HIGH COURT OF LESOTHO
by the Honourable Acting Judge, Mr. Justice M.L. Lehohla, on the 4th
day of August, 1986.
August, 1986, the above appeal was scheduled for hearing before me.
The appeal was upheld the Crown having indicated in both
submissions and heads of argument that it did not oppose the appeal
against both conviction and sentence.
Appellant was charged in the Court a quo with the crime of fraud, it
being alleged that "Upon or about 30th day of November,
at or near Passport Office in the District of Maseru, the said
accused did unlawfully and with intent to defraud, misrepresent
various Passport officials that a certain Seboka Mokuena was one
Lethena Mokuena and by means of the said misrepresentation
with a passport to the prejudice of Lesotho Government, whereas the
said accused at the time she made the said misrepresentation
knew the said Seboka Mokuena was not Lethena Mokuena."
called five witnesses three of whom i.e. P.W.I Moshoeshoe Molapo,
P.W.3 'Mamotebang Moeketsi and P.W.4 Taane Phakisi were
the Pitso Ground Passport Office where Appellant was working at the
alleged time of the commission of the offence charged.
Makakole was the Assistant Manager (Manageress) attached to the
Passport Office headquarters. P.W.5 Sgnt. Mohlahatsa
investigating officer into the alleged offence.
close of the Crown case an application was made for the discharge of
the accused on the grounds that she hadn't a case to
learned Magistrate in her ruling found that the Crown had established
a prima facie case, and thus turned down accused's
Through accused's Counsel the defence thereupon closed its case and
led no evidence in rebuttal of whatever material
or factors the prima
facie case was based.
accused was consequently convicted as charged and sentenced to three
months' imprisonment. It was against both conviction and
that an appeal was noted by Mr. Nthethe on behalf of the Appellant.
appeal is based on the grounds that the Court a quo
in holding that the offence of fraud had been proved beyond
itself in holding that the"document is the evidence of what it
is" despite the fact that the offence was
(c) the 3 months' imprisonment without the option of a fine is
in brief indicate that P.W.I with the persuasion of the Appellant
authorised the taking of passport sized photos for the
Lethana MOkuena who had lost his passport. This occurred despite
P.W.1's protests that she would not take the money
for such photos
because as it was after 3.00 p.m. and the cashier had closed she
would not be able to hand the money to the latter.
It appears the
Appellant undertook to take the money with a promise to pay it the
following day to circumvent the obstacle pointed
out by P.W.1. The
following day P.W.I was not able to balance books for moneys received
the previous day in respect of Lethena
Mokuena's passport. On
checking report the loss/forms which had to be compiled in the event
of processing documents relating to
lost passports P.W.1 discovered
that a green page 1 was clipped onto Lethena's forms. She compared
the photos on the loss report
forms with the green passport page 1
and discovered that the photos shown did not relate to the same
person i.e. Lethena. While
the photos on the loss report form
reflected the likeness or picture and names of Lethena Mokuena, the
photo on the green page
1 bearing Lethena Mokuena's names bore the
picture of Seboka Mokuena.
appears, and this is common cause, Appellant had issued the passprot
bearing Seboka Mokuena's name to Lethena MOkuena despite
differences in pictures of these Mokuenas who are known to P.W.1 as
under cross-examination this witness asserted that before shooting
photos, what she considered first was to be satisfied that
an authorised application form and money ready for payment by the
applicant, she departed from her stand and conceded
that she shoots
photos when she sees a coupon shown to her by counsel. To the
"I put it to you that you are not telling the truth that you
only consider whether the form has been authorised before you
issue a photo-graph ___.? She replied:
I admit it is not true, because there are exceptional cases as I have
concession made by P.W.1 is on all fours with Crown Counsel's
submission in respect of Appellant's lack of strict adherence
conventional practices, that as Mr. Lenono put it, "Although the
conduct of the Appellant was not procedural, as a matter
convenience such conduct has in certain similar cases been adopted,
indeed authorised." This is further fortified
by P.W.4's answer
to the question at Page 33 that "Looking at things I believe
accused issued this passport without following
........?" which was "yes".
been clear to me from the evidence given that Appellant had charged
M3 for Lethena's passport. Exhibit "A" - Receipt
clearly that if Appellant had intended to "sell" the
passport to Lethena for the amount charged i.e. M3 she
could not have
required Letheoa to pay that money into Revenue Office. On Page 33
P.W.4 in reply
question "Can you say Government has lost anything
result of the issuing of this Passport ___?" says ' "No."
concessions made by the rest of Crown witnesses under cross
examination I am left with no doubt that Appellant's act of
a wrong photo onto a right passport was an act of technical
indiscretion for which she should at worst have been reprimanded.
P.W.4 who was accused's principal at the Pitso Ground Passport Office
bears this out at Page 34 where she was asked in connection
Appellant's obvious mistake in authorising a loss affidavit on to it.
The text is as follows:
"But I thought you said you didn't know
if she pasted the photos .......? Yes.
What did you do ......? I reported to the
police. What did you want the police to
do ....? Reprimand her. Had she gone
out of your control .........? Not that much.
Did you ever take administrative measures ...?
No. Why .....? Because I thought this case
was one which I could not only do so. (sic)
Do you realise that you could have done so .... ? Yes."
factor in favour of the accused in so far as it negatives any
criminal intent on her part is the absence of any legal disability
the part of Seboka Mokuena to obtain his own passport using his own
names. Nowhere in the case for the Crown has it been established
because of the known fear that in his own right Seboka Mokuena could
obtain a passport,accused's involvement in the matter was calculated
to circumvent any such disability. It has not been alleged
Seboka Mokuena's application for a passport would be turned down on
some lawful cause shown. It is thus impossible to attribute
criminal intent to accused. The existence of evidence showing that
accused knew that Seboka could not lawfully apply for and
passport would be an indication of b guilty knowledge on the part of
the accused, and from that factor criminal intent could
be imputed to
her intervention and involvement in the matter. This absence is in
itself fatal to the case for the Crown, The existence
of all other
factors pointing to the fact that she processed the application forms
and finally issued the passport to Seboka Mokuena
merely shows that
she was remiss in her duty. While on the one hand remissness is a
reprehensible form of conduct, on the other
hand such conduct does
not merit being visited with full vigour of criminal conviction and
been amply shown that it was no unusual thing in accused's department
to employ short cut methods such as using the telephone
transporting records from the three centres i.e. district, central
and border post offices kith the result that documents
never bore date stamps and requisite markings by appropriate
personnel in relevant offices. I learn this irregular method
resorted to in the name of speed and "in the case where the
customer comes in need of an urgent help." Page 16.
illustrate the foregoing I wish to refer to
on Pages 37 and 38 of the record. In this instance accused's Counsel
was trying to high-light not only the existence of
they apply to the passport office generally but also the extent to
which it is general knowledge that they are
condoned in the name of
making short work of pressures which are ever-present in the
work-place situation. To illustrate this he
referred to an
application for a passport in respect of one Makalo John Matebesi. He
"Looking at it can you say it was reported
at Central or Local Passport Office ...... ?
At Central Passport Office.
Why .___? Because it bears a date stamp
for Central Passport Office.
Which means I am not wrong that it was authorised by Central Passport
Office ...? You are right.
Is it not right that Regina's form has no date stamp.......? It is
Am I right that it is therefore not
authorised by Central Office ......?
You are right.
Where was it authorised .....? At Pitso Ground.
Are you at this juncture aware that forms
are authorised at Pitso Ground Passport Office...?
Does it sometimes happen that an authority is sought from Central
Office by telephone ...? Yes.
Will you agree.........that if authority is
sought by telephone a loss report form will
not bear a date stamp for Central Office .....?
Looking at that form one can conclude that
authority was never sought from Central Office___?
Are we agreed that it might be authorised as in Regina's case or by
telephone ......? Yes.
Is it common cause that photos on item A and on Page 1A are
dissimilar ......? Yes.
Can accused have deliberately made this mistake ...?
I don't know.
It is a possible mistake ......? Yes."
accused showed some shortcomings in some parts of the record what
appears on Page 20 vitiates them.
also submitted to me by the Crown that in the written Reasons for
Judgment the learned Magistrate found as a proven fact
(at page 6)
that "accused failed to check closely the photos .........,
without comparing them with the ones pasted onto the
forms" but did not say she found it as a proven fact that
Appellant thereby intended to defraud anyone. POLAO
LETSI vs. R
1974-75 LLR. 54.
is always on the Crown to prove beyond reasonable doubt the charge
preferred against the accused. In the absence of a prima
established by the Crown the fact that accused chooses not to give
evidence does not entitle the Court to return a verdict
against him, because a priori in such a situation there
nothing for him to answer except to run the risk of being convicted
out of his own mouth. Whereas if a prima facie case
the accused at the close of the Crown case and accused in exercise of
his right to do so refrains from rebutting
evidence implicating him
then such prima facie case becomes conclusive.
satisfied that the Appellant's appeal ought to succeed.
Appellant : Mr. Nthethe
Respondent : Mr. Lenono
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