1

C. OF A.
(CRI) NO.1 OF 1996.

IN THE
COURT OF APPEAL OF LESOTHO

In the
Appeal of :

MOITSUPELI
LETSIE 1st Appellant

MOORE
PUSETSO MAKOTOANE 2nd Appellant

DANIEL
NKANE MATEBESI 3rd Appellant

vs

THE CROWN

HELD AT :
MASERU

CORAM:

BROWDE,
J.A.

LEON,
J.A.

v.d.
HEEVER, A.J.A.

JUDGMENT

v.d.
HEEVER A.J.A.

In a
marathon trial, three men appeared on four counts of theft by false
pretences. They were Mr. Letsie, an engineer who, during
the period
relevant to the charges, was employed by the Lesotho Ministry of

2

Home
Affairs: Mr. Makotoane, the then Deputy Accountant - General of the
Treasury; and his superior, Mr. Matebesi, the Accountant-General.
The
latter two were the government officials primarily responsible for
the administration of the finances of the country. I refer
to them in
what follows as A1, A2 and A3 respectively.

The dates
and amounts in the counts differ, but the pattern of the remaining
charges follows that of the first, which alleges that:

"... upon or about 23rd day of March, 1993, and at or near
Maseru in the district of Maseru, the said accused, each or the

others of all of them, did unlawfully with intent to defraud and to
steal, misrepresent to the Operations Manager, Central Bank
of
Lesotho, Maseru that the Government of Lesotho was under obligation
to pay Lesotho Landscaping (Pty) Limited a sum of M579,500-00
(Five
Hundred and Seventy Nine Thousand Five Hundred Maloti) as
consideration for either goods supplied and/or services rendered
by
the said Lesotho Landscaping (Pty) Ltd to the Government of Lesotho,
which representation was as authority to the Central Bank
to pay
Lesotho Landscaping (Pty) Ltd aforesaid the sum of M579,500, and did
by means of the said misrepresentation obtain a cheque
for
M579,500-00 from the Central Bank, drawn in favour of Lesotho
Landscaping (Pty) Ltd against Government Account No.1, which
cheque
was subsequently encashed thus resulting in the loss to the
Government of Lesotho in the sum of M579,500-00, the property
of the
Government of Lesotho and in the lawful possession of the Central
Bank of Lesotho, which amount the accused did steal; and
thus the
accused did commit the crime of Theft by False Pretences"

3

The dates
and amounts alleged in the remaining counts are respectively

1. 2.
   21 June 1993 and M576,787-49

   
   

2. 25
   January 1994 and M563,809-73; and

   
   

3. also
   25 January 1994, but M487,692-28.

   
   

The three
pleaded not guilty. At the close of the Crown case, A1 chose not to
testify, the others did so. All three were convicted
and sentenced.
All three appealed : A1 against both his conviction and sentence, the
other two against conviction only.

The
evidence presented by the Crown which is not in dispute, may be
summarized as follows.

The
procedure at the Treasury when effecting payment on behalf of the
Government, differs depending on whether Treasury does so
directly by
its own cheque drawn on the Central Bank of Lesotho ("the Bank")
, which it usually does, and almost invariably
does in respect of
claims in respect of goods sold or work done, or -rarely - requests
the Bank to make payment on its behalf.
The Bank is not a department
of Treasury but an independent concern, where the Lesotho government
has its account. When the Bank
makes out a cheque in favour of payees
in South Africa, it issues payment against an account it holds in
that country.

4

Normally,
when an invoice is received by government, a payment voucher is
prepared, after the invoice has been checked with whoever
issued the
original order, to ensure that the goods have in fact been received
or service rendered. Supporting documents are annexed
to the payment
voucher: the relevant order, the invoice, perhaps a contract,
depending on the circumstances. This bundle is taken
to the
examination department at Treasury to be checked. The examiner
satisfies himself that the department which ordered the goods
or
services still has funds available from those which Parliament voted
to it. An entry is then made in the vote book against that

department. The examiner initials the payment voucher which then goes
back to the authorising officer for his signature. Thereafter
it goes
back to the Examination Section, where the information on the voucher
is punched into a computer and comes out as a cheque.
This is sent to
Dispatch, and payment is effected by Treasury itself, from funds
voted to the relevant department, not from Treasury's
own voted
funds.

The Bank
is asked to issue its own cheque only in urgent matters, for example
when it unexpectedly becomes necessary for senior
government
officials to travel elsewhere. The only treasury officials with power
to authorise the issue of Bank cheques, are the

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Accountant-General
and hie Deputy. In such cases, the payment voucher is prepared at the
Ministry of Finance, is submitted with
its supporting documents to
one of these two officials who, if satisfied that the claim is in
order, signs a letter requesting
the Bank to issue a cheque in favour
of the claimant named in the letter. He submits the letter and the
documentation on the strength
of which it was written, to one of a
short list of persons authorised to co-sign it in order for the Bank
to act upon it. (The
Bank has a list of the authorised signatories
and samples of their signatures. This included the names of A2 and
A3, and Mrs. Lekatsa).
The Accountant-General is supposed to ensure
that the letter is copied to the Bank Reconciliation section to
ensure that the correct
department is debited. On receipt of the
letter, the Bank issues the cheque and debits the No.1 account of the
government. The
cheque is collected by Treasury from the Bank, which
keeps a register of such cheques which the person collecting one is
required
to sign. The cheque is then sent within Treasury to
Dispatch, where it is recorded, for the particular Ministry seeking
these funds
to collect.

It is
clear that the procedures put in place are carefully designed to
ensure that neither outsiders nor underlings can readily

misappropriate government

6

funds. It
is also clear that no system is inviolable if those trusted as
shepherds prove to be wolves. Qui custodiet ipsos custodes?
Mr.
Nts'ala, referred to below, testified that A3 as the head of
Treasury, was himself the ultimate scrutineer: representing, in

Treasury, the Principal Secretary in the Department of Finance under
which Treasury falls.

According
to the evidence tendered, on three occasions the Bank issued cheques
. in favour of "Lesotho Landscaping (Pty) Limited
or bearer"
("LL Co.") and crossed "Not negotiable" (There
were two on the last occasion)

On 23.3.
1995 the Bank received a letter (exh B) from Treasury signed by A2
and A3 instructing issue of a cheque in favour of LL
Co. "being
settlement of invoices B2, 3 and 4," which elaboration was as
far as the Bank was concerned, an unnecessary
addition totally
meaningless to the Bank. No copy of exhibit B was posted to the Bank
Reconciliation section, as it should have
been. Exhibit C, a cheque
for M579, 500, was issued and the Lesotho Government debited with the
amount. It was collected on the
same day by A2,

21.6.1993
is the date of a letter to the Bank signed by A2 and Mrs Lekatsa (Exh
D) requesting issue of a cheque for M576,798-49
"being in
respect of

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invoice 2
of contract 2", Mrs. Lekatsa testified that A2 brought the
letter to her, said the matter was urgent and that she
should
co-sign. She pointed out that it had not been copied to bank
reconciliation, to which he commented that his secretary must
have
forgotten, he would take it to her to have that done. This was
however never done. Because Mrs Lekatsa trusted "my Head",

she signed the letter without seeing, as she should have done, the
relevant payment voucher with its supporting documents. The
resultant
cheque dated 22 June 1993 by the Bank in favour of LL Co. (Exh. E)
and debited against the Lesotho Government, was collected
by a Miss
Pelea, who signed the Bank's register and gave the cheque to A2's
secretary.

On 24th
January, 1994, the Bank received a letter (Exh F) from Treasury
signed by appellant 2 and 3 instructing the issue of two
cheques in
favour of LL Co. for M563,809-73 in respect of "contract
certificate B9 dated 14th December, 1993". Because
of the facts
that two cheques in favour of the same concern were sought
simultaneously and that the amount involved was considerable,
Ms
Phate, a senior banking officer at the Bank, contacted A3 to query
the instruction. He asked whether his signature appeared
on the
relevant letter, When she replied in the positive, he confirmed the
instruction. On the 25th

8

January,
1994, the cheques were issued (exhibits G and H) and collected by A2
himself, which he had never done before to Ms Phate's
knowledge, and
at her suggestion also three others for smaller amounts. There was a
record at Treasury of the receipt of the latter
three, but no record
relating to those in favour of LL Co. The amounts were debited
against Government Account No.1.

Irregularities
came to light after this. A2 and A3 went on (compulsory) leave and
Mr. Nts'ala took over as Acting Accountant-General
on 3rd February,
1995. He found inter alia that the bank reconciliation section of
Treasury had a copy of the letter, F, authorising
the last two
payments to LL Co. without showing which Ministry was supposed to
have received the services for which payment was
intended. When he
came across this anomaly, Mr. Nts'ala looked to see whether there had
been other such payments, and found that
there had. The relevant
cheques had not been recorded in the cheque dispatch registry, nor
could he find any supporting vouchers,
where they would normally have
been, or record in the Tender Board files of any contract with LL Co,
or indeed any record of any
government department having received
either goods or services from a company by that name. There is no
such company registered
in Lesotho, as it was required to be even if
it were a foreign company

9

but
wished to do business in Lesotho, nor is it reflected in the office
of the Commissioner for Inland Revenue, as it should have
been if it
in fact did business in Lesotho, for purposes of recovery of the 10%
so-called "withholding tax" for which
it would have been
liable. Mr. Nts'ala could find no record anywhere of the payment
effected by exhibits C and E. A3 had failed
in his basic duty to see
that proper books of account were kept and checked.

After the
bulk of what I have referred to as the common-cause evidence had been
led, Crown Counsel presumably towards or at the
end of one week - the
record unfortunately is more often than not silent on the actual days
and dates on which particular witnesses,
testified - announced his
intention to hand in what apparently were amended or rectified copies
of affidavits by Messrs Marais
and Roodt which had been made
available to counsel for A2 and A3 "on Friday last", but
with flaws of some kind. Counsel
for A1 made it clear that he had no
objection to the affidavits. Counsel for A3 (not in so many words)
reserved the right to argue
whether they were admissible, and the.
court adjourned " until Monday" of the following week).

On the
Monday the question of the admissibility of the affidavits was not
dealt with, The evidence of

10

the
witness still in the box continued and three more were called.

Then
Crown Counsel asked for an adjournment to enable him to have the
affidavits amplified by the insertion of "certain averments"

that were missing from them, to which defence counsel had drawn his
attention. The latter did not object. At the adjourned hearing,
on
26th September, 1995, Crown Counsel handed in two affidavits. Counsel
for A1 expressly consented to their going in, with annexures
and all,
making it clear that he accepted that he would be entitled to
challenge the correctness of the information reflected in
the
documents by tendering rebutting testimony, should this be deemed
necessary.

Crown
counsel argued in essence that both affidavits complied with the
requirements of sec. 245 of the Act, that 246(1) did not
require a
copy of the affidavit itself to be served on the defence; that the
accused had long been aware of the facts reflected
in the affidavits
which he intended laying before the court in this form and that he
accepted that they could constitute no more
than prima facie evidence
which the accused were at liberty to rebut.

Counsel
for A3 was ambivalent in the reasons

11

advanced
for his objection to admission of what Crown Counsel wanted to put
before the court. He seems to have accepted that the
annexures to the
affidavits were admissible by reason of the provisions of S.245. His
quarrel was with the "the elaborate
affidavit introducing these
documents" Counsel for A2 merely adopted the argument of his
colleague representing A3. Neither
pointed out which portions of the
affidavit they regarded as offensive, i.e. neither argued that
specific portions of the affidavits,
still less any annexures, should
be struck out, despite the interesting development that counsel for
A1 seems to have associated
himself with the complaint of Crown
Counsel that he did not know what it was that the other two were
complaining about.

The trial
judge ruled that the affidavits be admitted. They were read into the
record. The Crown closed its case. This was on the
Tuesday before
Monday the 3rd of October 1995, therefore on 27th September. The
matter was postponed until Thursday the 5th, i.e.
eight days later.

The
affidavits to which defence counsel had objected, related to three
accounts. Mr. Marais, then acting accountant at Volkskas
in
Ladybrand, deposed that as such he had access to the bank's ordinary
books, in its custody and control, in which entries

12

had been
made in the ordinary course of business of the bank.

The
account of Lesotho Landscaping, ("LL"), and of A2, appear
in those ordinary books. The former was opened on 10th April,
1991
and was allocated the number 2020-142-66 ("661"). It is
described as a partnership account, the partners being Jeffery
Letsie
and Pusetso Moore Makotoane, and both having to sign for all
transactions relating to the account. The current account of
Mr.
Pusetso Moore Makotoane bears the number 20202-142-688 ("688").
He is the sole signatory.

The bank
statement of LL reflects that among transactions it made, were the
following:

1. On
   23 March, 1993 a cheque deposit of R579,500-00 was made.

   
   

2. On
   30 June a cheque deposit of R576,798-49 was made.

   
   

3. On
   25th January, 1994 two cheques were deposited into 661, namely for
   R563,809-73 and R487,692-28.

   
   

The
affidavit however goes further, and annexes documentation which does
not accord with the description, in sections 245 and 246
of the
Criminal Procedure and Evidence Act No. 7 of 1981 ("The Act"),
of the type of documents which, containing hearsay
evidence, are
nevertheless admissible as prima facie

13

evidence.
Section 245 and 246(1) bear quoting :

245 "The
entries in ledgers, day-books, cash-books and other account books of
any bank shall be admissible as prima facie evidence
of the matters,
transaction and accounts recorded therein, on proof being given by
the affidavit in writing of a director, manager
or an officer of that
bank or by other evidence-la)

1. 
   that the ledgers, day-books,

   
   

cash-books or other account books-

1. are
   or have been the ordinary books of that bank;

   
   

2. are
   in or come immediately from the custody or control of that bank;
   and

   
   

2. the
   entries have been made in the usual and ordinary course of business

   
   

246 (1)
Copies of all entries in any

ledgers, day-books, cash-books or other account books used by any
bank may be proved in any criminal proceeding as evidence of
any such
entries without production of the originals by means of the affidavit
of a person who has examined them, stating the fact
of the
examination and that the copies sought to be put in evidence are
correct except that -

1. no
   ledger, day-book, cash-book or other account book of any such bank
   and no copies of entries therein contained, shall be adduced
   or
   received in evidence under this Act, unless 10 days' notice in
   writing or such other notice as may beordered by the court
   or a
   magistrate holding a

   
   

14

preparatory examination, containing a copy of the entries proposed to
be adduced, and stating the intention to adduce the same
in evidence
has been given by the party proposing to adduce the same in evidence
to the other party; and

2. the
   other party is at liberty to inspect the original entries and the
   account of which such entries form a part"
   

   
   

Clearly
neither the certified true copy of the deposit slip which Mr. Marais
annexed ("CAD 1") and the information it
contained, nor the
certified true copy of the Central Bank of Lesotho ("CB")
cheque (CBLC 1) referred to in the deposit
slip, were either
"ledgers, day-books, cash books or other account books" of
Volkskas, nor entries in such books. Yet
Marais annexed these to his
affidavit in both corroboration and elaboration of his testimony
based on his examination of the bank
statement of LL and statement
that that contained an entry that on 23rd March 1993 a cheque deposit
of R579,500-00 was made.

He
adopted the same procedure in relation to the entries of the deposits
made on 30th June, 1993 and 25th January, 1994, set out
earlier.

As
regards withdrawals from LL account 661, Marais records that the bank
statement reflects the following:-

15

1. On
   24th March, 1993, R309,750 was withdrawn by cheque.

   
   

2. On
   25th March, 1993 a further R249,750 was withdrawn by cheque.

   
   

3. On
   1st July, 1993 a cheque withdrawal of R570,000 was made.

   
   

4. On
   26th January, 1994 a cheque withdrawal of R1,040,000 was made.

   
   

Here
again he goes further than testifying to the entries in the bank
statement of LL. He annexes a deposit slip dated 24th March,
1993
(CAD 4) to link withdrawal 1 above, to a deposit of R309,750 made on
the same date into the account 668 of Mr. Makotoane.
So too he links
withdrawal 3 by way of a deposit slip (CAD 5) to a deposit of
R570,000 on the same day into account 668; and withdrawal
4 with the
deposit of the same amount into account 668, pointing out that the
relevant deposit slip (CAD 6) "purports to bear
what appears to
be the signatures of both Mr. Makotoane and Mr. Letsie."

The
annexures here too clearly do not fall within the parameters of the
benefit conferred on both the prosecution and bank officials
by
sections 245 and 246(1) of the Act.

Subject
to what is said below, there is no problem in regard to his setting
out of the entries relating to withdrawals from account
668, in the
sense

16

that no
corroboratory document was annexed relevant to those. The withdrawals
are listed as being -

1. R268,239.00,
   by cheque, on 5th July, 1993

   
   

2. R500,000.00,
   by cheque, on 2nd February, 1994.

   
   

The
affidavit of Mr. Roodt relates to a current cheque account, number
5000017574, opened on 25th March, 1993 with First National
Bank at
its Ladybrand branch ("FNB"), by Daniel N. Matebesi by
means of a cash deposit of R9,750. Mr. Roodt annexes a
deposit slip
(CAD S1) , unnecessarily and so harmlessly, in corroboration of the
date which must obviously have appeared in the
statement itself. He
says that on the same date a call account was opened with a deposit
of R40,000, annexing (CAS 1) a certified
true copy of the relevant
statement. He testifies further:

" on the same day, that is 25th March, 1993, he instructed the
bank to issue a Bank Draft for the sum of R200,000 in favour
of
Sanlam Insurance Company. I annex a copy of a document which reflects
that a Bank Draft in the sum of R200.000 was made out
to Sanlam
Insurance Company and that the name of the applicant was D.N
Matebesi. It is marked RC1. The total sum of the transactions
that
Mr. Matebesi made at the bank on the 25th March, 1993 is R249,750.00
made up as follows - R9,750 deposited in his cheque account,
R40,000
deposited in his call account and R200,000 in respect of the draft
which he directed the bank to issue in favour of Sanlem."

17

The
affidavit then continues to record entries in the bank statements,

as
follows:

On 1st July, 1993, R133,317-87 was deposited into the cheque account.
On the same day R134,921-63 was deposited in the call account
- a
total, therefore, of R268,239-50. On 1st February, 1994, R500,000-00
was deposited in the call account. He adds the information
(which
does not appear from the statement itself, a copy of which is
annexed) that this deposit was effected by way of a Volkskas
bank
cheque.

In his
judgment ultimately, the trial judge seems to have held that he was
prepared to ignore the "illustrative annexures"
to the
affidavits. He stated that "the essential averments in those
affidavits established a prima facie case against the
accused
regarding the entries mentioned in the affidavits". He also
held, as a matter of law, that no notice as provided for
in section
246(1) of the Act was required if the prosecution tendered the
relevant affidavits in terms of section 245.

The
second ruling was in my view clearly wrong. Section 245 merely sets
out prerequisites to proof by affidavit of hearsay upon
hearsay
evidence of facts that would, were direct evidence be required, be
virtually impossible to prove : the teller who received
a cheque
among hundreds if not thousands of others, would be required to
testify that on a specific day a specific person handed
a cheque (or

18

cash) to
him for deposit into that client's account. It provides for common
sense safeguards against unreliable hearsay, based on
the assumption
that in the ordinary course of a bank's business mistakes in
recording transactions in which both a bank and its
clients have a
vital interest, are correctly recorded and accepted by both parties
as being correct - scil. since statements and
returned cheques are
sent to clients who can therefore control the correctness of the
records kept by the bank and copied by a
responsible person in the
employ of the bank. Section 246(1} provides that notice is required
where

1. "any
   ledger, day-book, cash book or other account books of any bank"
   is sought to be produced; which as a matter of
   conjecture would
   rarely happen, since the bank's books are in constant use; and

   
   

2. "copies
   of entries therein contained" - my

   
   

underlining.

In other
words, notice to the defence is always required when the Crown
intends to produce hearsay evidence, whether in the form
of original
documents (reflecting hearsay evidence) in the possession of the
bank, or copies of those.

19

Of
importance is that a ten-day period of written notice as provided, is
not regarded by the legislature as an absolute, in view
of the
alternative provided, of "such other notice as may be ordered by
the court...."etc.

The court
a quo was however, correct in the first of the two findings set out
above. Quite apart from the other viva voce evidence
tendered by the
Crown as summarized above, the "essential averments in (the)
affidavits ... regarding the entries mentioned
in the affidavits"
and the documentary evidence already before the trial judge
(including the original CB cheques with date
stamps of particular
banks) revealed the following, listed in chronological order. I refer
in what follows to the account holders
by their capacity at the
trial. It was never suggested at the trial, that there could
possibly, by some rare coincidence have been
other individuals who
fortuitously had the same names as A2 and A3, who had the dealings to
which the relevant bank accounts, and
entries in those, referred. And
the evidence that Maloti and Rand are interchangeable, was not
challenged.

23.3.1993 is
the date of the letter, B, by A2 and A3 asking the CB to pay LL. Co

M579,500-00.

23,3,1993
CB cheque, C, for M579,5000-00 issued and collected at CB by A2.

20

The
original cheque bears on its obverse aide, a date stamp of the same
date, of Volkskas, Ladybrand.

23.3.1993
A cheque deposit of R579,500 made into the account of LL.

24.3.1993
R309,750 withdrawn from the account of LL.

24.3.1993
R309,750 paid into the account of A2.

25.3.1993
R249.750 withdrawn from the account of LL.

25.3.1993 A3 opened accounts with FNB, Ladybrand, with deposits
totalling 49,750.

and
instructed payment of R200,000 to Sanlam. True, the annexure annexed
in corroboration is inadmissible, but section 245 refers
in the
widest terms to "other books" in the possession of and used
by a bank; and it is highly unlikely that the instruction
would not
be recorded in some such book.

21.6.1993 is the date of the letter, D, signed by A2 and Mrs
Lekatsa, asking C.B for a cheque in favour of LL Co. in the sum of

R576,795-49.

22.6.1993 C.B issued the cheque in this sum, E, which was handed to
the Secretary of A2. It has a Volkskas, Ladybrand date stamp
of
23.6.1993 on the back.

30.6.1993
R576,795-49 deposited into the account of LL.

1.7.1993
. R570,000 withdrawn from this account, No. 661.

1.7.1993
570,000 deposited into the account of A2, No.668

1.7.1993 R133,317-98 and R134,921-63 deposited into the F.N.B.
account of A3, therefore a total of R268,239-50.

21

5.7.1993
R268,239 withdrawn from Volkskas account 668 of A2.

24.1.1994 is the date of letter F signed by A2 and A3 asking C.B.
for two cheques for LL Co. , the authenticity of the letter
being
queried because of the amount involved.

25.1.1994 Cheques G and H were issued in the sums or M563,809-71 and
M487,692-28. They were collected by A2. Treasury had no record
of
receiving them, although three others cheques simultaneously taken by
him at the request of C.B. were so recorded.

25.1.1994 Two cheques in the sum of R563,809-73 and R467,692-28 were
deposited into the account of LL.

26.1.1994
R1,040,000-00 was withdrawn from the account of LL.

26.1.1994
R1,040,000-00 was deposited into Volkskas account 668 of A2.

1.2.1994 R500,000-00
was deposited into the F.N.B call account of A3.

2.2.1994
R500,000-00 was withdrawn from account 668 of A2.

The
evidence of both A2 and A3 may be politely termed romancing, and did
not merit the detailed cross-examination to which both
were subjected
by Crown Counsel.

Both are
skilled and seasoned money-men, not naive illiterate peasants. That
is why they were elevated to the responsible positions
they held in
Treasury. The story offered by A2 is, in a nutshell, the following (I
recount only the skeleton, not the

22

imaginative
detail with which the fable was embroidered) He could not remember
the instances in which he authorised the issue of
cheques by the Bank
in favour of LL Go because he deals with too many such matters. (This
is already improbable. The Crown evidence
that it was unusual for the
Bank to be asked to pay for goods or services, was not seriously
challenged, and the coincidence that
it was a concern with a name
virtually identical with that he and A1 used, must have struck him).
The supporting documentation
should all still be in Treasury
possession "unless there are other motives of hiding them or
destroying them" - a nonsensical
suggestion, bearing in mind the
detailed selective process that some unknown enemy? beneficiary?
would have had to undertake under
the very nose of A2 himself and
others in the various places where Treasury documents are kept. As
regards the LL account, he invents
a Mr. Kemp who approached him,
because he was a Treasury official, for assistance in making payments
abroad because Kemp was experiencing
difficulty in doing so through
the proper channels, i.e. doing so himself, presumably through
Treasury to obtain foreign exchange.

He and A3
permitted this. Kemp paid money into the Lesotho government account
(an allegation which had not been put to any of the
Crown witnesses)
which

23

Treasury
would then transfer out of the country. Treasury itself not being
constrained by foreign exchange restrictions. Then Kemp
asked to be
permitted to use the personal account of A2, to enable Kemp to
instruct A2 to make payments on his behalf when Kemp,
overseas
perhaps, was unable to do so himself. Apart from the fact that the
propriety of these arrangements by a Treasury official
is at the
least questionable, there was no reason advanced why payments should
not have been made into an account in South Africa
in Kemp's own name
with authority - or blank cheques - to someone to operate on that. Be
that as it may, A2 says he became nervous
when he became aware of the
large sums moving into his own account - "people might think I
am dealing in mandrax or something".
So he spoke to A1 and the
two of them agreed that Kemp could use their dormant LL account, and
for this purpose handed over to
Kemp the LL cheque book and deposit
book with all the leaves of both signed by themselves in blank. (The
cheque book was subsequently
produced and proved him a liar on this
point, as he was on so many others, since it still contained unsigned
cheque forms). Only
Kemp used that account thereafter, but he also
still used A2's personal account on occasion, ("so that we could
effect transfers
in his absence") giving A2 instructions how to
dispose of the Treasury money paid into that. There is no written
record of
any

24

instructions
given him by Kemp, they communicated verbally but constantly; their
relationship coming to an end and Kemp apparently
disappearing off
the face of the earth when " there came up a query from audit
regarding the payments that we were helping
him with and I told him
we were going to stop assisting him in that manner". He tells
that A3 - his superior, the man in ultimate
charge of the till - at
some stage feared sequestration because of his overdraft. A2
suggested he ask Kemp to assist him, and he,
A2, did get instructions
from Kemp to pay "about M65,000 plus" into the account of
A3.

This
glaringly improbable tale, that the second most senior official in
the Treasury of Lesotho would after lengthy discussion with
his
partner have agreed to hand over an entire book of signed blank
cheques to Kemp, who could have ruined them both is of further

interest only because A2 implicates A1 in his activities, though
doing his best to protect this "very good friend" of
his.

The
evidence of A3, the man at the financial helm of Treasury but
teetering on the brink of insolvency until the mythical Kemp came
to
his rescue, did not assist any of the appellants. His testimony
starts off with a rambling account of irrelevancies by which
he seeks
to imply that someone out there must bear him

25

a grudge
- ergo, that the entire case against him is a devious plot. That is
of course nonsense. The undisputed documents placed
before court, and
the absence of every one of the documents or entries that would have
been there had he done his work, are damning
unless some credible
explanation were forthcoming. I confess that seek as I may, I can
think of none such. The story A3 offered
to the court, like that of
A2, received far more attention from everyone in court than it
merited, which only prolonged an overly-long
trial. His explanation
of the large sums that were paid into his FNB account is as wildly
improbable as that of A2 to explain away
the figures which implicate
him and A1. It boils down to this: the R249.000 odd with which he
opened accounts with First National
Bank in Ladybrand, and obtained a
draft in favour of Sanlam Insurance Company was the property of a
cousin of his, one Russell.
Russell had money in various current
accounts which did not yield interest, a bus business with which he
was having problems because
he had received a summons in respect of
an unpaid account - we do not know in what amount -and R200,000 in
the Standard Bank at
Mohale's Hoek. A2 offered to help him manage his
money. For this purpose, he persuaded Russell to put hie money into
the name of
A3 (he says under cross-examination that this was before
he himself was threatened with insolvency which was averted only by a
debt to Kemp

26

being
substituted for one to his bank) and arranged with Russell's
creditors that he would attend to payment of Russell's debts.
What
happened to the summons we do not know, nor why Russell with as much
as R200,000 at his disposal could not pay his own accounts;
but this
sum was invested in a policy from Sanlam which would give "better
interest", and R40,0Q0 went into a call account
in the name of
A3 which also earned interest, from which payment could be made for
things like spare parts. No reason is offered
as to why Russell could
not have taken all these steps in his own name, even assuming that
they made sense, nor why Russell made
further payments into his
account, (which could hardly have been in a healthy state since it
thereafter required the rescue operation
by Kemp) instead of paying
his - Russell's - debts...

Under
cross-examination by Crown counsel, his lack of morality shines
through even this imaginative account - it has to, since he
is stuck
with the story: he says that he did not think it improper to channel
money from Kemp through a government account, despite
the provisions
of Chapter 16 of the Financial Regulations that "Persons who
wish to remit money other than public money from
one place to another
shall not be allowed to do so through government accounts". And
being stuck with the story, it became
ever more unbelievable when
tested, and he is shown up

27

time and
again to have lied. It was quite unnecessary for the trial court to
have called, as it did, Russell to deny his tale, or
to permit Crown
counsel to call Kemp in rebuttal of the story A2 had told.

Although
counsel for A2 and A3 did not at the trial clearly voice the grounds
of their objection to the admissibility of the affidavits,
or
portions of or annexures to those, their legal representatives before
us did. They argued -

1. that
   the affidavits were inadmissible because there had been
   non-compliance with the provision that it was a pre­condition
   to
   admissibility that 10 days notice in writing should have been given;

   
   

2. that
   no bank documents, or copies of documents, were in fact submitted,
   duly verified by affidavits alleging that such documents
   fell within
   the category defined in section 245 of the Act.

   
   

3. that
   sections 245 and 246 have to be read with the two sections that
   follow, which make it clear that the former intends to refer
   only to
   banks in Lesotho: the sections have no extra territorial
   application.

   
   

4. that
   the fact that the court a quo decided to exclude the annexures from
   consideration at the judgment stage, was too late. It
   had had sight
   of the entire documents. Moreover A2 and A3 had been cross-examined
   extensively on those annexures (and on the
   inferences Marais and
   Roodt had drawn from them and had

   
   

28

each
voiced in the body of his affidavit). This must have coloured its
assessment of the credibility of the appellants, and so constituted
a
fatal irregularity entitling the appellants to an acquittal.

Mr. Kuny
who appeared for A1, was faced with his client's unequivocal consent
at the trial to the admission of the affidavits, with
annexures and
all. One of those annexures was a photostatic and certified correct
copy of the deposit slip (CAD 6) which ralated
to the R1040,000
deposited into the account of A2 on 26th January, 1994. Mr. Marais
not only annexed this to his affidavit but
voiced his opinion that
"The deposit slip purports to bear what appears to be the
signatures of both Mr. Makotoane and Mr.
Letsie". His client
having waived the right to the notice required by section 246 (1) of
the Act, his argument as to admissibility
went no further than that,
if the affidavits were held to be totally inadmissible with annexures
and all, that must enure to the
advantage of A1 also. The main thrust
of his argument was, however, on the facts: whether or not A1 and A2
had acted in concert
to steal money from the government, there must
be a reasonable doubt whether A1 had not, trusting his long-time
friend, A2, been
persuaded by the latter to accept that making their
dormant joint account available for use by a third party, was
innocuous. In
short he contended that the mens rea of A1 had not been
established beyond reasonable doubt.

29

Section
246(1) itself makes it clear that the requirement of ten days' notice
in writing is not immutable. The purpose of notice
is to forewarn the
accused that the prosecution proposes tendering otherwise
inadmissible hearsay evidence, to enable the accused
to decide
whether to challenge the content of that and give him a reasonable
opportunity, if he decides to do so to gird his loins
for that
skirmish. The section in stating that a court may determine a
different mode, and different period, of notice, makes it
clear that
the object is to be fair to the accused. One can conceive of
circumstances where ten days would be totally inadequate
for example
should an accused have problems in being able to examine the books
himself or obtain the ammunition with which to attack
the reliability
of the entries within that time. And the opportunity may obviously be
waived, if an accused decides that he has
no reason to quarrel with
the entries.

The cases
referred to in argument, in which it was said that the South African
equivalent of sections 245 and 246(1) must be strictly
construed, are
ones in which the prosecution sought to prove, not that money had
been paid into or withdrawn from a particular
account on a specified
date but that the state of that account showed that the accused knew
that cheques he issued would not be
met: in short, that the

30

obtained
money or goods or services by false pretences when tendering in
payment a negotiable instrument which he knew to be worthless.
In
none of those cases was any notice at all given to the accused; which
was clearly prejudicial in each instance. R. v. Uys, 1938
OPD 59 R.
v. Pieterse 1950(4) S.A. 21 (where not only was the accused given no
notice, but a selective extract from his bank statement
tendered) ;
R. v, Bhoola 1960(4) S.A. 895(T): and S. v Volschenk. 1970(3) S.A.
502 (T) all relate to cheques referred to drawer,
and are matters in
which the prosecution was required to prove that the accused had
acted dolo. not merely negligently when tendering
those cheques as
payment.

I have
set out the history prior to the affidavits being accepted by the
trial court. Crown counsel had made the documents he proposed

tendering by means of depositions available to the defence early on
in the trial. It was the fact that formalities required were
missing,
that held up this part of his case. It was not suggested after the
eight-day postponement, that the accused required more
time to
prepare their respective defences. At no stage was there a suggestion
that evidence beyond that of the accused themselves
was required to
challenge the correctness of any of the entries in the books, of
either Volkskas or FNB at Ladybrand. Were the

31

objection
at this stage to the admissibility of the affidavits on the grounds
of alleged non-compliance with the provisions of section
246(1), to
be upheld, form would triumph over substance, which was clearly not
the intention of the legislature.

The
second ground of objection is equally without merit.

Section
245 makes entries in certain books admissible, if those books are in
the custody of defined persons, who depose to the use
to which those
books are put. An entry is merely a written record of an alleged act
which is not more or less weighty testimony
merely by reason of the
fact that it is recorded in writing. Nor must one accept that the
legislature, when ruling copies of entries
admissible, had
photostatic copies in mind. (Even those may in any event be
falsified) . When one accepts - as counsel reluctantly
agreed should
be done - that Marais could have copied the entries in the bank's
books in his own handwriting, insistence that he
should have done so
on a separate piece of paper and annexed this to his affidavit, is
pointless and serves the interests only
of stationers. The
allegations Marais makes as to the entries he saw in the books under
his control, constitute prima facie evidence
that those entries we're
made, as valid or vulnerable

32

as any
other hearsay evidence tendered in terms of these sections would be.

The third
ground advanced was based on the presumption against legislation
having extra territorial effect. We were referred to
Le Roux v
Provincial Administration (OFS). 1934 OPD 1 at p. 4 and Lenders &
Co. v. Lourenco Marques Wharf Co., 1904 TH 176
at 180-1; and urged to
hold that the banks referred to in sections 245 and 246, were only
banks within the jurisdiction of the
court in Lesotho. The motivation
for this proposed inferential amendment to the wording of the Act was
that section 247(1) allows
for the compelling of a bank to produce
records in certain circumstances; Section 247(2) authorises certain
police officers to
demand the production of bank documents in certain
circumstances; and Section 248 in turn excludes the provisions of
section 245,
246 and 247 from proceedings in which the bank itself is
a party. Since a bank in the R.S.A. cannot be compelled to produce
documents
in Lesotho any more than a police officer from Lesotho may
seize documents from a bank in the R.S.A. , we are asked to conclude

that sections 247 and 248 clearly refer only to banks in Lesotho,
that is, banks over which the courts here have control. This

argument ignores the basic purpose behind

33

the
passage of these sections; to ease the burden and cost to the Crown
or perhaps a complainant, of establishing facts which more
often than
not are not challenged by an accused, and would necessitate the
calling of a string of minor witnesses to give evidence
usually of a
purely formal nature. On counsel's argument, even were a bank at the
ends of the earth quite happy to assist with
a particular prosecution
: to send even its original books under cover of an affidavit or
under the arm of a bank official to testify
viva voce in Lesotho, the
evidence would be inadmissible. Tellers and clerks would have to
travel to testify in person.

The
purpose behind sections 247 and 248 is clearly to enable compliance
with the second condition in favour of an accused to which
admission
of the hearsay evidence is made subject: that the accused be at
liberty to inspect the original entries and the accounts
of which
such entries form a part (sec. 246(l)(b).

If
compliance with that pre-condition cannot be achieved, the Crown
cannot proffer the evidence. But the accused is only to be at.

liberty to inspect. If he does not wish to do so, the question
whether the particular bank would permit him to do so or not is

irrelevant. It was never suggested that any of the

34

appellants
were not at liberty to inspect their own bank accounts, or wished to
check on the accounts of the others but were denied
access. The fact
that section 247 has no extra-territorial validity is accordingly no
ground for limiting the word "bank"
in sections 245 and 246
to mean by necessary implication "bank in Lesotho".

The
fourth ground is similarly without merit. Inadmissible evidence was
indeed tendered. It however, happens daily that a court
holds a
trial-within-a trial in which damaging evidence is elicited but
ultimately ruled to be inadmissible. Courts must, can and
do disabuse
their minds of that evidence in weighing the totality of the
admissible evidence when ultimately determining whether
the guilt of
the accused has been established. Our attention was not drawn to any
passages where appellants were cross-examined
on the inadmissible
annexures or passages in the affidavits, on which the court a. quo
relied for arriving at the conclusion that
the appellants were
guilty. Even had he done so, he would merely have been piling Ossa on
Pelion. The guilt of A2 and A3 is so
clearly established, their
stories are so wildly improbable, that in my view although the court
a quo permitted Crown Counsel inordinate
leeway to shred stories that
did not merit such attention, no failure of justice has occurred,
despite the fact that that

35

cross-examination
related also to inadmissible evidence contained in both the
affidavits and the annexures; which should not have
been permitted.
{Hoffman and Zeffert, Evidence, 4th ed p. 458 and cases referred to
in notes 70 and 71; R. v. Schoeman. 1959(4)
S.A. 89 (c), 93B) . The
argument that the search by Mr. Nts'ala himself was cursory and his
evidence of what his underlings had
reported was inadmissible
hearsay, presupposes that his evidence was tendered to prove the
impossible: a negative. His evidence
went no further than that he had
searched and caused search to be made in all the places where
documentary evidence would in the
ordinary course be expected,to
indicate who the government was supposed to be paying and what for,
and had drawn a total blank
something that had not happened to him
before. That merely added another coincidence to the vast array that
the court is asked
to accept as a reasonable possibility. The
totality of the evidence adduced against them was damning. The lies
they told merely
made their situation worse. It is unnecessary to
further belabour detail. No failure of justice has occurred.

The
position of A1 is different. He was not an active party to the theft
by means of misrepresentations, perpetrated by the other
two. He was
not shown to have benefitted in any way from the

36

stolen
money. Whether his guilt on the four counts charged was proved, (it.
could be only as an accessory) depends on whether there
may not be a
doubt whether A2 had not pulled the wool over the eyes of A1, to
enable A2 to launder the money he and A3 had stolen,
through the
account of the joint venture. In terms of the test laid down in R. v
Difford, 1937 AD 370 , it is insufficient that
it is improbable that
A1 would have been so stupid as to sign blank cheques and make them
available to A2; but in the light of
the fact that the account was
dormant and, more importantly that A1 trusted A2 who was a highly
regarded senior official in Treasury,
I cannot say that it is so
highly improbable that one can exclude it as a possibility. Mrs
Lekatsa also trusted A2 sufficiently
to default in her duty on the
strength of his assurances.

Mr.
Mdhluli referred the court to a portion of the evidence of A2 which
seemed to reveal that the joint account had in fact not
been dormant
before Bank cheques were deposited into and large sums withdrawn from
that. It had contained a healthy credit balance
which A2 testified
was the property of A1, who operated the account for his own benefit.
The LL account was only dormant "for
our joint business".
That evidence might perhaps alter one's assessment of the likelihood
that A1 would have been bluffed
by his

37

friend
into making available the use of not only their joint account but his
own money, to a Mr. Kemp whom he had never met.

The bank
statement which Crown counsel put to A2, in eliciting this evidence
from A2, was however not dealt with in or annexed to
the affidavit of
Marais at all, nor was any notice given to any of the appellants that
this statement would be produced. In terms
of the authorities
referred to above it was, therefore, inadmissible against all the
appellants, and cross-examination based on
it not permissible. As
-regards A1, it cannot in my view be said that no failure of justice
has resulted despite the admission
of this evidence.

38

In the
result the appeal of A1 is allowed. His conviction and sentence are
set aside. The appeals of A2 and A3 are dismissed.

L.V.D.
HEEVER

ACTING
JUDGE OF APPEAL

I agree

Sgd

J. BROWDE

JUDGE OF
APPEAL

I agree

Sgd

R.N. LEON

JUDGE OF
APPEAL

Delivered
this 29th day of June, 1996.