CRI/T/34/88

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

v

1. AARON
MOTLATSI TS'OSANE

2.
KHETHANG MOTSOENE MGTSEARE

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 1st day of March, 1990,

The two
accused are summarily charged with the crime of Faud alternatively
Theft, on the following allegations

"Upon or about the 30th day of July, 1987 and at or near Maseru
in the district of Maseru, the said accused, one or each or
all of
them did unlawfully and with intent to defraud, misrepresent to the
Lesotho Bank that a sum M20,D00 had been properly deposited
into the
savings account of the first accused, the said Aaron Motlatsi
T9'osane, account No. 2000805 2 which said account was maintained
at
the main branch of the Lesotho Bank, and did thereby cause the
officials of Lesotho Bank to credit the said accoutre of the
first
accused with the sum of M20 000 from which funds the first accused be
entitled to make withdrawals for his benefit, and the
said accused
did by means of the said misrepresentation induce the Lesotho Bank,
to its loss and prejudice, to allow the said first
accused to make
withdrawal

2

from his savings account the sum of M10,00 whereas the said accused,
when they made the aforesaid misrepresentation well knew that
no
proper and genuine deposit in the sum of M20,000 had been made into
the account of the first accused and that he was not Entitled
to make
withdrawals from his savings account utilising the sum of M20,000.00
which had been fraudulently deposited into the savings
account of the
first accused; and thus the said accused did commit the crime of
fraud."

ALTERNATIVELY

"Upon or about the 30th July, 1987 and at or near Maseru in the
district of Maseru, the said accused one or each or both of
them, did
unlawfully and intentionally steal from the Lesotho Bank, the sum of
M20,000 the property or in the lawful possession
of the Lesotho
Bank."

When they
were put to them the accused pleaded not guilty to both the main and
the alternative charges. Ten (10) witnesses were
called to testify in
support of the crown case. The defence called no witnesses to testify
on behalf of the accused. However, No.
1 accused himself gave
evidence on oath in his defence whilst N.o. 2 accused elected to
remain silent and closed his case without
saying anything.

At the
commencement of this trial only No. 1 accused had a legal
representative viz. Mr. T. Mda . No.2 accused appeared in person
and
informed the court that he had expected to be represented by Mr. Mda
who, however, told the that the former had not briefed
him.

3

It was
only during the cross-examination of P.W.4, 'Mampahi Moorosi, that
Mr. Mda told the court that he had been properly briefed
and was,
therefore, prepared to represent No. 2 accused as well.

It may,
perhaps, be convenient to mention at this juncture, that in the
course of his evidence P.W.1, Maitse Molai, started reading
from
certain documents includes ding a computer report which had clearly
not been prepaved by him. I was asked by the crown counsel
to look at
the computer report. I, however, declined to do so and pointed out
that I was not prepared to look into documents which
were ant
exhibits or handed in as such by competent witnesses.

In my
view, it could never be overemphasised that the task of this court
would be made much easier if witnesses were called in some
sequence
to testify in a trial. To that effect an attempt should be made to
call first the witnesses who were campstent to hand
in exhibits to
which other witnesses would refer. Failure to do so, would be bound
to end up in the court looking at matters that
might turn to be
irrelevant with the resultant accusation then its judgment was
influenced by such irrelevant matters.

I was,
however, subsequently surprised to receive, from the
Attorney-General, a letter criticising me, so to speak, for the
procedure
I have followed on this issue,, The letter was copied to
the Chief Justice and Mr. Mda, counsel for No.1 accused. No copy was
adressed
to Wo. 2 accused who was not legally represented at the
time.

4

I must
say in all the years I have been on the I have never seen a judicial
officer, who is. presiding a court case, being written
an
extra-judicial letter cri-ticising the manner in which he is
conducting the case. If the Attorney-General were of the opinion
that
there was anything irregular in the way in which the case was being
conducted, he ought to know what remedy was available
to the Crown
counsel and accordingly advise him. I find it totally unacceptable
for a letter of this nature to be ad­dressed
to a judicial
officer, especially behind the back of No. 2 accused who was, at the
time, not legally represented in this case.

Having
said that much, I shall now proceed to deal with the merits of the
case. Briefly stated, the evident heard by the court was
that of
P.W.10, Rubina Osman, who testified that she was employed by the
Lesotho Blank and attached to the Savings Account department
of the
Bank as a savings Account check clerk. On 31st July, 1987 she was
checking the posting journal when she found that an amound
of M20,
000 had been credited into the savings account No. 2000805216 of one
Aaron Motlatsi Ts'osane (A1) but there. was no voucher
covering it.
The transaction appeared to have been computerised on 30th July, 1987
by clerk No. 185 in the Data control department
of the bank.

P.W.10
then want to enquire from clerk No. 185 as to what had happened to
the voucher for the M20,000. 5he and clerk No. 185 examined
the
letter's computer print out or "tally" and found that the
voucher for the M20,000 had originated from the Foreign
Exchange
department

5

of the
bank . An enquiry from the accountant in the Foreigo Exchange
Department of the bank revealed that the debit voucher for
the
M20,000 was also missing. On. checking the computer machine in the
savings account department of the Bank, P.W.10 found that
an amount
of M10,000 had already been withdrawn from the savings account No.
2000805216 on the same day, 31st July, 1987. On the
instructions of
the Bank Manager, P.W.10 caused the remaining balance in the savings
account No 2000805216 to be freezed immediately
and kept in her
custody, together with the posting journal which she handed in as
exhibit J in her evidence

In her
evidence P .W .5 , Thembile Dingiswayo, told the court that since
1986 she had been employed by the Lesotho Bank as a clerk
in the Data
Department of the Bank. Her official number in the bank was 185. As a
clerk in her department her duties included,
inter alia, punching
(computerising) vouchers made by various departments of the for xxxx

On 30th
July, 1987 she was punching vouchers from other departments of the
bank when No. 2 accused who was one of the clerks in
the Foreign
Exhange Department of the bank brought to her a bundle of vouchers
from that department for punching. When he handed
over the vouchers
No. 2 accused told her (P.W.5) to punch them quickly as one of his
customers was waiting and wanted to withdraw
money. In reply P.W.5
told No. 2 accused that she was unable to do so as she was busy
punching vouchers she had earlier received
from other departments

6

of the
bank. However, No. 2 accused kept on coming to her desk and asking
that his vouchers be punched quickly.

When at
about 2 p.m. on 30th July, 1987 she broke for lunch, P.W.5 had
already started punching the bundle of vouchers brought by
Wo. 2
accused. She left the vouchers together with other vouchers from
various departments of the bank and went for her lunch.
At about 3
p.m. on the same day, 30th July, 1987, she returned to her desk and
continued punching the vouchers she had left when
she broke for
lunch. She then took all the vouchers she had punched to the
photocopying room. After she had photo­copied them
she kept the
photocopies in a cabinet in the down control department and
despatched the originals to various departments of their
destination.

P.W.5
confirmed the evidence of P.W.10 that on the following day, 31at
July, 1987, the latter came to her and enquired about the
missing
voucher for the amount of M20,000 which had apparently been credited
into a certain savings account number on the prevous
day, 30th July,
1987 P.W.5 then checked her computer print out or "tally"
(Exh F) for the previous day, 30th July, 1987
and found that she had,
indeed, punched transaction (Mo. 143 by which an amount of M20,000
from manufacturers Hanova Trust Company
account No. 9089050001 was to
be credited into the savings account No0 2000805216 belonging to No.1
accused. The voucher covering
that transaction had originated from
the Foreign Exchange Dapartment but was not amongst the original
vouchers that were in the
possession of P.W.10.

7

Thinking
that she might have inadvertently dispatched it to a wrong department
P.W.5 looked far the missing voucher in the current
and other
departments of the Bank, but all to no avail. She then looked for its
copy in the cabinet where photocopies were kept
in the Data Control
Departments There was no trace of it. She ultimately asked for and
inspected all the passbooks currently used
to draw out vouchers in
the Foreign Exhange Department of the Bank. Again there was no trace
of the missing voucher.

In the
course of her inspection of the passbooks it came to the notice of
P.W.5 that the clerks who used them were each supplied
with a set of
three (3) passbooks at a time. Whilst the other clerks had submitted
all their sets of three (3) passbooks No. 2
accused had submitted
only two (Passbooks), P.W.5 pointed out that anomally to the Foreign
Exchange Department.

On the
following day, 1st August, 1987, No. 2 accused was off duty but his
third passbook (Exh B) was handed over to P.W.5 by the

Sub-Accountant, one Mr. Makara who is, however, allegedly furthering
his studies abroad and could not, therefore, be called as
a witness
in this trial. It is significant that P.W.5 was cross-examined by the
defence counsel on this point and she told the
court (under
cross-examination) that according to him, Mr. Makare had found
exhibit B hidden in one of No. 2 accused's desk drawers.
By cross
examining the witness on it the defence counsel made a point which
was otherwise inadmissible hearsay, admissible evidence.

8

It is,
perhaps, convenient to mention at this stage that Exh B is the
stationery used in the drawing out of vouchers in the Foreign

Exchange Department. It is in the form of a booklet. Each page or
voucher thereof is numbered and in triplicate. The first, second)
and
third copies of each voucher are, respectively, pink, yellow and
white in colour. In drawing out a voucher, either a pink,
or a yellow
page is used, depending on whether the transaction is for a debit or
credit. The unite page is a, carbon copy that
always remains in exh B
together with either the pink or the yellow page, again depending on
whether the transaction was for either
debit or credit.

Dn
examining Exhibit B, P.W.5 noticed that on page 133 68 thereof a
voucher was drawn out to debit the manufacture Hanova Trust
Company
account No. 908905 0001 in the amount of £6034-81 (at the rate
of 331.4105) which was the equivalent of M19,999-99
or M20,000,
brought to a whole number. The account number to be credited with the
amount of M20,000 was not disclosed. However,
the whole transaction
was cancelled and three copies of voucher 13368 remained in Exh 8.

As the
transaction on voucher 13368 debiting the manufacturers Hanova Trust
Company Account No. 908905 0001 with the equivalence
of M20,000, in
sterling had been cancelled. P.W.5 expected it to be repeated on
voucher 13369 or any other subsequent voucher in
Exh B. It was not.
Instead she noticed that on voucher 13369 only the white copy
remained in Exh B i.e. neither the pink nor the
yellow copy remained.
According to the white carbon copy of voucher 13369 in Exh B. the
transaction was crediting a certain account
No. 90900052027

9

with the
amount of M62-57. P.10.5, therefore] expected to Find the yellow
debit page of voucher 13369 remaining in Exh B, together
with the
white carbon copy. It was not there. She looked for the missing
copies i.e. the pink and the yellow copies, of voucher
13369 in all
departments of the Bank. She found, in the General Account Department
only the credit (yellow) copy (Exh G) but no
trace of the debit (
Pink ) copy of voucher 13369 of Exh B.

In her
evidence P.W.4, 'Mampabi Moorosi, told the court that she was the
Accountant in the Foreign Exchange Department of the bank.
She
remembered that on 31st July. 1937 P.W.10 showed her a computer
report according to which on 30th July, 1967 an amount of M20,000
had
been debited from the manufacturere Hanova Trust Company account No.
9089050001 and credited into the savings account number
2000805 215
belonging to No. 1 accused . The relevant vouchers which had emanated
from the Foreign Exchange Department and ought
to have accompanied
the transaction was, however missing.

P.W.4
immediately mounted an investigation on the matter by checking
through the passbooks used in the Foreign Exchange Department
but
found no trace of the missing voucher. On the following day she was
not on duty. However later in the day she went to her office
to find
out if the missing voucher had been traced. It had not. She was
however, shown Exh B - a passbook used by No. 2 accused
who was one
of the clerks in the Foreign Exchange Department and under her
general supervision.

10

P.W.4
confirmed the evidence of P.W.5 that the examination of Exh B
revesled that at page 1336B thereof a voucher was, on 30th July,

1987, prepared and cancelled debiting the manufacturers Hanova Trust
Company Account No. 9089050001 in the sum of £6034-81
at the
rate of 331.4105 per £100 - which, converted into Maluti
currency amounted to M19,999-99 or M20.000 rounded up to
a whole
number. According to the message recorded on page 13358 of Exh B the
instruction to debit manufacturers Hanova Taus. Company
Account No.
9039050001 was communicated through a telex dated 29th July, 1987.

P.W.4
further told the court that as she worked with No. 2 accused in the
same department she was positive that the handwriting
in Exh B,
particularly on voucher 133 68 thereof, was that of No. 2 accused.
She too testified that as the transection on voucher
13368 had been
cancelled she expected No., 2 accused to have repeated it on the
following voucher 13369 of Exh 8. The transaction
was, however, not
repeated thereon or any other subsequent voudcher

According
to P.W.4 the procedure followed in her department was that every
telex message received was photo copied before it could
be handed to
the clerks for action. The photocopies of such telexes were kept in a
file in the Foreign Exchange Department to maintain
a record. After
she had found that according to voucher 13368 in exh B the
ins­truction to debit manufacturers Hanova Trust
Company Account
No. 9089050001 with the equivalent of M20,000 was by a telex, P.W.4
went to look for a copy of the telex message
in the telex room. No
such telex copy could be found.

11

She then
waited for the arrival of the monthly statement (Exh A) from
Manufacturers Hanova Trust Company to see if Lesotho Bank
were,
indeed, credited with the amount of £6034.81. When it
eventually arrived the statement reflected no such transaction.

P.W.4
confirmed the evidence of P.W.10 that on the instructions of the Bank
Manager the funds in No. 1 accused's savings account
No. 2000805 216
from which an amount of M10.000 had already been withdrawn were
freezed

In her
testimony P.W.8, Kamohelo Mahooane;, told the court that in July,
1987 she was a clerk attached to the inquiry section of
the savings
account department of the bank. As such her duties included making
entries in the customers' savings account books
i.e. crediting
customers' savings account books and up dating them. She recalled
that, an 31st July, 1987 No. 1 accused came to
her counter and handed
over his savings account book asking her to check if some money had
been deposited into his account No.
2000805 216 P.W.8 checked on the
computer and found that No. 1 accused' savings account had, indeed,
been credited with the amount
of M20,000 on the previous day, 30th
July, 1987. When she asked him where the funds came from, No. 1
accused replied that he was,
in fact expecting money from two sources
that he was unable to disclose. However, as she was satisfied, from
the computer screen
that No. 1 accused's account had been credited
with the M20,000, P.W.8 up dated the savings account book by making
an entry of
the M20,000.00 and the balance becams M20,098. She handed
the savings account book back to No. 1 accused who then left her
counter

12

In her
evidence, P.W.9, Lebohang Putsoane, told the court that in July, 1987
she was already a teller in the savings account department
of the
Bank, On 31st July, 1987 she mas an duty at counter Wo«6 when
she served No. 1 accused who was withdrawing a huge
amount of M10,000
from his savings account No: 2000805216 - No.1 accused handed over
his savings account book (Exh 2) together
with duly completed
withdrawal slip (Exh D) . When she checked in both the savings
account book and the computer machine. P.W.9
found that an amount of
M20,000 had been credited into No. 1 accused's savings account No.
2000805216 on the previous day, 30th
July, 1987 and there was a
balance of M20,098. The account had, therefore, sufficient funds and
she accordingly paid No. 1 accused
the amount of M10,000 which he put
into his brief case (Exh 3) and left. The money was paid in R50
notes.

Shortly
thereafter, P.W.9 heard P.W.4 enquiring about a customer who had
withdrawn an amount of M10,000, She reported that she had
just served
No.1 accused who had withdrawn M10,000. The withdrawal slip with
which she had served No.1 accused was taken to the
Bank Manager
whilst she herself was subsequently told to go and make a statement
at the Maseru C.I.D.

P.W.7,
Ida Phafane, testified that in July, 1987 she was already a check
clerk in the Foreign Exchange Department of the Sank, under
the
immediate supervision of both the Accountant (P.W.4 and the
Sub-Accountant (Mr. Makara). As such her duties included, inter
alia,

13

checking
the clerks in her department to ensure that every­thing was done
correctly.

According
to P.W.7 the clerks in the Foreign Exchange Department were at the
material time, Miss Phakisi. Miss Makhalanyane and
No .2 accused.
They were each issued with a set of three(3) passbooks to carry out
their work. She conceded, however that there
was, at the time a four
tin clerk viz. Malipondo Kokoana who had recently been employed by
the Bank. She was not even sure that,
as a new arrival. Malipondo was
at the time already authorised to use a pand book .

In her
evidence P.W.7 confirmed that on 31st July . 1987 there was an
information received from P.W.10 that a voucher for a transaction

involving an amount of M20,000 from the Foreign Exchange Department
was missing. Following the information P.W.7 collected the
passbooks
that were currently used by all the clerks in her department and
checked through them to find if there were any voucher
in support of
the transaction involving the M20,000.00 There was no trace of any
such voucher.

According
to P.W.7 all the current passbooks were normally kept by the clerks
in their shelves or cubicles from where she collected
them. From the
shelves of Miss Phakisi and Miss Makhalanyane she found and collected
all their said of three(3) passbooks. From
No. 2 accused's shelf or
she, however, found and collected only two passbooks. She herself
looked for No. 2. accused's third passbook
in the department but all
in vain.

14

However,
on the following day, 1st August, 1987 another passbook (Exh B) was
brought to her by Mr. Makara, the Sub-Accountant who,
for reasons
already explained in his judgment, could not be called as a witness
in this trial. P.W.7 also assured the court that
as she worked with
No.2 accused in the same department and was the one supervising his
work she knew his handwriting very well.
When she ins­pected Exh.
B she had no difficulty, therefore, in identifying the handwriting
therein as that of No. 2 accused.

According
to her, P.W.7 noticed that at page 1336B of Exh B. a voucher was
prepared and then cancelled oy No. 2 accused. The message
in that
transaction purported to have been telegraphic and related to a
transfer of the equivalence of M20,000, in sterling, from

Manufacturers Hanova Trust Company Account Number 9089050001. As the
transaction had been cancelled in voucher 13368, P.W.7 expected
it to
be repeated in the next fallowing voucher 13369 or any other
subsequent voucher in Exh B. It was not

However,
P.W.7 noticed an anomally in voucher 13369. According to the white
carbon copy on Exh No.2 accused had drawn out a voucher
debiting a
savings account No. 9090052027 with an amount of M62.57. She told the
court that, granted the transaction made in voucher
13369 was for a
debit only, the yellow creditcopy ought to have remained unused in
Exh B. It was, however missing together with
the yellow copy and only
the white carbon copy remained.

When a
search for the two copies (i.e. the pink and the yellow copies) that
had apparently been removed from voucher 13369 of Exh
B was made,
only the pink copy

15

by which
savings account No. 9090052027 was being debited in the amount of
M62-57 could be found in the storeroom. That was confirmed
by P.W.6,
Motebaog Masike, who told the court that he was the person in-charge
of this storeroom at the Lesotho Bank. He handed
the pink copy of
voucher 13369 as Exh G and assured the court that there was no trace
of the yellow (credit) copy thereof in the
storeroom.

P.W.7
checked the computer report (Exh C) from the computer centre and
found that there was transaction No. 143, by which the amount
of
M20,000 was, indeed, transferred from account Number 9089050001 into
the savings account Number 2000805216 . As it was obvious
from
voucher 13368 of Exh 3 that it was No. 2 accused who had handled a
transaction in which he was telegraphically authorised
to debit
manufacturers Hanova Trust Company account Number 908905 0001 in the
equivalance of M20,000, in Sterling, P.W.7 proceeded
to check in the
telex room of the Foreign Exchange Department for a telex that
supported such transaction. She checked through
the manufacturers
Hanova Trust Company file kept in the Foreign Exchange Departments.
There was no such telex. In case there was
a misfiling, she also
checked through all. the other files in the department but all to no
avail. When later on the Bank statement
(Exh A) from Manufactures
Hanova Trust Company arrived she too went through it and found that
nowhere did it reflect that it was
debited in the amount M20,000 or
its equivalence in Sterling.

In his
evidence P.W.1, Maitse Moloi, told the court that he was the Bank
Manager at the Lesotho Bank in Maseru and his bank had
dealings with
manufacturers

16

Hanova
Trust Company in England. His evidence corrobroated, in as far as it
is relevant, that of P.W.4,5, 7 and 10. told the court
that when
neither the telex message nor the voucher supporting the transaction
by which the amount of M20.000 was credited into
No. 1 accused's
savings account Number 2000805 216 from munufacturers Hanova Trust
Company Account Number 9089050001 could be traced,
he sus-pected
theft and consequently reported the matter to the polices

P.W.3,
D/Sgt, Rantsatsi confirmed that on 31st. July 1987 he received, from
P.W.1, a report as a result of which he instructed P.W.2,
D/Tpr
Sekamo to commence investigations

The
evidencs of P.W.2 was to the effect that at about 2 p. m. on 1st
August, 1987 he proceeded to the horns of No. 1 accused at
Upper
Thamae here in Maseru. He found him not in and left a message that on
his arrival No. 1 accused should report himself at
the C.I.D.

Later on
the same day, 1st August, 1987 No. 1 accused duly reported to P.W.2
at the C.I.D. where he was interrugated by W/O Tomana,
P/W Ntane,
P.W.3 and P.W.2 himself. Following his interrogation No. 1 accused
took the police officers to his house at Upper Thamae
where he
produced an amount of M3.800-00 together with his savings account
book and pass­port. He gave the articles to P.W.2
who in turn
handed them over to P.W.3 for custody. The police officers returned
to their office together with No. 1 accused. The
next day and
following the informetion of Wo. 1 accused, P.W.2 proceeded to
Lesotho Bank where he found Wo. 2 accused. He took
him

17

to the
C.I.D. where he confronted him with No. 1 accused. Following the
explanation of No.2 accused P.W.2 proceeded to No.1 accused's

brother, Moahe Tsosane, at the village of Upper Thamae. On the way to
the village , P.W.2 met Moshe Tsosane and took him to the
C.I.D.
where he confronted him with the two accused. In the presence of the
accused, Moshe gave an explanation and took P.W.2 and
P.W.3 to his
home where he produced and handed over to the police officere an
amount of M2,400 which had been hidden in a sofer.
The police
officers took possession of the money and returned cc their office
together with Moshe Tsosane. Although Moshe was cautioned
and charged
jointly with the two accused the charge against him was later dropped
on the directives of the office of the Director
of Public
Prosecutions.

As it has
already been pointed out earlier, at the end of the case for the
prosectuion, No.2 accused elected to remain silent and
close his case
without testifying in his defence. There is, however, an unchallenged
evidence, adduced by the crown, to the effect
that on 30th July, 1937
No.1 accused's savings account No. 2000805216 was credited in the
amount of M20.000 from Manufacturers
Hanova Trust. Company Account
No. 908905 0001. The voucher supporting that transaction had emanated
from the Foreign Exchange Department
in which No.2 accused was one of
the clerks. He was, indeed the clerk who, on 30th July, 1987, brought
a bundle of vouchers from
the Foreign Exchange Department to P.W.5 in
the Data Control Department for punching or computerising. After he
had brought the
vouchers to the Data Control Department No.2 accused
kept on pestering P.U.5 that she should quickly computerise them.

18

From her
computer print out or "Tally";(Exh F) P.W.5 was positive
that she had, on 30th July, 1987, punched a transaction
by which the
Foreign Exchange Department was debiting Manufacturers Hanava Trust
Company account Number 90895D001 with the amount
of M20,000 which was
to be credited into No. 1 accused's savings account No. 2000805216.
The voucher supporting that transaction
had, however, disppeared
after the transaction had been computerised and could not be traced
anywhere in the bank.

As there
is no doubt that the transaction by which the M20,000 was transferred
from Manufacturers Hanova Trust Company Account No.
9089050001 into
No. 1 accused's savings account No. 2000605 216 had emanated from the
Foreign Exchange Department of the bank the
question for the
determination of the court is whether or not No.2 accused is the
clerk who drew out the voucher which supported
the transaction.

In this
regard there is, an unchallenged evidence that when all the passbooks
currently used in the Foreign Exchange Department
of the bank were
checked, it was found that in his passbook (Exh a) No.2 accused had
drawn out 13368 by which he purported there
was a telex message dated
29th July, 1987 authorising transfer of the equivalance or M20,000,
in Sterling, from Manufacturers Hanova
Trust Company Account No.
9089050001. No.2 accused cancelled the transaction on voucher 13368.
But as it appeared there was a telex
message dated 29th July, 1987
authorising the transaction, that transaction ought to have been
repeated

on
voucher 13369 which had misterioualy a credit; page missing

19

The
transaction was, however, neither repeated on voucher. 133 69 of Exh
B nor any subsequent voucher thereof. The purported telex
message of
29th July, 1987 authorising the transaction could not be traced in
the bank nor could the statement from Manufacturers
Hanova Trust
Company reflect the equlvalancs of M20,000, Sterling ,which was to be
transferred through the Foreign Exchange Department
of the Lesotho
Bank.

Although
Na.2 accused had cancelled the transaction on voucher 13368 it is to
be observed that the amount of M20,000 or its equivalence,
in
Sterling, was nonetheless purportedly transferred from Manufacturers
Hanova Trust Company Account Number 9089050001 into No.1
accused's
savings Account No. 2000805216. As voucher 13369 of the Exh B was the
only voucher with a missing page, it seems reasonable
to infer that
the missing page in voucher 13365 was sureptitiously used to draw out
the voucher which supported the transaction
involving the M20,000. On
the evidence No.2 accused was the only clerk in the Foreign Exchange
Department who used Exh B. Indeed,
he is the only clerk from that
department who, on 30th July, 1987, took vouchers to P.W.5 in the
Data Control Department. That
being so, I am of the view that the
answer to the question, I have earlier posted, viz. whether or not
No.2 accused is the clerk
who drew out the voucher in support of the
transaction by which the M20,000 was transferred from Manufacturers
Hanova Trust Company
into No .1 accused's savings account must be in
the affirmative.

20

Coming
now to No.1 accused, he testified in his defence and conceded that on
30th July, 1987 he was already operating savings account

Wo.2000805216 with the Lesotho Bank here in Maseru. The account was
on that day credited in the amount of M20,000,

In an
attempt to explain how his savings account came to be credited with
the M20,000, No.1 accused told the court that prior to
30th July,
1987 he was emmployed by Avis Rent-A-Car, a company dealing with the
hiring of vehicles to people, especially tourists,
in this country
Whilst working at Avis Rent-A-Car he met three tourists from
overseas, who were interested in given him,money which
he needed to
build flats for renting. Although he wrote their particulars in his
diary No.1 accused no longer remembered the names
and addresses of
the three tourists as that was an old affair. He only remembered one
of the tourists as just "David"
who later returned to
Lesotho and lived in the village of Mohalalitoe here in Maseru. He,
however, did not know whether or not
"David" mas still
living in the village of Mohalalitoe.

On 31st
July, 1587 No.1 accused went to the bank to withdraw M20 from his
savings account No. 2000805216 which admittedly had a
balance of only
M98 . When he presented his savings account book, passport and the
completed withdrawal slip to the teller, the
latter asked him whether
he was expecting money from anywhere. In reply No.1 accused explained
that he was not sure if any of the
people (Tourists) he was expecting
money from had sent it. The teller then handed back all his documents

21

saying
his savings account book did not balance and required up dating. For
that reason the teller referred him to another desk,
presumably the
inquiry desk. He complied

When he
left the inquiry desk, Wo. 1 accused inspected and found that his
savings account book had been credited in the amount of
M20,0"0a
giving him a balance of M20,098. He immediately distroyed the
withdrawal slip he had previously completed for the
amount of M20 and
prepared another ana (Exh D) by which he demanded payment of
M10,000.00 After it had been paid to him he put
the M10,000 in a
brief case and left the bank.

As his
wife who usually kept his money was not at at home, No.1 accused took
MB , 000 to his younger brother, Moshe, for safekeeping,
Out of the
M6 ,000 that remained with him he kept M3,800 in his wardrobe and
took the balance to a casino where he and his friends
carelessly
squandered it on gambling machines and drinks on the night of the
same day .

It is
significant that No.1 accused does not know the names of the tourists
who allegedly promised him financial assistance. Nor,
indeed, does he
know the Overseas countries of their origin. It is, however, worth
mentioning, in this regard, that until the commencement
□f this
trial, on 7th June, 1989, No.1 accused was on bail If it were true
that be had noted the particulars of the trouriats
in his old diary,
No.1 accused had, therefore, ample time to look for the diary which
could have been produced in support of his
story. No such diary has,

22

however,
been produced and No. 1 accused merely contended himself with saying
he did not know if his wife had destroyed the diary
as this was an
old affair.

There is
no doubt in my mind that No.1 accused's story that he was promised
money by some unknown tourists has no truth and it would
have been a
waste of time for the crown to follow it. I accordingly reject it as
false.

Although
he cold the court that when he came to the bank on 31st July, 1987 he
wanted to withdraw the amount of M20 but a teller
refused to serve
him and instead referred him to the inquiry desk to have his savings
account book up dated, No.1 accused himself
testified that he did not
know the teller nor, indeed, could he identify her if an
identification parade were to be held.

It may,
perhaps, be mentioned at this stage the1!; P.W.9, a teller at the
savings account department of the bank, testified that
where it was
found that a customer's savings account book required up dating, the
procedure followed at the bank was that the teller
would first serve
such customer and then refer him to the inquiry desk for the up
dating of his book. Her evidence was, in th3t
regard, corroborated by
P.W.8, a clerk at the inquiry desk The evidence of both P.W.8 and
P.W.9 did not, therefore, support No.1
accused's story that when, on
31st July, 1987 he came to the bank to withdraw the amount of M20 a
tells?: he could not even know
refused to pay him the M20 and instead
referred him to the inquiry desk to have his savings account book up
dated.

23

Assuming,
for the sake of argument, the correctnase of his story that when, on
31st July, 1987, he came to the bank No.1 accused
wanted to withdraw
only M20 from his savings account which admittedly had, even before
it was credited in the amount of M20,000,
a balance of M98, I find it
incredible that instead of paying him the small amount of M20 the
unnamed teller would have referred
him to the inquiry desk thus
causing him the trouble of having to cue in the line for the second
time.

In my
view, what is sensible is the crown evidence that in the morning of
31st July, 1987 No.1 accused came to the bank, went straight
to the
inquiry desk and verified that his savings account Number 2000805216
had been credited in the amount of M20,000 which P.W.8
duly entered
in his savings account book. Only then did No.1 accused prepare the
withdrawal slip for M10,000 and went to P.W.9,
the teller who, on the
basis of the entry made by P.W.8 in his savings account book. paid
him the money. No.1 accused never prepared
a withdrawal slip (for
M20) which, as he wants this court to believe, he later destroyed-
The haste in which, the moment he realised
that the huge amount of
M20,D00 had been deposited into his savings account,

No.1
accused withdrew M10,000 and squandered part thereof, leaves no doubt
in my mind that he knew that the money had not been lawfully
acquired
or deposited into his savings account.

Although
in his testimony No.1 accused denied that, apart from casually seeing
him at the bank, he knew No.2

24

accused,
there was ample circumstantial evidence indicating that he did know
him and in his denial he was therefore. not being honest
with this
court. No.2 accused had for example, on 30th July, 1967 caused
M20,000 to be deposited into No.1 accused's savings account
No.
2000805216. In the morning of the next day, 31st July, 1967, No.1
accused was already at the bank where he verified that the
money had,
in fact, been paid into his savings account. He immediately withdrew
M10,000 of which he carelessly spent part on gambling
machines and
drinks at a Casino during the night of the same day. Indeed, P.W.2,
whose evidence I can think of no,good reason to
doubt, told the court
that it was on the information given by No.2 accused that he and
other police officers started looking for
Moshe Ts'osane who was
admittedly keeping another portion of the M10,000 that No. 1 accused
had withdrawn from. the bank on 31st
July, 1987.

Pram the
foregoing, I am of the view that prior to 30th July, 1987 the two
accused did not only know each other very well but had
designed a
scheme whereby No.2 accused was to fraudulently cause to be deposited
into accused 1's savings account No. 2000805216
money which the
latter would withdraw. I simply do not see how No.2 accused could
have known and deposited money into, No.1 accused's
savings account
No. 2000805215 unless the latter had furnished him with the account
number for the purpose of carrying out their
scheme In pursuit of
their fraudulent scheme No.2 accused purported there was a telex
message dated 29th July, 1987 authorising
manufacturers Hanova Trust
Company account

25

No.
9089050001 to be debited in the amount of M20,000, in Sterling. To
that effect he prepared a voucher on the strength of which
P.W.5
computerised transaction 143 which was purportedly crediting No.1
accused's savings account No. 2000805216 in the amount
of M20,000
from manufacturers Hanova Trust company account Wo. 908905 0001. On
the basis of the computerised transaction 143 No.
1 accused's Savings
account No. 2000805216 was, indeed, credited in the amount of M20.000
from which he withdrew M10,000-00.

As it has
been pointed out earlier, there was never a telex message authorising
the drawing out of the voucher in support of transaction
143 which
was computerised by P.W.5. Assuming the correctneas of my finding
that the telex message never existed it must be accepted
that the
voucher drawn out by No.2 accused in support of transaction 143 was a
misrepresentation or a wilful perversion of the
truth obviously made
with intent to defraud the bank. Indeed, acting on the
misrepresentation of the accused, the officials at
the Lesotho Bank
did credit No. 1 accused's savings account No. 2000805216 in the
amount of M20,000 to the prejudice of the bank.
Again, assuming the
correctness of my finding that the two accused acted together or
aided each other in the execution of this
unlawful act, it must be
accepted that they are, on the well known principle of common
purpose, equally liable.

In the
result, I am satisfied that, taking the evidence as a whole, the
offence against which they stand charged in the main charge
has been
proved beyond reasonable dubt

26

I would,
in the circumstances, find both accused guilty as charged in the main
charge.

Both my
assessers agree.

SENTENCE
: Accused 1 - 6 years imprisonment Accused 2-7 years imprisonment

It is ordered that the M10.000 which is the balance remaining in A1's
Savings Account book, the amount that A1 produced from a
wardrobe in
his house and the amount that was hidden in, and taken from Moshe's
sofa must all be returned to Lesotho Bank. A1's
Savings Account book
together with its lawful balance of M98-00 must be returned to him
after the necessary adjustments have been
made therein by the Bank.

B.K.
MOLAI

JUDGE

15th May,
1990.

For Crown
: Mr. Thetsane

For
Defence : Mda.