CRI/T/34/88 IN THE HIGH COURT OF LESOTHO

In the Matter of :

REX

v

1. 
   AARON MOTLATSI TS'OSANE

   
   

2. 
   KHETHANG MOTSOENE MOTSEARE

   
   

JUDGMENT

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

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

"Upon or about the 30th day of July, 1987 and at or
near Maseru in the district of Maseru, the said accused, one or each
or all
of them did unlawfully and with intent to defraud,
misrepresent to the Lesotho Bank that a sum M20,000 had been properly
deposited
into the savings account of the first accused, the said
Aaron Motlatai Ts'osane, account No. 2000805 215 which said account
was maintained
at the main branch of the Lesotho Bank, and did
thereby cause the officials of Lesotho Bank to credit the said
account of the first
accused with the sum of M20,000 from which funds
the first accused be entitled to make withdrawals for his benefit,
and the said
accused did by means of the said misrepresentation
induce the Lesotho Bank, to its loss and prejudice, to allow the said
first accused
to make withdrawal

2 / from his .......

2

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

ALTERNATIVELY

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

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

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

3/ It was .......

3

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

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

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

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

4/ I must say ......

4

I must say in all the years I have been on the bend. I
have never seen a judicial officer, who is preciding ever

a court case, being written an extra-judicial letter
crime ticising the manner in which he is conducting the case-If the
Attorney-General
were of the opinion that there was anything
irregular in the way in which the case was being conducted, he ought
to know what remedy
was available to the Crown counsel and
accordingly advise him. I find it totally unacceptable for a letter
of this nature to be
and dressed to a judicial officer, especially
behind the back of No. 2 accused who was, at the time, not legally
represented in this
case.

Having said that much, I shall now proceed to deal with
the merits of the case. Briefly stated, the evidence heard by the
court was
that of P.W. 10, Rubine Osman, who testified that she was
employed by the Lesotho Bank and attached to the Savings Account
department
of the Bank as a savings Account check clerk. On 31st
July, 1987 she was checking the posting journal when she found that
an amount
of M20,000 had been credited into the savings account No,
200080521 6 of one Aaron Motlatsi Ts'osane (A1) but there was no
voucher
covering it. The transaction appeared to have been
computerised on 30th July, 1987 by clerk No. 185 in the Data control
department
of the bank.

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

5 / of the

5

of the bank. An enquiry from the accountant in the
Foreign Exchange Department of the bank revealed that the debit
voucher for the
M20,000 was also missing. On checking the computer
machine in the savings account department of the Bank, P.W.10 found
that an amount
of M10,000 had already been withdrawn from the savings
account Mo. 2000805216 on the same day, 31st July, 1987. On the
instructions
of the Bank Manager, P.W.10 caused the remaining balance
in the savings account No. 2000805216 to be freezed immediately and
kept
in her custody, together with the posting journal which she
handed in as exhibit J in her evidence In her evidence P.W.5 ,
Thembile
Dingiswayo, told the court that since 1986 she had been
employed by the Lesotho Bank as a clerk in the Data Department of the
Bank.
Her official number in the bank was 185. As a clerk in her
department her duties included, inter alia, punching (computerising)
vouchers made by various departments of the Bank

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

6 / of the

6

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

When at about 2 p.m. on 30th July, 1987 she . broke for
lunch, P.W.5 had already started punching the bundle of vouchers
brought by
No. 2 accused. She left the vouchers together with other
vouchers from various departments of the bank and went for her lunch.
At about 3 p.m. an the same day, 30th July, 1987, she returned to
her desk and continued punching the vouchers she had left when
she
broke for lunch. She then took all the vouchers she had punched to
the photocopying room. After she had photo­copied them
she kept
the photocopies in a cabinet in the date control department and
despatched the originals to various departments of their
destination.

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

7/ Thinking that ........

7

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

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

Dn the following day, 1st August, 1987, No. 2 accused
was off duty but his third passbook (Exh 8) was handed over to P.W.5
by the
Sub-Accountant, one Mr. Makars who is, however, allegedly
furthering his studies abroad and could not, therefore, be called as
a
witness in this trial. It is significant that P.W.5 was
cross-examined by the defence counsel on this point and she told the
court
(under cross-examination) that according to him, Mr. Makers had
found exhibit B hidden in one of No. 2 accused's desk drawers. By
cross examining the witness on it the defence counsel made a point
which was otherwise inadmissible hearsay, admissible evidence.

6/ It is, .......

8

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

On examining Exhibit B, P.W.5 noticed that on page 13368
thereof a voucher was drawn out to debit the manufacture Hanova
Trust Company
account No. 9089050001 in the amount of £6034-81 (at
the rate of 331.4105) which was the equivalent of M19,999-99 or
M20,000, brought
to a whole number. The account number to be
credited with the amount of M20,000 was not disclosed. However, the
whole transaction
was cancelled and three copies of voucher 1336B
remained in Exh B.

As the transaction on voucher 13368 debiting thii
manufacturers Hanova Trust Company Account No. 90890500G1 with the
equivalence of
M20,000, in sterling had been cancelled. P.W.5
expected it to be repeated on voucher 13369 or any other subsequent
voucher in Exh
8. It was not. Instead she noticed that on voucher
13369 only the white copy remained in Exh B i.e. neither the pink nor
the yellow
copy remained. According to the white carbon copy of
voucher 13369 in Exh B. the transaction was crediting a certain
account No.
9090005 2027

9/ with the ......

9

with the amount of M62-57. P.W.5, therefore, expected
to find the yellow debit page of voucher 13369 remaining in Exh B,
together
with the white carbon copy. It was not there. She looked
for the missing copies i.e. the pink and the yellow copies, of
voucher
13369 in all departments of the Bank. She found, in the
General Account. Department only the credit (yellow) copy (Exh G)
but
no trace of the debit (Pink) copy of voucher 13369 of Exh B.

In her evidence P.W.4, 'Mampabi Moorosi, told the court
that she was the Accountant in the Foreign Exchange Department of the
bank..
She remembered that on 31st July, 1987 P.W.10 showed her a
computer report according to which on 30th July, 1967 an amount of
M20,000
had been debited from the manufacturers Hanova Trust Company
account No. 908905 0001 and credited into the savings account "number
2000805216 belonging to No. 1 accused. The relevant voucher which
had emanated from the Foreign Exchange Department and ought to
have
accompan5ed the transaction was, however missing.

P.W.4 immediately mounted an investigation on the matter
by checking through the passbooks used in the Foreign Exchange
Department
but found no trace of the missing voucher. On the
following day she was not on duty. However, later in the day she
went to her
office to find out if the missing voucher had been
traced. It had not. She was however, shown Exh 8 - a passbook
used by No.
2 accused who was one of the clerks in the Foreign
Exchange Department and under her general supervision,

10/ P.W.4 confirmed .......

- 10 -

P.W.4 confirmed the evidence of P.W.5 that the
examination of Exh B revealed that at page 13368 thereof a voucher
was, on 30th July,
1987, prepared and cancelled debiting the
manufacturers Hanova Trust Company Account No. 9089050001 in the sum
of £6034-81 at the
rate of 331.4105 per £100 - which, converted
into Maluti currency amounted to M19,999-99 or M20,000 rounded up to
a whole number.
According to the message recorded on page 13356 of
Exh B the instruction to debit manufacturers Hanova Trust. Company
Account No.
9039050001 was communicated through a telex dated 29th
July, 1987.

P.W.4 further told the court that as she worked with No.
2 accused in the same department she was positive that the
handwriting in
Exh B, particularly on voucher 1336B thereof, was that
of No. 2 accused. She too testified that as the transection on
voucher 13368
had been cancelled she expected No. 2 accused to have
repeated it on the following voucher 13369 of Exh B. The transaction
was, however,
not repeated thereon or any other subsequent voucher.

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

11/ She then .......

11

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

P.W.4 confirmed the evidence of P.W.10 that on the
instructions of the Bank Manager the funds in No. 1 accused's savings
account No.
2000805216 from which an amount of M10,000 had already
been withdrawn were freezed.

In her testimony P.W.8, Kamohelo Mahooane, told the
court that in July, 1987 she was a clerk attached to the inquiry
section of the
savings account department of the bank, As such her
duties included making entries in the customers savings account books
i.e. crediting
customers' savings account books and up dating them.
She recalled that on 31st July, 1987 No. 1 accused came to her
counter and
handed over his savings account book asking her to check
if some money had been deposited into his account No. 2000605 216
P.W.8
checked on the computer and found that No. 1 accused savings
account had, indeed, been credited with the amount of M20,000 on the
previous day, 30th July, 1987. When she asked him where the funds
came from, Wo. 1 accused replied that he was, in fact expecting
money
from two sources that he was unable to disclose. However, as she was
satisfied, from the computer screen that No. 1 accused's
account had
been credited with the M20,000, P.W.8 up dated the savings account
book by making an entry of the M20,000.00 and the
balance became
M20,098. She handed the savings account book back to No. 1 accused
who then left her counter

12/ In her ...........

12

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

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

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

13/ checking the

13

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

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

In her evidence P.W.7 confirmed that on 31st July, 1987
there was an information received from P.W.10 that a voucher for a
transaction
involving an amount of M20,000 from the Foreign Exchange
Department was missing. Following the information P.W.7 collected
the passbooks
that were currently used by all the clerks in her
department and checked through them to find if there were any voucher
in support
of the transaction involving the M20,000.00-There was no
trace of any such voucher.

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

14/ However

14

However, on the following day, 1st August, 1987. another
passbook (Exh B) was brought to her by Mr. Makara, the Sub-Account
ant who,
for reasons already explained in this judgment, could not be
called as a witness in this trial. P.W.7 also assured the court that
as she worked with No.2 accused in the same department and was the
one supervising his work she knew his handwriting very well.
When
she ins­pected Exh. B she had no difficulty, therefore, in
identifying the handwriting therein as that of No. 2
accused-According
to her, P.W.7 noticed that at page 13368 of Exh B.
a voucher was prepared and then cancelled by No. 2 accused. The
message in that
transaction purported to have been telegraphic and
related to a transfer of thy equivalence of M20,000, in sterling,
from Manufacturers
Hanova Trust Company Account Number 9089050001.
As the transaction had been cancelled in voucher 13368, P.W.7
expected it to be
repeated in the next following voucher 13369 or any
other subsequent voucher in Exh B. It was not

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

When a search for the two copies (i.e. the

pink
and the yellow copies) that had apparently been removed from voucher
13369 of Exh B was made, only the pink copy

15 / by which ............

- 15 -

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

P.W.7 checked the computer report (Exh C) from the
computer centre and found that there was transaction No.145, by which
the amount
of M20,000 was, indeed, transferred from account Number
908905 0001 into the savings account Number 2000805216. As it was
obvious
from voucher 13368 of Exh B that it was No. 2 accused who had
handled a transaction in which he was telegraphically authorised to
debit manufactures Hanova Trust Company account Number 908905 0001 in
the equivalence of M20,000, in Sterling, P.W.7 proceeded to
check in
the telex room of the Foreign Exchange Department for a telex that
supported such transaction. She checked through the
manufacturers
Hanova Trust Company file kept in the Foreign Exchange Department.
There was no such telex. In case there was a misfiling,
she also
checked through all the other files in the department but all to no
avail. When later on the Bank statement (Exh A) from
Manufacturers
Hanova Trust Company arrived she too went through it and found that
nowhere did it reflect that it was debited in the
amount M20,000 or
its equivalence in Sterling.

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

16/ Hanova .......

- 16 -

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

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

The evidence of P.W.2 use to the effect that at about 2
p.m. on 1st August, 1967 he proceeded to the home of No. 1 accused at
Upper
Thamae here in Maseru. He found him not in and left a message
that on his arrival No. 1 accused should report himself at the C.I.D.

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

17/ to the C.I.D........

17

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

to No.1 accused's brother, Moshe Tsosane, at the village
of Upper Thamae. On the way to the village P.W.2 met Moshe Tsosane
and took
him to the C.I.D. where he confronted him with the two
accused. In the presence of the accused, Moshe gave an explanation
and took
P.W.2 and P.W.3 to his home where he produced and handed
over to the police officers an amount of M2,400 which had been hidden
in
a sofer. The police officers took possession of the money and
returned to their office together with Moshe Tsosane. Although Moshe
was cautioned and charged jointly with the two accused the charge
against him was later dropped on the directives of the office of
the
Director of Public Prosecutions.

As it has already been pointed out earlier, at the end
of the case for the prosectuion, No.2 accused elected to remain
silent and
close his case without testifying in his defence. There
is, however, an unchallenged evidence, adduced by the crown, to the
effect
that on 30th July, 1987 No.1 accused's savings account No.
2000805216 was credited in the amount of M20,000 from Manufacturers
Hanova
Trust Company Account No. 9089050001. The voucher supporting
that transaction had emanated from the Foreign Exchange Department
in
which No.2 accused was one of the clerks. He was, indeed," the
clerk who, on 30th July, 1987, brought a bundle of vouchers
from the
Foreign Exchange Department to P.W.5 in the Data Control Department
for punching or computerising. After he had brought
the vouchers to
the Data Control Department. No.2 accused kept on pestering P.W.5
that she should quickly computerise them.

18 / From her

17

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

to No.1 accused's brother, Moshe Tsosane, at the village
of Upper Thamae. On the way to the village , P.W.2 met Moshe
Tsosane and
took him to the C.I.D. where he confronted him with the
two accused. In the presence of the accused, Moshe gave an
explanation and
took P.W.2 and P.W.3 to his home where he produced
and handed over to the police officers an amount of M2,400 which had
been hidden
in a sofer. The police officers took possession of the
money and returned to their office together with Moshe Tsosane.
Although
Moshe was cautioned and charged jointly with the two accused
the charge against him was later dropped on the directives of the
office
of the Director of Public Prosecutions.

As it has already been pointed out earlier, at the end
of the case for the prosectuion, No.2 accused elected to remain
silent and
close his case without testifying in his defence. There
is, however, an unchallenged evidence, adduced by the crown, to the
effect
that on 30th July, 19C7 No.1 accused's savings account No.
2000805216 was credited in the amount of M20,000 from Manufacturers
Hanova
Trust Company Account No. 9089050001. The voucher supporting
that transaction had emanated from the Foreign Exchange Department
in
which No.2 accused was one of the clerks. He was, indeed, the clerk
who, on 30th July, 1987, brought a bundle of vouchers from
the
Foreign Exchange Department to P.W.5 in the Data Control Department
for punching or computerising. After he had brought the
vouchers to
the Data Control Department No.2 accused kept on pestering P.W.5 that
she should quickly computerise them.

18 / From her

16

From her computer print out or "Tally" (Exh F)
P.W.5 was positive that she had, on 30th July, 1987, punched a
transaction
by which the Foreign Exchange Department was debiting
Manufacturers Hanova Trust Company account Number 908950001 with the
amount
of M20,000 which was to be credited into No. 1 accused's
savings account No, 2000805216. The voucher supporting that
transaction
had, however, disppeared after the transaction had been
computerised and could not be traced anywhere in the bank.

As there is no doubt that the transaction by which the
M20,000 was transferred from Manufacturers Hanova Trust Company
Account No.
9089050001 into No.1 accused's savings account No.
2000805216 had emanated from the Foreign Exchange Department of the
bank the question
for the determination of the court is whether or
not No.2 accused is the clerk who drew out the voucher which
supported the transaction.

In this regard there is, an unchallenged evidence that
when all the passbooks currently used in the Foreign Exchange
Department of
the bank were checked, it was found that in his
passbook (Exh B) No.2 accused had drawn out vouch:?.:-13368 by which
he purported
there was a telex message dated 29th July, 1987
authorising transfer of the equivalance of M20,000, in Sterling, from
Manufacturers
Hanova Trust Company Account No. 9089050001. No.2
accused cancelled the transaction on voucher 13368. But as it
appeared there
was a telex message dated 29th July, 1987 authorising
the transaction, that transaction ought to have been repeated on
voucher 13369
which had misteriously a credit page missing.

19/ The transaction .........

19

The transaction was, however, neither repeated on
voucher 13369 of Exh B nor any subsequent voucher thereof. The
purported telex
message of 29th July, 1987 authorising the
transaction could not be traced in the bank nor could the statement
from Manufacturers
Hanova Trust Company reflect the equivalance of
M20,000, Sterling,which was to be transferred through the Foreign
Exchange Department
of the Lesotho Bank.

Although No.2 accused had cancelled the transaction
on
voucher 13368 it is to be observed that the amount of
M20,000 or
its equivalence, in Sterling, was nonetheless
purportedly
transferred from Manufacturers Hanova Trust
Company Account Number
9089050001 into No. 1 accused's
savings Account No. 2000805216.
As voucher 13369 of the
Exh B was the only voucher with a missing
page, it seems
reasonable to infer that the missing page in
voucher 13369
was sureptitiously used to draw out the voucher
which
supported the transaction involving the M20,0D0. On
the
evidence No.2 accused was the only clerk in the
Foreign
Exchange Department who used Exh B. Indeed, he is the
only
clerk from that department who, on 30th July, 1987,
took
vouchers to P.W.5 in the Data Control Department.
That
being so, I am of the view that the answer to the question.
I
have earlier posted, viz. whether or not No.2 accused is
the clerk
who drew out the voucher in support of the
transaction by which
the M20,000 was transferred from
Manufacturers Hanova Trust
Company into No.1 accused's
savings account must be in the
affirmative. - .

20/ Coming now ........

- 20 -

Coming now to No.1 accused, he testified in his defence
and conceded that on 30th July, 1987 he was already operating savings
account
No.2000805216 with the Lesotho Bank here in Maseru. The
account was on that day credited in the amount of M20,000.

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

On 31st July, 1987 No.1 accused went to the bank to
withdraw M20 from his savings account No. 200805 216 which admittedly
had a balance
of only M98. When he presented his savings account
book, passport and the completed withdrawal slip to the teller, the
latter asked
him whether he was expecting money from anywhere. In
reply No.1 accused explained that he was not sure if any of the
people (Tourists)
he was expecting money from had sent it. The
teller then handed beck all his documents

21/ saying

21

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

Whan he left the inquiry desk, No. 1 accused inspected
and found that bis savings account book had been credited in the
amount of
M20,000 giving him a balance of M20,098. He immediately
distroyed the withdrawal slip he had previously completed for the
amount
of M20 and prepared another one (Exh D) by which he demanded
payment of M10,000.00 After it had been paid to him he put the
M10,000
in a brief case and left the bank.

As his wife who usually kept his money was not at at
home, No.1 accused took M5 , ODD to his younger brother, Moshe, for
safekeeping.
Out of the M5,000 that remained with him he kept M3,800
in his wardrobe and took the balance to a casino where ha and his
friends
carelessly squandered it on gambling machines and drinks on
the night of the same day.

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

22/ however

22

however, been produced and No. 1 accused merely
contended himself with saying he did not know if his wife had
destroyed the diary
as this was an old affair-There is no doubt in my
mind that No.1 accused's

story that he was promised money by some unknown
tourists has no truth and it would haws been a waste of time for the
crown to follow

it. I accordingly reject it as false.

Although he 'cold the court that when he came

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

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

23/ Assuming

23

Assuming, Par the sake of argument, the correctness of
his story that when, on 31st July, 1967, he came to the bank No.1
accused wanted
to withdraw only M20 from his savings account which
admittedly had, even before it was credited in the amount of M20,000,
a balance
of M98, I find it incredible that instead of paying him the
small amount of M20 the unnamed teller would have referred him to the
inquiry desk thus causing him the trouble of having to cue in the
line for the second time.

In my view, what is sensible is the crown evidence that
in the morning of 31st July, 1987 No.1 accused came to the bank, went
straight
to the inquiry desk and verified that his savings account
Number 2000805 216 had been credited in the amount of M20,000 which
P.W.8
duly entered in his savings account book.. Only then did No.1
accused prepare the withdrawal slip far M10,000 and went to P.W.9,
the teller who, on the basis of the entry made by P.W.8 in his
savings account book, paid him the money. No.1 accused never
prepared
a withdrawal slip (for M20) which, as he wanted this court
to believe, he later destroyed. The haste in which, the moment he
realised
that the huge amount of M20,000 had been deposited into his
savings account,

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

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

24 / accused

24

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

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

In pursuit of their fraudulent scheme No.2 accused
purported there was a telex message dated 29th July, 1987 authorising
manufacturers
Hanova Trust Company account

25/ No

25

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

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

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

26 / I would

26

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

Both my assessers agree.

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

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

B.K. MOLAI JUDGE

15th May, 1990.

For Crown : Mr. Thetsane For Defence : Mda.