C. of A.
(CRI) No. 4 of 1980

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

BRIAN
ALEXANDER FORRESTER Appellant

v

REX
Respondent

HELD AT
MASERU

Coram:

SCHUTZ,
J.A.

VAN
WINSEN, J.A.

MARAIS
A.J.A.

JUDGMENT

Schutz,
J.A.

By now
this matter has a somewhat lengthy history. Originally the appellant
was convicted by the Senior Resident Magistrate, Maseru
on two counts
of fraud (counts 2 and 3) and was sentenced to a fine of M80 on each
count, or in the alternative to eight months
imprisonment on each
count. An appeal to the High Court against conviction and sentence
was dismissed by the learned Chief Justice
on 13th March, 1980, An
application for leave to appeal against the conviction was then made
direct to this Court. It was struck
off the roll in January 1981 on
the ground that, in the case of second appeals, in terms of section
8(1) of the Court of Appeal
Act 10 of 1978 an application for leave
to appeal cannot be made to this Court unless such an application has
been made to the
High Court and has been refused. Thereafter an
application was made to the High Court, which was refused on 3rd
March, 1981, on
the ground that there was no reasonable prospect of
success on appeal. A further application to this Court was then
launched only
on 30th April, 1981. In terms of section 2(2) of the
Court of Appeal Rules 1980 that application should have been brought
within
21 days of the refusal of leave by the High Court so that,
again, the matter is not in order. An application for condonation was

filed simultaneously with the application for leave to appeal. The
explanation for

2

the delay
this time is that it was the appellant's Johannesburg counsel, who
had been briefed to consider what steps should be taken
after refusal
of leave by the High Court, who drew attention to the 21 days period.
The appellant's attorney goes on to state that
the reason for not
bringing the application timeously was his error, he being under the
impression, not having re-read the rule
before dispatching the papers
to counsel, that the appellant had six weeks to bring an application.
In due course I shall return
to the question whether this further
failure to comply with the Rules should be condoned,

A further
factor falling to be considered in the application for leave to
appeal is whether the appellant has reasonable prospects
of success
on appeal. It is unnecessary for me to set out the facts at great
length, particularly because they have been most carefully
analysed
by Cotran C.J. in his judgment dismissing the appeal.

The
substance of count 2 is that the appellant, intending to defraud his
employer the Lesotho Electricity Corporation (hereinafter
L.E.C.)
and/or the Lesotho Government and/or the Royal Palace, misrepresented
to L.E.C.'s storeman, one Masenyetse, that a document
which he
produced to Masenyetse was an order form authorizing the latter to
book out materials to the Royal Palace, whose L.E.C.
job number was
J.9102, whilst he knew that the materials were to be delivered to his
own house (actually the property of L.E.C.)
and so induced Masenyetse
to the prejudice of L.E.C. or the Lesotho Government to so book out
the goods. The appellant was employed
by the L.E.C. as the Commercial
Engineer. In support of this charge the Crown called Tankiso
Lepheane, a L.E.C. wireman. The appellant
instructed him to do
certain work at the appellant's house, and gave him a paper (Exhibit
E - now regrettably lost, like all the
other exhibits) which had been
written by the appellant, and which bore the job number J.9102. It
was proved that this was the
job number having application to the
Royal Palace, that the proper job number for L.E.C. houses was 6, a
non-revenue producing
account, and that the appellant well knew these
facts. Tankiso took the paper to Masenyetse who refused to deliver
the articles
requisitioned. Masenyetse deposed that Tankiso "wanted
to be issued with material with which to work at accused's house".

He refused to give Tankiso the materials because the job number was
that of the Royal Palace and he required Tankiso to get the
correct
job number. If he had not asked Tankiso where the materials were

3

going he
would have thought that they were going to the Palace, which would
then have been charged. The appellant being absent,
Tankiso went to a
subordinate of the appellant's one Smith, who told him to use the
correct job number, 6. Masenyetse then issued
the materials to
Tankiso, who worked at the appellant's house for two days, installing
certain of the materials. The appellant
then instructed him to stop
work and return the remaining materials to the store, which he did.

Count 3
is rather similar. The substance is that the appellant, intending to
defraud L.E.C. and/or the Royal Palace and/or the Lesotho
Governments
misrepresented to Masenyetse and/ or one Siimane (an assistant
accountant of L.E.C.) that certain labour charges that
had been
incurred by the Maseru Club be paid for by the Royal Palace and/or
the Lesotho Government knowing that the charges were
payable by the
Club for work done for the Club by the L.E.C. Prejudice was alleged
to the L.E.C. and/or the Royal Palace. Josias
Likate, an electrician
of L.E.C., was called in support of this charge. The appellant
instructed him to fix some lights at the
Club on a Saturday, giving
him the job number 9102 (which was the number for the Royal Palace
and which had no application to the
Club). He worked for 8 hours. As
there was an objection to the colour of the lights, on the . Monday
he ordered white globes from
Masenyetse, giving the job number 9102.
The latter refused to issue the materials. The reason, as given by
Masenyetse, was that
Josias "said he was going to work at Maseru
Club, but the job number was that of the Royal Palace". The
storeman complained
to the then managing director, Mr. Green,
"because the material would be charged as though it had been
used at the Palace
and yet it had not been used there". In
cross-examination, he stated that if he were given an order in which
the customer
was the Club, but the job number 9102, he would
immediately realize that there was something wrong. If he had not
realized this,
the Palace would have been charge. After Josias had
been refused the materials, he returned to the appellant who
instructed him
to leave the work. But the matter had not quite ended.
Josias then put in a time sheet for 8 hours overtime. It bore the
customer's
name as Maseru Club and the job number 9102. He signed the
time sheet. It also bore the appellant's initials "B.A.F.".

This latter fact was deposed to by the rather unreliable witness
Siimane, but it was not challenged. It was also confirmed by the

witness O'Hara. This latter witness also stated that the

4

extensions
to the garage at the appellant's house (where the work relevant to
count 2 was done) were unauthorized.

The
appellant elected to give no evidence. Nor did he call any witnesses.
On his behalf reliance has been sought to be placed on
certain
correspondence between him and Mr. Green. This correspondence is no
longer available, as it was not available to Cotran
C.J.. Apparently
it was concerned with the matters convered by count 2, and the
explanation, which appears to have satisfied Mr.
Green, was that the
wrong job number was used due to inadvertance. I agree with Cotran
C.J. that even the acceptance by Mr. Green
of such an explanation can
be no substitute for an explanation given in the witness box, which
can then be tested.

Two
questions arise on each of the counts. The first is whether the Crown
has established an intention to defraud.

The
second is whether it has established prejudice or potential
prejudice.

With
regard to the question of intention, and bearing in mind that the
defence is that the Crown has not disproved inadvertance
in the
inappropriate use of the job number 9102, two factors weight against
the appellant. The first is that within a relatively
short space of
time he misused the number three times - once in connection with
count 2, and twice in connection with count 3 (the
initial
instruction to Josias, and also the latter signing of his overtime
card). The second is that with regard both to the job
at his house
and the job at the Club he gave instructions, after a time, and after
Masenyetse had raised objections, that the uncompleted
work should be
stopped. As the correct application of the job number 9102 was well
known to the appellant his misuse of it creates
a prima facie case,
although not necessarily a strong one, that he had some improper
purpose in misusing it. This prima facie case
is, in my view,
considerably strengthened by the two factors that I have mentioned.
The resulting Crown case was of sufficient
strength for it to be
appropriate to take into account, as a further factor, the
appellant's failure to give evidence (cf R. v.
Makalo Khiba (C. of A)
1980(1) LLR 10 at 15 and R. v. Bernard Teboho Faku C. of A. (CRI)
No.7 of 1979(unreported). His own state
of mind was a matter
peculiarly within his knowledge, which tends to enhance the
significance of his failure to give evidence.

Mr. Sello
for the appellant argued the question of proof

5

of
intention to deceive in this way. Because the storeman would act only
if he had both a job number and a customer's name and because
he
would always observe any discordancy between the two, any attempt to
bring about the debiting of a wrong account would be found
to fail,
so that it would have been so futile for the appellant to practise a
deception by using a wrong Job number as to render
it most unlikely
or impossible that he would have made such an attempt. Of course, he
could not be cross-examined on that theory.
That apart, it contains
the assumption that the storeman would always be vigilant, whereas
experience, shows that people often
are not and are often misled by
an incomplete deception. But another difficulty arises for the
appellant. The first document sent
by the appellant (count 2) bore
only the job number and not the customer's name. It is true that the
storeman was told where the
materials were to be used but his
uncontradicted evidence is that he learned this only because he
questioned Tankiso. He said that
if he had not asked the question he
would have thought that the goods were intended for the Palace. In
other words had the storeman
been less vigilant a deception could
have been practised. (cf. R. v. Seabe 1927 A.D. 28 at 32). The
possibility of deception is
admittedly much less in the case of the
two documents relevant to count 2 as they bore both the job number
9102 and the customer's
name, namely Maseru Club. But we do not have
any account by the appellant as to his knowledge of the efficiency of
the stores procedures,
or of the reason for using the Palace job
number. Mr. Sello argued that the job number was really of no
significance at all in
identifying a customer. I have difficulty in
accepting that argument. The witness Smith explained the system of
allocating job
numbers, particularly different classes of numbers for
different classes of jobs. He also explained that once a number was
allocated
one of the parties who was notified was the storeman. The
reason for this can only be that the storeman would be provided with
a means of identification.

Having
taken into account Mr. Sello's argument, and the factors already
mentioned, I am of the view that in the circumstances the
failure of
the appellant to advance any explanation which could be tested
hardens a Crown case of substantial cogency into proof
beyond
reasonable doubt.

On the
question of potential prejudice I think that the matter is quite
adequately dealt with by Cotran C.J. :

"I
think it is clear that the risk of harm involved

6

not only
the possibility that the non-proprietary rights of the L.E.C. were
being infringed in the sense of impairment to its reputation
for
wrongful (sic) invoicing if the false representation escaped the
storeman's or accountant's notice (see R.v.Seabe 1927 AD 28
at 33)
but also the risk that a third party could have been (not necessarily
would have been) invoiced for costs, whether of labour
or material,
which they have not in fact incurred. As Schreiner J.A. said in R. v.
Heyne 1956(2) S.A.604 (A.D) at 622

'the false statement must be such as to involve some risk of harm,
which need not be financial or proprietary, but must not be
too
remote or fanciful, to some person, not necessarily the person to
whom it is addressed'".

I would
qualify Cotran C. J. 's statement only in one respect and that is by
pointing out that in count 3 the Royal Palace is included
as one of
the persons prejudiced, whereas in count 2 that is not done, so that
prejudice may not in that case be found in relation
to the Royal
Palace.

Some of
the factors to be taken into account in considering a condonation
application such as is now before us are set out by Van
Winsen J.A.
in Koaho v. Solicitor-General C. of A. (CIV) No.3 of 1980 as follows
:

"This Court has a discretion - to be judicially exercised - to
grant the relief sought and in deciding whether to exercise
such
discretion in applicant's favour it will have regard inter alia, to
the degree of delay in approaching the Court for condonation,
the
adequacy of the reasons advanced for such delay, the prospects of
applicant's success on appeal, and the respondent's interest
in the
finality of the judgment (see United Plant Hire(Pty)Ltd v. Hills and
Others 1976(1) S.A.717 {AD) at 720 E-F".

These
factors must be weighed one against the other (United Plant Hire case
at 720 G).

The
factors that I take into account are the reason advanced for the
delay in bringing the condonation application and prospects
of
success. As to the delay, it was occasioned by a failure to look at
the Rules. A similar failure led to this matter being struck
off the
roll by this Court earlier this year. There must come a time when
practitioners cannot expect continuing indulgence by
this Court. I
would not, however, refuse condonation solely on this ground in this
case. What weighs with me particularly is that
in my opinion the
prospects of success on appeal are poor. I would therefore refuse to
grant the condonation application.

7

This
conclusion makes it unnecessary to consider the Crown's contention
that the grounds of appeal are ones of fact and not of law,
and
therefore such as may not be relied upon in a second appeal to this
Court under section 8(1) of the Court of Appeal Act 1978.
I would,
however, indicate that if a respondent considers that there is an
objection of this kind to granting leave to appeal,
the point should
be argued, in the first instance, in the High Court when leave is
sought from that Court.

The
question of sentence is not before us, as it cannot be in view of the
terms of Rule 8(1). I would, however express my indorsement
of the
views of Cotran C.J. that in the circumstances it was rather petty to
have brought the prosecution and that a nominal fine
might have met
the justice of the case.

The order
I propose is that the application for condonation of the late
application for leave to appeal should be refused.

W.P. Schutz

Signed
: .....................

W.P. SCHUTZ

Judge of Appeal

L.de V. van Winsen

I agree
Signed: ........... ..............

L.DE V. VAN WINSEN

Judge of Appeal

R.M. Marais

I agree
Signed .. .......................

R.M. MARAIS

Acting Judge of Appeal

Delivered
this 3rd day of July 1981 at MASERU

For
Appellant: Mr. Sello

For
Respondent: Mr. Muguluma