C. OF A.
(CRI) NO.5 OF 1992

IN THE
LESOTHO COURT OF APPEAL

In the
matter of:

PETER K.
MAHASE

v.

REX

Held at:

MASERU

CORAM:

STEYN, JA

LEON, JA

VAN DEN
HEEVER, AJA.

JUDGMENT

STEYN
J.A.:

The
Appellant appeared in the High Court on the following charges;

2

"COUNT
1

1. In
   that, upon or about the 26th day of January. 1987, and at or near
   the Lesotho Foreign Mission to the European Economic Community,

   Brussels, the said accused did unlawfully, falsely, and with intent
   thereby to defraud and to the prejudice of the Government
   of
   Lesotho, forge an instrument in writing, to wit, a transfer order
   instructing the Bank of Brussels Lambert in Belgium to transfer
   and
   credit to the bank account of the accused with the same bank the sum
   of 188,602 Belgian Francs which said amount would be
   debited to the
   account of the Lesotho Mission to the European Economic Community,
   by adding the figure "1" before the
   figure "8"
   of the sum of 88,602 Belgian Francs after the said transfer order
   had been examined and approved by the
   Chief Accounting officer to
   the Lesotho Mission to the EEC and thereby altering the amount
   88,602 Belgian Francs on the transfer
   order to 188,602 Belgian
   Francs on the transfer order to 188,602 Belgian Francs.

   
   

2. In
   that, upon or about the 26th day of

   
   

3

January
1987, and at or near the Bank of Brussels Lambert, Brussels, the said
accused did unlawfully, and with intent thereby to
defraud, and to
the prejudice of the Lesotho Government, offer, utter and put off the
said document to the Bank of Brussels, Lambert
aforesaid, he the
accused, when he so offered, uttered, and put off the aforesaid
instrument, well knowing it to have been forged.

ALTERNATIVELY:

COUNT 2

In that
upon or about the 26th day of January. 1987, and at or near the
Lesotho mission to the European Economic Community, Brussels
,
Belgium, the said accused, did unlawfully and intentionally steal the
sum of 100,000 Belgian Francs which according to the exchange
rate
then prevailing converted to 115,458.00, the property of the
Government of Lesotho.

4

COUNT 3

1. In
   that upon or about the 25th day of May, 1987, and at the Lesotho
   Foreign Mission to the European Economic Community, Brussels.

   Belgium, the said accused did unlawfully, falsely and with intent
   thereby to defraud and to the prejudice of the Government of

   Lesotho, forge an instrument in writing, to wit, a transfer order
   instructing the Bank of Brussels, Lambert in Belgium to transfer
   and
   credit to the bank account of the accused with the same bank the sum
   of 391,467 Belgian Francs which said amount would be
   debited to the
   account of the Lesotho Mission to the European Economic Community,
   by adding the figure "3" before the
   figure "9"
   of the sum of 91,467 Belgian Francs after the said transfer order
   had been examined and approved by the
   Chief Accounting officer to
   the Lesotho Mission to the EEC and thereby altering the amount of
   91,467 Belgian Francs on the order
   to 391,467 Belgian Francs.

   
   

5

2. In
   that, upon or about the 25th day of May, 1987, and at or near the
   Bank of Brussels, Belgium, the said accused did unlawfully,
   and with
   intent thereby to defraud, and to the prejudice of the Lesotho
   Government, offer, utter and put off the said document
   to the Bank
   of Brussels Lambert aforesaid, he the accused, when he so offered,
   uttered, and put off the aforesaid instrument,
   well knowing it to
   have been forged.

   
   

ALTERNATIVELY

COUNT 4

In that,
upon or about the 25th day of May, 1987, and at or near the Lesotho
Foreign Mission to the European Economic Community,
Brussels,
Belgium, the said accused did unlawfully and intentionally steal the
sum of 300,000 Belgian Francs which according to
the exchange rate
then prevailing converted to M16,145.00, the property of the
Government of Lesotho,

6

COUNT 5

1. In
   that upon or about the 23rd day of July, 1987, and at or near the
   Lesotho Foreign Mission to the European Economic Community,

   Brussels, Belgium, the said accused did unlawfully and with intent
   thereby to defraud and to the prejudice of the Government
   of
   Lesotho, forge an instrument in writing, to wit, a transfer order
   instructing the Bank of Brussels Lambert in Belgium to transfer
   and
   credit to the bank account of the accused with the same bank the sum
   of 293,055 Belgian Francs which said amount would be
   debited to the
   account of the Lesotho Mission to the European Economic Community,
   by adding the figure "2" before the
   figure "9"
   of the sum of 93,055 Belgian Francs after the said transfer order
   had been examined and approved by the
   Chief Accounting officer to
   the Lesotho Mission to the EEC and thereby altering the amount of
   93,055 Belgian Francs on the transfer
   order to 293,055 Belgian
   Francs.

   
   

7

2. In
   that, upon or about the 23rd day of July, 1987, and at or near the
   Lesotho Foreign Mission to the European Economic Community,

   Brussels, Belgium, the said accused did unlawfully, falsely, and
   with intent thereby to defraud, and to the prejudice of the
   Lesotho
   Government, offer, utter and put off the said document to the Bank
   of Brussels aforesaid, he the accused, when he so
   offered uttered,
   and put off the aforesaid instrument, well knowing it to have been
   forged.

   
   

ALTERNATIVELY

COUNT 6

In that,
upon or about the 23rd day of July, 1987, and at or near the Lesotho
Foreign Mission to the European Economic Community,
Brussels,
Belgium, the said accused did unlawfully and intentionally steal the
sum of 200,00 Belgian Francs, which according to
the Exchange rate
then prevailing converted to M10,753.91, the property of the
Government of Lesotho.

8

COUNT 7

1. In
   that, upon or about the 28th day of October, 1987, and at or near
   the Lesotho Foreign Mission to the European Economic Community,

   Brussels, Belgium, the said accused did unlawfully, falsely, and
   with intent thereby to defraud and to the prejudice of the
   Government of Lesotho, force an instrument in writing, to wit, a
   transfer order instructing the Bank of Brussels Lambert in Belgium

   to transfer and credit to the bank account of the accused with the
   same bank the sum of 289,313 Belgian Francs which said amount
   would
   be debited to the account of the Lesotho Mission to the European
   Economic Community, by adding the figure "2"
   before the
   figure "8" of the sum of 89,313 Belgian Francs after the
   said transfer order had been examined and approved
   by the Chief
   Accounting officer to the Lesotho Mission to the EEC and thereby
   altering the amount 89,313 Belgian Francs on the
   said transfer order
   to 289,313 Belgian Francs.

   
   

9

2. In
   that, upon or about the 28th day of October, 1987, and at or near
   the Bank of Brussels Lambert, Brussels, the said accused
   did
   unlawfully, and with intent thereby to defraud, and to the prejudice
   of the Lesotho Government, offer, utter and put off
   the said
   document to the Bank of Brussels Lambert aforesaid, he the accused,
   when he so offered, uttered, and put off the aforesaid
   instrument,
   well knowing it to have been forged.

   
   

ALTERNATIVELY

COUNT 8

In that,
upon or about the 28th day of October, 1987, and at or near the
Lesotho Mission to the European Economic Community, Brussels,

Belgium, the said accused did unlawfully and intentionally steal the
sum of 200,000 Belgian Francs, which according to the Exchange
rate
then prevailing converted to M11,050.52, the property of the
Government of Lesotho.

10

COUNT 9

1. In
   that, upon or about the 23rd day of November, 1987, and at or near
   the Lesotho Foreign Mission to the European Economic Community,

   Brussels, Belgium, the said accused did unlawfully, falsely, and
   with intent thereby to defraud and to the prejudice of the
   Government of Lesotho, forge an instrument in writing, to wit, a
   transfer order instructing the Bank of Brussels Lambert in Belgium

   to transfer and credit to the bank account of the said accused with
   the same bank the sum of 187,489 Belgian Francs which said
   amount
   would be debited to the account of the Lesotho Mission to the
   European Economic Community, by adding the figure "1"

   before the figure "8" of the sum of 87, 489 after the said
   transfer order had been examined and approved by the Chief

   Accounting officer to the Lesotho Mission to the EEC and thereby
   altering the sum of 87,489 Belgian Francs on the said transfer
   order
   to 187,489 Belgian Francs.

   
   

11

2. In
   that, upon or about the 23rd day of November, 1987, and at or near
   the Bank of Brussels, Lambert, Brussels, the said accused
   did
   unlawfully, and with intent thereby to defraud, and to the prejudice
   of the Lesotho Government, offer, utter and put off
   the said
   document to the Bank of Brussels Lambert aforesaid, he the accused,
   when he so offered, uttered, and put off the aforesaid
   instrument,
   well knowing it to have been forged.

   
   

ALTERNATIVELY

COUNT 10

In that,
upon or about the 23rd of November, 1987, and at or near the Lesotho
Mission to the European Economic Community, Brussels,
Belgium, the
said accused did unlawfully and intentionally steal the sum of 100,00
Belgian Francs, which according to the exchange
rate then prevailing
converted to M5,637.01, the property of the Government of Lesotho.

12

COUNT 11

1. In
   that, upon or about the 21st day of January, 1988, and at or near
   the Lesotho Foreign Mission to the European Economic Community,

   Brussels, Belgium, the said accused did unlawfully, falsely, and
   with intent thereby to defraud and to the prejudice of the
   Government of Lesotho, forge an instrument in writing, to wit, a
   transfer order instructing the Bank of Brussels Lambert in Belgium

   to transfer and credit to the bank account of the accused with the
   same bank the sum of 393,778 Belgian Francs which said amount
   would
   be debited to the account of the Lesotho Mission to the European
   Economic Community, by adding the figure "3"
   before the
   figure •9" of the sum 93,778 Belgian Francs after the said
   transfer order had been examined and approved
   by the chief
   accounting officer to the Lesotho Mission to the EEC and thereby
   altering the amount 93,778 Belgian Francs on the
   said transfer order
   to 393,778 Belgian Francs.

   
   

13

2. In
   that, upon or about the 21st day of January, 1988, and at or near
   the Bank of Brussels Lambert, Brussels, the said accused
   did
   unlawfully, and with intent thereby to defraud, and to the prejudice
   of the Lesotho Government, offer, utter and put off
   the said
   document to the Bank of Brussels Lambert aforesaid, he the accused,
   when he so offered, uttered, and put off the aforesaid
   instrument,
   well knowing it to have been forged.

   
   

ALTERNATIVELY

COUNT 12

In that,
upon or about the 21st day of January, 1988, and at or near the
Lesotho Mission to the European Economic Community, Brussels,

Belgium, the said accused did unlawfully and intentionally steal the
sum of 300,000 Belgian Francs, which according to the exchange
rate
then prevailing converted to M16,592.47, the property of the
Government of Lesotho."

14

The
appellant pleaded not guilty. Extensive evidence was led by the State
in substantiation of these charges. The appellant declined
to give
evidence. He was convicted on six of the main counts and sentenced to
an effective cumulative sentence of 4 years' imprisonment.

The only
question that arises in this appeal is the question of the
sufficiency of the evidence on which the appellant was convicted.

The
challenge in this respect was based on an assertion that certain
documentation was "hearsay" evidence and was wrongly

admitted to prove the truth of the contents thereof. The appellant
was charged in the first instance with forgery. The allegation
was
that he had falsified certain documents and issued those documents in
a falsified form. It was not necessary for the Crown,
in order to
prove these facts, to introduce the bank statements in order to
establish that appellant had perpetrated a theft. What
was relevant
was that the contents of the documents had been altered and that
these had been presented to the bank in their altered
form. The Crown
did not have to prove, in order to sustain a conviction on charges of
forgery and uttering that the bank had acted
upon such altered

15

documents.
Potential prejudice is sufficient for a conviction on a charge of
forgery and uttering and this was certainly proved
beyond any
reasonable doubt. Although it is not necessary to find this, the
Crown did in my view prove actual prejudice and bank
journals are not
required in order to establish this fact.

As I have
indicated, there was ample evidence that the relevant documentation
was altered and uttered in their amended form and
no documentation
was needed to be introduced in order to corroborate this evidence.
Put differently, on a charge of forgery it
is not imperative that the
allegedly forged document should be placed before court, any more
than it is necessary on a charge of
murder that the corpse be
presented to the judge. The document in issue is NOT presented to
establish the truth of its contents
- quite the opposite. Just as
photographs of corpses are tendered, or evidence as to what a witness
observed in relation to the
deceased, nothing prevents testimony
being tendered as to the condition of a document as real evidence,
where the object - the
document itself -is not available to be
tendered in court any more than the decomposed corpse would be. There
was a strong prima
facie case that appellant altered the transfer
orders in question,

16

that
appellant uttered his forgeries to the bank in Brussels, and that the
Embassy suffered a loss as a consequence. Where he did
not himself
testify in discharge of, not an onus - as suggested by the Judge a
quo - but in respect of an obligation to rebut a
powerful prima facie
case, his conviction was inevitable.

The
following facts are of particular significance in this regard:

1. He
   was the only person in charge of the day to day finances at the
   Mission in Brussels, and the keeper of the documents necessary
   to be
   able to account to Foreign Affairs in the Kingdom.

   
   

2. It
   was his duty to prepare the payment vouchers for out-goings, and the
   transfer orders issued to the bank on the strength of
   such vouchers,
   to transfer money from the account of the Mission into the account
   of a named beneficiary.

   
   

3. It
   was likewise his duty to record the causa for such transfer in both
   the voucher and the transfer order, as well as in his cash
   book.

   
   

17

4. It
   was then also his duty to take the transfer order to the bank, once
   it had been countersigned by the Ambassador or in his absence
   his
   deputy, the Counsellor.

   
   

5. The
   transfer orders in issue in this case, all mention him as the
   beneficiary and give the number of his account in the same bank
   as
   that into which money was to be transferred from that of the
   Embassy.

   
   

6. Transfer
   orders are prepared in duplicate. The bank stamps both, keeps the
   top copy, and hands the duplicate original to the accused
   who is
   supposed to file it for the Mission's records.

   
   

7. Appellant
   is supposed to remit payment vouchers, his cash book, bank
   statements received from the bank, and a reconciliation statement

   back to Lesotho. He did not remit everything required. Telephonic
   queries were made. He promised to send what was missing, all
   of
   which related to his own salary; but never did. There was a
   discrepancy between his cash book and what the bank said the

   
   

18

8. position
   was relating to his salary - whether the bank was correct or not
   does not matter. The fact of its statement led to an
   investigation
   in Brussels. It was found that documents which should have been in
   appellant's file, namely the duplicate original
   transfer orders
   requesting money to be paid into his own account, were missing; for
   this he could give no explanation.

   
   

9. The
   original transfer orders were in the possession of the bank and had
   been "uttered" by their presentation. There
   also these
   orders were inspected. They differed from the underlying payment
   vouchers and what appellant had recorded in his cash
   book, adding to
   the causa for the transfer of funds (namely his salary, foreign
   service and children's allowances).

   
   

According to the evidence of one Sekoli there were no payment
vouchers in appellant's files that could account for the
discrepancies
between salary vouchers and evenly-dated transfer
orders. He added that it would have been inappropriate to include
things like
"tax refunds" with salaries in

19

one and the same transfer order, since salary was a Foreign Affairs
obligation, tax refund one of Finance (809).

10. Where
    appellant had to take the relevant transfer orders to the bank, each
    one required the bank to pay the amount in question
    from Embassy
    funds into appellant's account. I can think of nobody other than he
    himself who would have had either the opportunity
    or the inclination
    to add to the document signed by himself and the Ambassador or
    Counsellor (according to their evidence) before
    presenting the
    document. In any event the evidence is damning that the handwriting
    of the altered amount and narration was that
    of the appellant, known
    to his colleagues by reason of having worked with him previously.

    
    

The
accused did not testify. The reason is obvious. He was guilty beyond
all doubt and had no answer to the overwhelming weight
of the
evidence tendered by the Crown.

The
appeal was in my view therefore without any merit and was, for these
reasons, dismissed and the convictions

20

confirmed.

There was
no appeal against the sentences imposed and these were also
confirmed.

JUDGE OF
APPEAL

I agree:

R. N.
LEON

I agree:

L. VAN
DEN HEEVER ACTING

JUDGE OF
APPEAL

Delivered
at MASERU this 29th day of JUNE, 1996.