CRI/T/5/88

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

V

'MATHABANA
AGNES KHAUOE AARON MASEMENE

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 22nd day of September
1988

The two
accused are each charged with eight main counts of theft of
Government Revenue amounting to a total of M.12,778.76, with
eight
alternative counts of theft by false pretences. I shall deal with
each main count together with its appropriate alternative
count. The
period covered by these counts is from August 1986 to January 1987.

The first
accused, Khauoe, aged 27, also uses her married name of Raliopane and
she will be referred to throughout as A.1. She was
employed as a
clerk in the Maseru District Labour Office(DLO) from 1982 until
February 1987 when she was dismissed.

2

The
second accused, Masemene, aged 32 years, will be referred to as A.2.
During the period referred to he was employed as an assistant

accountant at Maseru Sub-Accountancy. He has been interdicted since
February 1987. He was working as the next senior official under
the
sub-accountant and her deputy.

Twenty
three witnesses testified for the prosecution and both accused
testified on oath in their defence. The trial took two months
to
complete. Much of the evidence would have been more appropriate to a
Commission of In­quiry into the working of the Maseru

Sub-Accountancy and the District Labour Office, for it revealed
serious breaches of Financial Regulations, a disregard for laid
down
procedures, and a failure to supervise, control and inspect the work
of subordinate staff, together with gross negligence
and incompetence
by senior staff over a long period. Some of this will be revealed in
the course of this judgment where it is relevant
to the charges
before the Court. It is to be hoped that the authorities con­cerned
have by now taken appropriate action to
rectify the position but it
seems likely that, in some instances, nothing very effective has been
done.

With
regard to the working procedures at the Maseru Sub-Accountancy
testimony was given by the Govern­ment Revenue Controller,
Mr.
Morolong (PW2) who was himself once a sub-accountant. In addition,
the former Maseru Sub-Accountant, Mrs Kabane (PW22), and
her deputy,
Mrs Matsipa (PW21), a senior accountant, also testified. I was
surprised to learn that they are now working in

3

sub-accountancies
elsewhere in the country.

With
regard to the working procedures in the Maseru District Labour
Office, testimony was given by Mr. Shale (PW 17), the District
Labour
Officer.

The
alleged improper payments of monies referred to in the charge sheet
were in connection with compensation unclaimed wages and
estates of
deceased workers (usually miners) employed in the Republic of South
Africa. When a miner, or his estate, was due payment
of this sort by
the employing organisation, but he was either dead or had returned to
Lesotho, they would send a cheque for the
amount due to the Labour
Headquarters in Maseru from where it would be passed to the District
Labour Office to arrange payment.

Accompanying
the cheque from the employer would be a letter containing information
about the beneficiary entitled to that payment.
This letter would
show the name of the beneficiary, his mine number, his home address
in Lesotho and his chief. Sometimes also
the names of his parents, if
they were known, and his passport number.

Sometimes
an employer would send a cheque to cover payments due to several
beneficiaries who might number ten or even more. In such
cases,
according to Mr Morolong (PW 2), the list of details was referred to
as a Beneficiary List by the Labour Office. A.2 also
referred to it
by this name. The D.L.O., Mr Shale (PW 17) and A.1 both spoke of "the
List" in this connection and they
were apparently

4

referring
to the same thing, so I shall use either term for convenience. But, i
must point out, none of these witnesses produced
an example of this
list for the Court to inspect, which should have been done.

However,
the information containing the details of the source and destination
of these payments from the Republic obviously had
to be supplied in
the manner des­cribed above by the employing organisations,
otherwise the Maseru Offices would have had no
basis to start work
from to effect payments.

On
receipt of the cheque and the list at the D.L.O., one of the clerks
there, such as A.1, would take them to the Maseru Sub-Accountancy

which would issue a General Suspense Account receipt for the amount
received. Again no receipt of this type was produced for this
Court
to see. It would appear from what various witnesses and the accused
told the Court that if the payment was for one or two
persons their
names would be shown on the receipt, but not if there was a list of
several beneficiaries to be paid. Apparently
the receipts used did
not have much space on them for such details.

The
number of the receipt would be recorded in a register at the D.L.O.
and a copy of the list of beneficiaries placed on the relevant
file,
so the Court was told by both Mr Shale (PW 17) and A.1.

The
D.L.O. would then write a letter to the chief or chiefs named in the
list requesting him to send the

5

beneficiary,
if he was alive, or the heir to the estate, if the beneficiary was
dead, to report to the D.L.O. so that payment could
be arranged. The
chief was expected to send the person named to the D.L.O, with an
official letter, signed and date-stamped by
the chief, identifying
him or her as either the beneficiary named or as the heir to the
beneficiary's estate. This person was referred
to as the claimant.

According
to Mr Morolong (PW 2) and the sub-accountant, Mrs Kabane (PW 22), and
her deputy, Mrs Matsipa (PW 21), all such identifying
letters from
chiefs had to come from the office of the Principal Chief of the
district. They could not show anywhere where this
procedure was laid
down, but they insisted that it was the accepted procedure. But these
chiefs' letters were addressed to the
D.L.O. not to the
sub-accountancy. Mr Shale, the D.L.O. (PW 17), and A.1., a clerk in
that labour office, both testified that a
letter from any chief in
that particular area would suffice. From the documents produced
before the Court, which included some
alleged proper payments, it was
revealed that sometimes letters were brought from Principal Chiefs
and sometimes from subordinate
chiefs, and payments were made in both
cases. The acceptance of such chiefs' letters was clearly a matter
for the Labour Office
to be satisfied about, rather than the
sub-accounancy which in spite of the assertions of Mrs Kabane and Mrs
Matsipa, merely accepted
whatever was forwarded to it by the D.L.O.
as sufficient authority. .

6

On
arrival at the DLO the claimant would hand over the Chief's
identifying letter and a clerk would then check their records,
including
their file copy of the original letter to the Chief and the
record of details supplied by the employer in the Republic, and the

receipt number. If everything was in order, then the claimant was
asked to produce his or her passport. However, both the DLO and
A.1
admitted that if the claimant had no passport they would accept the
claimant as genuine based solely on what was stated in
the Chief's
letter. Thus it would be possible for someone to collect money to
which he was not entitled by using a chief's letter
intended for
somebody else.

Having
satisfied the clerk at the DLO to this extent, the claimant would be
given a letter of authority in the form of a savingram
addressed to
the Maseru sub-accountancy requesting that the claimant be paid the
amount due. The savingram would be dated and would
contain the DLO
file reference. It would state both the claimant's name and the
beneficiary's name (if they were different) and
the amount to be paid
and whether it was for compensation, wages or estate. The
sub-accountancy suspense account receipt number
and date would also
be shown and a reference made to the chief's letter which would be
attached to it. The savingram was then signed
by the clerk and
stamped with the DLO date stamp. The claimant would be told to take
these documents to the sub-accountacy.

7

Meanwhile
at the sub-accountancy the staff would have received the cheque
together with the list of bene­ficiaries brought to
them by a
clerk from the DLO. A revenue clerk would issue a sub-accountancy
suspense account receipt for the amount shown on the
cheque. The
details from the list of beneficiaries would be entered into the
suspense account ledger for that financial year (see
exhibits 9-13).
The entry would be made on the right hand page of the ledger and
would show the date of receipt, the name of the
beneficiary, the
receipt serial number, the item number in the ledger and the amount
due to that particular beneficiary. For some
unknown reason there was
no entry provided to show the service, i.e., whether them money was
for compensation, unclaimed wages
or estate. In addition, there was
no record in the ledger of who was the claimant. The other details
supplied by the Republic employers
in the list of beneficiaries were
not entered either, but there was sufficient information to identify
a proper claim.

The left
hand page of the ledge was left blank so that whenever payment was
made to a claimant an entry was supposed to be made
on that side
showing the date of payment, the name of the claimant and a
repetition of the receipt number, the ledger item number
and the
amount paid. That is what was supposed to have happened,but it
appeared from the five ledger pages exhibited from different

financial years, that very few such entries were actually made, thus

8

apparently
opening the way for later double payments, which surely could have
been avoided.

Thus, at
the end of each financial year a line would be drawn across under the
last entry in that ledger and the balance still unpaid
carried
forward to the ledger opened for the next financial year. The
individual entries, as described above, would also be copied
into the
next year's ledger if they still remained unpaid. But, of course, the
accuracy of. this would depend entirely upon whether
there had been
entries recorded on the left side every time a payment to a claimant
had been made. Otherwise, as appeared in the
course of the evidence,
some amounts which had been paid were in fact carried forward to the
next year and show as still unpaid.
The annual suspense account
ledgers, which should have been the key record in the sub-accountancy
when dealing with all of these
claims, was revealed to be
occasionally unreliable and sometimes even misleading.

Both the
sub-accountant, Mrs Kabane (PW 22) and her deputy, Mrs Matsipa (PW
21), stated that they did not supervise entries made
in these
ledgers, nor did they ever bother to examine and check them, although
it was clearly a part of their responsibility and
supervisory duties
to do so. The rather feeble excuse offered was that they trusted
their subordinates to perform their duties
properly. A trust that was
clearly not justified by events.

Under the
Financial Regulations, 1973, regulation 1604 provides that:

9

Deposits which have remained unclaimed for five years shall be listed
in du­plicate by the department concerned from the deposit

ledgers and sent to the Accountant General who will return one copy
with his instructions. Nor­mally all unclaimed items will
be
transferred to general revenue. The Accountant General shall take the
necessary action with deposits held by him.

Thus the
amounts entered in a ledger which had remained in the suspense
account for five years without being claimed and paid would
be
transferred out of the suspense account to Government Revenue which
was under the direct control of the Accountant General.
An entry
would be made on the left side of the ledger showing that this
transfer had been made. But it was apparent that some of
these
amounts so transferred included sums already paid to claimants, but
not entered as having been paid on the left side of the
ledger.
Consequently an un­known quantity of money was shown as being
held in Government Revenue on behalf of beneficiaries
who in fact had
already received payment of whatever amount was due to them. This was
yet another indication of how inaccuracies
had crept into the ledgers
affecting the reliability of some of the information contained in,
them.

On
arrival at the sub-accountancy the claimant would present the letter
of authority for payment from the DLO with the chief's letter

attached. According

10

to the
sub-accountant, Mrs Kabane (PW 22) and her deputy, Mrs Matsipa (PW
21), the procedure then was to check the relevant ledger
entry. This
should show the same name of beneficiary, the amount to be paid, date
of receipt and receipt number as indicated in
the savingram from the
DLO. They relied entirely upon these ledgers but A.2 stated that he
preferred to check the information coming
from the DLO against that
contained in their copy of the beneficiary list on the
sub-accountancy files, as the information in the
ledgers was not
always accurate. Whichever way it was done, if the information from
the DLO agreed with that on record at the sub-accountancy,
the next
move was to check the identity of the claimant; that he or she was
the person named in the chief's letter as being entitled
to receive
payment of the amount due to the beneficiary. This was usually done
by the claimant producing a passport. However, some
claimants might
not have passports. When asked by the Court how such people were
expected to identify themselves, Mrs Matsipa (PW
21) said that they
would be told to go and obtain a passport; Mrs Kabane (PW 22),
however, said that, in such cases, at the sub-accountancy
they would
simply rely on the chief's letter presented. Mrs Shale (PW 17) the
DLO agreed. This was clearly no precaution at all
since a person
could obtain and use such a letter which was intended for someone
else. It would also be a breach of reg. 611 of
the Finance
Regulations, 19 73.

11

The
accountant would then prepare a payment voucher which would show the
claimant's name and address and the rest of the information
set out
above. The authority for payment would be shown as the DLO file
reference if the amount was still held in the suspense
account. If
the claim was made after five years had lapsed the amount was shown
in the Commitment Vote Book and the authority for
payment out of
Government Revenue would have to be obtained from the
Accountant-General and a reference to that authority would
be shown
on the voucher.

According
to Mr. Morolong, the Revenue Controller (PW 2), three people were
supposed to be involved in the preparation of each payment
voucher.
The first would compile and enter the information in the voucher, the
second would check and pass it for payment and the
third and senior
officer was supposed to check again and then authorise payment by
signing a certificate on the voucher to the
effect that payment was
in accordance with Financial Regulations, that funds were available
and that they had not been previously
paid.

A cheque
would then be prepared in favour of the claimant for that particular
amount and signed by two authorised officers. If the
claimant had no
bank account the same signatories would also sign the crossing to
cancel it so that the cheque could be cashed.

If these
procedures were followed faithfully then there would be several
checks made before payment and irregularities and improper
payments
could be avoided.

12

Unfortunately,
as it will be seen, these procedures were not carefully followed;
indeed they were largely ignored.

In
addition, the sub-accountancy was required to enter all payments in
the Vote Book which was balanced each week, as was the cash
book.
There would be recon­ciliation of payments and receipts and a
monthly Status of Funds Report based on warrants and payment
vouchers
issued. From the vagueness of Mrs Kabane and her deputy regarding who
was supposed to perform these duties over the period
in question, it
seems probable that the work was left to be done by subordinates.
Even where they spoke of balancing the books
themselves, they both
appeared to think that this work consisted only of adding up figures
, and that it was not necessary for
them to check the source and
correctness of those figures. Since they did not trouble to check the
ledger entries either, it can
be seen that hardly any precautions
were taken and the system was left wide open to errors and fraud.

Mr
Morolong said that the Vote Book had been audited but that there were
no signs that the ledgers and other records had ever been
audited. An
audit has to be carried out regularly, properly and throughly if it
is going to be effective in revealing irregularities.

In 1985
The Workmen's Compensation Trust Fund Regulations appeared. The
effect of these regulations was to set up a separate fund
which was
to handle all receipts and payments of compensation and estates
received from the Republic, thus taking these matters
away from

13

the
sub-accountancies and district labour offices.

On 26
March 1985 the Labour Commissioner sent a letter (exhibit 14) to all
Labour Offices and Sub-Accountants and others concerned
to the effect
that the transfer would take effect from 1 April 1985. The detailed
arrangements, especially with regard to sub-accountancies,
were not
well set out and, apparently, insufficient warning was given.
Consequently the actual transfer did not take place until
a month
later than planned, on 1 May 1985. It seems that all of the records
kept in the District Labour Offices and Sub-Accountancies
of receipts
of money for compensation and estates up until that date were
supposed to be transferred to the Labour Headquarters
for use by the
administrators of the Fund. Mr. Morolong (PW 2) said that the monies
received prior to 1985 would be transferred
to Government Revenue
rather than to be Compensation Fund, but this was not clarified
anywhere in writing at all.

The
receipt and payment of unclaimed wages from the Republic was not
included in the Fund and so this service was not transferred
at that
time. Mr. Shale (PW 17), the Maseru DLO, was vague about this point,
but he thought that unclaimed wages matters were transferred
to
Labour HQ sometime in early 1986.

In
addition, the witnesses revealed that a verbal arrangement was made
for the sub-accountancies to continue paying out claims for

compensation and estates which had originated from 1982 backwards, if
they were still held

14

in the
Suspense Account. But no written instructions to this effect were
produced in Court.

Further
complications were added to this whole business by the fact that the
Maseru Sub-Accountancy's ledgers were all removed from
it sometime in
early or mid 1986 for a different and unspecified enquiry being
conducted by the Revenue Controller, Mr Morolong
(PW 2). He was vague
as to the date, but it would appear to be most likely that the
ledgers were not in the Maseru Sub-Accountancy
during the whole
period now under enquiry, that is from August 1986 to January 1987
inclusive.

It has
already been explained that amounts held in the suspense account for
more that five years had to be transferred into Government
Revenue.
If they were claimed after such transfer, the authority of the
Accountant-General had to be obtained before making payment
of the
late claim. However, even this straightforward procedure was not
followed because it was considered to cause in­convenience
and
delay. In her evidence-in-chief Mrs Kabane (PW 22), the
Sub-Accountant stated very firmly that the written authority of the

Accountant-General had always to be obtained before paying out from
Government Revenue. However, when she was cross-examined about
it she
admitted that this was not so at all. She said that in spite of the
regulations, the Chief Accountant had told her verbally
that, if she
considered it was a proper claim from Government Revenue, the
sub-accountancy could make the payment without waiting
for, or even
obtaining,

15

Treasury
permission and inform the Accountant-General about it afterwards.
Thus was eroded yet another precaution against wrongful
or improper
payments. One would have expected that senior officials could
understand and appreciate the vital need for ensuring
the proper
enforce­ment of these clearly necessary precautions.'

Such
payments as were made during this period under this relaxed procedure
were supposed to be in connection only with monies received
from the
Republic before 1982, but nobody seems to have kept any check or
control over them. Thus, in spite of the various pro­cedures
and
checks described above, irregular and improper payments were made
throughout the period in question. It was not until February
1987
that the senior accountant, Mrs Matsipa (PW 21), first noticed what
was going on in her department. Proper periodical checks
would have
discovered it before.

On 16
February 1987 she had before her a payment voucher (exhibit 17A)
prepared by A.2 for payment of an unusually large amount,
M.4170, to
one M. Raliopane (which also happens to be the married name of A.1),
described in it as estate held in the suspense
account since 17 March
1980 and then transferred into Government Revenue on 31 March 1985.
A.2 had not only compiled the voucher
but he had checked and passed
it and then authorised payment on it, instead of getting someone else
to do this as he was supposed
to do.

16

The
voucher was supported by a savingram (exhibit 172) written by A.1. in
the DLO authorising payment. This was attached to a small
piece of
paper purporting to be a letter from the Chief of Makhalaneng
(exhibit 17C) identifying one M. Raliopane as the proper
claimant,
but without giving any details of the nature of the claim or naming
the beneficiary. Furthermore, the chief's date stamp
had clearly been
tampered with as the figures of the date were of different sizes.

On
further checking it was discovered that the same payment, on the same
receipt, had already been claimed and paid on 31 October
1985, nearly
16 months before, to one J. M. Molapo in respect of the estate of his
late father Papiso Molapo (exhibits 17D-J).
Examination of the ledger
and other records revealed that this was a proper payment and that
the later claim for the same amount
was improper and it could not be
supported. Mrs Matsipa reported the matter and the present
investigation was commenced.

As a
consequence something was done which should have been done long
before. A check was carried out of earlier payment vouchers
and
ledgers. This uncovered eight more alleged improper payments, all
based on pay­ment vouchers admittedly authorised by A.2
and
supported by DLO authorities admittedly written by A.1. These
docu­ments were passed to Captain Sempe (PW 23) of CID/HQ
and
then to Detective W.O. Matheu (PW 1) who put them into Court as
exhibits 1 to 8. Since the relevant ledgers,

17

which
were for the financial years 1983-84, 1984-85 1985-86, were held by
the Revenue Controller, Mr Morolong (PW 2),the extracts
from those
ledgers were put in by him as exhibits 9-13.

Of the
eight cheques for these queried payments, in each case one of the
signatories was A.2. Six of the cheques (exhibits 1A, 3A-6A
and 8A)
were also signed by Mrs Kabane (PW 22) who insisted that she signed
them all in blank without checking the documents relevant
to them.
One cheque (exhibit 2A) was countersigned by Mrs Matsipa, who also
asserted that she signed it in blank without checking
the documents.
The remaining cheque (exhibit 7A) was countersigned by one Mrs
Rafutho, an assistant accountant, in the absence
of Mrs Kabane who
was said to be on maternity leave at that particular time. Mrs
Rafutho did not testify, so whether she also signed
in blank without
checking supporting documents is not known, but it seems likely. A.2
denied that any of these eight cheques was
signed in blank by anyone,
but I cannot see any of these senior officials admitting such a
serious breach of regulations unless
it was true, and I believe them
on this point.

Mrs
Kabane (PW 22) stated, without showing any obvious sign of concern,
that she had frequently signed cheques in blank since she
took over
as Sub-Accountant in 1984. She said repeatedly that she always
trusted her staff and she saw no need to check their work.
About the
blank cheques, she claimed that she had to do this due to "pressure
of work" so as not to keep members of the
public waiting too
long for their cheques as she was

18

often out
of her office. I suspect that it was more her own convenience that
concerned her and I cannot help wondering what occupied
her time so
much since she apparently constantly neglected her proper duties. She
made no inspections or checks and exercised little
or no supervision
of her staff, and she showed insuffi­cient concern for what was
happening to public funds under her control.
Her deputy, Mrs Matsipa
(PW 21), gave similar reasons for signing cheques in blank and
failing to supervise staff. Both of these
senior officials admitted
that they were well aware that it was contrary to regulations to sign
blank cheques, but they seemed
to be satisfied that their own
convenience took precedence over the security of Government funds.
They even maintained that it
had caused no problems at all, though I
suspect that a thorough audit and check would reveal considerably
more irregularities than
have been brought into the open in this
Court.

At the
Maseru District Labour Office Mr Shale (PW 17) stated that all of
their files and registers dealing with compensation and
estates were
transferred to Labour Headquarters as from May 1985 to be dealt with
by the Workmen's Compensation Fund Committee.
He added that one
Mamosa Fako, the clerk dealing with such claims at the DLO, was
transferred with all the records, and that the
DLO had no more to do
with such claims and that A.1 was well aware of this arrangement. In
fact she denied that it had happened.
Neither Shale

19

nor A.1.
spoke of any special arrangement to continue payments of amounts
received before 1982.

In spite
of this position, in the period between August 1986 and February
1987, A.1 wrote the eight Labour Office letters of authority
to pay
the queried payments as well as the supporting letter (exh. 17B) to
the queried voucher (exh. 17A) which initiated this
enquiry and
investigation.

I have
referred to various financial regulations setting out orocedures for
safeguarding Government Revenue and also to written
instructions
regarding the setting up and operation of the Workmen's Compensation
Fund. Unfortunately various verbal instructions
varied, and to some
extent nullified the written orders (as described above). These,
together with inefficiency, lack of control
and irresponsibility in
the offices concerned, resulted not only in irregular and improper
payments but have also served to confuse
the issues in the charges
brought against the two accused.

The two
accused are charged with the offence of theft in the eight main
counts, which are counts 1, 3, 5, 7, 9, 11, 13 and 15. In
South
African Common Law theft consists of "an unlawful contrectatio,
with intent to steal, of a thing capable of being stolen."
This
word contrectatio is peculiar to the Roman-Dutch system and even
their leading writers do not appear to be very certain exactly
what
it means. Some authorities

20

hold that
there must be proof that the accused has assumed control of the
object and that the the complainant has been deprived
of that
control; Other authorities hold that a mere handling of the object
suffices, though that would generally seem to indicate
an attempt
only.

In the
present case the amounts of money referred to were either the
property of or in the possession of the Government, held for
it in
its bank account. Thus the Government had control of the money and it
must be proved that the accused intended unlawfully
to deprive the
Government of that control by permanently depriving it of the money.
While the preliminary paper work involved in
making the queried
payments was admittedly carried out by the two accused, together with
other people, the problem for the prosecution
is to prove the
ultimate handling and assumption of control of the money by either or
both of the accused. This is the contrectatio,
and that is where it
seems that the prosecution is most likely to fail in cases of this
type.

With
regard to the alternative counts of theft by false pretences, this
peculiar offence is yet another one known only to South
African
Common Law. It raises problems not generally applicable in the more
widely known offence elsewhere of obtaining by false
pretences, which
does not contain the elements of theft.

21

Theft by
false pretences is committed by any person who unlawfully, with
intent to steal, and by means of a misrepresentation effects
a
contrectatio of property capable of being stolen. The contrectatio is
the same as in ordinary theft and it raises the same problems.
But,
in addition there is the big problem of causation in this strange
offence. That is that the misrepresentation made by the
accused must
(1) have been believed by the owner, and (2) have induced him to
permit the contrectatio. This Court was not addressed
by either the
prosecution or the defence upon any of these legal requirements and
how they are applicable to this particular case.
It is clear,
however, that the requirements raise some doubts about whether this
is an appropriate offence to charge in these circumstances.

If A.2
prepared and/or authorised payment vouchers in the names of persons
not legally entitled to receive the various amounts stated
in the
vouchers, as in fact he did, the prosecution must first prove his
unlawful intent as distinct from merely his negligence
and
incompetence. Secondly it must prove that someone was induced to pay
as a result of the misrepresentation made by means of
the false
documents from the DLO and the sub-accountancy.

If the
owner is the Government how is it to be proved that the Government
believed the misrepresentation and was induced by it to
permit the
contrectatio by the two accused? Who represents the Government in
such

22

instances?
The senior official involved appears to have been the Sub-Accountant
Mrs Kabane (PW 22). But therein lies the problem.
She was indeed
involved. She was the main signatory on seven of the cheques. Did she
sign the cheques because she was deceived
or misled by the documents
presented to her? If she is to be believed the documents were not in
fact presented to her. She says
she never saw them and that she
sighed the cheques in blank in advance of the various operations.
Thus there would appear to have
been no deception of her as a person
or as a representative of the Government. If she had not been so lazy
and incompetent and
irresponsible she or her deputy would have made a
proper check of the documents and ledgers and the improper payments
could have
been prevented. Indeed they would probably have never been
initiated if she was known to be carrying out her duties properly.
She
and her deputy are thus very much to blame in this matter, not
the least for putting temptation in the way of the accused and others

to take advantage of their seniors' irresponsibility and to embark on
some sort of fraudulent escapade.

Looking
at the evidence before the Court I am unable to discover where a
misrepresentation was made to any specific person or, if
it was, who
believed that misrepresentation. If the accused had personally
presented a cheque to the bank and collected the money
there would
have been an offence of obtaining money by false pretences under
English Common Law and statutes, but it would not
have been theft.
This present offence

23

of theft
by false pretences involves a misrepresentation believed by the
owner, not the bank. As we have seen, the "owner"
or its
representative was not proved to have believed or indeed known
anything at all. The offence of Fraud, which might have been

applicable in other jurisdictions, was not charged here and so I
shall not consider it. But it could well be that the South African

variety of that offence would also have to be ruled cut.

Consequently
I find that the prosecution has failed to prove any offence of theft
by false pretences and the eight counts (numbers
2, 4, 6, 8, 10, 12,
14 and 16) cannot succeed. This leaves only the eight main counts of
theft simpliciter for consideration.

The first
count alleges the theft of M.1475.89 on or about 22 August 1986. The
bundle of documents con­tained in exhibit 1 is
relevant here.
These show that two payments, of the same amount were made on
different dates from the sub-accountancy.

Looking
first at exhibit 9, which consists of pages 7-8 of the 1985-86
Suspense Account Ledger, there is an entry showing that on
10
December 1980 receipt number 2324 was issued for various sums of
money, including one amount of M.1475.89 on behalf of a beneficiary

named Mohale Johannes Marupelo. Four years later, on 17 December
1984, an official letter typed on headed notepaper, with a file

reference number from the office of the Principal Chief of
Thaba-Bosiu, was addressed to the Labour

24

Office
Maseru (exhibit l.H). The translation reads:

"I greet you. Mohale Johannes Marupelo, coy. no.89230, of chief
Mosuoe Theko of Lethena village is now dead. Now we are bringing
to
your attention 'Mapakiso Marupelo who is the bene­ficiary of the
said deceased. She is requested to be given the moneys
which are due
to the deceased on the instructions given in the letter dated 31/3/80
which letter is accompanying this one and also
the letter from the
entire family. Yours faithfully, Signed Principal Chief etc."

On this
letter is the Chief's rubber stamp dated 17 December 1984 and that of
the Local Administration Officer, Maseru, dated 20
December 1984.
Supporting this is a typed savingram from the Maseru D.L.O. to the
sub-accountant dated 21 December 1984 and signed
by the clerk Fako
(exh.lH). It contains the names of the beneficiary, the claimant, the
village chief and the amount of compensation
due, with the receipt
number and date. A payment voucher (exh l.G) was then prepared at the
sub-accountancy showing the same in­formation.
This voucher, was
checked by A.2 who also authorised payment. He and Mrs Kabane were
the signatories on the cheque (exhibit l.F)
which has a bank teller's
payment stamp on it dated 21 December 1984.

Furthermore,
the claimant/payee, 'Mapakiso Marupelo (PW 12), testified that she
was the widow of Mohale J. Marupelo and that she
received that amount
at the end of 1984. An entry on the left side of the ledger (exh.9)
shows that the amount was paid to her
on 21 December 1984. There was
no dispute that this was a correct payment as testified to by the
various officials.

25

However,
nearly two years later, on 22 August 1966, A.1 wrote a savingram
(exhibit l.D) from the DLO Maseru requesting the sub-accountant
to
pay the same amount to one Mapheello Rosina Shale as estate money due
to her. The deceased beneficiary was not named but the
same receipt
number 2324 was shown and the date of the receipt was erroneously
written 16 December 1980 instead of 10 December.
A letter (exhibit
l.E) purporting to come from the Chief of Boinyatso was sent in
support. The letter was written on the bottom
half of a torn sheet of
exercise book paper. The translation reads:

"The Administration of Labour Maseru, According to your letter
dated 29/7/86 I bring to your attention Mapheello Rosalea Shale
who
is the beneficiary of late Mampeng Shale. Yours faithfully, Makhabane
Makotoko, Chief of Boinyatso."

The
letter has no official heading, no reference number and the date on
the Chief's date stamp has clearly been tampered with as
the figures
are of different size and one date is superimposed over another. Mr
Morolong (PW 2) stated that he suspected that this
letter was not
genuine, but the chief named in it was not produced as a witness, nor
was the alleged claimant 'Mapheelo R. Shale.

According
to the Sub-Accountant, Mrs Kabane (PW 22), A.2 brought the DLO
savingram and chief's letter to her because more than five
years had
passed and so the amount, if it had really still been unclaimed,
would have

26

been
transferred to Government Revenue in December 1985. Without bothering
to check the Ledgers or any records, which showed the
amount as
already having been paid (exh.9), Mrs Kabane told A.2 to write to the
Commissioner of Inland Revenue to obtain permission
to pay the
claimant. Mr Morolong said that she should have written to the
Accountant General in fact. Mrs Kabane said that A.2
told her that he
did not know how to write such a letter so she wrote a savingram
(exhibit l.C) requesting the Commissioner of
Inland Revenue to pay
the claimant. Shale the amount which Mrs Kabane claimed had been
transferred to Government Revenue. It was
in fact a bogus request
since the amount had already been paid out.

No such
authority was obtained. Instead of sending the original savingram to
the Commissioner, it was attached to the payment voucher
prepared by
someone called Mopili and checked and authorised by A.2. A cheque for
that amount (exhibit l.A) payable to Mapheello
R. Shale was once
again signed by A.2 and Mrs Kabane, who said she signed it in blank.
The cheque was signed twice on the back
in the name "Rocina
Mapheello Shale." Although, as I have already pointed out, this
person, if she existed, did not appear
as a witness. There is also a
business address stamp on the back in the name of "Maluti Motors
Lesotho (Pty) Ltd of Maseru.
This was identified by one Ebrahim
Rehman (PW 7), a director of Maluti Motors.

27

Rehman
stated that he knew A.1 by sight but not her name. She used to come
from time to time to his garage in 1986-87 with people
who wanted to
cash their Government cheques, usually after the banks had closed or
because they had no passport to show. This particular
occasion, in
August 1986, was the first time and A.1 came with an old lady whom
she said had lost her husband in the mines. Rehman
asked why the
Government was paying her and not the mines. A.1 explained that the
mines paid the Government which then paid the
deceased's family.
Rehman stated that at the garage, they paid cash in a lot of cases
where people brought Government cheques to
him, but they limited the
amounts of cash paid out to M.400.00. This was for over three times
that amount and so he offered to
pay it in three instalments which,
he said, the lady accepted after some discussion with A.1 in English.
Rehman said that the cheque
was already signed on the back when it
was handed to him.

For the
defence A.1 gave no real explanation about why she wrote the
savingram of authority for this double payment, nor was she

cross-examined about it. She did not say why she did not question the
obviously suspicious letter from the chief, nor did she explain
from
what records she obtained the name Shale as the beneficiary and
claimant of the second payment of this amount; nor why she
authorised
payment over a year after such matters had been taken over by the
Workmen's Compensation Fund. That was both negligent
and extremely
suspicious, apart

28

from the
fact that she clearly made no proper check of the records which
should have revealed that payment had already been made.
However,
there was no evidence that she received any of the money paid out.
The position might have been different if the claimant
Shale had been
produced as a witness. As it stands there is a clear case of gross
negligence and irresponsibility by A.1, but insufficient
evidence of
theft, because of there being no assumption of control of the money
(contrectatio) by her, and so she must be must
be acquitted on this
count.

With
regard to A.2 it has already been pointed out that both he and Mrs
Kabane signed both cheques and so they were responsible
for the
correct payment as well as the improper payment. A clear case of
gross negligence by both of them. The question is whether
it also
theft by A.2.

In his
defence A.2 agreed that the amount had been paid out twice. His
explanation was that the ledgers had been removed from the

sub-accountancy by then and so he could not check them so as to
discover whether or not the amount had been paid and to whom.
However, he had earlier in his testimony constantly repeated that he
did not normally use the ledgers in his work because he found
them to
be unreliable. He maintained that he always used and relied instead
upon what he called the Beneficiary list. Thus he contradicted
his
own defence, and did so very unconvincingly in my opinion.

29

Furthermore,
he had insisted that payments out were also recorded on the list of
beneficiaries by cancelling that particular beneficiary.
So why did
he make a second payment? Also where did the second beneficiary
Maruping Shale (see exhibit l.E) come from? The name
did not appear
in the ledger (exh.9) and so, presumably, was not included in the
list of beneficiaries which must have shown the
real beneficiary,
Mohale Johannes Marupelo, as we have seen already. The second
claimant 'Mapheello Rosina Shale was only mentioned
in A.l's
savingram (exh. l.D) and A.2's voucher and cheque (exhibits 1A and
B). Neither of the accused explained from where this
name originated.
Because of the removal of the ledgers and the failure of Mrs Kabane
to check anything, the answers to these questions
were not revealed.

Another
puzzle is why A.1 sent a savingram autho­rising payment of the
amount to Shale as deceased's estate, yet A.2 made a
cheque out for
the amount as payment of wages. Again there was no explanation given
of the different services referred to.

The
explanation of both accused as to why they were purporting to deal
with such claims in August 1986, over a year after the whole
business
had been transferred to the Labour Headquarters for the Workmen's
Compensation Fund to deal with, was that they were still
permitted
and required to continue paying out claims on amounts received at the
sub-accountancy before 1982, as this one

30

was. Both
Mrs Kabane and her deputy, Mrs Matsipa, agreed that this was
generally so, although there was no evidence adduced of any
such
arrangement or instruction having been given in writing at any time.

In
addition, if the amount had not been paid out in 1984, as already
described, it would have remained in the suspense account for
over
five years and so, by December 1985, would have been transferred to
Government Revenue. It would then have required the authority
of the
Accountant-General to release it for payment. As usual without
checking anything, Mrs Kabane wrote asking the Commissioner
of Inland
Revenue (exh. l.C) for payment to be effected. This was at the
instance of A.2 who naturally would not have wanted the
letter to go
to its destination if, as seems likely, he knew the whole exercise
was fraudulent. Thus Mrs Kabane's original letter
was merely attached
to the voucher, making the purpose behind it pointless.

Clearly
A.2's part in all this was highly suspicious and it' could not have
been innocent as he claimed. He acted improperly and
was grossly
negligent in making this payment. His attempted explanations I found
to be most unconvincing and I do not believe him.
But there was no
evidence at all that A.2 had received, handled or assumed control of
any of the money paid out to Shale, or whomever
used that name, and
so there was no contrectatio and thus no theft proved. Consequently
A,2 also must be acquitted on this count
(count 1).

31

Count 3
alleges the theft of M1320 on or about 18 September 1986 (exhibit 2
refers). Page 25 of the 1983-84 Suspense Account ledger
(exh. 10) has
an entry for that

amount on
receipt number 25445 dated 21 May 19 79 on behalf of a beneficiary
called Andreas Makhomo. There is no entry on the left
side to show
that it was ever claimed and paid out. Nor is there any entry on the
left side to indicate that any of the sums shown
on page 25 were
transferred to Government Revenue at the end of five years in 1984.
Mr Morolong (PW 2),who had all of the ledgers,searched
for and found
an entry on page 22 which transferred the amounts on the various
pages around it to Government Revenue. However,
the entries to that
effect ought to have been made on each and every relevant page if the
work had been done properly.

At any
rate, by 1986 that amount was no longer held in the Suspense Account,
but it was in Government Revenue. This time we are
looking at a
single improper payment, not a double payment of that amount.

On 18
September 1986 A.1 provided the sub-accountancy with a savingram
(exh. 2c) authorising the payment of this same amount to
one "Mr
M. Mothibeli" as compensation due to him. No other particulars
were supplied about the claimant. Reference was
made to the same
receipt number 25445 dated 21 May 19 79 as shown in the ledger above.

This
savingram was supported by what purported to be a letter from the
Chief of Qoaling Ha Besele (exh 2D) date stamped 22 January
1986
(eight months before A.1

32

wrote her
letter). The translation of the Chief's letter reads as follows:

"I greet you. I bring to your attention Mr. Mothibeli who is my
subject with the agreement that he must come and take compensations

due to Makhomo Mothibeli. I will be very grateful for your help.
Yours faithfully Chief of Qoaling."

This
letter is highly suspicious for various reasons. It was not addressed
to anybody or office nor was it signed. It had been written
on a torn
scrap of lined paper on which had previously been written a letter of
the same length as this one. But the earlier writing
had been rubbed
out rather ineffectively showing the marks of the previous writing,
particularly the diagonal strokes of letters.
Superimposed on to this
was the present letter.

Maneo
Matsoso (PW 9) the Chieftainess of Qoaling-ha-Besele testified that
she had been in office there since 1968. She said that
the date stamp
on the letter (exhibit 2D) appeared to be her office stamp but the '
handwriting was neither hers nor her assistant's.
She did not know
anyone named Andreas Makhomo (the beneficiary's name in the ledger)
nor anyone named Mothibeli. She added that
she always signs her
letters "A.M. Matsoso" and that she would normally send
such a claimant with an introductory letter
to the Principal Chief at
Thaba-Bosiu first. This letter was not hers.

33

It is
perhaps significant that on the back of this letter there are two
Maseru sub-accountancy date stamps. One is 24 January 1986
and the
other is 18 September 1986. The first fits in with the Chieftainess's
date stamp of 22 January 1986. Thus the letter appears
to have passed
through the sub-accountancy twice. This might also explain why there
is one letter apparently; written on top of
another.

This
obviously fake letter together with A.l's savingram reached A.2 in
the sub-accountancy. He then produced a payment voucher
(exhibit 2B)
entirely on his own. He admitted that he prepared and wrote it,
checked and passed it and then authorised payment
and signed the
cheque. This, as we have seen was not the proper pro­cedure as it
meant that nobody else checked it before payment.

The
voucher referred to compensation of M.1320 to be paid to M. Mothibeli
of Qoaling. It also referred to the same receipt number
and date as
shown above from the ledger. It added that the amount had been
transferred from the Suspense Account to Government
Revenue on the
authority of "IN REV/2/86-87."

The
cheque was countersigned by Mrs Matsipa (PW 21) who admitted that she
signed it in blank and never saw or checked the documents.
A witness
Mathews

Mothibeli
(PW 10) testified that he was unemployed and formerly a boarding
master at Life High School in Maseru.

34

He knew
A.2 from the time when they had earlier lived in the same area at
Fokothi where they were friends. He described how A.2
came to him
sometime in 1986 and asked him to use his passport so as to withdraw
money from the bank on A.2's behalf. A.2 explained
that he was very
busy and his own passport had expired and he would give Mothibeli M50
after withdrawing the money. Since a passport
could then be renewed
for only M.5, one tenth of that amount offered (see exhibit 18)
Mothibeli should have been very suspicious
of this offer. But he was
not, possibly because he was unemployed and M.50 was a temp­ting
amount. Also he did not appear to
be a very in­telligent person.
A.2 took him to the sub-accountancy and told him to wait outside. A.2
came out with a cheque
in an envelope and gave it to Mothibeli who
looked at the cheque. He identified it as exhibit 2A and said he saw
his own name,
M. Mothibeli, written on it as payee and he asked A.2
about it. A.2 repeated his story about not having time and his
passport having
expired, and told Mothibeli to take the cheque to the
standard Bank and to cash it and bring him the money.

Mothibeli
obediently went alone to the bank, showed his passport and signed."M.
Mothibeli" on the back of the cheque.
The teller then copied the
number of his passport on to the back of the cheque. He was given
M.1320 which he put into the envelope
that had held the cheque. The
cheque was stamped paid by Standard Bank teller number 8 on 19
September 1986. Mothibeli went back
to the sub-accountancy and waited
outside as instructed

35

by A.2.
After a short while A.2 came outside and received the envelope and
contents and took it into the office, telling Mothibeli
to wait
outside. He came out again

and gave
Mothibeli M.50, who was satisfied and went away.'

He
admitted that he was not due or entitled to re­ceive any such
money from Government although the cheque was made out in his
name.
He simply did gladly what A.2 told him to do and did not argue about
it. No doubt be­cause he wanted the M.50 for performing
this
simple errand. He said that he had never seen the DLO savingram
(exhibit 2C) nor the purported chief's letter (exhibit 2D).
Nor did
he know the Makhomo Mothibeli mentioned it. He did not know anyone
called Andreas Makhomo either.

For the
defence A.1 agreed that she wrote the savingram from the DLO (exhibit
2C) based on the chief's letter (exhibit 2D). She
could not recall
seeing the witness Mothibeli as the claimant but insisted that she
must have seen the claimant, obtained his name
and sent him to the
sub-accountancy. She knew nothing about the ledger entry in the name
of Andreas Makhomo for the same amount
and she did not consider it to
be relevant. She stated that it did not matter to her that Mothibeli
was not connected to Andreas
Makhomo and that he was not entitled to
any payment. She considered that she had done her duty just by
preparing the savingram.
She added that it did not matter that the
chief's letter (exh. 2D) was not signed. She was not required to look
for signatures
and she considered the chief's date stamp

36

to be
sufficient. None of these things concerned her and she was only
required to arrange for payment without making such checks
and she
declared that she had done her duty. It was a most unimpressive
performance by an accused in Court and the only thing it
convinced me
of was that she was obviously lying and extremely irrespon­sible
and negligent about her duties.

A.2
admitted that he compiled, checked and authorised. the payment
voucher (exh. 2B). He asserted that they never had to obtain

permission from the Accountant-General regarding payments from
Government Revenue. This in spite of what the Revenue Controller
(PW
2) and the Sub-Accountant and her deputy had testified to the
contrary. He did not agree with them. He said that he might have

dealt with this Mothibeli (PW 10) but did not remember doing so.

As
regards the beneficiary, Andreas Makhomo, named in the ledger, once
again A.2 said that, in spite of that entry, he relied entirely
on
his beneficiary list (which was never produced) and he considered
that he had made a proper payment. However, he denied sending

Mothibeli to the bank and receiving money from him. He said that
Mothibeli was lying about that. He said that he did not know whether

Mothibeli was not entitled to any payment as the witness had stated,
but he, A.2, was satisfied that Mothibeli was in fact authorised
to
receive payment. He did not know why Mothibeli had lied about what
happened.

I did not
find A.2's explanation either impressive or convincing. The fact that
Mrs Matsipa had signed the

37

cheque in
blank and had not bothered to perform her duty of checking the
voucher and other documents made it very easy for these
accused to
carry out this operation. By performing the functions of three people
A.2 had kept the voucher to himself alone. He
wrote it; checked it
and authorised payment and then prepared and signed the cheque
conveniently countersigned in blank in advance
by Mrs Matsipa.

He took
advantage of Mothibeli (PW 10) who was unemployed and in need of
money and so apparently ready to do what he was told without
asking
awkward questions. Mothibeli was not bright enough to have worked out
this operation himself and I find his version to be
convincing and
credible. He was simply used by the two unscrupulous accused.

Both of
the accused were in position and able to plan and prepare the
necessary documents, although it the is clear that documents
would
never have stood up to a careful inspection by the sub-accountant or
her deputy if either had been performing her duties
properly.

I do not
accept the feeble explanations given by the two accused and I am
satisfied beyond reasonable doubt that they worked together
with a
common purpose to obtain M.1320 unlawfully from Government Revenue to
which they were not entitled.

With
regard to the contrectatio, I accept the testimony of Mothibeli that
he handed over the money to

38

A.2. As
for A.1., as I have held, she was an accessory to A.2 by providing a
clearly irregular and unauthorized letter of authority
to pay someone
who was not entitled to that amount, or indeed any other amount from
Government, supported by a fake letter purporting
to have come from a
chief. Such' a stamped letter would easily have been available to the
accused from their files. The fact that
the original words had then
been rubbed out by someone and that there were two separate stamps of
the sub-accountancy on widely
different dates, indicated the double
use of this piece of paper, which in addition was unsigned and denied
by that particular
chieftainess. Consequently I find that A.1
assisted A.2 to obtain and steal the money unlawfully and so both
accused are convicted
of theft of Ml,320 on this count (count 3).

Count 5
alleges the theft of M3.399.38 on or about 10 October 1986. The
bundle of documents contained in ex-hibit 3 is relevant
here. These
show that two payments of the same amount were made on different
dates from the sub-accountancy.

Looking
first at exhibit 11, which consists of pages 10-11 of the 1984-85
Suspense Account ledger, there is an entry showing that
on 26 October
1979 receipt number 227439 was issued for two different sums of
money, one of which was for M3,399.38 on behalf of
a beneficiary
named Phala Tekane. This was as a result of receiving a form from the
Department of Bantu Administration and Development
in.

39

Sasolburg,
R.S.A., (exhibit 3J) to the effect that a telephone exchange worker
named Phala Tekane had died on 12 June 1979 and that
a warrant for
the above sum due to him had been sent. The deceased's wife was shown
as Valeria Mpolai Tekane.

A year
later, on 22 October 1960, an official letter, typed on headed
notepaper, with a file reference number from the office of
the
Principal Chief of Thaba-Bosiu ha Ratau, was addressed to the Maseru
Labour Office (exhibit 3H). The translation reads:

"I greet you, sir.

Sir, I bring in front of you a woman called Valeria Mpolai Tekane who
lives under the Chief of Boithatelo in the village of ha
Nkhema whose
husband died after arrival here in Lesotho due to illness in 1979
coming from the Republic at Lendley No. 43 Sasolburg
Telephone
Exchange; so his wife is requesting to be given the compensation on
behalf of her husband's death, who had been at work.
Sir, I would be
very grateful for the help you are going to give to her. Greetings
from Letsie K. Theko Principal Chief of Thaba-Bosiu
and Ha Ratau."

On this
letter is the Chief's rubber stamp dated 22 October 1980 and those of
the DLO Maseru and the sub-accountancy both dated
27 October 1980.
Supporting this is a typed savingram (exhibit 3G) from the Maseru DLO
to the

40

sub-accountant
dated 27. October 1980 and signed by one M. Rampholi. It contains the
names of the claimant and a reference to the
amount due and the
receipt number, and the letters from the chief and from Sasolburg. A
payment voucher (exhibit 3F) was then prepared
at the sub-accountancy
for that amount and showing similar information. The signatures on it
indicate that one person compiled
the voucher, a second checked and
passed it, and a third authorised payment. This was apparently in
accordance with the laid down
procedure. A cheque (exhibit 3E) was
prepared and handed over to Valeria Tekane (PW 13) who testified that
she received the money.
The cheque has a Standard Bank: teller's
stamp on it showing it was paid on 27 October 1960. It is noticeable
that no entry was
made in the ledger on the left side to indicate
that this amount had been paid. The only entry on that side shows
that all amounts
on that page were transferred to Government Revenue
on a date not specified. However, there was no dispute that this was
a proper
pay-ment to the widow of the beneficiary, as stated by Mr
Morolong (PW 2).

Six years
later, on 9 October 1986, A.1. wrote a savingram (exhibit 3C) from
the DLO Maseru requesting the sub-accountant to pay
the same amount
to one Mrs Mamookho Ntjana as estate due to her. The deceased
beneficiary was not named, but the same receipt number
227439 and
receipt date 26 October 1979 were referred to. A letter (exhibit 3.D)
purporting to come from the Chief of Tloha-Butle
was sent in support.
It was written on the bottom half of a torn sheet of lined paper.,
The chief's stamp shows the date of 24
July 1986. The translation
reads:

41

"The Manager, I greet you. I bring to your attention Mamookho
Ntjana as the one who has to receive the compensations of the
estate
of Monghali Tekane. I give evidence to the effect that she is the one
who is the heiress of that family. I will thank you
for your help.
Moshoeshoe."

The
letter has no official heading, no reference number and it is not
addressed to any particular office. The Chief of Tlo-ha-Butle,
Majara
Taka Moshoeshoe (PW4) testified that he had been in office since
1945. He said that he never writes directly to the Labour
Office but
only to the Principal Chief first. He said the date stamp was similar
to his but the handwriting and signature were
not his nor his
assistant's, nor does he use that type of paper. He did not know
anyone named Ntjana or Tekane in his village.

A payment
voucher (exhibit 3B) was prepared by A.2 who also checked it and
authorised payment. The payee was shown as M. Ntjana
of Ha Mofoka.
The same amount and receipt number 227439 and date were shown and the
fact that the money was held in Government
Revenue. The authority for
payment was given as the reference number of A.1.'s savingram. A.2
prepared and signed the cheque (exhibit
3A) made out to M. Ntjana for
estate payment. The other signa-tory was Mrs Kabane (PW 22) who said
that she signed it in blank
and she did not see the supporting
documents. So no inspection and check was made.

The
cheque was signed on the back in the name of

42

Mathabo
Ntjana and stamped as paid on 11 October 1986 by a teller at the
Standard Bank. However, this Ntjana did not appear as a
witness.

For the
defence A.1 agreed that she wrote the savingram (exh. 3C) and that
there was no mention in it of the name of the beneficiary.
She also
agreed that the chief's letter (exh. 3D) was not addressed to anyone,
but she insisted that she had relied on it. With
regard to the
records showing M3,399.38 against the name Phala Tekane, A.1.
asserted that her records and files had other names
listed apart from
Tekane. She did not appear to think it unlikely that someone else
would also be due for exactly the same odd
amount at the same time.
She merely referred vaguely to her records without specifying or
producing any documents. A.1 said there
was no record of any earlier
payment and that she was completely satis-fled by what was clearly a
most unsatisfactory letter purporting
to came from a chief. She said
she did not mind who brought such a letter; she would pay them if
they just produced it. Once again
she demonstrated her
irres­ponsibility and uncaring attitude with regard to her
duties. She did not explain why she arranged
to pay under a service
which had been removed from the DLO Maseru.

A.2
agreed that he prepared and authorised the payment voucher (exhibit
3B). He maintained that the earlier payment was to a different
person
(which it was, of course) and that funds were nevertheless available
to pay the same amount to his payee Ntjana. He said
that

43

the
receipt number meant nothing as "they were always the same",
whatever that was supposed to mean. He repeated that
the ledgers
contained errors and he always used the Beneficiary List (which again
was not produced). It is difficult to understand
why they bothered to
keep ledgers in the sub-accountancy if they were so very unreliable.
In addition, since a part of A.2's duties
was to supervise the clerks
who made the entries in the ledgers, perhaps he should have done
something about making sure they were
properly kept.

Neither
of these accused gave any satisfactory or convincing answers or
explanations. Both of them were responsible for the improper
payment
and they were grossly negligent. However, the prosecution did not
produce as a witness the person Ntjana, or whomever received
payment
from the bank, and consequently there was no evidence of any of the
money being received by either of the accused. Without
this evidence
of contrectatio the charge of theft cannot succeed. Thus, in spite of
the very strong sus­picions and available
evidence the two
accused are acquitted on this count (count 5).

Count 7
alleges the theft of M1,232.80 on or about 13 November 1986. The
bundle of

documents
contained in exhibit 4 is relevant here. Page 15 of the 1984-85
Suspense Account Ledger (exhibit 12) has an entry for
that amount on
receipt number 357390 dated 31 March 1980 on behalf of a beneficiary
named Teboho Tsoeu. There is no entry on the
left side of the ledger
page to indicate

44

whether
it was ever claimed and paid out. Apart from another entry lower oh
the page, all of the amounts listed were shown as having
been
transferred to Government Revenue on 29 March 1985. Thus by 1986 that
amount was no longer held in the Suspense Account. This
is apparently
another example of a single improper payment, not a double payment of
one amount.

On 11
November 1986 A.1. provided the sub-accountancy with a savingram
(exhibit 4C) authorising the payment of this amount to one
"M.
'Mope" as unclaimed wages. She referred to the same receipt
number, 357390 dated 31 March 1980 as shown in the ledger
above.

This
savingram was supported by what purported to be a letter from the
Chief of Lithabaneng (exhibit 4D) written on the lower half
of a torn
sheet of lined note-paper. There was a chief's date stamp on it with
the date 11 January 1980 (ten months before the
DLO savingram was
written by A.1.). The translation of the Chief's letter reads as
follows:

"
Manager of Labour,

I first
of all greet you and then bring before you my subject M. Mope. I give
evidence that she is the one to come before you to
collect the
com­pensation of Mr. Tsoeu. I thank you for your co-operation.
Chief of Lithabaneng."

45

This
letter is questionable for various reasons. The letter was hot sighed
at the bottom. But at the top, inside the date stamp,
is written a
name L. M. Keiso. The date inside the stamp appears to have been
tampered with. Lepipi Mothobi Keeiso (PW 6) testified
that he has
been Chief of Lithabaneng for nine years. He writes all of his own
official letters and he said he had never written
to the Labour
Office about compensation for anyone. He would send such people to
the Principal Chief. He said that the letter (exh
4D) was not written
by him, although the date stamp and the signature inside it appeared
to be his. However, he said that he always
puts his date stamp and
signature at the bottom of his letters, not at the top. As this piece
of paper had been torn at the top
it was possible, he suggested, that
his stamp and signature had referred to a letter in the top part of
the sheet of paper which
had been torn off.

He also
pointed out that the year "1986" in this date stamp was in
a different position from the day and month and that
the figures were
of a different size. He produced his date stamp and made three
impressions of it on a sheet of paper in Court
(exhibit 15). Showing
the same date "11 Jan 1986". Everything about this stamp
appeared to be the same as that on the
letter exhibit 4D except for
the year "1986". The figures on the specimen stamps were
clearly smaller and of a different
shape compared with that on the
letter. It would appear that the "1986" had been added to
it later from a different date
stamp.

46

The Chief
stated that he did not know either "M. Mope" or "Mr
Taoeu" mentioned in the letter. There were two
men named "Tsoeu"
in his village but neither was called Teboho.

The
savingram and the letter reached A.2 at the sub-accountancy. Once
again he prepared a payment voucher (exhibit 4B), then also
signed it
as checked and authorised payment himself. Nobody else dealt with it.
The voucher referred to wages of M1,232.80 to be
paid to M. Mope of
Lithabaneng, Maseru. The receipt number and date were as shown in the
ledger (exh.12) above. It added that the
amount had been transferred
from the Suspense Account to Government Revenue on the authority of
"IN REV/1/86/86" (which
is meaningless as the years should
be different).

A.2 also
wrote and signed the cheque (exhibit 4A) which was countersigned by
Mrs Kabane (PW 22) who stated that she had signed it
in blank and had
never seen or checked the documents attached. There was no record
that any authority was obtained from the Accountant-General
for
payment out of the Government Revenue.

'Mamathatlo
Mope (PW 8) testified that she was a fruitseller in Maseru in 1986
when A.2 came to where she was selling fruit. She
recognised him but
did not know his name. He asked for the owner of the fruit stand and
Mope told him she was not present. A.2
then asked if she (Mope) would
assist him by lending him her passport as he wished to withdraw his
money from the bank and he had
already withdrawn some money in the
previous month so he could not use it again. This was nonsense, of
course, but the witness
was very unsophisticated and

47

ignorant.
She did not ask why he needed her passport particularly. She allowed
herself to be persuaded and handed over her passport
to A.2. who told
her he was taking it to the sub-accountancy where he worked.

Next
morning at around 10.00 a.m. he came back to see her and gave her 45
cents and told her to come with him in a taxi to his place
of work.
Arriving there he told her to follow behind him into the office.
There he showed her a register of some sort and told
her to sign it,
which she did. She had no idea what she was signing. A.2 told her to
go and she went back to her work leaving her
passport still with A.2.

Shortly
afterwards A.2 came to her again and told her they were going to
collect the money. He took her to the standard Bank. A.2
showed her
where to stand and gave her the passport with a cheque inside it. A.2
went outside and waited near the door of the bank.
She did not read
the paper in her passport but just handed both to the bank teller
without a word. The teller told her to sign
the back of the green
paper which she did twice. She recognised her signatures on the back
of the cheque (exh. 4A). The teller
gave her the passport with some
money which she said she did not count because it was not hers. She
went outside and handed the
money to A.2 but he could not take it.
Instead he told her to go with him into a nearby clothes shop. When
they were inside he
accepted the money and asked if she had counted
it. She replied no because it was not hers. A.2 then gave her

48

M.50
saying that he was thanking her for having helped him. The cheque
(exh. 4A) has a Standard Bank teller's stamp on it showing
that it
was paid on 13 November 1986.

She said
she never saw A.2 again until the police later approached her and
took her to the bank where she saw a line of people among
whom was
A.2 whom she pointed out to them.

'Mope was
shown the Savingram and the "chief's letter" (exhibit 4C
and D) but she said she had never seen them before
and she had not
been to the Labour Office, which she had never heard of anyway. She
knew nobody called Teboho Tsoeu and she was
not entitled to any
compensation money. She just did what A.2 told her and gladly
accepted M.50 for doing so. She did not seem
to have much idea of
what it was all about.

For the
defence A.1 stated that she wrote the savingram from the DLO (exhibit
4C) based on the "chief's letter" (exhibit
4D) when 'Mope,
whom she did not know, came to her with the letter which she believed
was written by the Chief. She then sent 'Mope
to the sub-accountancy
with the letters. She was satisfied with the "chief's letter"
and presumed that the chief would
know what the connection was
between Teboho Tsoeu and M. Mope. On the ten months difference
between the date on the "chief's
letter" and her savingram
she merely remarked that there was no time restriction on a claim.
She did not explain why, if the
money was for unclaimed wages, the
man

49

Tsoeu
himself did not come to claim them rather than a young woman who was
married to someone else. As usual A.1 did not answer
questions
satisfactorily or convin­cingly, especially why she was making
arrangements to pay under a service which had been
removed from the
DLO Maseru, according to Mr Shale (PW 17) the DLO.

A.2 gave
his usual explanation that he obtained his information from a
beneficiary list that was never produced, rather than from
the
ledgers which he claimed not to use at all. He maintained that he had
made a proper payment. As for the evidence of 'Mope (PW
8) about the
passport and the bank incident he denied it all. He said he did not
know her and had never met her. Then A.2 immediately
contradicted
himself and said that she came to him in the sub-accountancy with the
savingram and chief's letter. He said that he
did not give her the
cheque. Then he asserted that he paid her according to the
authorities, which meant that he did give her the
cheque in fact.

On their
own admissions A.1 prepared the savingram authority and A.2 prepared
and authorised the payment voucher and cheque. He
made sure that
nobody else was involved. The chief's letter appears to be a fake and
nobody else inspected or checked any of the
documents. Mrs Kabane as
usual abdicated her authority by signing the cheque in blank. I found
the testimony of the witness 'Mope
(PW 8) credible and convincing.
Although, by handing over her passport to a stranger and then cashing
a cheque for money to which
one was not entitled, she behaved wrongly
and foolishly, that was clearly so

50

unintelligent
and lacking in common sense that she did not really understand what
she was doing. She certainly did not have the
ability to make up the
story she told in Court and she was unshaken in cross-examination. I
accept her version of events. A.2 simply
took advantage of her
gullibility and used her so as to obtain the money to which neither
he nor she was entitled. She was no doubt
delighted to be paid M.50
for such little effort on her part.

Because
of their key jobs both accused were in ideal positions to plan and
prepare the necessary docu­ments, which however would
not have
stood up to the sort of careful inspection and checking that they
should have received from the sub-accountant or her
deputy if either
had been performing her duties properly or at all.

I found
the contradictions and weak explanations of the two accused most
unconvincing and untruthful. I am satisfied beyond reasonable
doubt
on the evidence that the two worked together with a common purpose to
obtain Ml,232.80 unlawfully from Government Revenue
to which they
were not entitled.

With
regard to the contrectatio, I accept the testimony of 'Mope that she
handed the money to A.2. I find that A.1 was an accessory
to A.2 by
providing a clearly fraudulent and unauthorised letter of authority
to pay someone who was not entitled to any amount
at all from
Government, supported by a fake letter purporting to come from a
chief. It would have been easy for them

51

to have
found a suitable letter in their files with a chief's stamp on it and
to tear off the top part con-taining the original
letter, and to
arrange for another letter to be written on the lower half of the
paper giving the information that they heeded,
and also making the
necessary change in the date stamp. Consequently I find that A.1
assisted A.2 to obtain unlawfully and steal
the amount of money and
so both accused are convicted of the theft of M1,232.80 on this count
(count 7).

Count 9
alleges the theft of M1.080 on or about 11 December 1986. The bundle
of documents contained in exhibit 5 is relevant here.
Pages 10-11 of
the 1984-85 Suspense Account ledger (exhibit 11)have an entry for
that amount on receipt number 2275/2 dated 10
December 1979 on behalf
of a beneficiary named D. Mosokela. There is no entry on the left
side of the ledger (page TO) to indicate
whether it was ever claimed
and paid out. All the amounts listed on that page are shown as having
been transferred to Government
Revenue, though the date is not shown.
The five years in the Suspense Account would have expired at the end
of December 1984. Thus
the payment in December 1986 would have been
made two years after the money had been transferred to Government
Revenue and a year
and a half after estate services had been removed
from the DLO Maseru to Labour Headquarters. This is another example
of a single
improper payment of an amount which apparently had never
been claimed by the proper beneficiary or claimant.

52

On 9
December 1986 A.1 provided the sub-accountancy with a savingram
(exhibit 5C) in which she authorised the payment of this amount
to
one "Mrs Tseleng Mosokela" as estate due to an unnamed
beneficiary. She referred to the same receipt number 227512
dated 10
December 1979 as shown in the ledger above.

This
savingram was supported by what purported to be a letter from the
Chief of Lihlaheng or Lihoahloeng, Thaba-Bosiu (exhibit 5D)
written
on the bottom portion of a torn sheet of lined note paper. There was
a chief's date stamp on it with the date 27 September
1986. The
translation of letter reads as follows:

"Manager of Labour, I greet you. I bring before you T. Mosokela
to come and collect compensation of Mr Mosokela. She is the
one
entitled since she is the wife. I give evidence to this effect since
they are my subjects. I request that she be helped. From
Mpiti
Khoabane."

The
letter is short of necessary details. The full names of the claimant
and the beneficiary are not given, which would be necessary
both for
their identification and for locating the claim in the records.
Whoever signed the letter did not state that he was a
chief, or what
other position he held. The date stamp has obviously tampered with.
The year "1986" is in a different
position from the rest of
the date and the figures of the year are larger and narrower and of a
different design compared with
with the other figures "27-9".
The year appears to have been superimposed over other figures.

53

Matheko
Mpiti Theko (PW 18) testified that she is the acting chieftainess of
Lihaleng and that her husband Mpiti Khoabane Theko
is the substantive
chief. She said that the handwriting on the letter (exh. 5D) was not
that of her husband and that in September
1986 he was still working
in RSA. She has 486 subjects and she knows them all. She did not know
anyone called T. Masokela among
her subjects. She added that she
writes her own., official letters and only she has access to the date
stamp. She had never written
directly to a Government department like
the Labour Office. If someone came to her about compensation or such
matters she would
write a letter to the Principal Chief of
Thaba-Bosiu about it. She agreed that the date stamp on the letter
appeared to be that
of Chief Mpiti but she was of the opinion that
the figures "1986" were different from the other figures of
the date.

The
savingram and the letter reached A.2 at the sub-accountancy. Once
again he prepared a payment voucher (exhibit 5B) which be
signed as
checked and then authorised payment himself, thus ensuring that
nobody else was involved. The voucher referred to a refund
of estate
to be paid to T. Mosokela of Ha Khoabane. The receipt number and date
were as shown in the ledger above. It added that
the amount had been
transferred into Government Revenue "by 31 March 1985" and
that payment was made on the authority
of "IN REV/86/87"
which did not appear to be a proper reference since it gave no
warrant number before the date.

54

A.2 also
wrote and signed the cheque (exhibit 5A) which, as usual, was
countersigned by Mrs Kabane (PW 22) who stated that she had
signed it
in blank and had never seen or checked the documents attached. There
was no record that any proper authority had been
obtained from the
Accountant-General to sanction payment out of Govern­ment
Revenue.

Tseleng
Evodia Masokela (PW 16) testified that she was unmarried and worked
as a petrol station attendant at Shorty's Motors in
Mauteng, Maseru.
She knew A.1. very well as they grew up together. They both used to
live near the female prison. She only knew
A.2 by sight.

In 1986
the witness was unemployed and looking for work. She met A.1 who
offered to find her a job if she would lend A.1 her passport.
A.1
said that she could find her a job because she(A.1) was working in
the Labour Office and she needed the passport to show to
prospective
employers. Tseleng handed over her passport. Later one morning A.1
came to her and asked her to go to the office with
her. They went to
the Labour Office where A.1 showed her a cheque which the witness
identified as exhibit 5A. She asked A.1 how
it came about that her
name "T. Masokela" was on the cheque as she was not
expecting to receive any money from the Government,
nor was she
entitled to any compensation from anyone's estate. A.1 merely replied
that there were no problems in connection with
the cheque and Tseleng
did not press the matter. A.1 told her that she had found a job for
her and then she took her to the

55

Standard
Bank where they both joined the line of people. , A.1 still held the
passport and cheque and they stood together. A.1 presented
the cheque
and passport to the teller who observed that it was not A.l's
photograph in the passport. A.1 replied that it belonged
to her
sister whom she was helping, and indicated Tseleng standing beside
her. The teller asked Tseleng to sign twice on the back
of the
cheque, which she did, and her passport number was also copied on to
the back of the cheque. She signed "T. Masokela"
and then
the teller handed over some money to A.1 who put it into her bag.
Tseleng did not count the money or even handle it. She
said that she
had no interest in it. They went out of the bank and met A.2 standing
outside on the steps. This was the first time
that she had seen A.2.
The two accused went off to stand about 8 or 9 paces away from
Tseleng who watched what they were doing.
They were facing each other
sideways on to Tseleng who saw A.1 take what appeared to be 3 bundles
of M.50 notes out of her bag
and hand them over to A.2. He put them
into a brown envelope without counting it, A.1 then came back to
Tseleng and at her request,
gave her one rand for transport but she
did not return her passport. She said that she went and reported what
had happened to her
brother who was serving in what was than called
the PMU. He did nothing about it. Tseleng also said that she
commenced work next
day, 12 December 1986, at Shorty's Garage selling
Total-petrol. That was her reward for assisting A.1.

56

Tseleng
said that she had looked carefully at A.2 outside the bank and had
noticed and remembered his appearance. She met him again
in the
following year, 1987, at Oxford Furnishers near a bus stop. She
recognised him and they exchanged greetings. It would have
been
better if ah identification parade had been held, but the witness
seemed to be very certain that she recognised A.2. Mr Shale
the DLO
(PW 17) stated that in December 1986 A.1 no longer had any authority
to deal with payments to beneficiaries as they had
been transferred
to Labour Headquarters.

For the
defence A.1 denied the whole business. She did not take Tseleng's
passport nor did she offer to find her a job. She did
not go to the
Standard Bank with her, nor did she speak to the bank teller, nor did
she collect cash there. She did not receive
the cash nor did she give
it to A.2. She denied that she grew up with Tseleng. She did not know
her at all.

A.1
agreed that the chief's letter (exh. 5D) showed no designation under
the signature and that the year of the date stamp was in
larger
figures than the rest of the date. She just accepted it as genuine.
She insisted that Tseleng must have brought the chief's
letter to her
in the office and identified herself and made the claim but she could
not remember her. A.1 disagreed with Mr Shale,
the DLO, that their
files had been sent to Labour HQ. She insisted that they still had
the files and still paid out such claims,
and that the files were
available in all the

57

cases
which she processed. She added that she had always followed the
correct procedures. I do not find these state­ments at
all
convincing in view of the evidence already referred to.

A.2
stated that he could not remember Tseleng Masokela (PW 16) and he
could not say whether or not she was entitled to anything,
but she
must have come and claimed the money shown in the ledger against the
name of D. Masokela. She was lying about seeing him
at the bank and
saying that he received the money with A.1. He maintained that he
paid Tseleng only in accordance with the authorities.

On their
own admissions A.1 prepared the savingram authority and A.2 prepared
and authorised the payment voucher and cheque. Nobody
else was
involved. The chief's letter appears to be a fake and nobody else
inspected or checked any of the documents. Once again
Mrs Kabane
abdicated her authority by signing the cheque in blank, thus making
the whole operation possible.

I found
the witness Tseleng Masokela to be an un­intelligent and
unsophisticated person. In fact she was just the simple type
of
person needed by the accused to carry out the business without asking
awkward questions. She was obviously incapable of making
up the story
herself and she was unshaken in cross-examination. She clearly acted
wrongly by assisting to cash a cheque in her
own name knowing that
she was not entitled to any money. It seems she overcame her doubts
and scruples because she was expecting

58

to get a
job and to earn some money. The temptation was apparent and it was
sufficient to persuade her to comply with A.1's insistent
request. I
believe her story.

Because
of their key jobs both accused were in ideal positions to prepare and
use the necessary documents, although such documents
would not have
stood up to the type of careful inspection and checking that they
were supposed to receive from the sub-accountant
or her deputy if
either, had been performing her duties properly or at all. It would
have been easy for the accused to have obtained
a suitable chief's
letter from their files, to have torn off any unwanted part and to
have superimposed another year on to the
date stamp.

I find
the feeble explanations and denials of the two accused most
unconvincing and untruthful. I am satis­fied beyond reasonable

doubt on the evidence that they both worked together after forming a
common purpose to obtain Ml,080.00 unlawfully from Government
Revenue
to which they were not entitled.

With
regard to the contrectatio, I accept the testi-mony of Tseleng (PW
16) that she did not handle the money and that it was handed
by the
bank teller to A.1 who then passed it on to A.2 in Tseleng's
presence. There was thus a handling and control assumed by
both
accused. I find that both accused used fraudulent and unauthorised
documents to obtain the money from Government. Consequently
I find
both accused guilty of the theft of Ml,080.00 and they are convicted
on this count (count 9).

59

Count 11
alleges the theft of Ml,111.29 on or about 19 December 1986. The
bundle of documents contained in exhibit 6 is relevant
here. These
show that two payments of the same amount were made on different
dates by the sub-Accountancy. Also relevant are pages
7-8 of the
Suspense Account ledger for 1985-86 (exhibit 9). Page 8 has as its
first entry that amount on receipt number 2323 apparently
dated 2
December 1980 on behalf of a beneficiary named Ernest Tlhomola. There
is no entry on the left side of the ledger (page
7) to indicate
whether it was ever claimed and paid out. Apart from two other
amounts lower down on the page, all the amounts on
that page are
shown as having been transferred to Government Revenue on 27 March
1986. However, the documents in exhibit 6 show
that two payments of
the amount were made in September and December 1986 from the
Sub-accountancy. By this time such matters had
been removed from the
DLO Maseru and were supposed to be dealt with from Labour
Headquarters according to Mr Shale the DLO (PW
17).

On 9
September 1986 a savingram (exhibit 6H) came from the section dealing
with the Workmen's Compensation Fund at Labour HQ signed
by the clerk
who was dealing with such matters, one M. Fako. It was authority to
pay one Justina Tlhomola the above amount which
was due to the estate
of her late husband Ernest Tlhomola. The same receipt number and date
were referred to as shown in the ledger
above. Supporting this was a
letter (exhibit 6 G) signed by Matau Phohleli (PW 20) Chieftainess of
ha Phohleli, Maseru, with her
date stamp on it of 9 September 1986.

60

The
translation of the letter reads:

"Office of Labour, Here I give evidence to the effect that
Justina Tlhomola is the wife of the late Ernest Tlhomola. That
being
the case she is the heiress to Ernest Tlhomola and all that belongs
to the late Ernest Tlhomola is hers. I would be grateful
for your
co-operation with her."

The
Chieftainess confirmed that she wrote the letter and she knew Ernest
and Justina Tlhomola.

These
documents were stamped as received at the Sub-Accountancy on 9
September 1986. They do not appear to have gone through the
DLO
Maseru which, as we have heard from Mr Shale was not supposed to be
dealing with , such claims by then anyway.

At the
Sub-Accountancy a payment voucher (exhibit 6F) was prepared for
payment of this amount to Justina Tlhomola making reference
to the
facts already stated above. Payment was authorised by Mrs Kabane who
also signed the cheque (exhibit 6E). The other signatory
was Mrs
Matsipa (PW 21).

Justina
Tlhomola (PW 19) testified that her husband was Ernest Tlhomola and
that he died in 1980 at the Carltonville mine in RSA
where he worked.
She said she received no notification of any money due right from
1980 up to September 1986 when the deceased's
brother, Tsehla
Tlhomola, came back from RSA with some papers to that effect.

61

She was
told bo get the chief's letter which she did. She agreed that she
signed the back of the cheque (exh. 6E) and received the
sum of
M1,111.29. The bank teller's stamp shows that the cheque was paid on
9 September 1986. Mr Morolong (PW 2) stated that this
was a correct
payment on proper authority but that the ledger, page 7 (exh. 9) does
not reflect any record of payment of that amount,
but that would not
be surprising as the ledgers were with Mr Morolong by that time.

Three
months later, on 19 December 1986, A.1 wrote a savingram (exhibit 6C)
from the DLO to the Sub-Accountancy requesting payment
of the same
amount to one L. Mphale. The same receipt number, 2323, was given but
the date was shown as 12 November 1980 instead
of 2 December 1980.

Supporting
this was a letter purporting to come from the Chief of Ratsosane
(exhibit 6 D) written in a barely literate hand. The
translation
reads:

"Manager of Labour, I give evidence before you that L. Mphale is
the one entitled to compensations of Mr Tlhomola. I give
this
evidence that she is a daughter of that family. Her mother is sick
and she will not be able to come. I request that she be
helped."

The
letter is not signed but merely has the words "Chief of
Ratsosane" at the bottom. There is a date stamp of Chief Mothobi

of Majoe-a-Litsoene dated 21 August but the year is illegible. The
year '1986', in larger figures than the rest of the date, is
stamped
over it and partly

62

out of
line with the date.

'Maselemeng
Mothobi (PW 11) testified that she had been Chieftainess of
Majoe-a-Litsoene for ten years. She said she wrote all her
own
official letters. She denied writing the above letter and was unable
to recognise the handwriting. She signed all such letters
at the
bottom "L. M. Mothobi Chief of Majoe-a-Litsoene." She did
not know the Mr. Tlhomola referred to in the letter
but she did know
a woman called L. Mphale, but she did not write any letter for her.
The oval shaped date stamp was similar to
one that she had used up
until June 1985. It was then withdrawn by the Ministry of the
Interior and replaced with a rectangular
shaped date stamp which she
had used since, including throughout 1986.

The
letter was written on a small piece of lined note paper which had
been cut across at the bottom and above the date stamp. The
savingram
reached the sub-accountancy where on 19 December 1986 A.2 prepared,
checked and authorised the payment voucher (exhibit
6B) for that
amount in favour of one L. Mphale of Ha Ratsosane for wages held in
suspense and transferred to Government Revenue
"by 31 March
1986". It referred to receipt number 2323 dated 12 November 1980
as shown on the savingram rather than the
date in the ledger. The
authority was shown as "IN REV/1/ 86-87."

A.2 then
wrote and signed a cheque (exhibit 6A) to pay that amount to L.
Mphale for wages. The other signatory was Mrs Kabane who,
as in most
of these cases, stated that

63

she had
signed it in blank and that she did not see and check the documents
attached to it.

The
witness Mrs Matlisa used her maiden name of Libuseng Mphale (PW 3).
She was a fruit-seller at Maseru shopping centre and she
was selling
fruit there sometime in 1986. With her was her friend 'Mamatsaba
Mosunkutu (PW5) a machinist working at Basotho Jeans
at Thetsane. A.2
approached them and called to 'Mamatsaba. She said he knew her
because they grew up together at Quthing Masitise.
She went to him
and he asked her to lend him her passport. She asked why he wanted it
and A.2 replied that he had money in the
bank which he wanted to
withdraw and that the owner of the passport would merely be assisting
him. 'Mamatsaba said she had no passport.
A.2 then told her to ask
her friend, that is Libuseng (PW 3), whom he did not know. 'Mamatsaba
refused saying that A.2 should approach
Libuseng about it himself. He
agreed and she introduced A.2 to Libuseng Mphale as one who came from
her village.

In the
presence of 'Mamatsaba, A.2 then asked Libuseng to lend him her
passport. Both of these witnesses said that A.2 told Libuseng
that he
had a problem as he had already withdrawn money from his account at
the bank that month and so they would not allow him
to withdraw any
more in the same month. Libuseng knew nothing about banks and
apparently she believed this strange story. He asked
Libuseng to
bring her passport for him on the following day. She said she agreed
to do this for a stranger only because

64

was he a
friend of 'Mamatsaba. A.2 then asked Libuseng if she could also help
him by going to the chief's office to get a stamped
letter. Libuseng
said she could not leave her work to do this. A.2 asked for her names
which she told him. 'Mamatsaba (PW5) confirmed
this.

On the
next morning A.2 collected her passport from her which she had
brought to work. He told her that he would have to prepare
a cheque
and she should go to the sub-accountancy to sign papers there. She
knew nothing about cheques and, in fact, had never
been in a bank
before. A.2 gave her 45 cents and told her to take a taxi to the bus
stop near the sub-accountancy. He walked away
and soon afterwards she
went by taxi to the sub-accountancy.

She
entered and approached A.2 who was standing behind a counter. He took
some papers and wrote on them and then wrote on a green
form which
she identified in Court as a cheque (exhibit 6 A) on which she saw
her name written as "L. Mphale". A.2 told
her to sign on
another piece of paper and obediently she did so without reading it
or knowing what she was signing. A.2 then told
her to go back to her
fruit selling and he would find her there. Later on that morning he
approached her and went with her to the
Standard Bank. On the way A.2
gave her the passport with a piece of green paper inside it. He
showed her where to join a line of
customers and said he would wait
outside for her. When her turn came she handed the documents to the
bank teller who asked her
to sign on the back of the cheque (exh. 6A)
which she did. The teller copied out her passport number on to the
cheque and then
handed her

65

some
money which she did not count.

Libuseng
went out of the bank and found A.2 holding a big brown envelope. She
gave him the money and he asked whether she had counted
it. She said
that she had not and he put the money into the envelope. They walked
a short distance together then he stopped and
took R40 out of the
envelope and gave it to her, saying that he thanked her. She accepted
it and he crossed the road and walked
away.

Libuseng
said that she did not know anyone called Ernest Tlhomola nor was she
expecting or entitled to any money from the Labour
Office or the
Sub-Accountancy. Her married name was Matlisa and she said that she
was not a daughter of the Tlhomola family whom
she did not even know.
She had not seen or obtained the chief's letter (exhibit 6D) which
gave this information and she was not
a subject of that chief. She
had not been to the Labour Office and she did not even know where it
was. She knew nothing about the
savingram (exhibit 6C) prepared by
A.1. nor did she know A.1. She did not see A.2 again until he was
brought to her place of work
by some C.I.D. men in 1987, when he
pointed him out to the police. A sort of reverse identi­fication
in fact.

She said
that she did live in Majoe-a-Litsoene in 1986 up until earlier this
year, which seems to confirm the testimony of Chieftainess
Mothobi
(PW 11) that she knew a woman in her area called L. Mphale.

66

The
witness 'Mamatsaba (PW 5) said that, on the day after she introduced
A.2 to Libuseng, the latter came to her and they spoke
and Libuseng
handed her either M10 or M20 which 'Mamatsaba accepted and understood
it to be a token of A2's thanks for assisting
him.

For the
defence A.1 stated that she did not know the witness Libuseng Mphale
(PW 3) and that she had prepared the savingram (exh.
6C) for some
other person called L. Mphale whom she could not remember. Nor could
she recall the full name of that person. That
person had a chief's
letter and A.1 sent her to the sub-accountancy with the documents.
She saw the chief's letter (exh.6D) in
Court and agreed that it had
not been signed by anyone. She was satisfied with it because it bore
a chief's date stamp. She was
not concerned with whether or not the
writer was literate. She had checked the list of beneficiaries and
she was satisfied that
the correct person had been paid.

Regarding
the earlier payment based on a savingram from the Workmen's
Compensation office at Labour Headquarters (exhibit 6H) A.1
said that
she was processing similar claims from the DLO in 1986 at the same
time as those coming from Labour HQ. This was contrary
to what Mr
Shale, the DLO (PW 17) had told the Count regarding the procedure.
She also contradicted him by saying that they still
had all the
relevant files at the DLO and not at Labour HQ. She asserted that she
checked and satisfied herself with regard to
all of these claims and
that she had followed the correct procedure before paying L. Mphale.
She knew nothing about what A.2 had
done in this matter.

67

A.2 said
that he wrote the payment voucher and cheque and, as he did not have
the ledgers at that time (they were with Mr Morolong),
he had to rely
on his Beneficiary List. But that should have shown the same
information as the ledgers anyway. A.2 said he did
not know
'Mamatsaba Mosunkutu (PW 5) nor Libuseng Mphale (PW 3) and that they
were lying about him meeting them and recruiting
Libuseng to cash a
cheque. He said that she was paid because she was entitled to the
money and he could hot understand why she
had said otherwise. He was
surprised to see that the savingram (exhibit 6H) came from the
Workmen's Compensation Fund because all
monies received before 1982
(as this was) were still being paid from the Sub-Accountancy without
their intervention. He said that
those were the instructions given
verbally by the Chief Accountant to Mrs Kabane who passed them on to
her staff. Both Mrs Kabane
and Mrs Matsipa in their evidence-in-chief
at first denied this, and it would appear from the DLO Mr Shale's
testimony that the
Labour Office was not aware of any such
arrangement. With ledgers removed and confusing directions of this
sort being given, and
incompetent senior staff, it is clear that
there were plenty of opportunities for unscrupulous staff members to
take advantage
of the situation.

It is
clear from the documents that this amount of money on this receipt
had already been correctly paid to a genuine claimant in
September
1986. There was therefore no justification for paying the same amount
on the same receipt again three months later. The
question is whether
this was done deliberately or was it just the result of incompetent
book-keeping.

68

A.2
denied having had anything to do with the arrangement to cash the
second cheque (exh.6A) as described by the two women 'Mamatsaba
(PW
5) and Libuseng Mphale (PW 3). However, it was clear that these two
were very unsophisticated people of little intelligence
who would be
easily persuaded by someone like A.2. They could not have dreamed up
the operation which they described, nor was there
any reason revealed
why they should have been lying about it. There was no evidence of
any quarrel or grudge involving A.2, nor
were they shaken with regard
to their stories in cross-examination. I find their version to be
credible and I accept it.

If the
two accused made careful checks and followed the correct procedures,
as they claimed, then they ought to have discovered
the very recent
payment of that amount to the correct claimant A.1 failed to give the
proper information and details in her very
brief savingram (exh.6C)
and it is clear that the purported chief's letter (exh.6D) was highly
questionable and suspicious with
its altered date, its lack of
signature and its illiterate writing. If A.1 had been working
properly as she claimed, she would
have been bound to question its
validity and to obtain full information. The letter appears to have
been concocted as a result
of cutting and re-using a genuine letter
no doubt taken from their files.

I find
that A.1. prepared the savingram for the witness L. Mphale without
meeting her and probably based on information supplied
by A.2. and
supported by a fake letter

69

from a
chief. I find that A.2 prepared and authorised the payment voucher
and the cheque after he had met Libuseng Mphale and borrowed
her
passport and without any regard for the records and for the correct
procedure. He further took advantage of Libuseng's ignorance
about
such matters and of Mrs Kabane'a irresponsibility in issuing cheques
signed in blank. I believe Libuseng's testimony that
she handed over
all of the money to A.2 as arranged and required by him, although A.2
was not entitled to any of the money any
more than Libuseng was. The
whole operation was the result of planning and preparation of
documents by both accused working together.

I am
satisfied beyond reasonable doubt that the two accused formed a
common purpose to obtain Ml,111.29 unlaw-fully from Government

Revenue to which they were not entitled

With
regard to the contrectatio, as I have said, I accept the testimony of
Libuseng that she handed all the money over to A.2 outside
the bank
and he took it into his possession and control. A.1 was an accessory
to all this, in the way already described, and she
is equally guilty
with A.2. Consequently I find that A.1 assisted A.2 to obtain
unlawfully and steal the said amount of money and
so both accused are
convicted of theft of Ml,111.29 on this count (count 11).

Count 13
alleges the theft of M2,049.40 on or about 23 December 1986. The
bundle of documents contained in exhibit 7 is relevant
here. Pages
10-11 of the 1984-85 Suspense Account Ledger (exhibit 11) have an
entry for that amount on receipt number 227466 dated
19 November 1979
on

70

behalf of
a beneficiary shown as "L.M. Kokotela (estates)."

There is
no entry on the left side of the ledger (page 10) to indicate whether
the amount was ever claimed and paid out. All the
amounts listed on
page 11 are shown as having been transferred to Government Revenue,
though the date is not shown. The five years
in the Suspense Account
would have expired at the end of November 1984. Thus the payment of
this amount in December 1986 was made
two years after the money had
been transferred to Government Revenue and a year and a half after
estate services had been removed
from the DLO Maseru to Labour HQ.
This is yet another example of a single improper payment of an amount
which apparently had never
been claimed by the proper beneficiary or
claimant.

Just in
time for Christmas, on 23 December 1986, A.1 wrote a savingram to the
Sub-Accountancy authorising the payment of this amount
to one "Mrs
Manyali Moroke" as estate due to her husband who was not named,
A.1 referred to the same receipt number,
227466 dated 19 November
1979, as shown in the ledger (exhibit 11).

The
savingram was supported by what purported to be a letter from the
Chief of Makhalanyane (exhibit 7D) written on the bottom portion
of a
torn sheet of lined note paper. There was a clearly printed chief's
date stamp on it except for the date itself. This consisted
of two
dates one on top of and slightly to the side of the other. The top
date appears to be 18 December 1986. The date under it
appears to be
something like 18 December 1982.

71

Quite
clearly this date has been tampered with because the root of the
stamp with the chief's name and address on it is a single
imprint and
quite clear. The translation of the letter reads:

"Manager of Labour, I bring before you my subject Mrs Manyali
Moroke so that she can get the compensation of Mr. Nkoqela L.M.

Moroke. She is his wife and as a result I request that she be helped
warmly. Chief of Makhalanyane."

The
letter is not signed. Mr Morolong (PW 2) stated that it does not
connect the claimant Moroke with the beneficiary, Kokotela,
named in
the ledger (above). He was unable to find the name Moroke in that
ledger.

What is
alleged to be a Chief's letter is clearly a very suspicious document
since it is not signed and the date has been tampered
with, apart
from there being no explanation concerning the persons named in it.

'Maphoto
Makhalanyane (PW 14) testified that she has been the Chieftainess of
ha Makhalanyane for ten years. She writes all of her
own official
letters and has no assistant. She said she would not write directly
to a Government department. Instead she would
send a claimant with a
letter of introduction first to the next senior chief to her. She
denied having written the letter (exhibit
YD) which she said was not
in her handwriting nor did she recognise it. She said she signs all
her letters at the bottom, whereas
this one had no signature, and she
does not use torn off sheets of paper. She did not know

72

the two
people named Moroke mentioned in the letter (above) whereas she knew
all 200 people in her village.

It would
seem that, even if the original date of 1982 was indeed on the
letter, it would still have originated during the period
in office of
this same Chieftainess and so would still have been repudiated as not
coming from her.

The
savingram and the letter reached A.2 at the sub-accountancy. Once
again he prepared a payment voucher (exhibit 7B) on 23 December
1986
which he signed as having checked and then authorised payment
himself, thus ensuring that nobody else was involved. The voucher

referred to payment of estate to M. Moroke of Ha Makhalanyane. The
receipt number and date were as shown in the ledger above. It
added
that the amount had been transferred into Govern-ment Revenue "by
31 March 1985". It is not clear from where A.2
obtained that
date because in fact the transfer would have been in November 1984.
The authority for pay-ment was shown as "IN
REV/1/86-87."

A.2 also
wrote and signed the cheque (exhibit 7A) as the main signatory.
Apparently in December 1986 Mrs Kabane was on maternity
leave and, in
her absence, an assistant accountant, Mrs Domela Rafutho, was called
in from the border post at the bridge and she
countersigned the
cheque. She did not testify, so it is not known whether she saw the
documents or signed in blank like her colleagues.
The crossing on the
cheque was cancelled. There was no record that any proper authority
had been obtained from the Accountant-General
to sanction payment out
of Government Revenue.

73

The
payee, Mrs Manyali Moroke, did not appear to testify so it is not
known whether she exists or whether she received the money.
The
cheque (exh. 7A) is signed on the back by someone and it has a date
stamp of 24 December 1986 for Maluti Motors Lesotho (Pty)
Ltd of
Maseru. Mr. Rahman (PW 7), a director of Maluti Motors, testified
that A.1 came to him to cash the cheque on that date.
He said she was
with a young woman whom A.1 said was her cousin. The cheque crossing
was cancelled and the cheque had been signed
by someone on the back
when A.1 gave it to him to be cashed. He said he could not pay the
M2,049.40 all at once so he gave A.1
M1,049.40 at that time and then
a week later, after Christmas, she came back and he gave her the
remaining M1,000. Rehman was certain
that he handed the money to A.1
and not to the person with her.

For the
defence A.1 agreed that she prepared the savingram (exhibit 7C) which
she said she did on the basis of the chief's letter
(exhibit 7D). She
could see one date stamped on top of another in the chief's date
stamp but she was not suspicious about it, nor
about the fact that
there was no signature on the letter. A.1 said that Mrs Manyali
Moroke came to her office and that she questioned
her about their
relationship because A.1's sister had married into the Moroke family.
A.1 said that she was satisfied and she then
processed the papers and
gave them to Moroke to take to the sub-accountancy. She returned
after a while and told A.1 that she wanted
to cash the cheque but the
bank was closed. A.1 then took her to Rehman at Maluti Motors and
introduced Moroke as an in-law of
her

74

slater.
A.1 denied both that the money was paid in instal­ments and that
it was handed to her. A.1's version was that Moroke
signed the back
of the cheque in Rehman's presence and that it was paid in one amount
which was handed directly to Moroke by Rehman
and Moroke then counted
it. She added that it was not Rehman himself who paid the cash. He
merely ordered someone in his office
to pay it. It was pointed out to
A.1 that Rehman was not cross-examined on this point and she replied
that she did not care if
he was not challenged about it, she knew
that he was not telling the truth. Such a reply is not very helpful
to the Court of course.

When
asked to explain why she authorised payment to Moroke whereas the
ledger showed that particular beneficiary on that receipt
to be named
Kokotela, A.1 replied that the list in her file gave the names as
Moroke and she knew nothing about Kokotela. The file
and papers that
she spoke of were not produced in Court.

A.2
agreed that he prepared the payment voucher (exhibit 7B) and the
cheque (exhibit 7A) for this amount.. He agreed that the ledger

showed the name Kokotela as the beneficiary for this amount on the
same receipt number and date. He dismissed this information
by
repeating (as he did many times) that he only knew and used his
bene­ficiary list. He then added that both names, Kokotela
and
Moroke, appeared in the beneficiary list. Unfortunately this
beneficiary list was never produced.

On their
own admissions A.1 prepared the savingram giving authority to pay and
A.2 prepared and authorised the payment voucher and
cheque. The
chief's letter appears

75

to be a
fake and there is no evidence that anyone else inspected or checked
any of the documents. Since Mrs Rafutho, the other signatory
of the
cheque, did not testify it is not known what her involvement in the
matter amounted to. There is no evidence that anyone
called Moroke
was entitled to payment of that particular amount as against, or in
addition to, the Kokotela named in the ledger
as the beneficiary.

The DLO,
Mr Shale (PW 17), said that such claims were no longer supposed to be
handled by his office in 1986 although A.1 contradicted
this.
Similarly such claims were supposed to bo dealt with by the workmen's
Compensation Fund and not the sub-accountancy. A.2
insisted that they
did continue to pay out amounts issued before 1982 (as this was) and
that, even if it had been transferred to
the Government Reveue (as
this was too), the Chief Accountant had told Mrs Kabane, who passed
it on to her staff, that they could
pay out if satisfied about a
claim without waiting for the Accountant-General's written authority.
There were thus too many loopholes
in the procedures available to
dishonest and unscrupulous members of the staff at both offices.

The part
played by both accused in this operation was highly suspicious and I
do not at all believe that they acted innocently as
they claimed. I
found their explana-klous unconvincing and incredible. I believe that
the where exercise carried out by them was
fraudulent to their
knowledge and that its purpose was so that they could get their hands
on the money which had remained unclaimed
for a long period.

76

The
problem as far as the offence of theft is con-cerned is the matter of
proof of contrectatio. There was no evidence that A.2
actually
handled the money, although

it would
be sufficient if he had assisted A.1 to do so. The only evidence of
A.1 actually handling the money came from Rehman (PW
7) of Maluti
Motors. He said that he gave the money to her but A.1 denied this and
insisted that is went directly to Moroke. Unfortunately
Moroke did
not testify and it is just possible that Rehman was mistaken or had
forgotten due to lapse of time. It is also possible,
as A.1 alleged,
that Rehman instructed a clerk to do the actual paying and that he
did not do it himself. After all he was a director
of the firm and it
could well be that this is what happened. In spite of all the other
compelling evidence against the two accused,
who were clearly
responsible for the improper payment and were grossly negligent, I
cannot say on this particular count that I
am satisfied beyond
reasonable doubt on this last point regarding the contrectatio.
Consequently the two accused are acquitted
on this count (count 13).

Count 15
alleges the theft of M1,100 on or about 14 January 1987. The bundle
of documents contained in exhibit x is relevant here.
Pages 20-21 of
the 1983-84 Suspense Account Ledger (exhibit 13) have an entry for
that amount on receipt number 25433 dated 6 March
1979 on behalf of a
beneficiary shown as Paulus Tsokolo.

There is
no entry on the left side of the ledger (page 20) to indicate whether
the amount was ever claimed and paid out. All the
amounts listed on
page 21 are shown

77

as having
been transferred to Government Revenue on 30 March 1984. Thus the
payment of this amount in January 1987 was made nearly
three years
after the money had been transferred into Government Revenue and over
a year and a half after such services had been
removed from the DLO
Maseru to Labour Headquarters. This is yet another example of a
single improper payment of an amount which
apparently had never been
claimed by the proper beneficiary or claimant.

On 9
January 1987 A.1 wrote a savingram (exhibit 8C) to the
Sub-Accountancy authorising payment of this amount to one "M.
Mosunkuthu" as compensation. It does not state whether this
person is male or female or how he or she was connected with the

beneficiary. There is a reference to receipt number 25433 dated 3 May
1979 which is the same receipt as shown in the ledger (exhibit
13)
but a completely different date from that in the ledger, which is 6
March 1979. Mr Morolong (PW 2) stated that he was unable
to find any
record of this same receipt number against the date shown in the
savingram, nor could he find the name Mosunkuthu in
the ledger as a
beneficiary.

The
savingram was supported by what purported to be a letter from the
Chief of Ratsosane (exhibit 8D),that is Chieftainess 'Maselemeng

Mothobi (PW 11) who had already testified in connection with count 11
and exhibit 6. This letter was written in a different hand
from that
put in as exhibit 6D. On exh.8D the chief's date stamp is very faint
except for the date of 18 December 1986 which is
not central to the
stamp and is in larger figures and letters

78

than
those in the date stamp on the other letter (exhibit 6B) from the
same chief. Very faintly and to the right of the figures
1986 can be
seen what appears to be the figures 1980.

The
letter was written on the bottom half of a torn sheet of lined note
paper. The translation of it reads as follows:

"Manager of Labour, I greet you. I bring before you M. Mosunkutu
who is the wife of Mr L.D. Mosunkutu to come and collect

compensation. I give evidence to this effect because they are both my
subjects. As a result I request that she should be helped
warmly.
Ndaba had some difficulties some time back. At this time the heir is
the wife. I thank you. Chief of Ratsosane."

The
letter is not signed by anyone and it does not explain where the
deceased died. Nor is there shown to be any connection with
the
beneficiary Tsokolo named in the ledger.

Chieftainess
'Maselemeng Mothobi (PW 11) testified that she signs her name as
"L.M. Mothobi, Chief of Majoe-a-Litsoene"
at the bottom of
each letter and she has always written such official letters herself.
This one is not in her handwriting and it
was not written by her. She
did not know anyone called Paulus Tsokolo or L.D. Mosunkuthu or M.
Moaunkuthu or Ndaba. She said that
the oval shaped date stamp used on
the letter was similar to the one she had until June 1985 when it was
withdrawn by the Ministry
of the Interior and replaced with a
rectan-gular shaped date stamp which she had used since, including
throughout 1986.

79

The
savingram and the letter reached A.2 at the Sub-Accountancy. As in
the other cases he prepared a payment voucher (exhibit 8B)
on 14
January which he signed as having checked and then authorised payment
himself, thus ensuring that nobody else was involved.
The voucher
referred to payment of compensation to K. Mosunkutu of P.O. Box 611,
Ratsosane, Maseru. The receipt number was the
same as in the ledger
but the date was different, being 3 May 1979, as shown in A.1's
savingram. It added that the amount had been
transferred from the
Suspense Account into the Government Revenue "by 31 March 1985".
Again this date was different from
that, shown in the ledger which
was 30 March 1984. The authority for pay­ment was shown as "IN
REV/86-87", a meaningless
reference without a warrant number
before the date.

A.2 also
wrote and signed the cheque (exhibit 8A). The other signatory was Mrs
Kabane who, as in most of these cases, stated that
she had signed it
in blank and that she did not see and check the documents attached to
it. The crossing on the cheque was cancelled.

'Mamatsaba
Mosunkutu (PW 5) testified that in 1986 she was working as a domestic
servant in Maseru and she was living at Sea Point
then. In her
testimony with regard to count 11 (above) she had stated that she
knew A.2 as they came from the same village and
grew up together. She
was with the witness Libuseng Mphale (PW 3) when A.2 approached and
asked Libuseng to lend him her passport.

80

Mosunkutu
stated that she had never been married and she did not know anyone
called L.D. Mosunkutu nor was she living at Ha Ratsosane.
She looked
at the documents contained in exhibit 8 but she had never seen any of
them before in spite of their having her name
"M. Mosunkutu"
on them.

The
cheque (exhibit 8A) bears two signatures on the back in the name M.
Mosunkuthu (there is an 'H' in this version) but PW 5 said
that she
did not sign them. The cheque also bears the date stamp of 24 January
1987 of Maluti Motors and it was paid into Barclays
Bank on the same
date according to the bank teller's stamp on the front of the cheque.

Mr.
Rehman (PW 7) the director of Maluti Motors testified that it was his
company stamp on the back of the cheque (exh. 8A) and
that on that
date, 24 January 1987, A.1 came to his garage with another person. He
could not remember whether that person was a
man or a woman. The
signatures 'M. Mosunthu' on the back of the cheque were there
already. It was not signed in his presence. He
said that he paid A.1
the Ml,100 in different amounts on different occasions. His memory of
that tran-saction seemed to bo rather
vague in spite of it being more
recent than the others referred to already.

For the
defence A.1 agreed that she prepared the savingram (exh.8C) and said
that it was based on the chief's Letter (exhibit 8D).
She considered
the date on the chief's date stamp to be all right. She agreed that
the

81

paper
used for the letter had been torn across the top and that it was not
sighed at the bottom and that there was no mention of
the beneficiary
Paulus Tsokolo as shown in the ledger (exhibit 13). She said that the
date of receipt number 25433 was 3 May 1979
and the beneficiary's
name was Mosunkutu according to her file (which was not produced).

A.1 said
that she may have taken Mosunkutu to Maluti Motors but she could not
remember her at all. She said claimants usually came
back to her for
help with cashing a cheque if the bank was closed. She denied that
Rehman (PW 7) handed the money to her personally.
A.1 said that he
always gave it directly to the people whom A.1 brought to him to cash
their cheques.

A.2
agreed that he prepared and signed the payment voucher (exhibit OB)
and the cheque (exhibit 8A) for this amount. He agreed that
the
ledger showed the name Paulus Tsokolo as the beneficiary for this
amount on the same receipt but a different date. As always
A.2 said
that he did not rely upon information from the ledgers but only on
that in his beneficiary list which had provided the
information shown
in his payment voucher regarding M. Mosunkutu. As remarked before,
this beneficiary list was never produced to
the Court.

A.2
denied knowing the witness 'Mamatsaba Mosunkutu (PW 5). He said that
they did not live in the same village nor did they grow
up together
as she had told the Court. He had not tried to borrow her passport as
she alleged.

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He did
not know who had cashed that cheque (exh. 8A). He had prepared the
voucher and cheque in accordance with information obtained
from the
beneficiary list not from the ledger. The fact that the information
in the receipts and ledgers also came from the original
list or
notification of beneficiaries emanating from the Republic did not
appear to impress A.2. He said he had little faith in
the accuracy of
the ledgers yet he was one of those who was supposed to supervise the
clerks working on the ledgers and he had
made some of the older
entries himself when he was a clerk. And it was the older entries
that we have been concerned with throughout
this case.

On their
own admissions the two accused caused this payment to be made. A.1.
prepared the savingram giving authority to pay and
A.2 prepared and
authorised the payment voucher and cheque. The chief's letter appears
to be a fake as it bears no signature, the
date stamp has been
tampered with and it does not refer to the true beneficiary. There is
no evidence that anyone else in­spected
or checked these
documents due to Mrs Kabane's habit of signing blank cheques.

There is
no evidence that anyone called Mosunkutu was entitled to payment of
that particular amount as against, or in addition to,
the Tsokolo
named in the ledger as the beneficiary.

In spite
of the DLO, Mr Shale's, statement that such claims were no longer
supposed to be handled by his office in 1986, A.1 persisted
that she
acted properly in

83

doing so,
saying that they were in fact permitted to do so. Similarly A.2
asserted that the sub-accountancy was empowered to continue
paying
out amounts received before 1982 (as this was) in spite of the
setting up of the Wormen's Compensation Fund, and even if
the amount
had been transferred to the Government Reveue (as this was too).

The part
played by both accused in this operation . was highly suspicious and
it is clear that their activities in the affair were
not innocent as
they claimed. I found their explanations to be unconvincing and
incredible. I believe that the whole exercise carried
out by them was
grossly negligent and fraudulent to their knowledge and that its
purpose was to enable them to obtain the money
which had been
unclaimed for a long time.

Once
again the problem regarding this offence of theft charged is the
matter of proof of contrectatio. There was evidence that A.2
knew and
approached the witness Mosunkutu (PW 5) but no evidence that either
of them received or handled any of the money. Once
again an important
witness, whoever it was who cashed the cheque, did not testify so as
to clarify this point. Mr Rehman stated
that A.1 came with someone
else to cash the cheque and that he handed the money to A.1 in two
instalments. She did not deny taking
a person to Maluti Motors but
she insisted that the money was handed directly to that person by
either Rehman or his clerk, because
that was what always happened
when she took people to him. Rehman's own re­collection of the
incident is not clear enough to
be sufficient to rely on,
particularly as whoever was with A.1 on that day did not testify.

84

Thus,
Once again, in spite of the other compelling and credible evidence
against the two accused, the case falls down due to there
being
insufficient proof of the two accused handling or controlling the
money, i.e., no contrectatio. Consequently the two accused
are
acquitted on this last count (count 15).

To
summarise the position, the two accused are acquitted on twelve of
the counts, that is four of the main counts, numbers 1, 5,
13 and 15
and all of the alternative counts, numbers 2, 4, 6, 8, 10, 12, 14,
and 16. They are both convicted on four of the main
counts, numbers
3, 7, 9, and 11. The assessors agree with this verdict.

Of these
four counts, count 3 is for the theft of Ml,320; count 7 is for the
theft of Ml,232.80; count 9 is for the theft of M1,080
and count 11
is for the theft of M1,111.29. That is a total Of M4,744.09.

I direct
that a copy of this judgment be sent to the Accountant-General for
information. Finally I thank counsel on both sides for
their patience
and assistance during this long trial.

P. A. P.
J. ALLEN

JUDGE 22

September,
1988

Mr
Mdhluli for the Crown

Mr
Makhene for A.1

Mr Pheko
for A.2

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SENTENCE

The 2
accused have been convicted on four out of eight counts. The amount
involved in those 4 counts was M4,744.09 in Government
Revenue.

I shall
take into account that A.1 Mathabana Khauoe is 27 years old, married
and now pregnant. She worked as a clerk at the DLO
for about 5 years;
and that Aaron Masemene (A.2) is aged 32 years, is married with two
children and he was working at the Maseru
Sub-Accountancy for several
years as an assistant accountant and before that as a clerk. They
have no previous convictions and
they have asked for leniency. There
is a possibility that they might be called upon to repay Government
some or all of the amount
concerned.

They both
held positions of trust involving the handling of quite large amounts
of Government funds and they have seriously betrayed
that trust. They
certainly deserve to lose their jobs as a result of this. Fortunately
no individual has suffered any personal
loss as a result of their
crimes. In the circumstances I shall impose the following sentences:

On fount 3 each of the accused is sentenced to two years
imprisonment.

On count 7 each of the accused is sentenced to two years
imprisonment.

On count 9 each of the accused is sentenced to two years
imprisonment.

On count 11 each of the accused is sentenced to two years
imprisonment.

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These
sentences are all concurrent, making a total of two years to be
served.

I have
given a great deal of consideration to this case and I am fully
convinced that much of the blame in this matter lies with
the
Sub-Accountant, Mrs Kabane, and her deputy Mrs Matsipa for failing so
badly in their duties that they did not exercise any
proper
supervision which might well have prevented these offences from being
committed and would thus have avoided placing so much
temptation in
the way of the two accused.

In view
of this and the facts in mitigation above, I have decided to suspend
all of these sentences for a period of two years on
condition that
each accused is not convicted of any offence during that period
involving dishonesty or fraud.

P. A. P.
J. ALLEN

JUDGE

22
September 1988