CRI/S/7/88

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

v

1. ABEL
BUSHMAN

2.
MOSUOANE MOLAPO

RULING
AND SENTENCE

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 5th day of October,
1988

The two
accused were convicted on 18 March 1988 by a second class magistrate
at Leribe of the offence of fraud. They were then committed
in
custody to the High Court for sentencing.

The
offence is alleged to have occurred early in April 1986 and the two
accused were arrested straightaway. They were then released
on bail
for about a year and the trial commenced in April 1987 and it dragged
slowly on for another year before it was concluded.
This is far too
slow for a criminal case which ought to be dealt with and disposed of
with much more speed.

Basically
the charge is that the two accused intentionally defrauded the
complainant, Lekhotla Rakhomo, of the sum of M2,050.00.

2

The main
evidence was given by the complainant Rakhomo (PW5) and his wife,
'Mamohloki Rakhomo (PW6), who explained that their unmarried
son,
Mohlokoli Rakhomo, had died while working at Welkom mine three years
before. That would be sometime in 1983. They said that
they were
eventually paid compensation, but the amount was not specified. Ik
was deposited in the complainant's account at the
Lesotho Bank.

According
to these two witnesses the two accused arrived in a motor car at
their home at Pela-Tsoeu ha Majara in Leribe District
during the
morning of Wednesday, 9 April 1986. They claimed to be friends of the
late son of the witnesses and stated that they
were witchdoctors who
wished to perform some witchcraft because the deceased had been
killed intentionally. The first accused spoke
in Zulu and the second
accused translated into Sesotho. The first accused then ordered them
all to stand up and he purported to
pray in Zulu. After that he took
out some bones and threw them and declared that the complainant's
money from his son's compensation
must be worked on so as to make it
multiply in accordance with the wishes of the deceased. He then
demanded the son's and their
passports and bank books and M.50 in
cash. These were all handed over to A.I by the complainant.

The
complainant's wife, 'Mamohloki (PW6), said that A.I next asked for
more money and wrote the figures "M.7500" on a
piece of
paper torn from a newspaper. The two accussed

3

then
drove to Hlotse town in their car together with the complainant and
his wife. There the accused waited at a hotel while the
complainant
and his wife went to the Lesotho Bank. On the way to the bank
'Mamohloki persuaded her husband not to withdraw M.7500
but only
M.2000, and the bank book (exhibit A) shows that this was done.

They then
returned to the hotel and met the two accused who drove them back
home. On the way A.1 asked if they had withdrawn all
of the money.
'Mamohloki replied that the bank had only allowed them to withdraw
M.2000.

When they
arrived home A.1 asked the complainant for the money and he handed
over the M.2000. Neither the complainant, nor his wife,
nor the bank
teller Mothabeng (PW2), was asked in what denominations of bank notes
this amount was made up in. The trial court
should have obtained this
information.

A.1
counted the money and said it was not enough, they wanted M.3000. A.1
told them to get the other M.1000 on the following day.
Meanwhile he
apparently wrapped the M.2000 inside several pieces of newspaper
which he took from his bag and then he put some sellotape
around the
package. A.1 told 'Mamohloki to bring a metal box to put the package
in. She fetched a tin box from the complainant's
mother 'Makhomo
Rakhomo (PW 7) who lived nearby. The old lady came back to the house
with 'Mamohloki and the box. She said she
saw A.1. put the sealed
package

4

into the
tin box, though she had not seen what was in the package. The
complainant and his wife both said that they believed that
the money
was in the package and that it would be increased.

So that
the "magic" would work and the money multiply, A.1 told the
complainant's mother to look after the tin box, not
to open it, and
to put it among the blankets when she made the bed. This was agreed
and the old lady went to her home taking the
tin box with her.

Lethola
Rakhomo (PW 10), aged 13, was the complainant's son. He was living
with his grandmother 'Makhomo. He testified that he saw
her bring the
tin box home and kept it there. He did not try to open it, nor did
the old lady. All this was on the Wednesday. A.1
told them that they
would return on Friday (that would be 11 April 1986) for the rest of
the money that he required. According
to 'Mamohloki (PW 6) she told
the complainant afterwards that she suspected that these men were
thieves who were after their money.

On the
Friday the Complainant and 'Mamohloki, his wife, went to Butha-Buthe.
When they returned home they found A.2 waiting for
them. 'Mamohloki
asked where A.1 was and A.2 replied that he was afraid to come and
walk into some danger (ho tlola Mehlala). The
complainant then left
with A.2 in order to fetch A.1, but the complainant eventually
returned alone.

5

The
complainant and his wife decided to report the matter to their chief.
They went to see the chief early on Saturday morning (the
next day)
and made a report to Chief Majara (PW 9). He gave them a letter to
take to the local army unit. There was no explanation
asked or given
why the chief did not send them to the police station as he should
have done. They reported with the letter to 2/Lt
Ntsoereng (PW 3) who
went with them to their home accompanied by other soldiers of
R.L.D.F. On the way met they the two accused
in their car. The
soldiers questioned the accused and then all of them got into the car
and drove to the complainant's home. The
complainant fetched the tin
box and 2/Lt Ntsoereng asked the accused if there was any money in
the box as alleged by the complainant
and his. wife. A.1 said there
was no money, only papers in the box. The 2/Lt asked the two accused
to open the box which they did.
Inside he saw a small paper parcel
with sello-tape round it. He opened one corner of it and saw only
papers inside. This was confirmed
by the chief's messenger, Letlaka
Molota (PW 8), who was present, also by the com­plainant and his
wife.

The 2/Lt
then did what should have been done at the start, that is he took the
accused to Leribe Police Station. However, the evidence
of police
Captain Koza (PW 4) was of very little assistance. He saw the two
accused brought in to the station with the tin box
but he could not
remember what he saw in the box when he looked at it.

6

Detective
Staff Sergeant Khosi (PW 1) of the Leribe CID

was also
there. He said the box contained herbs and the ashes of some burnt
papers. Nobody else involved in this case seems to have
seen these
ashes and there was no ex­planation given of them. The accused
were then detained in custody. The complainant and
his wife did not
know the two accused and they had never heard their son speak of them
as friends or in any other way.

The two
accused were each represented by separate counsel at the trial who
cross-examined the witnesses at great length, much of
which was
hearsay or irrelevant. In spite of all the evidence on record both
accused chose to make no defence and they remained
silent. Of course
it was their right not to testify if they so wished but, in the
circumstances of this case and the facts, I would
have thought it
reasonable to expect some sort of explanation from them. Instead they
left the trial magistrate with only the prosecution
case to consider.
The magistrate believed the prosecution witnesses and convicted the
two accused.

The
business of offering to increase the victim's money by the use of
bogus magic or other means is one of the oldest confidence
tricks in
the world. It is well known everywhere and, over the years, a large
number of gullible and greedy people have handed
over large or small
sums of money to confidence tricksters for this purpose. They always
lose the money, of course.

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The money
is handed over and the trickster usually appears to wrap the money up
inside, or lock the money inside, some container.
In fact, as in this
instance, the evidence indicates that he used a lot of paper probably
to confuse the victim and he only appeared
to put the money into it.
Probably, in this case, the money was dropped into the bag while A.1
was folding the sheets of newspaper
and making up the package. It
would be quite easy to do, especially if the trickster talked at the
same time so as to distract
the victim's attention. Naturally, when
the package or box was opened later, no money would be found in it.
As I said, it is a
very old trick, but it still seems to work.

I have no
doubt that that is what happened in this case. All the evidence
points to a classic example of this type of confidence
trick. In
English law the normal charge would be obtaining money by false
pretences or, alternatively, theft by a trick.

The South
African Common Law offence of fraud charged here has rather different
ingredients. The offened consists of a wilful perversion
of the truth
made with intent to deceive and resulting in actual or potential
prejudice to another.

The
perversion of the truth has to amount to a false representation as to
an existing fact and it must be made wilfully, that is
knowingly and
intentionally. In this case there were three false representations.

8

The first
was by the two accused pretending to be friends of the complainant's
deceased son; the second was by thorn pretending
to be witch doctors
who had read in the bones that their son was crying for his money to
be bewitched so that it would multiply;
the third was the implication
that the two accused were at that time capable of making the money
increase in quantity. Thus there
was no shortage of false
representations of existing facts which were false to the knowledge
of the accused, and these facts revealed
a clear intent to deceive
the complainant. As regards the prejudice suffered by the
complainant, as averred in the charge, this
was the resulting
withdrawal by the complainant of M.2000 from his bank account and the
handing over of that sum together with
another M.50 to the accused in
the mistaken belief that the accused could and would cause the money
to increase or multiply.

A.1
pretended to wrap the money in a parcel and he apparently put it into
a box and took the precaution to warn the complainant
and his family
not to interfere with the box. They seem to have believed him and
perhaps feared the consequences of his "witchcraft"
if they
meddled with the box. They testified that none of them did so.

When the
box and packet of papers was opened by the soldier in the presence of
the two accused, no money was found.

I am
satisfied that both accused were properly con­victed of this
offence and all that remains is to sentence

9

them. I
did ask their counsel to address the Court on the matter of the
sentence but no information was supplied other than a request
for the
accused to be fined because the subject matter, the amount taken, was
described as "minimal". I do not agree
at all that M2050 is
a small amount, especially to ordinary people like the complainant.

According
to the trial court record A.1 Abel Bushman is now aged about 44 years
and married with seven children. He has a previous
record of three
convictions in Lesotho and two in the Republic between 1974 and 1977.
These are for a variety of offences ranging
from theft, receiving
stolen property, robbery and dealing with dagga. The latter was his
last conviction in Warrenton R.S.A. in
November 1977. He was
sentenced to 7 years imprisonment which was altered to five years on
review in December 1977. If he earned
remission he should have been
discharged from prison in about February or March 1981. This present
offence was committed in April
1986, only five years later. I have to
take into account that this accused has a criminal past and has not
shown much sign of reforming.

From the
evidence I would regard him as the leader and prime mover in this
criminal enterprise and I shall treat him as such.

A.2,
Mosuoane Molapo, is aged about 36 years, married with five children.
He apparently has no previous convictioned

The two
accused approached these two simple, un­sophisticated people, the
complainant and his wife, and

10

took
advantage of their grief over the loss of their son and callously
deprived them of a large sum of money which has not been
recovered.

In the
circumstances A.1 Abel Bushman is sentenced to imprisonment for three
years. A.2 Mosuoane Molapo is sentenced to imprisonment
for two
years.

P.A.P.J.
ALLEN

JUDGE

5 October
1988

Mr Mpopo
for both accused

Miss Nku
for the Crown