CRI\T\75\89
IN THE HIGH COURT OF LESOTHO
In the matter of :
REX
v
PETER KENENE MAHASE
JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the 7th day of July, 1992
The accused pleaded not guilty to six charges of (a) forgery and (b) uttering in the main counts, as well as to six other charges of theft in the alternative counts.
In the six main counts it is charged that during the period extending from 26th January, 1987 to 21st January 1988 and in the course of his employment in the Lesotho diplomatic service as Third Secretary otherwise known as Accountant the accused on six separate occasions forged and uttered certain documents or instruments referred to as transfer orders.
The charges set out that the transfer orders relating to each of the counts referred to in the indictment state that as a result of the forgeries and utterings the Lesotho Mission to the European Economic Community was defrauded of the sums of money made mention of in the indictment. Otherwise each respective sum
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so mentioned is alternatively charged as theft allegedly committed by the accused.
In the first count the amount of 88,602 Belgian francs was altered to read 188,602 Belgian Francs making a difference of 100,000 Belgian Francs which at the then prevailing exchange rate was equal to M5,458-00 when converted.
In the next count the amount of 91,467 Belgian Francs was altered into 391,467 Belgian Francs making a difference of 300,000 Belgian Francs which at the then prevailing exchange rate was equal to M16,145 when converted.
Next after the above count it is reflected that an amount of 93,055 Belgian Francs was altered into 293,055 Belgian Francs making a difference of 200,000 Belgian Francs which at the then prevailing exchange rate converted to M10,753-91.
Next after the above count it is reflected that an amount of 89,313 Belgian Francs was altered into 289,313 Belgian Francs making a difference of 200,000 Belgian Francs which at the then prevailing rate converted to M11,050-52.
Next after the above count it is reflected that an amount of 87,489 Belgian Francs was altered into 187,489 Belgian Francs
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making a difference of 100,000 Belgian Francs which according to the exchange rate prevailing then converted to M5,637-01.
Finally it is reflected that an amount of 93,778 Belgian Francs was altered into 393,778 Belgian Francs making a difference of 300,000 Belgian Francs which at the then prevailing exchange rate converted into M16,592-47.
The Crown indicated that in count l(a) Transfer Order Exhibit "M" was forged in the amount of 100,000 B.F. The other Exhibits relating to this count are Exhibits "L", a duplicate of Exhibit "M" "A" "B" "N" and "0". In count Kb) the Crown alleges that the accused offered, uttered and put off the transfer order Exhibit "M" on the 26th January 1987. Count 2 alternatively to Count 1 charges that on the day in question the accused stole the 100,000 Belgian Francs or M5,458-00 the property of the Lesotho Government.
In count 3(a) the accused is alleged to have forged Exhibit "Q" on 25th May 1987 in the amount of 300,000 Belgian Francs. Other Exhibits relating to this count are Exhibits "P" "C" "AC" and "S"/ Count 3(b) alleges that the accused offered, uttered and put off Exhibit "Q" on 25th May 1987. It is alternatively charged that he stole this amount on the day in question.
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Suffice it to briefly say in count 5 Exhibit "T" for the amount 200,000 Belgian Francs relates to Exhibits "D" "E" "AD" and "U". The relevant date to this count is 23rd July 1987.
Exhibit "V" in count 7 relates to Exhibits "F" "G" and "W". The specific amount and date relevant thereto are 200,000 Belgian Francs and 28th October 1987 respectively.
Exhibit "Z" in count 11 relates to Exhibits "J" "K" "AA" and "BB". The relevant amount and date are 300,000 Belgian Francs and 21st January 1988 respectively.
The Crown led the evidence of PW1 Captain Mokhele of the Royal Lesotho Mounted Police stationed in Maseru Central Police Station and attached to the C.I.D. PW1 testified that after receiving information from PW2 Mr. Khoeli Motebang, he launched investigations into this case. During this exercise he seized payment vouchers and sub-Accountant's cash book pages relating to each of the counts in this proceeding.
PW1 later confronted the accused with payment couchers, sub-Accountant's cash book pages, transfer orders, abstracts or daily statements and journals. He told the Court that the accused acknowledged these documents. He further said the accused, in exercise of his right to silence when called upon to make an
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explanation regarding these, intimated that he would make an explanation in Court if charged.
PW1 was cross-examined and it came to surface that PW1 had put to the accused a charge of fraud which is not the charge preferred against him in any of the indictments before Court, It also surfaced that the caution PW1 says he advanced to the accused was only given after the accused had committed himself as to the knowledge of the documents referred to above.
PW1 testified that he had to date been in the police force for upwards of twenty three years yet when asked the following questions he gave the following answers under cross-examination :
"So you wanted the accused to commit himself as to his knowledge before you warned him....? Not to commit himself.
Why didn't you caution him first....? No way could I caution him for he might have known(by) then.
You only cautioned him after he said he knew these papers...? Yes.
But when you approached him you already regarded him as a suspect......? Yes.
So you can only caution a suspect if he knows the papers.....? If they passed through his hands he would know them.
You had to find if the suspect knew the papers before you could caution him......? All I wanted to know is if he knew them.
(The question was repeated and he answered : 'Yes')
And you found nothing wrong with that.....? Nothing"
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I can only indicate in passing that there is everything wrong with that.
From the evidence gathered from PW2, PW3 Mrs. Mothepu PW4 Miss Limpho Sekoli and in part PW6 Mr. Tsoanamatsie who was the Lesotho Ambassador in Brussels; E.E.C. at the time, it appears that during the period extending from January 1987 to 1988 the accused's duties entailed -
control and management of finances at the Lesotho Mission to E.E.C. under the supervision of PW6;
preparation of paper work relating to payment of the Lesotho Mission's monthly salaries including his own.
With regard to the procedure relating to the above payments I wish to rely on the summary for such procedure as stated in the Crown's heads of arguments at page 7 outlined as follows :
- The accused would initiate preparation of payment couchers and transfer orders. The payment voucher would include and contain (a) payee (b) duty station (c) the salary and Foreign Service allowance and children's allowance if there were any children.
Simultaneously with the preparation of the payment voucher the accused would also prepare a transfer order or form to enable
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the bank i.e.(BBL) the Bank of Brussels to effect payment into . the account of the payee and debit the account of the Embassy.
The Lesotho Mission to the EEC used a Banking Account number 310-0384495-73 005-0-000 during the period January 1987 to January
1988.
It is important to note that according to practice adopted between the Lesotho Mission and the Bank in Brussels where the Lesotho Mission maintained this Banking Account, a payment voucher is produced in triplicate whereas a transfer form is in duplicate and reproduced at the same time with the original without use of a carbon paper commonly used in other transactions to produce a carbon copy.
After preparing these documents the third Secretary to the Mission would append his signature on both a transfer order and a payment voucher. He would then bring both these sets of documents to the Ambassador or the Counsellor in the absence of the Ambassador for cross-checking, authorization signified by the latter's appending his or her own signature in turn if the documents were in order.
It was the role of the Ambassador or failing him that of the Counsellor to check and satisfy himself as to the payee and the
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reason for payment. The reason would be either one or all of the following; to wit, salary, Foreign Service Allowance and\or Children's
allowance.
One of the most important functions discharged by the Ambassador or his deputy in this regard would be to ascertain that the payment is a justifiable charge to the Government. To enable him to do this he would rely on the narrations appearing on both the payment voucher and the transfer form to see if they substantially bear the relevant information in all material
respects. Failing this the Ambassador would not authorise the payment; and would if necessary call the third secretary for explanation. Should the Ambassador not be satisfied with the explanation or if the documents are faulty he would order that these should be done all over again. Otherwise if he is satisfied he would append his signature thereby authorising payment in respect of any of the purposes shown above including such other purposes as per diem allowances tour imprests, or authorised purchase of equipment.
Usually the Ambassador's signature would be appended on top left hand corner of the transfer form, while in respect of the payment voucher it would be appended in the space provided for the purpose towards the middle.
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When both these documents have been signed they would be sent back to the third secretary who would take the transfer order only to the bank which would effect payment. The bank would credit the beneficiary's account and debit that of the remitter. The bank would keep the original copy of the transfer order and return the duplicate copy to the accused whose duty it was to keep it for record purposes.
A few days thereafter the bank would provide the Embassy with a statement reflecting the transactions previously effected and the amounts involved in debiting the Mission;s account.
It has been elicited from the witnesses for the Crown that almost daily; abstracts would be sent by the Bank to the Mission. These abstracts would go direct to the accused's office.
The accused's duty would be to compile and prepare monthly returns using payment vouchers and sub-Accountant's cash book in which all payments for the month are reflected together with payment vouchers' numbers accompanying such payments.
The monthly returns would then be sent to Treasury via the Ministry of Foreign Affairs. The Treasury would, before posting the monthly
returns to the computer ensure that the payment vouchers, cash book pages and the bank statements balanced.
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But if these didn't balance then there wouldn't be any posting done.
The evidence of PW3 Mrs Mothepu shows that when PW6 Mr. Tsoanamatsie the Ambassador was away on a conference in Geneva she discharged the Ambassador's functions at the Lesotho Mission to the EEC in July 1987. She told the Court that the accused prepared his salary and other allowances for that month. PW3 testified that she authorised payment relating to these items -see Exhibit D the payment voucher for 93 055 Belgian Francs bearing PW3's authorization given on 23 July 1987.
PW3 testified that when Exhibit D was brought to her for authorization it was accompanied by Exhibit "T" the Transfer Order. She told the Court that she checked that the name of the person to be paid appeared on both documents, and that the narration appearing on Exhibit "D" also appeared on Exhibit "T" and that the amounts on both these exhibits were the same. Thus she appended her signature on each of these exhibits one after the other on the same occasion. She vehemently swore that the" additional narration i,e. "And Tour Imprest" was not there when she signed Exhibit "T". She told the Court that had the two documents borne different narrations as they do now she would not and could not have authorised them for further processing and eventual payment as they stood.
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PW3 stated that it was not the practice either at the Brussels Mission or in the Lesotho Civil Service to club together "Salary and Tour Imprest" in one and the same document. She tenaciously asserted that if there ever arose need for "tour imprest" to be authorised then a separate supporting payment voucher would have had to be prepared.
PW3 further testified that on looking at Exhibits "T" "D" and "E" the additional narration i.e. "Tour Imprest" had not been accounted for anywhere in that there wasn't any payment voucher accompanying it. She further said in any event during the month in question she never authorised any transaction relating to "Tour Imprest" payable to the accused. Nor was she aware of any document that required to be signed by PW6 the Ambassador relating to the accused's "Tour Imprest" before PW6 left for Geneva. She indicated that even though her signature does not appear on Exhibit "T" which is a photocopy of the original she was unyielding in her statement that her signature did appear on the original of Exhibit "T", for she had had occasion to inspect that original which the bank could not release.
She based her assertion on the fact that the bank used to require that there be two signatures on a transfer order, and that if a transfer order bore only one signature the bank would not honour such a transfer order.
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PW6's evidence is to the effect that during the period January 1987 to January 1988 he was the Lesotho Ambassador to the EEC. His duties entailed the proper control and management of public funds in accordance with Financial Regulations, 1973. He exercised supervisory and overall authority in the Mission where the accused discharged his functions and duties as an Accountant who managed and controlled finances there.
PW6 stated that the accused's duty was to prepare payments and salaries for the Lesotho Mission staff in Brussels. He referred to Exhibit "L", a duplicate copy of the transfer order and made an observation in his testimony that there was some erasure on Exhibit "L". This erasure appears before the first figure 8 in the total figure 88 602 appearing in Exhibit "L".
PW6 stated that narrations appearing on the two documents i.e. Exhibits "L" and "A" were different. Exhibit "A" is a payment voucher number 85. PW6 testified that he authorised the transaction appearing in Exhibit "A" and further stated that when he so authorised Exhibit "A" there was no narration styled "PLUS TAX REFUND" appearing in Exhibit "M". He further stated that Exhibit "M" the transfer order bears his signature. He explained that when he signed Exhibit "M" a copy of the original transfer order, there was no figure "1" before the figure 88,602. He testified that if exhibits "L" and "M" had been presented to him
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in the form in which they now appear i.e. with the additional
information "Plus Tax Refund" he would not have signed them for such would be contrary to provisions of Financial Regulations. He further stated that he would not have signed Exhibits "M" and "L" because they did not agree with the payment voucher Exhibit "A" .
PW6 also testified that he signed Exhibits "P" (payment voucher No. 78) and "Q" the transfer order at the same time. He said when he signed Exhibit "Q" there was no figure "3" before the figure 91467 BF. He emphatically stated that at the time when he authorised Exhibit "Q" there was no additional narration or instruction in the shape of the ampersand sign "&"or plus sign "+" followed by "Advancement".
He further stated that if Exhibit "Q" had any such narration clubbed together with salary and foreign service allowance and children's allowance he would not have authorised this document as it is contrary to provisions of Financial Regulations.
The Court was told by PW6 that he signed both Exhibits "F" a payment voucher No.87 and "V", a Transfer Order. He said that when he signed these each of them bore the sum 89,313 BF the narrations borne on each being identical to the one on the other.
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He stated that when he authorised Exhibit "V" there was no figure "2" appearing now before 89,313 BF. He testified that if the documents "V" and "F" were different as to the amounts reflected in either he would not have authorised or passed them for payment.
PW6 further said he signed Exhibits "H", a payment voucher No.69 and "X" a Transfer Order. He testified that when he signed these documents the sums and narrations reflected on both of them were the same. He said if there were discrepancies on these documents at the time these were brought to him for attention and signature he would have declined signing them; but would rather have returned them to be redone. He was emphatic that Financial
Regulations do not permit that salary foreign service allowance and other modes of payment be clubbed together with "Tax Refund".
He went further to show that he signed Exhibits "J", a payment voucher No.64 and "Z" a Transfer Order. He said when he did so there were no discrepancies as to amounts and narrations reflected in either. He however realised that presently there are some discrepancies between these two documents in that "Exhibit "Z" now bears an additional narration namely "Plus Tour Imprest", and further that a figure "3" appears before the figure 93 778. He stressed that this was not the case as at the time he
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signed the exhibits in question. He asserted that if at that time there were any such discrepancies he would not have authorised or signed these documents.
It is important to note that the transfer orders referred to above appear to be photo copies. An important feature of each is that each has been certified a true copy by the Bank Brussels Lambert under the hands of V. Cavrot and H. Van De Wiele. An explanation why originals could not be furnished to this Court was given by PW3 and PW2.
It is important also to note that PW6 stated on oath that relations between him and the accused have been harmonious during the period covered by the indictments to date. He assured the Court that he bore the accused no ill-will at all.
PW4 Miss Limpho Sekoli testified that she joined the Treasury as an Accountant in April 1987. She was charged with the responsibility of checking accounts of various Embassies and preparing them for posting them to the computer centre. The Lesotho Mission accounts from Brussels fell to her lot. Her office used to receive payment vouchers, bank statements, reconciliation statements and cash books.
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She testified that in the day to day and month to month routine of her service at the Treasury she noticed that payment vouchers would show all payments effected in any given month and that the same information borne in the payment vouchers would appear in the cash book. She also noticed that the bank statement would show the amount of money paid by the bank. Normally this amount would tally with the amount in the cash book.
She also stated that in the proper upkeep of accounts the bank reconciliation statement has to accord with the balances of the bank and Embassy. She told the Court that it would be the accused's duty to see to it that these requirements are satisfied.
She testified that at the time she joined the Treasury the Brussels account had been kept aside because it was incomplete. Following this discrepancy she put a call through to the accused in Brussels to remind him of this. Thereupon the accused made a promise to send the balance of the missing bank statement. She said that she kept reminding the accused about this rather disturbing state of affairs until she called PW2 at Foreign Affairs Ministry. She later came to realise that there was a discrepancy between the balance in the cash book and the bank statement. It occurred to her finally that the difference
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between the bank statement and the balance in the cash book was. accounted for on no other hypothesis than in the third Secretary's salary and other allowances.
She testified and the Court's attention was drawn to the fact that she scribbled her discoveries in pencil on some of the bank statements.
Her comments in that regard served as a guide to her immediate boss one Mrs Motsoasele. As a result of the discrepancies she had spotted, she and PW2 were assigned the duty to go and inspect the books of account in the Lesotho Mission to the European Economic Community (EEC) in Brussels. When setting out for Brussels for this purpose she and PW2 had in their possession Exhibits "AC" "AD" and "AE".
She and PW2 found a copy of Exhibit "L" in the office of the third secretary relating to the month January 1987. She told the Court that the accused when asked where the other copies of Transfer Orders were he said he did not know. Thus PW4 and PW2 decided to go to the bank where they were favoured with the original copies of transfer orders i.e, original copies of Exhibits "M" "L" "Q" "T" "V" "X" and "Z".
She told the Court that she and her company made a thorough inspection of the original copies of these documents and testified further that the photocopies exhibited before Court now
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compare flesh and fell with the originals she had inspected. Needless to repeat the Bank of Brussels could not release the. original copies to her and PW2.
However PW4 and PW2 were able to seize from the Bank in Brussels exhibits "AA" and "N" which are Bank Abstracts in duplicate original forms. They also seized Exhibits "O" a green certified copy (certified by J.Cavrot and H. van de Wiele) of the original journal, "S" a green copy (certified by the two persons referred to above) certified as true copy of the original journal, "W" a photocopy, (certified true by the two persons above) of the original, "Y" a green copy (certified by J. Cavrot and J. Vogellier) certified a true copy of the journal and "BB" also a green copy certified a true original of the journal by H. Van de Wiele and J. Cavrot.
PW4 testified that she and PW2 examined the original copies of these exhibits and on comparison noticed that they corresponded very well with one another. The Bank did not let them seize the originals.
In their attempt to see how the discrepancies occurred PW4 and PW2 inspected exhibits "L" "M" "N" "O" "A" and "B". PW4 said that she and her team mate noticed that Exhibit "A" a payment
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voucher No.85 and Exhibit'"B", the sub-Accountant's cash book correspond in that the amounts and the narrations appearing on them are the same. However Exhibits "H" and "A" differ materially as to narrations and amounts.
The Abstract Exhibit "N" shows that on 27-1-(87) the Mission's account was debited in the amount of 188 602 BF as a result of an instruction given in Exhibit "M" the Transfer Order, Exhibit "O" the journal shows that on 27-1-87 the Mission's account was debited and an equal amount credited to the accused's account. To put it in another manner the Mission's Account 310-0384495-73 005-0-000 was debited in the amount of 188 602 BF.
If this was a coincidence a repetition of similar coincidences on no less than three other occasions would exercise a thinking mind in a different way. See for instance the amount 391 467 BF in Exhibit "AC" and compare the accused's credit in the same amount in Exhibit "S" read with Exhibit "Q" and Exhibit "P" the payment voucher bearing only 91 467 BF. The same goes for Exhibits "U" and "X".
PW4 testified that Exhibits "M" and "A" are prepared at the same time and ought to have had the same information
throughout i.e. the amounts ought to be equal and the narrations ought to
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correspond. She reiterated her standpoint that it is neither the practice not is it normal in accounting to lump together salary, Foreign Service allowance and Tax Refund in one and the same document, namely the Transfer Order. She indicated that the additional narration "Tax Refund" on Exhibit "M" was not accounted for anywhere by way of a payment voucher which necessarily should accompany and support it. She accordingly pointed out that as a result of the departure from the normal practice the Lesotho Government lost 100 000 BF.
The evidence of PW4 has adequately brought to surface that by embarking on the procedure, outlined above in respect of Exhibit "L"
and the accompanying documents, repeated in Exhibits "Q" "T" "V" "X" and "Z" and their respective accompanying documents an arbitrary figure would be placed before a figure reflected on a payment voucher thus enhancing the amount payable to the third Secretary's account considerably, with the result that in January 1987 the difference in the amounts appearing in the payment voucher and in the Transfer Order was 100 000 BF converting to M5 458 at the then going rates credited to the accused's account and representing a loss of equal amount to the Lesotho Government. In May 1987 the difference of 300 000 BF converting to M16 145 represented a loss to the Lesotho Government and credit to the accused's account. In July 1987
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the difference of 200 000 BF converting to M10 753-91 represented a loss to the Lesotho Government and credit to the accused's account. In October 1987 the difference of 200 000 BF converting to M11 050-52 resulted in a loss to the Lesotho Government and represented credit to the accused's account. In November 1987 the difference of 100 000 BF converting to M5 637-01 resulted in a loss to the Lesotho Government and credit to the accused's account. In January 1988 the Lesotho Government by similar means suffered a loss of 300 000 BF converting to M16 592-47 at the then obtaining rate of exchange and that amount represented credit to the accused's account in the Bank of Brussels on the evidence of records and documents before this Court.
all Crown witnesses who gave evidence before this Court were thoroughly and closely cross-examined. Of these I formed the impression that only PW1 and PW2 were to some extent unhinged. PW1 seemed not clear what the charge facing the accused is. But that lack of understanding was dispelled by the form in which the Director of Public Prosecutions framed the indictment. He further betrayed a lack of appreciation of the importance of the Judges' Rules. However abundance of authority shows that important as they are the Judges' Rules are rules of administrative procedure whose full force can be brought into play where an accused person is unduly taken advantage of by a
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cunning peace officer, through application of unfair means such as cajoling an accused to his prejudice or using threats to his detriment. In this case it is in evidence that when the accused stated that he would give his explanations in Court if requested PW1 desisted from interrogating him. PW2's testimony was muddled by his tendency to be verbose and to fence with questions put to him with the result that in the middle or at the end of his meaningless verbiage it would become apparent that he had not understood the question put to him. Otherwise in the material
respects he was corroborated by the consistent and well delivered evidence of PW3 and PW4 and to some extent that of PW6. There were instances where the evidence of PW2 conflicted with that of PW4. For instance at the stage where PW2 gave the impression that all documents he referred to were examined side by side with photocopies already produced in Brussels whereas PW4 said they saw the originals and then certified copies were delivered afterwards.
PW4 was adamant that the accused's Account had been credited with the amounts appearing on various journals exhibited before this Court. She stated that unless something to the contrary is submitted or shown by the accused himself, the position disclosed by the various journals remains a true reflection of what the Bank in Brussels(BBL) did to both the Lesotho Mission's Account
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and the accused's. Thus shifting the evidential burden to the accused. She stated that since she had no cause to doubt the information contained in the journals she did not find it necessary to go beyond the exhibits in issue. Had she any doubts she would have gone further and qualified her statement by saying that such a step is of very rare occurrence. She further stated that Although the journals are written partly in French and partly in English and some of the expressions therein are not translated into English she could adequately interpret the relevant information which is in English into the accounts language. She buttressed her assertion by saying that journals are similar in international institutions like banks. She vehemently stated that Abstracts are merely supportive of documents, supporting journals with regard to transactions in question.
PW5 Mr. Gerard Muzart was called to explain certain French words appearing in the documents before Court. The overall impression I got from his task was that it in no way detracted from PW4's interpretation of contents of documents she dealt with. I must however confess that I don't know French thus it is possible that I could be hoodwinked by someone who deliberately wishes to do so. But I have not gained the impression that anyone attempted that in this Court.
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PW4 testified that the accused said he didn't know all of the documents she and PW2 were looking for in the course of their inspection.
PW2 testified that he is familiar with the accused's handwriting and signature. He testified that the handwriting and signatures he was referred to in the payment vouchers and the transfer orders were the accused's At the close of the Crown case the accused exercised his right not to give or call any evidence to rebut the case for the Crown.
It thus remains to consider whether the Crown has discharged the onus cast on it and proved its case beyond reasonable doubt.
Accordingly Mr. Thetsane for the Crown proposed to tackle this aspect of the matter by inviting the Court to find whether standing on its own the prosecution's case has established prima facie that the offences charged have been committed by the accused; further whether the defence has demolished the prosecution's case and finally whether the photocopies of Exhibits "M" "Q" "O" "AC" "S" "T" "AD" "U" "V" "W" "X" "AE" "Y" "Z" "AA" and "SB" are conclusively admissible in this case.
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The truth of the matter is that during the period under consideration the accused was employed in the civil service as an Accountant in the Lesotho Mission to EEC performing functions referred to earlier in this judgment.
Evidence showed that the accused was the only person charged with the duties in question. Evidence further showed that all documents relating to finances were in his custody and that he was required to keep them safely. Indeed there was some dispute as to whether the abstracts went via someone before reaching the 3rd secretary. PW6 said they went straight to the 3rd secretary. The question therefore would be whether to believe PW6 on this. But as already stated PW6 said he and the accused are on good terms. Nothing in this proceeding tended to gainsay that. There should be no reason why PW6 would elect to tarnish his good relations with the accused by lying against him that way.
During the period under consideration the accused was responsible for preparing monthly returns for onward transmission to Foreign Affairs and the Treasury.
Mr. Thetsane submitted that it is not in dispute that the accused effected preparation of these monthly returns under the supervision
of the Ambassador who is the Chief Accounting Officer in terms of the Financial Regulations 1973.
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Evidence has shown that no other person besides the accused was responsible for initiating the transactions relating to his salary and other personal emoluments for the months covered by the various counts.
It is important to note that the evidence stands unchallenged that the accused effected the initial step in the preparation of documents "A" "L" "M" and "B". It has not been disputed that Exhibits "M" and "A" were brought simultaneously to PW6 for authorization. There was no dispute that when these documents were brought to PW6 by the accused they were substantially similar in that the narration appearing in Exhibit "A" also appeared in Exhibit "M". Further that the amounts appearing in both documents were the same.
Mr. Thetsane submitted that when brought to PW6 for signature Exhibit "M" did not bear the figure "1" before the amount 88 602 therefore as it stands now after the Lesotho Government's Account had been debited Exhibit "M" shows an excess of 100 000 BF. He further submitted that there hasn't been any dispute that when brought to PW6 Exhibit "M" bore no additional instruction styled "Plus Tax Refund"
Indeed the respective account numbers of the Lesotho Mission and that of the accused have not been denounced.
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Although it appears that in Exhibit "M" the Mission's Account was debited by an amount equal to the amount credited to the accused's Account the tenor of the cross-examination was that what is borne out in the journal should not necessarily lead to the conclusion that because credit is equal to debit the money involved is the same because it was suggested that Banks make mistakes.
However Mr. Thetsane submitted that it is not in dispute that Exhibits "A" and "M" are materially different now, whereas at the time these documents were placed before PW6 this was not the case.
The Crown further submitted that the observation that there appears some erasure on the duplicate copy of Exhibit "L" has not been challenged by the defence.
The Court observes that the erasure on Exhibit "L" seems to have been effected on the spot which coincides with the figure "1" that precedes 88 602 in Exhibit "M".
Mr. Thetsane further submitted that it has not been disputed that the handwriting and signature appearing in Exhibits "A" and "M" are the accused's.
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It appears that the method of operation in the commission of the offences charged is the same. Thus treatment of one count in detail
would apply to all others.
The defence sought to contend that Exhibit "O" is not a journal because it is written in a language unknown to PW2 and PW4, It was further contended that even if it is a journal it cannot be conclusively proved that the accused's account was credited with sums of money reflected. The same would apply to Exhibits "S" "U" "Y" "BB" and "W" so it was contended.
The Crown contended that it had demonstrated prima facie that the accused's account had been credited with the various amounts appearing on Exhibits "S" "U" "Y" "BB" "W" and "O" and in so contending sought to shift the evidential burden to the accused to show by production of his bank statements relating to these transactions that his account had not been credited with the amounts referred to. Thus failing this then the Crown's evidence should be viewed as conclusive on this aspect. The Crown demurred at the fact that the defence's cross-examination in respect of all the transactions was geared towards showing that the Financial Regulations were not strictly complied with by PW6 and his deputy who authorised various payment vouchers exhibited before Court. The Crown very properly conceded that there was no strict compliance with the regulations by PM6 and
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sought to rely on this witness's explanation about the peculiarity of hardships that the Brussels Mission was faced with i.e. shortage of staff etc. the Crown was quick to point out that the accused is not charged with contravention of Financial Regulations but criminal offences. The Crown indicated further that the various payment vouchers serve as a guide in this case the main thing being that additional instructions appearing in Exhibits "L" "M" "Q" "V" "T" "Z" and "X" have not been accounted for anywhere by means of payment vouchers accompanying them. No accounting for these instructions appears in Exhibits "B" "C" "G" "E" "K" and "I"
which are the Sub-Accountant's cash book pages.
Mr. Pheko relying on Financial Regulations contended that no evidence shows from whom the accused learnt the job. He emphasised that handing over is required by the Financial Regulations. He contended that Transfer Orders are not a mode of payment as they are not envisaged as such in the Financial Regulations 1973. He submitted that inasmuch as this Court had earlier ordered that in terms of our Criminal Procedure and Evidence the Bank in Brussels should hold the originals open for inspection it could similarly order production of those originals to satisfy the best evidence rule in terms of Section 247 of Criminal Procedure and Evidence Act 1981. He contended that
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Exhibit "AB" the affidavit by DEVRIRNDT and Willy Josis went far beyond the limits of section 245 of our Criminal Procedure and Evidence and urged that strict compliance with the Law must be observed. He submitted that ordinarily talking of an affidavit no two people can swear to one affidavit and when one refers to matters within his knowledge be regarded to be referring to matter's within the co-deponent's knowledge. I agree.
Referring to PW4 Mr. Pheko submitted that when she talks of a Cash Book she does not refer to all entries but pages dealing with salary and Foreign Service Allowance. He said PW4 looked at an Abstract at random and said she noticed the difference namely that she saw 88 etc. instead of 188 etc.
He made mention of the fact that under his cross-examination PW4 was put to task to say what other documents she looked at to ascertain if there was a difference but was told that only documents PW4 handed in were the ones she looked at. He further submitted that neither PW2 nor PW4 told the Court that they examined all payment vouchers to see if narrations they said were irregular were supported by some other payment vouchers - so he invited the Court to draw a proper inference in regard to a failure to produce evidence that is not unavailable. He suggested that it was an easy task to have looked at Cash Books, other payment vouchers, all of them and finally the Vote Book.
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He expressed his appreciation of the fact that PW4 did not bother looking for Transfer Orders in Lesotho for these are only available
in Brussels; though he expressed his surprise that these Transfer Orders were not sent to Lesotho like any other documents if indeed
they are accountable documents.
Mr. Pheko pointed out that even while in Brussels PW4 realised that payment reflected was not confined to salary for it also related to Tour Imprest etc. He further stated that the indictment does not complain about additional narrations. In this regard he referred the Court to paragraph 1.7 at page 3 of his well spelt out heads.
He further pointed out that PW2 and others who were making investigations in Brussels did not tell the accused that they were going to the Bank or what they were going to do; and further that when making their report they never told him of it. Thus, he contends
that if the Crown think the accused was to guess this at all they are labouring under a misconception of the law to regard this as prima facie case which should be conclusive. He submitted that "Tax Refund", "Tour Imprest etc" were referred to as salary overpayments. He pointed out that PW4 said the differences were accounted for in the accused's salary and that the Lesotho Government suffered prejudice or loss. "Hence their
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saying information in Transfer Order must be identical with one in the Payment Voucher"
The Court was referred to head 2.1(e) where it is pointed out that PW2 disclosed for the first time under cross-examination that the Accountant General gave him verbal instructions to pass the monthly returns to the Treasury without checking them. This is very accurate. But as I stated earlier if the defence was on a look out for a lame duck or a crow to pluck PW2 is their man. Indeed it is true that what PW2 said immediately above is in conflict with what he said in his evidence-in-chief for it was never his evidence that in relation to other months the documents were present, only the missing ones were these ones he was looking for.
A further conflict between PW2 and PW4 and PW3 was further brought to surface at page 5 paragraph h regarding when copies of the original transfer orders and journals were given by the Bank. I have earlier referred to this conflict.
Mr. Pheko laid much store by the fact that for a minimum of two years that PW6 served in Brussels as Ambassador no query was raised regarding documents from there because books balanced and monthly returns were prepared and passed as in order. He pointed
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out that Regulation 2001 requires that all losses of Government money must be reported immediately to the Principal Secretary Finance yet to PW6's knowledge no such report was made either by himself or any other person for the books balanced - Mr. Pheko found it beyond credence that PW6 who did not comply with provisions of Regulation 607 should wish the Court to believe that he checked payment vouchers in detail even though he did not initial the entry Vote Book notwithstanding the provision in the Financial Regulations that he should do so by ensuring "that the voucher has been properly completed in all respects and that all appropriate certificates have been correctly signed".
He invited the Court to come to the understanding why PW6 should wish to pass the buck: that he has an interest in the matter for he fears that he could be surcharged in terms of the onerous responsibility imposed on the Chief Accounting Officer by Financial Regulations. He reiterated his submission about inferences to be drawn in respect of a party who despite having available evidence simply withholds it from the Court. This was in relation to the submission that the Vote Book is there but was not produced. He urged that PW2, PW3 and PW4's evidence should like that of PW6 be looked at with caution for they are interested parties and that the Court should be wary of the risk of convicting the wrong person. PW3's interest is said to
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consist in the fact that she is the one who discovered discrepancies.
It was submitted that if indeed there was direct evidence that the accused added certain figures then the Crown would not ask that inferences be drawn. By way of illustrating that evidence in this case was circumstantial the Court was referred to PW6's evidence that he was making certain deductions.
But if I understood the submission of the Crown properly and indeed the evidence led the evidence in this case is partly direct and partly circumstantial.
It was further submitted that the observation in regard to PW6 applied equally to PW3 in that no direct evidence shows that the accused's account was credited with the numerous differences. It was also submitted that there were no suspicious circumstances in regard to the period under review; and that on the facts of this case where the Crown has not established in what order payment is to be effected notwithstanding that it has all the Vote Books it cannot be said the only inference to be drawn is of guilt.
It was argued that there is a suggestion by the Crown that the accused's election to exercise his right not to give evidence
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is an independent item to rely on as proving guilt. This deliberative impression was discounted by making a submission that the point has not been reached where to expect the accused to give an explanation regarding his doing what ordinarily is not to be done. This is in regard to the weight to be given by Court to refraining from giving evidence. It was submitted that the accused hid nothing from the inspection team.
The Court was referred to the indictment where the crime of forgery charged was regarded as posing some problem. In this charge the intention was to defraud (someone) resulting in prejudice actual or potential. It was stated that it is not clear whether the party liable to be defrauded is the Bank of Brussels or the Lesotho Government. As for prejudice it was submitted that clearly this was prejudice to the Lesotho Government.
It was submitted that the proper reading of the indictment suggests that the Transfer Order was falsely instructing the bank to transfer money from one account to the other. Thus it was suggested that it appears the intention to defraud was directed to the Bank because the document was presented to the Bank to act on and which this act resulted in prejudice to the Lesotho Government.
The Court was referred to R. vs Muller 1953(2) SA TPD 146 at
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148 where forgery is defined and motive of the appellant was looked into. There it appeared the intention was to induce a bottle store assistant. Prejudice was not to the bottle store assistant but the writer of the note who required liquor from the bottle store.
It was submitted that nothing in the indictment shows that the Lesotho Government acted upon the representation. It was grudgingly pointed out that evidence only shows that the government suffered either actual or potential prejudice.
I have considered the authorities referred to on behalf of the accused and found them very instructive; and I wholly endorse their statement of the law.
I have also had regard to Mr. Thetsane's submission that if no incidence of onus or evidential burden moved from one point of the scale of justice to another no accused person would be convicted. I should not be understood to mean that at any stage in a criminal trial the onus to prove the guilt of an accused person shifts from the Crown to an accused person. Far from it. Indeed proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. It is thus not without cause that much regard is had to the statement of the law that it is quite unrealistic
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to have regard to the realms of conjecture when a sound and common sense solution for the problem exists.
I accept the Crown's submission that there is no need to include details in an indictment which can be adequately taken care of in evidence. Indeed on a murder charge it is enough that an accused person is told in the indictment that he is charged with the unlawful killing of X at Y place at about Z time. The method how the killing was effected would sufficiently be left to evidence. Likewise then with the charge of Forgery. Thus the Crown in this case went a step further to say that a figure "1" was placed before certain figures. Indeed in Abel Bushman's case the appellant had been charged with fraud while the 1st charge had been theft by false pretences. The Crown withdrew the 1st charge and proceeded with the charge of Fraud. The convictions were confirmed on appeal. The central thing to guard against is whether an accused person doesn't suffer prejudice, or whether he wouldn't suffer prejudice, or whether he wouldn't have conducted his defence differently but for the alteration. Thus I don't think it makes any difference that the Crown never said it sought to amend its charges.
Section 246 of our Criminal Procedure and Evidence relates to affidavits and nothing else. In the instant case PW2 and PW4
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went to the Mission and the bank made their discoveries which they orally testified to before Court. Indeed an affidavit is written evidence in place of oral one. That section covers people who in certain instances have not examined originals but copies.
I have not been persuaded that the Crown witnesses in respect of whom caution has been urged have any ulterior motives besides that like any other dispassionate witness they would like to see justice done.
It is important to note that forgery is a species of fraud and is not fraud proper.
It was submitted for the defence that the Crown has not proved misrepresentation but a distinction is made in the case of Hymans in terms of which the Court is urged to make a distinction between fraud in the ordinary sense and fraud in forgery. Thus the Crown submitted that the fraudulent act in this case was wilful perversion of the true substance of documents. I don't think it can seriously be argued that the Court should baulk at considering the matter one way or the other on the grounds that it is not shown who has been defrauded between the Bank and the Government. Common sense dictates that funds being dealt with in
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this case belong to the Government of Lesotho.
It was argued for the defence that it was not shown that the accused was not entitled to the various sums with regard to theft charges in the alternative. But Hepworth's authority is very much relevant regarding the point that a criminal trial is not a game where one side is entitled to take advantage of an omission made by the other side.
Regarding exhibits which were referred to without being formally admitted the Court's ruling is that they are admitted and thus form part of the record in these proceedings.
The Court formed an opinion at the close of the Crown case that a sufficiently strong prima facie case existed to warrant the accused's answer. What I mean is that standing on its own the Crown case was enough to secure the accused's conviction.
In a criminal case it is important to establish motive for the offence committed. In the instant case the only form of motive I have been able to discern is self-enrichment by dishonest means.
The accused is accordingly found guilty in the six main
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charges and therefore acquitted in the six alternative charges.
My assessors agree.
JUDGE
7th July, 1992
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JUDGMENT ON SENTENCE
The Court has been addressed on behalf of the accused that he was arrested in 1987 and since April 1988 has been on half pay. The position was clarified for the Court that where public funds are appropriated or an offence involving damage or loss to Government property the conviction shall have the effect of a civil Judgment for the payment of money and shall be enforced in the same manner as any other judgment for the payment of money in a civil court. See Section 322 of the Criminal Procedure and Evidence Act 1981.
On the other hand Section 30 of the Finance Order 1988 provides that -
"If it appears to the Principal Secretary that by reason of the neglect or fault of any person who is or was at the time of such neglect or fault a public officer, the public revenue or public stores have sustained loss or damage, or improper payments of public moneys have been made and if, within 21 days an explanation satisfactory to him is not furnished with regard to such apparent neglect or fault, the Principal Secretary may, with the approval of the Minister, surcharge against the said person the amount which appears to him to be the loss suffered by Lesotho or the value of the property lost or damaged or the amount improperly paid, as the case may be, or such lesser amount as the Principal Secretary may, with the approval of the Minister, determine."
Section 31(1) of the above Order gives the Accountant General wide powers for the recovery of the surcharge from the
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salary, pension or any amount owed to such person by the Government until the full amount has been recovered.
The Crown indicated that the accused is a first offender. The accused's counsel's address to the Court in mitigation of sentence is to the effect that the accused is aged 50 and is married with two minor children attending school at Machabeng High School, an institution in respect of which the Court takes judicial notice of the fact that todate school fees there have risen to no less than M5 200 per child per year. Indeed it may be argued that the accused exercising his sense of full responsibility as a parent should have avoided falling into the type of unwholesome temptation or habit that proceedings in the trial indicated if he had the best interests of his family at heart. But again one asks oneself whether in its reserves the law makes no accommodation for the phrase : "fallen angel" and if it does, in what circumstances is the notion embraced in such phrase given expression regard being had to the fact that the Crown told the Court that the accused has no previous convictions. The Court cannot ignore that this would serve as a strong mitigating factor for a man who has gone past the midday of his life without a blemish on his character.
The Court has a duty to pay regard to the fact that the impending trial which resulted in bitter consequences for the
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accused has been hanging over his head for a considerably long time since 1987 to date.
The views of Mofokeng J in Mojela's case are of great importance where the learned judge said that it would be wrong for an accused person to expect that just because he is a first offender he should be entitled to a light sentence. But of even more importance is the learned judge's view that the procedure after conviction should evoke completely different considerations regarding the personal circumstances of the accused.
Authorities are legion in this regard and point all to the necessity to view the accused's circumstances in a new light and weigh factors affecting him very carefully. Paramount among such considerations is the caution not to resort to imprisonment where other forms of punishment could fit the crime committed without thereby compromising the accused's chances of reform and ability to respond to deterrence. Hence the plausibility of the attitude in such circumstances to favour the merits of suspension wholly or in part of the sentence to be imposed. I am fully in agreement with the attitude adopted in Peregah vs Rex 1944 NPD that the magistrate who considered that a suspended sentence is not a deterrent had misdirected himself on a crucial and important matter of principle in sentencing.
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A suspended sentence is of advantage to the delinquent in that if he behaves well then he will not serve the suspended sentence imposed on him. It also serves as a deterrent for the delinquent to refrain from wrongdoing for fear that the sentence hanging over his head will descend in full force over him.
aving had consideration of all the above it is important not to ignore the enormity of the wrong occasioned to society. Nor indeed the position of trust the accused occupied when the Mission's funds were placed in his hands and yet he has breached that trust.
But on the other hand the Court cannot ignore the certainty of pending or probable application on the accused's assets of either of the two laws referred to at the beginning of this judgment. The Court is fully conscious of the fact that the accused will most certainly be dismissed from employment following the conviction secured in the main trial and that in the trail of such dismissal will follow forfeiture of his gratuity and all terminal benefits etc.
My reference to South African Criminal Law and Procedure Vol. II by Hunt brings me to the realisation that although each offence where forgery and uttering are charges charged each conviction should carry a distinct sentence yet for purposes of
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having such sentences served the convictions should be considered as one. In other words they should, as a matter of law that leaves no choice in the Court, run concurrently.
Much as the persuasion to let a first offender avoid imprisonment which it is feared might contaminate him, has merit; thus by implication the preferred form of punishment being perhaps a fine and suspension of a sentence or part thereof, the difficulty arises in the situation where there are more counts than one and alternative forms of sentences which are to run concurrently when served are fines.
To illustrate this difficulty I wish to refer to Review Case No. 435\87 Rex v Lenyatsanq Sekhela and another unreported at page 1 where this Court said -
"In count 1 each was sentenced to pay a fine of M50 or serve a term of 5 months' imprisonment.
In Count II the sentence imposed on each accused was that of M70 or serve seven months' imprisonment in default of payment of the fine.
The order made by the learned magistrate was that the sentences in both counts are to run concurrently.
This is what involved my intervention based on section 301(2) of the Criminal Procedure and Evidence 1981 which reads :
'The punishment under this section , when consisting of imprisonment shall commence the once after the expiration, setting aside
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or remission of the other, in such order as the Court may direct unless the court directs
that such punishment shall run concurrently'
Significantly the above section confines itself to imprisonment as a form of punishment and makes no mention of any fine whatsoever. It is therefore wrong to order under this section that sentences in the form of fines imposed in two or more counts should run concurrently.
There is no section in the law that suggests that sentences in the form of fines can run concurrently. It would seem therefore that an order to that effect has no legal basis. The fact that it is only in respect of prison terms that the relevant section stipulates that sentences may run concurrently shows that it is not envisaged that any other form of sentence - to wit punishment with fine - can also run concurrently.
Kheola A C J as he then was said in Review Order No.4\87 Rex vs Poli (unreported) at 2 :
'It is abundantly clear......... that it is only in respect of sentences of imprisonment that the Court may order that the sentences
must run concurrently'
I most heartily agree with this exposition of the law by that judge.
A quick look at South African case law throughout ages abundantly shows illogical consequences which flow from adopting the procedure
followed by the Court below....
See Rex vs Sitebe 1934 AD 56, R. vs Sitole 1955(1) P.H.H. 84 (N) and R. vs Keizer 19654) SA 204"
In Sitebe above it was held
"that as fines cannot 'run concurrently' the sentences should be altered to read: on the first count a fine of 5 pounds or 15 days' imprisonment with hard labour and on the second count a fine of 5 pounds or 15 days' imprisonment with hard labour".
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In R vs Keizer above it was held that :
"It is not competent, in order to obviate the difficulty occasioned by the fact that a sentence of a fine on one count cannot
be ordered to run concurrently with a fine on another count, to impose an appropriate fine on each count and then add a proviso that the total sentence in respect of both counts shall not exceed the sentence imposed on each count"
In Mohapi and others vs Rex 1981(1) LLR at 6 Rooney J said;
"It is clearly inappropriate to lump together different offences for purposes of sentences when the type of punishment or maximum punishment which may be imposed for one offence differs from another".
Significantly in Sekhela above the Court in imposing sentence wholly suspended the fine and the alternative gaol sentence in count I and then imposed the fine with alternative gaol sentence in count II to be served.
The Court is aware that crimes of forgery and uttering including theft are not included in the schedule of crimes where suspension of sentence or even alternative sentence with fine is excluded. This is so irrespective of the amount involved. This is not without
significance. See CRI\A\54\87 Khoto Rakobuoa vs R (unreported).
With all this plethora of authority in mind the perineal saying holds good to date that is is much easier to convict
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than to impose an appropriate sentence in a Criminal Case. I regret that I have not been able to lay my hands on the case Rex vs Malie decided by Jacobs C.J. as he then was. The case in its significant aspects illustrated the Court's reluctance to impose a prison sentence for theft of vast sums of money on a white collar job holder who was also a first offender.
Just a brief explanation why this case has had to be called once more:
On Wednesday 8th July 1992 and about twenty minutes after sentence had been delivered and at the time when none of the parties concerned nor any of my assessors were on the premises the Court discovered that there was some irregularity the effect of which would be prejudicial to the accused. Not only that but would tend to go against the proper principles which the Court strained in the judgment on sentence to restate.
Accordingly the Court tried but to no avail to have the matter put right on the same day. Mr. Sakoane was said to be at a meeting. Mr. Pheko did call back but was not able to reach me as I had gone for lunch when he did so. When he ultimately reached me neither the accused nor my assessors were here. So I decided that, because there was no certainty that one of my assessors would be reached before the following day and because
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on Friday I had a medical appointment for a close member of my family in Bloemfontein, this matter should be heard on Monday 13th July which is today. This was intimated to Mr. Sakoane on 9th i.e. Thursday and he expressed his fear that the time and day would clash with his engagements before the Court of Appeal which is in session today. I suggested he could ask someone to substitute him.
The Court believes that as at the time it discovered the mistake alluded to above it was not funtus officio hence its desperate attempt to let as far as possible all concerned to take note that the earliest possible day to straighten the sentences passed would be today.
It should be recalled that in the first 5 of the counts in which the Court imposed prison terms a set of two sentences in each of those counts were to run concurrently. The over-all effect of the sentences suspended in each of those counts would lead to confusion or even excessive sentence in the event that the accused committed any offence involving dishonesty during the various periods of suspension. That is not what the Court intended in passing sentence. For instance it would not be clear whether the relevant sentence would be for him to serve a 1 year term, an 18 month term, another 18 month term, another 1 year term or the 4 year term of imprisonment imposed though suspended
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in the respective counts. Worse still is the more probable likelihood that in such an event he would have had to serve a total of nine years because he would have had to serve the first suspended sentence followed by the next suspended sentence at the expiration of the first and proceed to serve the next following each last sentence until he has come to the fifth of the counts he was convicted under. All this because in part sentences were ordered to run concurrently in individual counts instead of ordering that for purposes of sentence the separate convictions in separate counts are to be treated as one; and further in part because periods of suspensions
were treated separately. But All that was wrong.
To put all this right then the proper order is as follows :-Sentences in Counts 1, 3, 5, 7, and 9 are expunged from the record and the following imposed in their stead:
In Count l(a): Sentence: 1 year's imprisonment
(b): " : 1 year's imprisonment sentences to be treated as one.
In Count 3(a): Sentence: 4 years' imprisonment
(b): " : 4 years's imprisonment sentences to be treated as one
In Count 5(a): Sentence: 18 months' imprisonment (b):
" : 18 months' imprisonment sentences to be treated as one
In Count 7(a): Sentence: 18 months's imprisonment (b):
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In Count 9(a): Sentence: 1 year's imprisonment (b): " : 1 year's imprisonment sentences to be treated as one.
The sentences in Counts 1, 3,5,7 and 9 are to run concurrently. The entire sentences are suspended for 3 years on condition that the accused is not convicted of a crime of which dishonesty is an element committed during the period of the suspension.
On Count 11(a) sentence: M10 000 (b) " : M10 000 For purposes of execution of the sentence in this Count fines imposed in (a) and (b) are to be treated as one.
The accused is allowed till 28th August 1992 to effect payment of the fine failing which he should come before Court for consideration of a suitable jail sentence.
The effect of this then is that should the accused commit any act of dishonesty during the period of suspension he would serve a total of 4 years' imprisonment inside which are subsumed all other lesser prison terms which run concurrently with it.
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Otherwise the sentence in the 6th Count which is numbered Count 11 remains unaffected by the above correction.
13th July, 1992
For Crown : Messrs Thetsane and Sakoane
For Defence: Mr. Pheko
