on the other four cheques Exhibits "I", "K", "L" and "M". The currency on those four cheques is expressed, in words, in "Rands", or "Rand". That on Exhibit "H" is expressed in "Maloti" (that on Exhibit "J" is in
50
"Maluti"). But that is in no away conclusive. What is significant is that the handwritings on Exhibits "H" and "I"are clearly different. That aspect does not support the evidence of both accused that Seleke made out, whatever about signing, both cheques. On the contrary, it tends, if anything, to support Mokheseng Makhooane's evidence that it was the second accused who made out (after the first accused had signed) Exhibit "I".
I turn to the evidence of the first accused. It was his evidence that Seleke and another, or others, had approached the second accused and he at the squash court on the 18th March: the second accused testified however that Seleke and he had approached the first accused. I do not appreciate why Seleke should make out a cheque to the second accused (Exhibit "I") on the evening of the 18th of March and date it the 19th of March. I appreciate that there was not sufficient money in Seleke's account at that stage but then, on the first accused's evidence, it must have been his (SelekeJ intention to make the lodgment of over M33,000 the next morning. Again, I hardly think it likely that Seleke, involved in defrauding the Hotel and ultimately Lesotho Bank of a considerable sum of money, would demonstrate such trust in a relatively casual acquaintance as to hand him (the first accused) a blank cheque (Exhibit "J"). I cannot see why Seleke would not, in the least,
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date the cheque. Again, I have little doubt that a forgerer would carefully plan the amount he would enter on successive cheques drawn to realise his ill-gotten gains. Further, the first accused initially testified that Seleke only became interested in the diamond in his possession, after the second accused's diamonds had been "sealed", that is, no doubt after the price (M17,000) had been agreed and the cheque (Exhibit "I") made out. Exhibit "I" is numbered 9365 however, whereas Exhibit "J", which on the first accused's evidence was apparently made out after Exhibit "I", is numbered 9364, coinciding with Makhooane's evidence. The first accused however changed his evidence on the point, testifying shortly thereafter that "these discussions" (about the diamond in his possession) took place before the second accused sealed his diamonds, suggesting thereby that Exhibit "J" was signed before Exhibit "I". This certainly coincides with the second accused's evidence, namely, that Seleke, despite having finalized negotiations and agreed the price of M17,000, then embarked upon an enquiry in respect of another diamond held by the first accused, signing a blank cheque in respect thereof (Exhibit "J") before making out Exhibit "I".
The first accused testified that the second accused came to his office "a little after 9 o'clock" on the morning of 19th March and informed him that the cheque for M17,000 (Exhibit "I") "had been met". Under cross-examination Che first accused said that the second
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accused had "cashed the cheque for M17,000 before Phamotse went to the bank". It was his evidence in-chief indeed, not repeated by the first accused, that the second accused had accompanied him to Phillip Phamotse's place of work, indicating that the latter went to the bank a good deal later than the second accused allegedly did. At that stage however, there was no more than M178.75 in Seleke's account. It was the second accused's own evidence that the Bank Teller had checked Seleke's account to see if there were sufficient funds in the account and had assured him of such. Quite clearly, the Bank would also wish Co be so assured in the event of paying out cash over the counter. In this respect the second accused testified a number of times that he simply deposited the cheque in his wife's account, on which he was a co-signatory, the cheque being crossed. It was the evidence of the bank teller Mopeli Letsie, however, that the second accused there and then withdrew M5000 in cash from his wife's savings account, after depositing the M17,000 therein. The only aspect of this evidence which was challenged in cross-examination of the witness was that "the amount withdrawn" was withdrawn by way of cheque on a current and not a savings account. The aspect of withdrawal was not disputed.
The second accused in his evidence, however, no
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where mentioned the withdrawal of M5,000. It may be of course that in any event the particular savings account was in credit to the amount of M5000 before the deposit of the M17,000. This would not appear to be the case, as Mopeli Letsie testified that the cheque for M17,000 was "referred", that is, Seleke's account was checked by the Ledger staff, because not alone did the second accused deposit the cheque but "here there was also a withdrawal of M5000". That surely indicates that any such withdrawal would exceed the existing credit balance on the savings account. In any event, it was, as I have said, the second accused's own evidence that Seleke's account was checked by the teller. Clearly he could not have done so before Phillip Phamotse deposited the M33,123. Indeed, one would expect that the teller checked Seleke's account at an interval of time after such deposit had been effected sufficient for the resulting credit to be recorded by the bank staff in the ledger or computers, as the case may be. In brief, I cannot see how the evidence of either accused that the second accused cashed Exhibit "I" early in the morning of 19th March, can be correct.
When it comes to detailing the transaction with Makhooane on 19th March, the first accused's evidence in-chief is but cursory. He acknowledged that he had approached Makhooane early that morning in the matter of the passport, in order that the latter might take diamonds to the purchaser in Ladybrand. If he had
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taken such care to arrange for the sale thereof, I do not appreciate why he did not, between the hours of 8.30 a.m. (when Makhooane arrived) and noon (when on the first accused's evidence Makhooane and he departed for the bank) despatch Makhooane to Ladybrand with the diamonds. I do not appreciate why he should telephone the purchaser after the return from cashing Exhibit "J" in the Bank "to see if he was ready": having taken the trouble to approach Makhooane at 7.30 a.m and instruct him to bring his passport, I would have thought that the first accused already anticipated that the purchaser in Ladybrand was "ready" Makhooane spoke of taking his wife to work, and of "dropping' her there, and of a promise of getting money for petrol from the first accused, so that presumably he had a motor vehicle of his own. I do not then see why he could not have been despatched to Ladybrand at any time before noon. In particular, the first accused testified that Makhooane was despatched to Ladybrand the following day. Makhooane did not so testify: more importantly, that aspect was never put to Makhooane in cross-examination.
Again, I do not appreciate why it was necessary to seek Phillip Phamotse's services and despatch him to the Bank with a deposit, while Mokheseng Makhooane was present at the office for a period of 3½ to 4 hours, with nothing to do. The evidence certainly
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suggests that the services of Makhooane, complete with passport, were required for a separate assignment.
There is then the evidence of the telephone conversation in which the first accused was engaged. Makhooane's evidence indicates that the first accused received the particular telephone call, significantly after the second accused had left the office. Even accepting the first accused's evidence that he held two telephone receivers at the one time, I cannot appreciate why, when the ultimate figure of M7,500 was agreed, he simply did not terminate the conversar tion and forthwith write out the amount on Exhibit "J", or why he simply did not ask Makhooane to make a note of the amount involved.
There is then the journey to the Bank. It was the evidence of both the first accused and Makhooane, that the former declared his intention of driving to his home. I fail then to understand the necessity of directing Makhooane to accompany him. There is then the sudden departure from that plan when,in the evidence of the first accused, he observed no queues (outside the Bank) at the Sixty Minute Branch, contrary to Che situation at the Main Branch and the Development Branch of the Bank. It would seem however that the first accused purported to make
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the decision to drive to his home before he could have ascertained whether there were in fact queues outside the latter two Branches.
Further, if queues had formed outside the Branches on 19th March, on the first accused's evidence of Seleke's visit, seemingly before opening time in the morning, there was little to be gained in waiting until the following day. I fail to appreciate therefore why the first accused decided to drive home, without meanwhile despatching Makhooane for the Main Branch of Lesotho Bank with instructions to join whatever queue was there and to cash Exhibit "J".
The first accused's evidence in-chief as to what transpired at the Bank is skeletal. He made no comment on Makhooane's evidence as to why he completed the cheque, and why the accused persuaded him to cash it. In particular, the accused made no reference to the fact that Makhooane wrote his own name as payee on the cheque. In cross-examination on the point, he alternated between the position of being unable to remember what transpired and the situation where, "as the cheque was filled out by Makhooane (he) didn't care to see what he filled in". The fact that the accused was well known to a number of bank officials might well have assisted him in cashing the cheque. I do not then see why he did not at least attempt to cash it at the 60 Minute Branch. Again, despite the
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queues, he would, it seems, have had little difficulty in cashing it at the Main Branch: he cashed Exhibit "H" for M7,000 the following day without any difficulty, avoiding the queues in doing so.
The first accused testified that he "left Makhooane at the Bank", adding that he "didn't wait for him". In cross-examination
it transpired that he had meanwhile gone to purchase petrol. He then testified, "I met the second accused near the Cathedral".
He did not specifically deny that he entered the Bank, and indeed made no mention of collecting Makhooane with the money at the Bank. He testified that the second accused stopped him, but yet added that he (the first accused) had stopped at a secretarial office at the Cathedral (rather than at the Bank) so as to pick up Makhooane. As to his original intention to drive home, he said that he "might have changed (his) mind at the garage when (he) found it not necessary to go to home".
There is then the evidence of Seleke visiting him again on the morning of 20th March with another lodgment, again in a hurry, bringing with him this time the lodgment slip in the amount of M19,225 (Exhibit "E") and the cheque in that amount (Exhibit "D"). Exhibit "D" and Exhibit "E" are both
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dated 20th March, indicating that Seleke had purportedly received the cheque from the Hotel very early that same morning, where according to the first accused Seleke was then staying. Presumably Seleke, having signed the two deposit slips completed both of them. Yet, I observe that the two slips are completed, apart from the signatures, in quite different handwriting.
It will be seen that Exhibit "R" reflects payments of a deposit of M8,900 by way of cheque No.9363. I can only presume that the invoice, dated 20th March,reflects payment on 20th March. Both accused testified that Seleke handed over Exhibits "J" and "I" on 18th March. Exhibits "J" and "I" are numbered 9364 and 9365 however. The first accused testified that he presented cheque No.9363 on 20th March, but the cheque was dishonoured. The opening balance on 20th March in Seleke's account was M8,801.75. It seems hardly likely that the bank would dishonour a cheque for M8,900 in respect of a deficiency of less than M100, when as much as M33,123 had been lodged the day previously. In any event, under cross-examination the first accused testified that he approached Seleke, who then gave him Exhibit "H" in the amount of M7,000, which he duly cashed later that same day, 20th March, that is, after the deposit of M19,225, being subsequently paid M1,900 in cash by
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Seleke, apparently on 20th March. He had earlier testified under cross-examination, however, that the cheque for M8,502 (Exhibit "L") had been paid to him by Seleke in respect of a diamond sold "in March", which cheque had "made up for balance in respect of cheque which previously bounced".
By all accounts Seleke had approached the first accused early that morning with Exhibit "E". Presumably therefore he also handed over the cheque for M8,900 at the same time. One would imagine therefore that the first accused would then "kill two birds with one stone", by cashing the cheque and making the lodgment at the same time. Further, I do not see why Seleke should make out a separate cheque, nor why it should be in the amount of M7,000 only, nor why, in view of the lodgment of M19,225, he did not insist on the cheque for M8,900 being represented: at that stage the balance in his account stood at M28,026.75.
As to the cheque for M7,000 (Exhibit "H"), in his evidence in-chief the first accused had testified that when Seleke gave him the cheque he was "paying for diamonds". He originally made no mention of Exhibit "H" being a replacement cheque, nor of being paid a further Ml,900 in cash by Seleke. He specifically testified indeed that when he cashed
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Exhibit "H" at the Bank, he then "released the diamond": with reference to the diamond reflected on Exhibit "R" however, it will be seen that, at that stage, a further M7,550 was still owing in respect thereof, or rather M5,650 upon the payment of a further Ml,900 in cash.
The first accused testified under cross-examination that he met Seleke again on 26th March at Maseru. On the same day he showed him another diamond in respect of which Seleke paid him M8,502 by way of cheque (Exhibit "L"). The accused then cashed the cheque on Tuesday 26th March and then gave Seleke the diamond. This he did despite his earlier evidence that the diamond trade was operated on a cash-first basis, and despite the fact that not less than M5,650 was still owed to him by Seleke in respect of the diamond mentioned in Exhibit "R".
As for Exhibit "R' which I have set out earlier, the particular invoice (No.25) is the second last of the 26 invoices used in the invoice book. Invoice No.26 is dated "7-11-1983". The name "M.P. Seleke" on the invoice is written over another name, which I read as "M.P. Maleke": this was seemingly effected simply by the alteration of the first two letters of "Maleke" from "Ma..." to "Se...". The balance of
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M5,550 thereon is of course incorrect. In particular, most of the other invoices are simply stamped or endorsed with the word "Paid".
Not one invoice contains a reference to any cheque as such. On Invoice No.25 on the other hand, the endorsement "Cheque No.9363
Lesotho Bank" is by far the most prominent writing on the invoice. It is significant that the book contains no invoices in respect of the transactions involving Exhibit "H" (M7,000), Exhibit "J" (M7,500) and Exhibit "L" (M8,502). Further, it is significant that theinvoice contains no endorsement that cheque No.9363 was dishonoured on the very same date of the invoice,nor that it was replaced by Exhibit "H" that same morning, or Exhibit "L" on 26th March, whichever version of the first accused's evidence is correct. Suffice it to say, that Invoice No.25 gives rise to enquiry as to its validity.
The documents found in the first accused's office are clearly incriminating. Exhibit "O", a blank cheque form taken from
the Hotel's missing cheque book, establishes access to such cheque book. Exhibits "P" and "Q", the two Standard Bank (Ladybrand Branch) cheques in blank, bearing only the purpoted signatures of the particular Hotel signatories, and in particular
Exhibit "P" which contains the
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signatures again in the top right hand corner thereof, as if endorsed to countersign a (non-existing) alteration, clearly indicate an attempt by someone to practice forging the particular signatures: in the absence of evidence as to whether or not the Hotel held the particular account with Standard Bank, at Ladybrand Branch, that is the least incriminatory inference which may be drawn from the two exhibits.
Exhibit "S" the duplicate incomplete lodgment slips dated 19th March 1985, reflecting a deposit of a Maseru cheque drawn by Seleke in the amount of M17,000, is of inconclusive probative value. It is unsigned and does not reflect the particular account to be credited. In view of the date and amount it may have some connection with Exhibit "I", but that is but speculation, and I do not see that, other than establishing a connection with Seleke, which the defence does not deny, it is incriminating in nature. The possession of Exhibit "N", to which I have earlier referred, and Exhibits "O", "P", and "Q" is however highly incriminating. The aspect of any such possession can be deferred for the moment.
There are then Exhibits "T" and "U". They are not in themselves in any way incriminatory. Both cheques however bear an endorsed stamp thus:-
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NOT NEGOTIABLE A/C PAYEE ONLY
It will be seen from the above illustration that there is a break in the top line over the left hand vertical stroke of the second letter "N". Again, there is a distinctive dot above the left hand edge of the top line. Such aspects are exaggerated above for necessary emphasis. Suffice it to say, that they are quite obvious to the naked eye on Exhibits "T" and "U". The significance of all this is that Exhibits "B", "C" and "D", the three forged cheques lodged to the credit of Seleke's account, bear an identical stamp with the two characteristics, the broken line with the dot above, clearly apparent thereon.
Mr. Pheko submits that Mr. Matsoha recognized the stamp endorsed on Exhibits "B", "C" and "D" as that of the Hotel. But I think learned Counsel is mistaken here: the witness was in fact referring to a stamp "FOR AND BEHALF OF", endorsed on all three cheques. Indeed the outline thereof can be barely made out on Exhibit "N" (which is not stamped "NOT NEGOTIABLE A/C PAYEE ONLY", as it is also made out to "Bearer"). The
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former stamped endorsement however is in no way distinctive. Even if such endorsement was effected by application of the Hotel's own stamp, that cannot,
in the face of all the other evidence, tend to establish the authenticity of the three cheques:
rather it tends to establish the involvement of a member of the Hotel staff in the forgeries.
As to the stamped endorsement "NOT NEGOTIABLE A/C PAYEE ONLY", Mr. Pheko submits that in a small city like Maseru it is quite possible for a number of stamps to be sold, all made in the one mould or cast from the same dye, all bearing the same double defect or characteristic. This may well be the case, so that the similarity of the endorsed stamp appearing on both sets of cheques cannot be conclusive. It does constitute a coincidence however, giving additional effect to a body of other coincidences or circumstances.
Another coincidence indeed is that the endorsed stamp on both sets of cheques is so endorsed in red ink.
I return then to the evidence of the second accused. It transpired in cross-examination that he had at one stage worked as a Bank Clerk, indeed a Waste Clerk, for the period of one year. There is his evidence of Seleke and he approaching the first
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accused on 18th March: it was the latter's evidence, as I have said, that Seleke approached the second accused and he. The second accused's evidence of depositing the cheque for M17,000 early on the morning of 19th March, for reasons indicated earlier, cannot be true.
It was his evidence that he met the first accused at the Circle near the Cathedral at 11 a.m. that same morning. That evidence of course refutes the implication in Makhooane's evidence, that Exhibit "J" was cashed immediately before lunch, and that there was then pressure to cash Exhibit "I" before 1 p.m. also. Makhooane's evidence indicates that the first accused reached the Circle on return at approximately 12.45 p.m. More importantly, the first accused's evidence indicates that it was no earlier than, say, 12.15 p.m.
As to Exhibit "K", the second accused testified that he saw Seleke again on 23rd March in Bloemfontein, where he handed over a diamond to the latter for the agreed price of M3,500. That clearly conflicts with his earlier evidence of caution in dealing with the sale of diamonds to Seleke, that is, his anxiety to ensure that Exhibit "I" would be cleared by the Bank
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before handing over any diamonds, and thereafter the evidence of his somewhat casual approach in neglecting to personally inform Seleke that he could collect his diamonds, leaving that aspect entirely to the first accused. Within a matter of four days we have the situation where the procedure is entirely reversed: the second accused is then prepared to hand over a valuable diamond to someone whom he did not previously trust, not alone without first clearing a cheque in payment, but without even receiving a cheque in payment: he did not receive Exhibit "K" until 26th March I do not appreciate why he should not have insisted on previous conditions. If it was the case that Seleke trusted Ismail Mohlala to handle M9,000 in cash, then I do not see why delivery of the diamond worth M3,500 could not have been effected in Maseru. Again, I do not see why it was necessary to send Ismail Mohlala from Bloemfontein with the cheque on 26th March. Why could not Seleke have made out the cheque on 23rd March in Bloemfontein?
As to Ismail Mohlala, the second accused testified in-chief that the teller cashed the cheque for M9,000 (Exhibit "M"), and gave him the cash, which he in turn gave to Mohlala. In cross-examination
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however he testified that the teller gave the cash to Ismail.
When asked as to whether he had since tried to contact Ismail Mohlala, he said he had not, as there was "no evidence that says I handled cheque". The teller who cashed the cheque for M3,500 (Exhibit "K") also cashed the cheque for M9,000 (Exhibit "M"), as he employed a stamp designating him as "Teller 2 ... Thaba-Tseka", though operating on 26th March at the Main Branch. The particular teller Mohobo Ntsonyana, who knew the second accused, testified to receiving Exhibit,"K" from the second accused and lodging it to the credit of his wife's account. Direct evidence of encashment of Exhibit "M" was not adduced by the Crown however: there is nonetheless the coincidence that both cheques purported to be drawn by Seleke were stamped on the same day by the same teller, at the same branch, using the same distinctive stamp, one of which cheques is made out to the second accused. In any event, the second accused himself testified to cashing Exhibit "M" on behalf of Ismail Mohlala. The point is, that for a period of three years, from the date of his apprehension to the date of his trial, the second accused knew that the particular teller could
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identify him as the person who also cashed Exhibit "M": he testified that the latter "well knew" him. Nonetheless, in all that time he failed to even make any effort to find Ismail Mohlala.
There is then the evidence of the latter's failure to identify himself at the bank. Exhibit "K" is dated 25th March, 1985 (a Monday) and Exhibits "L" and "M" are dated 26th March. Exhibit "K" incidentally is numbered 9371, though purporting to be made out a day earlier than Exhibit "L",which is number 9370. In any event, the second accused had met Seleke in Bloemfontein on Saturday 23rd March. The latter worked in Bloemfontein. Presumably therefore, on the second accused's evidence, Exhibits "K", "L" and "M" were then made out by Seleke in Bloemfontein and sent by hand of Ismail Mohlala to Maseru, presumably again on 26th March. In any event, the second accused at one stage testified that Mohlala had come from Bloemfontein. He acknowledged that one requires a passport to enter the country. Nonetheless Ismail Mohlala was unable to produce any means of identity at the Bank. If it was the case that Seleke, even within Lesotho, had sent Mohlala to the Bank to cash a cheque for M9,000, then I do not appreciate how he failed to ensure that the latter had some means of identity with him.
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When the second accused was pressed as to whether he had enquired of Seleke's whereabouts from Mohlala, he replied that the latter had said that Seleke was "at home". The second accused did not however elaborate as to whether Seleke was at home in Mafeteng, or in Bloemfontein, where he must have had some residence, indeed where the accused, at one stage of the cross-examination, agreed that Seleke was "resident", though he seemingly resiled from that position shortly thereafter. If it was the case that Seleke had himself come from Bloemfontein, having apparently, on the second accused's evidence, given two if not three cheques to Mohlala to deliver in Maseru, then I fail altogether to appreciate why Seleke did not himself attend to transactions of such importance involving a considerable sum of money, or why he should entrust M9,000 in cash to one so naive or casual as to approach a bank seeking to cash a cheque in that amount, without any means of identity.
Here indeed there is direct conflict between the evidence of both accused. It was the evidence of the first accused that he met Seleke in Maseru on 26th March, when he showed him and sold him a diamond, receiving Exhibit "L" in respect thereof, and handing over the diamond to Seleke on the encashment of the cheque. If it was the case that Seleke was in Maseru on 26th March, then I am at a loss to understand why he should avail of the services of Ismail Mohlala.
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The first accused could not say whether the second accused was aware of his meeting with Seleke on 26th March in Maseru. For that matter,the second accused could not say whether or not Ismail Mohlala had taken Exhibit "L" to the first accused. The first accused could not remember meeting the second accused on 26th March. The second accused denied any such meeting. In this respect Lt. Mokhele testified that immediately after leaving Lesotho Bank on 26th March, he had seen the first accused driving a motor vehicle with the second accused as passenger therein, in a queue of vehicles near the Circle at the Cathedral. This was put to the second accused, who denied such evidence. Lt. Mokhele may well have been honestly mistaken however, in what can only have been a "fleeting encounter", and it would be unsafe for the Court to rely on the particular evidence.
The second accused, as earlier stated, testified that Exhibits "T" and "U" , the cheques signed by the first accused,were found in his vehicle upon arrest. Exhibit "U" however, in the amount of M90, is dated 12th January, 1985. Two and a half months thereafter the second accused had failed to complete, lodge, or encash the cheque. It is numbered 226232. Exhibit "T", made out in the amount of M150 to "L.T.C.", is
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numbered 226221, which indicates that it must have been partly made out by the first accused no later than 12th January, 1985, if not a good deal earlier. The second accused was entrusted with the cheque, he said, so as to pay the first accused's telephone bill for him. Two and a half months later, if not more, the second accused had failed to effect payment of the account.
All of which of course is unrealistic. More importantly, the first accused never specifically denied, as earlier indicated, that Exhibits "T" and "U" were found in his office. If the second accused's evidence is true, why then did not the first accused state that the cheques could not have been found in his office, as he had given them to the second accused? Indeed, the second accused's evidence in the matter was never put to Lt. Mokhele in cross-examination. Suffice it to say that I am satisfied that the second accused cannot be telling the truth in the matter and that his evidence was introduced as an afterthought, in order to weaken Lt. Mokhele's credibility, whose evidence I completely accept.
The second accused denied meeting Makhooane at the Maseru Cabanas immediately before his arrest. He denied the incriminating conversation, to which Makhooane testified. He never denied that Makhooane
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was at the Cabanas however, which, to say the least of it,was a strange coincidence. It was then the evidence of the first accused that he was arrested early on the morning of 27th March, before going to work, and that when he was ultimately taken to the cells, "just before noon", he found the second accused there before him. His evidence on the point is seemingly unnecessarily detailed. Despite seeing the second accused when he was taken to the cells, he testified that he "wouldn't know where the second accused was when I was taken to my home for searching, as we were in different cells". That establishes that he did not observe the second accused on departure from the Police Station, due to their separation in different cells. That also indicates surely that he could not have seen the second accused when he was first taken to the cells.
Lt. Mokhele testified that both accused were arrested on the night of 26th March: that evidence was hearsay however, as he had gleaned the information from the police records at the Central Charge Office. I do not appreciate however why the police would not apprehend both accused on the same evening, and why in particular they should not apprehend the first accused, apparently the prime suspect, at the same time as,if
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not before, apprehending the second accused. In any event, Lt. Mokhele testified that he took the first accused out of his cell at the Central Charge Office at the specific time of 9.10 a.m. on the morning of 27th March. Although the Lieutenant was questioned in cross-examination as to the date of the first accused's apprehension, it was never put to him that the first accused was arrested on 27th March. In all the circumstances therefore, I am satisfied that the second accused was not apprehended before the first accused and that the first accused's evidence on the point was introduced solely in order to establish that the second accused could not have had the incriminating conversation with Makhooane at the Maseru Cabanas.
The first accused would have it that the office in which he worked was not his, as such, but was shared by others, that is, two co-directors, a secretary and a cleaner. All of the witnesses, including the second accused, inevitably referred to the office as "his" (the first accused's) office. At one stage indeed the first accused referred to it as "my office". The evidence of each director having a personal invoice book, bearing his name, is unrealistic in the extreme. The office contained but one desk. In any event, even if his two co-directors, the secretary and the cleaner had access to such desk, all the evidence inescapably points to the fact that the only person in the office
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who had any contact with Seleke, and indeed who handled the forged documents or had any connection therewith, was the first accused. The only reasonable inference flowing from the finding of the documents is that they were in the possession of the first accused.
The first accused testified indeed that his two co-directors did not know Seleke. For that matter, the only two persons before the Court who testified to ever having met Seleke were the two accused. It was the first accused's evidence that Seleke resided in Hillbrow in Johannesburg, and worked there at "Toyota Marketing", Rosebank. The second accused's version was that Seleke worked and lived (though he resiled therefrom) in Bloemfontein, where he was employed in "Orange Toyota Garage". One accused referred to Seleke's interest in squash, the other in football. The only matters in common are Seleke's interest in diamonds and his residence at Mafeteng.
The first accused has known Seleke for five years,the second accused has known him for nine years: the first accused has even accommodated him in his home in Maseru, yielding the master-bedroom to him on his visits. Despite that, neither accused can say where exactly Seleke lives,or have ever visited him at Mafeteng. In the three years which have elapsed since
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their apprehension, neither have made any effort to locate him. Indeed the second accused testified to having last met him sometime in 1985/87 in Maseru, to where Seleke had come from Mafeteng, seeking the release of his motor vehicle by the police, who had impounded it, because he did not possess the necessary papers of ownership at the time. The second accused merely informed Seleke, he said, that he could expect the service of a summons some time. Despite Seleke's criminal behaviour, which had led to the second accused's arrest, the latter made no effort to report Seleke's whereabouts to the police, simply because, he said, Seleke had just then come from a police station.
The only other person to whom Seleke is allegedly known is the Accountant at Lesotho Bank, before whom Seleke opened his account, and who is well known to the first accused for some years. The Crown declined to call him as a witness. Mr. Pheko submits that as the Crown failed to call the Accountant,the inference arises that the latter would have testified that Seleke opened the account before him. That inference certainly arises, but there can be no further inference as to the probative value of any such evidence. What Mr. Monyane may or may not say, is a matter for speculation. The Court can only decide the case on the evidence before it.
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To summarise the evidence of each accused person, I find it to be simply riddled with inconsistencies and contradictions in itself, and in comparison with the evidence of the other accused. When it comes to belief, I simply do not believe either of them. The first accused was a most unimpressive witness, and was clearly uncomfortable throughout his evidence. The second accused was certainly more self-possessed,but was nonetheless equally unimpressive. But my belief in Che matter is not the test. Mr. Pheko refers to a number of authorities, of which perhaps the leading dicta are those of Greenberg J. in R. v Difford (2) at p.373, and the latest are those of Tebbutt J. in the case of S v Jaffer (3) at pp.88/89 where the learned Judge reviewed the authorities thus:
"It is, of course, always permissible to consider the probabilities of a case when deciding whether an accused's story may
reasonably possibly be true (see S v Singh (4); S v Munyai (5) at p.7l5B). The story may be so improbable that it cannot reasonably be true. It is not, however, the correct approach in a criminal case to weigh up the State's version, particularly where it is given by a single witness, against the version of the accused and then to accept or reject one or Che other on the probabilities. This approach was considered by Van der Spuy AJ in S v Munyai (5) where he said at p.715G:
'There is no room for balancing Che two versions, ie the State's case against the accused's case and to act on preponderances.'
Dealing with Singh's (4) case Van der Spuy AJ, with whom Klopper ACJ concurred, said that the proper approach was for a court to apply its mind not only to the merits and demerits of the State and the defence witnesses but
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also to the probabilities of the case. This was to ascertain if the accused's version was so improbable as not reasonably to be true. This,however, did not mean a departure from the test as laid down in R v Difford (2) at p.373 that, even if an accused's explanation be improbable, the court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled his acquittal.
Van der Spuy AJ went on to say at p.716B-C:
'The fact that the court looks at the probabilities of a case to determine whether an accused's versionis reasonably possibly true is something which is permissible. If on all the probabilities the version made by the accused is so improbable that it cannot be supposed to be the truth, then it is inherently false and should be rejected. But that offers no answer to the approach adopted, in my view quite properly, by Slomowitz AJ in the case of S v Kubeka (6).'
In S v Kubeka (6) at p.537F-H, Slomowitz AJ said in regard to an accused's story:
'Whether I subjectively disbelieve him is, however, not the test. I need not even reject the State case in order to acquit him. I am bound to acquit him. if there exists a reasonable possibility that his evidence may be true. Such is the nature of the onus on the State.'
Referring to this passage Van der Spuy AJ said at p.715G:
'In other words, even if the State case stood as a completely acceptable and unshaken edifice, a court must investigate the defence
case with a view to discerning whether it is demonstrably false or inherently so improbable as to be rejected as false.' "
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Perhaps another way of putting the test is that the court can only convict where the guilt of the accused is the only reasonable inference. In any event, the impression an accused makes in the witness box or his demeanour, is by no means the criterion, demeanour perhaps being the least reliable of factors.
There is the aspect that Makhooane having cashed Exhibit "J", and Phamotse having uttered the forged cheques, might be considered as accomplices. Neither accused so contends, as of course they say their own actions were innocent. The evidence, I consider, points inevitably to the fact that Makhooane in particular and Phamotse were but ploys in the matter. Makhooane's evidence of the events of 19th March has a compelling ring of truth about it, which is not to be resisted. I am satisfied beyond reasonable doubt thereby, and indeed all the surrounding evidence, including that of Phillip Phamotse, that neither Makhooane or Phamotse were accomplices, but acted entirely as innocent agents. Makhooane's and Phamotse's evidence of the events of 19th March in particular reveals a carefully laid plan to deposit the forged cheques in the same branch as that in which Seleke and the Hotel had its account, facilitating ease of transfer, thereafter waiting until just before lunch-time,
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presumably in order to ensure that the deposit had been registered at and withdrawal could be effected from another branch. Clearly it was intended that Makhooane's encashment of Exhibit "J" was to be a test withdrawal. Mr. Pheko submits that the accused persons behaved openly and therefore innocently, in cashing the various cheques. That certainly cannot be said of the presentation of Exhibit "J". In particular, the evidence of the elation of the two accused in the motor vehicle, which I completely accept, belies any openness or confidence on their part. Again, I am satisfied that it was originally the intention that Makhooane should present more than one cheque, and that his unwillingness to do so found both accused to become more involved. Thereafter no doubt confidence grew. The first accused himself volunteered the opinion that this was "an inside job" in the Hotel and the "Bank. This may well be so, and may well account for their confidence thereafter. But this is speculation, and the Court can only decide the case on the evidence before it. Suffice it to say that the subsequent behaviour of both accused in personally cashing cheques, is in contrast to the earlier presentation of the first cheque: such subsequent behaviour can then as equally reflect over-confidence or audacity as innocence.
In all the circumstances I am satisfied that
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the evidence of both accused is demonstrably false where indicated, and so improbable elsewhere as to be inherently false. Capt. Quinton could form no conclusion, in a comparison of the specimen Seleke signatures on Exhibit "G", and that forged by the first accused on the lodgment slip Exhibit "E". There is no satisfactory evidence therefore as to who signed Exhibit "G", To some extent it can be said that the purported signatures of Seleke on Exhibits "H" to "M" inclusive,are different from those on Exhibit "G". I cannot be sure of this. I am however satisfied beyond reasonable doubt, on a preponderance of evidence, as the only reasonable inference, that whoever it was who completed Exhibit "G", the name Mahase Peter Seleke represents no more than a name.
As to the first accused, the following evidence incriminates him:
his possession of the documentsn Exhibits "N", "O", "P" and "Q";
the similarity of the stamp on Exhibits "B", "C" and "D" to that on Exhibits "T" and "U";
his completion of the lodgment slip Exhibit " E";
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Mokheseng Makhooane's evidence that the first accused signed Exhibits "J" and "I" in turn.
Capt. Quinton opined that there was no similarity between the handwriting on Exhibits "D" and "V". That appears to me to be the case. It is the prosecution evidence therefore that the first accused did not make out Exhibit "D". The dissimilarity in handwriting also indicates that he did not make out Exhibits "B" or "C". But Capt. Quinton was referring to the handwriting on Exhibit "D", rather than the signatures thereon, which, he opined, were forgeries. It is to be expected that a cheque emanating from the Hotel, would, as Mr. Matsoha testified, be made out by other than the signatories. When it comes to the forging of the signatures however, the above specified evidence, establishes not alone the preparation for and practice of the forging of Exhibits "B", "C" and "D", but also, in the first accused's forgery of Exhibits "E", "I" and "J", his ability and retrospectively his intention to forge the Hotel cheques. While the evidence against the first accused on the counts of forgery is necessarily circumstantial, suffice it to say that is is such as to satisfy me beyond reasonable doubt, as the only reasonable inference, that he forged the signatures on Exhibits "B", "C" and "D". I am also satisfied
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that he fraudulently uttered the said three forged cheques through the innocent agency of Phillip Phamotse.
As to the six cheques Exhibits "H" to "M", I am satisfied that the first accused forged the signatures on two of them, Exhibits "I" and "J". The signatures on the other four cheques are apparently similar, but there is no satisfactory evidence of such,and in any event the first accused was never charged with the forgery of any of the six cheques. I am however satisfied beyond reasonable doubt that he fraudulently presented and encashed the three cheques mentioned in Counts 7, 9 and 11, namely, Exhibits "J" (through the innocent agency of Mokheseng Makhooane), "H" and "L" respectively.
As to the second accused,there is no evidence that he was necessarily party to the forgery of the three Hotel cheques, nor that he counselled such forgery. There is clear evidence that he was aware that the first accused intended to make the necessary lodgments of the three cheques. I do not see that it can be said beyond reasonable doubt, however, that he counselled the first accused to do so: he may well have been content to remain passive in the matter and await developments.
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There is however clear evidence of his cashing three cheques Exhibits "I", "K" and "M", in the full knowledge that the money in Seleke's account had been obtained by fraud. In this respect Mr. Mdhluli refers to the Court of Appeal case of Makalo Khiba v R (7), to which Mr. Pheko also refers, the facts of which are somewhat on all fours with the present case. There the Court of Appeal, per Maisels P., held that where the accused had opened an account in one bank by means of a forged cheque drawn on another bank, once the cheque was presented, a corresponding debit and credit was entered in the respective bank accounts, and that money is capable of being stolen even where it is not corporeal cash, and hence theft by false pretences (or theft simpliciter) had been committed once the cheque was presented. Mr. Mdhluli accordingly concedes that if the first accused were to be found guilty under counts 1, 3 or 5, or the alternative counts of 2, 4 and 6, he could not then be found guilty under the counts 7 to 12 inclusive.
Mr. Pheko agrees with this submission. But he takes the submission further. He submits that it must apply also to the second accused who, he says, is charged as an accomplice under counts 7 to 12. I accept the former submission but not necessarily the latter. It will be seen that the second accused is
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charged as a principal under Counts 8, 10 and 12. If, as the Court holds, the second accused cannot be convicted of any offence under counts 1 to 6, no question of his having committed theft in respect of the three Hotel cheques arises. Further, it cannot be said that he personally,indirectly or otherwise, received any credit in the matter. In presenting a forged cheque to the bank, however, drawn on an account which he knew to possess a fraudulent credit, he obtained money thereby from the Bank, and then committed the crime of theft by false pretences.
In all the circumstances I am satisfied beyond reasonable doubt of the guilt of the first accused on the offences of forgery and uttering involved in Counts 1(A) and (B), 3(A) and (B) and 5(A.) and (B). I find him guilty under those counts and convict him accordingly. I acquit him of the offences involved in Counts 2, 4, 6, 7, 8, 9, 10, 11 and 12. As for the second accused,he cannot, for the reasons stated, be convicted of any offence under the first six counts. Neither can he be convicted of the offences involved under counts 7, 9, or 11, as there is in any event no satisfactory evidence that he counselled the first accused to forge or present the respective cheques. I am satisfied beyond reasonable
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doubt, however, that he presented the cheques Exhibits "I", "K" and "M", in the knowledge earlier referred to, and received the sums of money involved. There is the aspect that he lodged a total of M15,500 to the credit of his wife's account, but he was a co-signatory on that account and thereby received the benefit of such money. I am satisfied beyond reasonable doubt of the second accused's guilt under Counts 8, 10 and 12. I find him guilty of the offences thereunder and convict him accordingly.
The Assessors agree with all of my observations, particularly in the examination of the documents before the Court, and also all of my findings.
Delivered at Maseru this 19th day of October, 1988.
B. P. CULLINAN
CHIEF JUSTICE
