CRI/T/96/04

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

VS

LETSOLO
PETER KHOLOANE

JUDGMENT

Delivered
by the Honourable Mr. Justice WCM Maqutu on the 21st March 2005

The
accused is simply charged with the common law Crime of Bribery and
alternatively, being in breach of section 21 (2) of the Prevention
of
Corruption and Economic Offenses Act 1999.

The full
charge was framed in the following manner:

The
Director of Public Prosecution who as such prosecutes for and a
behalf of The King, presents and informs the court, Letsolo
Peter
Kholoane an adult Mosotho male residing at Thaba Ha Morena, Mafeteng
is guilty of the crimes as set out hereunder.

INDICTMENT
A: Preamble:

Whereas
at all relevant times to the charge set out below:

1. The
   accused, an adult Mosotho male, residing at Thaba Ha Morena,
   Mafeteng, was a member of the Lesotho Department of Defence and
   as
   such a state or public official, as well as a public officer as
   defined in Section 2 of the Prevention of Corruption and Economic

   Offences Act of 1999.

   
   

2. During
   the period April 2002 to April 2003, the accused occupied a position
   in the Lesotho Department of Defence, which encompassed,
   inter alia,
   dealing with travel agents that were engaged by the Department for
   travel and related matters by officers of the
   Department. This
   included engaging such travel agents and facilitating payments to
   them.

   
   

3. Millenium
   Travel (Pry) Ltd ("Millenium") was a duly registered
   company incorporated as such in terms of the company
   laws of
   Lesotho, with its principal place of business at Ground Floor, Agric
   Bank Building, Kingsway, Maseru which did business
   as a travel
   agent, also as described in paragraph 2 above.

   
   

4. The
   directors of Millenium were Jayakrishnan Appukattan Nair ("J
   Nair") and Beena Jayakrishnan (B Nair"), and one
   Malusi
   Kamohi ("Kamohi") was an employee of Millenium. Millenium
   acted through J Nair, Alternatively B Nair, alternatively
   Kamohi in
   respect of the transaction set out herein.

   
   

5. Prior
   to October 2000, the said J Nair and B Nair operated as travel
   agents under the name of style of East West Travel and Tour
   (Pty)
   Ltd ("East West")

   
   

6. Millenium
   facilitated travel arrangements of various government officials,
   i.e. by booking and procuring tickets for travel by
   air, whereupon
   it would in turn, for these services, invoice the relevant
   department within the government for payment.

   
   

2

7. As
   part of his official duties the Accused in turn facilitated the
   payments of such invoices submitted by Millenium to the Department

   of Defence, alternatively was in a position to do so.

   
   

8. During
   the aforementioned period the Accused received from Millenium cheque
   and cash payments totaling M20 000.00, the details
   of which are set
   out in the charge hereunder.

   
   

9. The
   payments referred to in paragraph 8 were made by Millenium and/or J
   Nair and or B Nair and/or Kamohi in respect of action
   or inaction by
   the accused in his capacity as described above and/or were intended
   to influence the Accused in such capacity
   and were accepted by the
   Accused on this basis.

   
   

10. When
    such payments as described in paragraph 8 and 9 were accepted by the
    Accused, he accepted such payments wrongfully intentionally
    and
    corruptly.

    
    

B. Charge
1. Main charge:

The
Accused is guilty of bribery in that on the following dates and in
the following amounts the Accused received payments from
the
persons/entities referred to in the Preamble and in the circumstances
as described in the Preamble, more particularly paragraph
10 thereof.

Payments:

16 April
2002 M5 000.00

31 May
2002 M2 000.00

19
September 2002 M5 000.00

13
November 2002 M2 500.00

16 March
2003 M3 000.00

25 April
2003 M2 500.00

M20 000.00

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2.
Alternative Charge:

The
Accused in guilty of contravening Section 22 (1) of the Prevention of
Corruption and Economic Offences Act of 1999, in that,
on or about
the dates referred to in the main charge and in the circumstances as
described in the preamble, the Accused accepted
or agreed to accept
for himself as an inducement or reward, the sums set out in the main
charge, for doing or capacity as a public
officer, more particularly
as described in paragraph 7 of the preamble.

The
accused pleaded not guilty to these charges.

Outlining
the Crown case Mr Penzhom SC said the Crown will endeavour to prove a
bribery case - which consists of the accused receiving
money with
corrupt intent. Accused's duties consisted of arranging travel for
personnel of the Lesotho Defence Force for overseas
travel with
travel agencies. Millenium Travel (one of the travel agencies) did a
lot of business with the Lesotho Defence force.
Over a period of time
Millenium Travel paid the accused M20,000.00 surreptiously through
cash cheques. These cheques were cashed
by the accused.

The Crown
will through evidence persuade the court to draw an inference that
the accused received this money corruptly, it will
be upon the
accused to explain why he received this money. The Crown will also
show that three quotations with itineraries had
to be obtained from
travel agencies before

4

one of
them could be preferred. However what accused did with regard to
Millenium Travel was to facilitate payments to Millenium
Travel for
overseas travel without quotations being asked for. Accused would
simply produce to the Lesotho Defence Force an itinerary
prepared by
the Millenium Travel and that would be the end of it. Other travel
agencies would not be asked for quotations.

This
special preference of Millenium Travel and the absence of other
quotations led to overcharging by Millenium Travel.

The Crown
would further show that members of the Lesotho Defence Force are not
allowed to receive remuneration outside their salaries
in terms of
their employment contract.

Mr
Penzhom crisply put the Crown position by using an anology of a man
whose son is charged with a crime - who for no apparent reason
gives
a policeman One thousand Maluti (Ml 000.00). He submitted that as the
law stands prima facie that money could only have been
paid with a
corrupt intent. It matters not whether the withdrawing of the charge
or facilitating the granting of that son bail
did occur, or not
whether the policeman

5

intended
to co-operate or not, the bribe is completed upon the policeman
receiving the money.

After
this opening statement the Crown called five witnesses who duly gave
sworn testimony and handed six cash cheques from Millenium
Travel.
These were marked exhibit Al to A6. At the back of these was the
accused's Lesotho Defence Force number and the signature
that the
Crown claimed was that of the accused The first Crown witness was
David John Sykes attached to the anti-corruption and
economic
offences unit. His evidence was simply that on the 27th January 2003
they executed a search in terms of a search warrant
at the premises
of Mr A.J. Nair and removed certain items that he and the others who
were with him later inventoried. Of interest
and with relevance to
this case were Six Nedbank cash cheques. These had a number 0072
which led them to the accused.

Under
cross-examination Mr Sykes showed he was a former policeman. He took
statements but was not their commissioner of Oaths. In
the case of
the statement of Khaka Mr Sykes conceded that there are words that
showed

6

Khaka
appeared before him. Mr Sykes statement was taken by Mr Mokhochane.

No
Statement to Mr Sykes knowledge was taken from the accused. He did
not know if accused was still a serving officer and that accused

retired on the 31st March 2004. Mr Sykes took Lieutenant General
Mosakeng's statement who inter alia gave him the accused's Lesotho

Defence Force Number which is 0072.

Mr Sykes
said while friendship between accused and a service provider was not
excluded - it would be wrong to borrow from a service
provider. He
said he was not sure if there was a document showing accused returned
the money. He said he had no comment if accused
claims he borrowed
the M20,000.00 from Millenium Travel and he also had no comment on
whether this money was going to defray accused's
personal expenses.
He did not know if the army no more lends money to officers that are
near retirement. He could not dispute that
the accused paid the money
back.

It
emerged at this stage that accused does not dispute that he received
the money and that his signature was on the cheques.

7

The
second witness was Mohau Mokhochane the principal investigator in the
Corruption and Economic Offences Unit. He testified that
pursuant to
a search warrant he and Mr Sykes removed returned bank cheques,
computer boxes, and government vouchers from Mr Nair's
residence.
When they got to the office they analysed the data. Of relevance to
this case were Nedbank cheques which he handed in
as exhibits and
they were marked Exhibits Al, A2, A3 A4, A5 and A6. These cash
cheques were signed at the back by Colonel Kholoane
Lesotho Defence
Number 0072.

Under
cross-examination Mr Mokhochane said they did not take all the
documents from Mr Nair's premises. He never asked accused for
an
explanation. He did not need accused's explanation because after his
investigations, he did not need it. He did not deny accused
needed
the money on exhibit Al, A2, and A3 to erect his father's tombstone
in October 2002. He was also not in a position to deny
that exhibit
A4 A5 and A6 were required for nursing and burying accused's late
brother's wife.

Mr
Mokhochane answering further questions said he cautioned accused when
he arrested him. He does not remember whether or not accused
had

8

retired.
He said he does not know if accused borrowed or returned the money -
in good faith, openly and not surreptitiously. He
never brought
accused together with Millenium Travel.

In
re-examination Mr Mokhochane said he invited accused to his office
where he cautioned and charged accused.

The third
witness was Lieutenant General Makhula Mosakeng the commander of the
Lesotho Defence Force until 1st April 1994. He told
the court that
accused was a Colonel in the Lesotho Defence Force. His duties were
sports for soldiers, training of soldiers outside
Lesotho which
included overseas travel. Accused was responsible for arrangements -
General Mosakeng would not know the details
of how he did it. This
was sorted out with the financial controller who would know the
details. The Financial Controller and his
staff are civilians
seconded from the Ministry of Finance to help the army.

Tenders
for buildings, food, catering, uniform and generally would be
invited. At least there should be three tenders from which
to select.
This appears to be the practice in all government departments.
Matters

9

pertaining
to air travel are controlled by the Ministry of Finance. There is a
tender at the beginning of the financial year - a
travel agent is
selected and tickets will be bought from it. That will be the
position unless the Ministry of Finance gives orders
to the contrary.

General
Mosakang further told the court that there is a fund under the
control of the commander and the Accountant General for the
welfare
of soldiers. It is called the Lesotho Defence Force Revolving Fund -
it has its regulations within the military. The commander
deals with
it through recommendations from superiors - on that basis the
commander recommends payments out of it by the Accountant
General if
there will be repayment within six months. If accused wanted to erect
a tombstone, he would be helped. Repayment is
done through deductions
from the borrower's salary. A person close to retirement has to go to
he Accountant General, direct. His
application will be entertained
provided he does not borrow more than seventy five percent (75%) of
his gratuity.

The
accused as a colonel would deal with applications for loans (out of
this fund) of those under him. If a soldier borrows money
from a
service provider to the army that is his affair. Accused never told
him he had

10

borrowed
money from a travel agent, as a person he should have told him. Even
so, General Mosakeng saw nothing wrong with such a
loan.

Cross-examined
Lieutenant General Mosakeng said Millenium Travel was one of the
travel agents that the Lesotho Defence Force used.
It was used
oftener that others. The procedure was that they should tender - but
he does not say they tendered. The commander just
signed the
requisition that was forwarded to him by the financial controller.
All he checked was whether the financial controller
had funds to meet
the cost of travel. All documentation would be passed to him for
signature by the financial controller. Accused
was not bound to
borrow from the fund. Accused's application could be refused by his
immediate superiors even before it got to
Lieutenant General Mosakeng
the commander.

The
fourth witness for the Crown was Borotho Matsoso, the Director of the
Corruption and Economic Offences Unit. He told the court
that accused
was arrested by Mr Mokhochane. He was not involved in the arrest of
the accused. Accused came to his office to come
and find out what was
going on. Mr Matsoso told him the M20 000.00 from Millenium which he
had

11

received
was suspected to be a bribe. Accused wanted to say something but
restrained himself.

At that
stage the defence made the following admissions under section 273 of
the Criminal Procedure and Evidence Act of 1981:

1. That
   with regard to service providers for the civil service which
   includes the defence force, the normal procedure is to seek
   three
   quotations. This would include service providers such as travel
   agents.

   
   

2. This
   procedure is normally followed but there can be exceptions.

   
   

3. Parties
   undertake to bring salary print outs by consent.

   
   

The fifth
witness was Mrs Masetsoto Pauline Selio who was in the accounts
section of the Lesotho Defence force between 1997 and
July 2003. She
said she was a Senior Accounts Clerk, who holds a University degree
of Bachelor of Commerce and a Certificate in
Accounting. Her duties
included compiling payment vouchers, monthly expenditure reports and
reconciliation of monthly expenditure
with income.

They did
not include the requisition service. There was a requisition
department which required three quotations. Normally the lowest

quotation would be selected. If the higher quotation had been
preferred, this would

12

require
justification in the stores department. This would go to higher
authorities.

For
training purposes, the invitation would be authorized by the
commander. Then it would be sent to the military personnel training

office. That office would make bookings and an itinerary that would
be sent to the financial controller. The financial controller

prepares the financial order form.

The
accused was the training officer. Mrs Selio told the court that the
accused sometimes would bring the booking and itinerary
- sometimes
they would be brought by some one else. He used Millenium Travel,
Maluti Travel, UCS Travel and Caesar's Travel. Mostly
they used
Millenium Travel.

Under
Cross- examination Mrs Selio said in the Lesotho Defence Force they
did not use three quotations. It all depended on flights
available.
What was issued first was the itinerary detailing the schedule of the
flight. There would be no price on the itinerary.
It was on basis of
the itinerary that they would prepare an order. There would be
billing following the order. This would be directed
to the financial
section. It was the section of Mrs Selio

13

that
would determine which travel agent was more expensive and query it
accordingly. The financial controller did sometimes query
some
invoices. To her knowledge no travel agent ever tendered to be a
government travel agent.

Under
cross-examination Mrs Selio said when there was a query other travel
agents would be used. Millenium Travel was used more
often than
others. The Crown then closed its case.

Accused
gave evidence duly swom in his own defence. He told the court that he
is a retired officer of the Lesotho Defence Force.
When he retired he
was working at the Lesotho Defence Force headquarters with the rank
of Colonel. Among his duties was training
officer. When the commander
had received an invitation for the army to send people to a training
course or a conference he would
endorse the letter of invitation, as
proof that he had received it. Accused would then make a written
application for funds to
the commander which would be accompanied by
an itinerary.

If the
trip was to be financed Lieutenant General Mosakeng the commander
would wait for notification form the financial controller
that the
trip would

14

be
funded. It would be the Financial Controller who would issue the
warrant to the travel agent. The travel agent would issue a
ticket
and invoice to the Financial Controller. This was never sent to the
accused's office. Accused confirmed that the fifth witness
Mrs Selio
was on the staff of the Financial Controller. Accused told the court
that he had nothing to do with vouchers for payment.

The
itinerary did not reflect the cost of the trip, it only showed the
number of the flight - where and when it would take off and
where and
when it would land. The Lesotho Defence Force (while accused was
still dealing with travel) used the following traveling
agencies:

UCS
travel agency Maluti Travel agency Maseru Travel agency Dayo Travel
agency Millenium Travel agency

Accused
told the court that he would not know which travel agency
undercharged or overcharged. The financial controller would know

which travel agency undercharged or overcharged. From the financial
controller there was never a query based on overcharging. Accused

told the court that he was not working alone. He was assisted by
three soldiers who would get on with the work even if the accused
was
not there.

15

Accused
told the court that as far as he knew three quotations were required
when the army purchased stores. In respect of travel
they followed
orders from the Ministry of Finance about which agency to use. If
there were no such instructions he would use any
travel agency as
there was no money indicated on the itinerary. There had been no
queries and no one insisted on three itineraries.

Accused
acknowledge the cheques from Millenium Travel which were given to him
by the Director of Millenium Travel. Accused told
the court that he
only knew that director as Jack. Six cheques were issued to him (the
accused) on different occasions. Accused
told the court that he was
still at the Lesotho Defence Force when they were issued to him. The
first three cheques which amounted
to Ml 2 000.00 were made in
respect of the unveiling of the tombstone of the accused's father
that was on the 12th September 2002.
The other three cheques were
made in respect of the widow of the accused's brother who was a twin.
Accused told the court that
he borrowed the money from Millenium
Travel until the widow died. Consequently accused borrowed money from
Millenium Travel for
both his father's tomb stone and for his
sister-in-law. Accused told the court that

16

for his
sister in law he borrowed M8000.00. Accused therefore borrowed the
total amount of M20 000.00 from Millenium Travel. The
cheques that
Millenium Travel issued in accused's favour have the accused's
signature and Identity Number. These cheques were issued
when accused
borrowed money from the director of Millenium Travel. The cheques
were of a loan. They were not an inducement to work
with Millenium
Travel. Accused told the court that he was on the army's payroll.
Accused told the court that he borrowed money
from a service provider
because of serious problems in his family.

Accused
told the court that he borrowed money form the director of Millenium
Travel because the director of Millenium Travel was
his friend. They
had been friends since the year 2000, at the time the accused was the
Director Medical Services at the Makoanyane
hospital. At that time
the accused was also deputy president of the Military Sports Council.
They met at a time accused was looking
for sponsorship for a trip to
Korea for the Taekonto team. Millenium Travel was among those who
agreed to sponsor the trip. Accused
and the director Millenium Travel
became friends from that time.

17

Accused
told the court he could not borrow from others because the director
Millenium Travel was a friend who understood the problems
of the
accused. There was a revolving fund of the army from which he could
borrow. Accused told the court he could not borrow from
the fund
because of the requirement to pay interest. Secondly he could not
come again because there were many applicants. He would
have to
settle the previous debt before he could borrow again from that army
revolving fund. Since accused was about to retire,
he felt he could
not borrow from it because the payment of interest would interfere
with his retirement funds. Accused said he
could not inform the
commander Lieutenant General Mosakeng because this was a personal
thing.

Accused
told the court he had repaid the money, but he had no evidence of
repayment because the director said he had no receipts,
they had been
confiscated by the anti-corruption office. Eventually accused says he
was arrested. None of the witnesses or the
directorate of the
Corruption and Economic Offences ever asked him about the cheques.
Accused concluded by denying that he ever
took a bribe from the
Director of Millenium Travel.

18

In
cross-examination accused said he did not pay the M20 000.00 on a
single occasion. He paid it instalments. The first payment
of M5
000.00 was paid on 28th April 2004. It was after accused had received
his gratuity on the 26th April 2004. Accused had divided
his gratuity
and put it in various bank accounts including Unit Trusts. He had
received two cheques - one for gratuity, the other
for leave not
taken. The bank staff helped him split the money. If accused bank
statements were examined they would back up the
withdrawals. Accused
paid the second M5000.00 around the 1st May 2004, the 3rd payment
around 10th May 2004. The fourth payment
between the 10th and 20 May
2004. He split repayments of the Millenium Travel loan because the
bank allowed only limited cash withdrawals.
The second reason was
that accused was repaying money to a friend. There was no pressure to
pay instantly.

Asked
about what counsel had put to witnesses to the effect that he could
not borrow from the army revolving fund because he was
about to
retire, accused said what counsel put should be taken together with
his explanation in his evidence in chief. On the issue
that
Lieutenant General Mosakeng had said to the effect that his gratuity
would have been good security for a loan, accused said
he had told
his counsel what he said in his evidence in

19

chief.
The obstacle was payment of interest and the fact that he could not
get a loan before he repaid the previous loan. Accused
said the
interest he was expected to pay to the Defence Force Revolving Fund
was 10 %.

In answer
to questions accused said when he borrowed the first amount, he did
not know he would have to ask for a second loan. He
had started
planning for his father's tombstone in January 2002. He did not come
to a figure, but the tombstone cost M8 500.00.
Accused said he had no
estimates - he learned of the expenditure as he got involved with the
process. Accused said he intended
to unveil the tombstone in
September 2002. Although the erection of a tombstone could be done in
one day -there had to be a feast
and other expenses. Accused would
not deny that the Director of Millenium Travel was Nair - however
accused only knew him as Jack.
They were ordinary friends not good
friends. Accused did not go to the director in January 2002 to borrow
M8 500.00. Accused said
he did not think that the director of
Millenium travel would have refused to lend him the money. The amount
of M8 500.00 came out
of accused's pocket - he had made a stop-order
to purchase the tombstone.

20

The M5
000.00 which accused borrowed from Millenium's director was in
preparation for the feast. Subsequent moneys lent were for
the feast.
Accused said he borrowed money as he needed it. Accused said he was
not aware that Millenium Travel came into being
in May 2000. Accused
said he had not properly kept his bank statements because he did not
know they would one day be required.
He believes they could be found.

In answer
to questions from the prosecution accused told the court that he and
his colleagues had a job that facilitated the commander's
duties in
respect of training and conferences. Consequently when the commander
had received an invitation to send army personnel
to a course or
conference, they would take steps to make it possible for travel to
the course or conference. They would obtain
an itinerary not only
from Mellinium Travel, but from any travel agency. They would phone
or go personally to the travel agency.
When they did this they never
knew what the overseas trip would cost. Accused function was to
provide the itinerary so that the
commander and the financial
controller would be able to finance the trip even though money was
not indicated on the itinerary.
Accused's job was only to facilitate
travel so that a ticket and traveling allowance for those going for
training or conferences
could be provided. Tickets and traveling

21

and
living allowances never got to the accused. Accused denied he was
distancing himself from financial aspects of overseas travel.

Accused
emphatically denied favouring Millenium Travel. He said he only went
to its offices on business. He never visited the director
of
Millenium Travel at his home. He would go to Millenium Travel only to
get itineraries. He had to do this because telephone bills
were not
paid timeously by the Lesotho Defence Force consequently telephones
were often cut. This compelled him to go to travel
agencies
personally.

One of
the assessors Mr Matete asked if accused did not find it unsafe to
give the Director of Millenium Travel money without a
receipt.
Accused replied that he found it safe to give him money without a
receipt because he trusted him. Even in villages people
who are used
to each other loan each other cattle although such cattle might die.

The
defence closed its case.

Miss
Bheemchund addressed the court on behalf of the Crown. She argued and
made the following points:

22

1. The
   Crown submitted that the M20 000.00 was a bribe alternatively it was
   received corruptly in breach of section 22 (!) of the
   Prevention of
   Corruption and Economic Offences Act of 1999. The defence argues
   that it was not a bribe or corruptly received
   - it was a bona fide
   loan.

   
   

2. Even
   if the Court did not believe the accused, Mr Bheemchard submitted
   that the court should be careful not to convict accused
   merely
   because it believed him to be a liar. She referred the court to S
   VMtsweni 1985 (I) SA 590 A

   
   

3. Accused
   was a bribee in that he unlawfully, intentionally agreed to take a
   consideration from Millenium Travel being a state official
   in return
   for action or inaction to further the interests of Millenium Travel.

   
   

4. The
   intention of the accused should be inferred from evidence of
   witnesses and surrounding facts and circumstances. These facts
   lead
   to the inference that the accused received the M20 000.00 from
   Millenium Travel with a corrupt intent.

   
   

5. There
   is no need for the Crown to prove that Millenium Travel benefited
   from accused's action or inaction - or to prove what the
   accused
   action or inaction was. S V Sole CRI/T/111/99 (unreported). The
   court was referred to what the Crown regarded as accused's
   "attempt
   to move away from involvement as regards invoices and itineraries in
   relation to Millenium."

   
   

6. The
   court bases its case on circumstantial evidence. The Crown need only
   tender evidence from which a court might draw the inference.
   The
   accused's false explanation in the view of the Crown should lead to
   the only reasonable inference that accused did intentionally
   take
   bribes from Millenium Travel.

   
   

23

7. The
   secrecy of payments and failure to tell the commander about them
   should lead the court to draw an adverse inference against
   accused.

   
   

8. Accused
   was in an influential position to promote and facilitate the
   business interests of Millenium Travel.

   
   

9. Failure
   of accused to produce bank statements should lead to an unfavourable
   inference that he never paid the alleged loan - and
   that this was
   not a loan but a bribe.

   
   

10. Accused's
    distancing him from any knowledge of the cost of every trip for
    which he obtained an itinerary should lead to the inference
    that the
    accused had something to hide.

    
    

11. Mr
    Ntlhoki for the accused in arguing against accused's guilty made the
    following points:

    
    

1. In
   its opening address the Crown said it would prove that there had to
   be at least three quotations from travel agencies before
   a traveling
   agency was selected. However this was not supported by knowledgeable
   evidence

   
   

2. The
   Crown had said in its opening address it would show that the
   preference of Millenium Travel led to over charging, but there
   was
   no evidence that Millenium Travel overcharged.

   
   

3. The
   Crown failed to prove paragraphs 2 and 7 of the indictment to the
   effect that accused facilitated payments to travel agents.

   
   

4. The
   Crown failed to prove that payment of M20 000.00 was for action or
   inaction by the accused in favour of Millenium Travel.

   
   

5. Investigators
   in respect of the cheques did not confront the accused by seeking an
   explanation about them. They just arrested
   him.

   
   

24

6. Failure
   to support the allegations in the opening address entitles accused
   to acquittal. R VMatete 1977 LLR 262

   
   

7. Accused
   was not acting in an official capacity in receiving the loan or the
   money. The Crown has not proved that the accused intentionally

   received a bribe. S V Pillay 1964 (2) SA 385 at 387. SF
   Gokool1965(3)SA461.

   
   

8. Failure
   to bring specific evidence on the accused state of mind is fatal to
   the Crown case.

   
   

9. There
   were irregularities in the arrest of the accused and the attestation
   of witnesses statements.

   
   

10. Accused
    explanation is possibly true. Letsie & ors v Rex C of a(CRI)No.l
    of l996.

    
    

During
argument I asked both Miss Bheemchund for the Crown and Mr Ntlhoki
for the accused a question which I considered pertinent
for the
determination of this case. The question was the following: -

"Assuming the facts were exactly as accused alleged. Could the
accused not be deemed to have committed a crime if when he
found he
was in need of money for any purpose he decided to go to Millenium
Air Travel (a service provider whose line of business
was air travel)
knowing that because of the official post accused held Millenium
Travel not refuse because Milleniam Travel was
aware that accused
might be of use, and to refuse to provide the money would have
negative consequences?"

What the
court wanted to know was whether in the interpretation of section
22(1) of the Prevention of Corruption and Economic Offences
Act of
1999 it was entitled to assume there were presumptions similar to
those in section

25

23 on the
basis of which it could draw inferences that accused had committed a
crime.

Both
counsel could not answer this question satisfactorily because they
were not prepared for it. Consequently I requested both
counsels to
submit further written argument which could answer this question or
any other issue that either side might decide to
address in order to
help the court reach a just decision.

Miss
Bheemchund supplementary argument was the following:-

1. Section
   23 was badly drafted. To invoke presumptions might be prejudicial
   to the accused. Nevertheless because the accused is
   legally
   represented and the accused is required to give an explanation, the
   court can draw any appropriate inference.

   
   

2. Because
   accused received a benefit from Millenium Travel a corrupt intent
   is presumed.

   
   

3. The
   only inference the court may draw is that Millenium Travel would
   not have given accused the money were it not for his official

   capacity although the loan was negotiated in private for a private
   purpose.

   
   

4. The
   Crown case is that the accused evidence that Millenium Travel
   loaned accused money should be disbelieved -alternatively
   it was a
   benefit within section 20 (c).

   
   

5. Bribery
   is completed upon the acceptance of a benefit with a corrupt
   intent. Rex v Sole & Others CRI/T/111/99

   
   

26

(unreported). The issue is not what accused did or did not do for
Millenium Travel but rather what accused mindset was when he
took the
money. If his mindset was corrupt then accused would be found guilty.

6. When
   accused received a benefit from Millenium Travels he did so
   corruptly - by holding out or conveying to Millemium Travel
   that he
   would be favourably disposed towards Millenium Travel. This
   reasoning would apply to section 22.

   
   

7. The
   Crown has shown by evidence that accused received the benefit from
   a service provider in circumstances in which in his official

   capacity he can assist the service provider - therefore prima facie
   he had a corrupt intent.

   
   

Mr
Ntlhoki in his supplementary written argument said:

1. The
   Court is called upon to make inferences on issues that should be a
   matter of evidence. In other words the Crown is asking
   the court to
   infer the actus reus and the mens rea because of paucity and
   inconclusiveness of evidence to sustain the charge.

   
   

2. The
   state of mind of the accused has not been determined all - what has
   been brought are cheques from Millenium.

   
   

3. The
   accused does not have to prove his innocence if he gives an
   explanation that is probable unless the court finds it not only

   improbable but false beyond a reasonable doubt. All the accused had
   to prove is that there is a reasonable possibility of his

   explanation being true. R VM1946 AD 1023 at 1027.

   
   

4. The
   Crown evidence was self-destructive because of its internal
   conflicts consequently it ought to be rejected. Mapote & Ors
   V
   Rex 1990-94 LAC 150.

   
   

5. The
   only inference to be drawn from the circumstantial evidence is not
   that of guilt R V Blom 1939 AD 188 at 202 - 203 Lebete
   & Another
   VR 1993 - 94 LLR & 473 at 481. Nkosi VR 1993 -94 LLR &LB39at44.

   
   

27

6. Accused
   can never be convicted on mere suspicion no matter how strong.

   
   

7. The
   court should not make any presumption in respect of Section 22 (1)
   because that would not be fair on the accused because this
   section
   is not like section 23 which import a presumption into an accused
   activities. Reading a presumption into Section 22 (!)
   would amount
   to amending this legislation. This act is a penal one which must be
   strictly interpreted. S v Dos Ramos 1978 (4)
   SA 318 at 324. S V van
   DerMerwe 1974 (4) SA 310.

   
   

I noted
accused complaint that he was not called upon to give an explanation
nor was he cautioned against incriminating himself
when he was
arrested. Accused does not seriously deny he was given a charge and
taken to a court of law. Nothing much turns on
this issue because
there was no prejudice to the accused. Mr Mokhochane the chief
investigator confirms that he did not ask for
the accused's
explanation because he was satisfied accused had committed a crime.
Consequently Mr Mokhochane did not need the accused's
expalantion. Mr
Matsoso confirms the accused complaint that he did not know the
precise details of the offence he was alleged to
have committed. Mr
Matsoso told accused that he was charged in respect of the M20 000.00
he received from Millenium Travel that
was considered a bribe.
Accused does not dispute this.

28

An
accused is cautioned before arrest to prevent self-incrimination. In
this case there was no prejudice because the accused was
not asked
for an explanation that might have incriminated him. In Mpesi v Rex
1967 -70 LLR 112 at pages 115 to 116 dealing with
a stock theft case
of possession of stock without a reasonable explanation of the
lawfulness of the possession Jacobs CJ said:

"Generally one would expect a person to give his account in the
first instance to the person who finds him in possession,
but he may
give it in court for the first time and it is always the court which
must judge whether the account which has been given
is a satisfactory
one."

If
follows therefore that while his arrest can be criticized at places
Mr Mokhochane was entitled to conclude that accused's explanation
was
unnecessary and it would not help him in investigations. He should
give the accused a charge the accused would justify the
legality of
his receipt of M20,000.00 before the trial court. Even so Mr
Mokhochane should have told the accused the details of
his charge so
as not to oblige the accused to go to Mr Matsoso for precise details.
The accused however left the office of Prevention
of Corruption and
Economic Offences knowing what his charge was.

29

The Crown
was wrong that at least three quotations were called for, from travel
agents before a ticket was purchased from one of
them. Lieutenant
General Mosakeng was wrong about this fact. Mrs Selio confirms the
evidence of the accused that accused that accused
could call for an
itinerary from any travel agent and if funds were available a ticket
would be bought. In other words as a routine
matter whenever accused
submitted an itinerary a ticket would in the normal course of things
be bought. The financial controller
could query by powers vested in
her - but these powers were not often used. It is clear that in
respect of overseas travel the
financial controller and her staff did
not exercise strict oversight.

I noted
that the evidence of Mrs Selio was entirely in accord with that of
the accused except on the matter of the use of Millenium
Travel. Mrs
Selio confirmed what Major General Mosakeng said, namely that
Millenium Travel was used more often than other travel
agencies. Mrs
Selio corroborated the accused's evidence that itineraries that the
accused submitted did not reflect the cost of
travel. Mrs Selio's
office in the Financial Controller's office determined whether a
travel agent was expensive or not. If a travel
agent was too
expensive the financial controller querried the invoice. In the
normal course of things an order would be

30

made
based on the itinerary. The office of the financial controller would
be billed following an order. Only then would an invoice
be issued.

I was a
bit puzzeled how the Financial Controller ever came to know the cost
of travel before making an order. Normally an itinerary
ought to have
the price of the ticket on it. The evidence of Mr Selio shows that in
an undisclosed manner the Financial Controller
would know the cost of
travel.

On the
evidence before me and that of the accused, the accused selected a
travel agent from which to get an itinerary depending
on its
availability whether by telephone or when accused went to it
personally. It was on the basis of an unpriced itinerary that
the
office of the Financial Controller would make an order, be billed,
issue an invoice and a travel ticket issued for the trip.
Accused
evidence on this procedure is substantially unchallenged because it
is confirmed by Mrs Selio, a knowledgeable Crown witness.
Lieutenant
General Mosakeng did not have any real knowledge because everything
was put before him already prepared.

It is
clear from the evidence of Mrs Selio and Lieutenant General Mosakeng
that Millenium Travel was used more often than other
travel agents
for

31

overseas
travel. I believe this evidence, despite denial of the accused. What
accused denies is that he went out of his way to favour
Millenium
Travel on overseas trips of the Lesotho Defence Force. The Crown has
not brought clear comparative analytical evidence
that accused
favoured Millenium Travel over other travel agencies. The fact that
accused used Millenium Travel often is corroborated
by two witnesses
who must in the ordinary course of events have been able to notice
this, even if they might have found noting
improper in this.

The Crown
also failed to bring evidence that Millenium Travel overcharged the
Lesotho Defence Force although it was still used more
than other
travel agents by the Lesotho Defence Force. It is opening address the
Crown through Mr Penzhorn had informed the court
that it would bring
this evidence.

What
accused has said in his evidence is that when he was short of money
because he was preparing for the erection of his fathers
tombstone
and its accompanying feast he approach Millenium Travel for loans
totaling Ml 2 000.00 which were advanced in three cash
cheques
between April 2002 and September 2002. Accused had already paid for
or was paying for the

32

tombstone
by instalments by stop order through a bank. Consequently the
Ml2,000.00 from Millenium Travel was not used for the purchase
of the
tombstone itself, but for the feast and other expenses surrounding
the tombstone. When his sister in law became terminally
ill he again
asked for loans totaling M8 000.00 between November 2002 and April
2003 in the cash cheques.

I found
the evidence of the accused sufficiently cogent that he wanted money
and went to get it from Millenium Travel. The only
puzzling thing is
that he should have needed M12 000.00 in bits and pieces even as
early as April 2002 when the tombstone was not
being bought with that
money. I consider this detail not important for purposes of the case
before me.

Accused
told the court that the Director of Millenium Travel was his friend
consequently he borrowed this money in good faith without
a corrupt
intention. Each Millenium travel cash cheque was issued before the
previous loan was repaid. In fact according to the
accused he only
began to repay these loans at the end of April 2004. It is unusual
for a friend to advance such huge amounts five
more times before the
original loan is repaid. By borrowing these amounts from Millenium
Travel and its director

33

instead
of the Lesotho Defence Force Revolving Fund the accused saved over
M3200.00 in interest on these six loans between April
2002 and April
2004 when he got his gratuity. This fact the accused cannot deny
because he told the court he borrowed from Millenium
Travel to avoid
paying the 10% interest the army would have charged him.

I have
believed the accused evidence about his need for money. The only
issue is whether he got money from Millenium Travel corruptly.
Before
deciding whether I believe or disbelieve the accused evidence that
the six loans totaling M20 000.00 were in fact and innocent
loans
lacking any corrupt intent on the side of the accused it is essential
to deal with the law.

Contrary
to what both the Crown and the defence have argued section 45 of the
Prevention of Corruption and Economic Offences Act
of 1999 on
officials who receive money or a consideration from a member of the
public, the money is deemed to have been corruptly
received the money
or benefit corruptly unless the contrary is proved. Consequently to
close previous gaps in the law governing
bribery and corruption -
section 45 provides:

"Where in any proceedings for an offence under Part IV or V, it
is proved that the accused was offered or

34

accepted a benefit, the benefit shall be presumed to have been
offered and accepted as such inducement or reward, as is alleged
in
the particulars of offence unless the contrary is proved."

Section
22 (!) falls under Part IV of the Prevention of Corruption and
Economic Offences Act of 1999. That being the case a receipt
of a
benefit shall be presumed to having been accepted as inducement or
reward as alleged, unless the contrary is proved.

The
accused's defence is in many ways similar to that in Rex v Sacks &
Another 1943 AD 413. In that case the accused had been
seen handing £
75 to an Acting Major in the defence force. The accused swore that it
was a loan. The difference between Rex
v Sacks & Another and this
case is that in the case of Sacks & Another the two accused were
the givers of the money while
in this case the accused is the
receiver of the money. The second difference is that in Sack and
Another, the Crown was able to
prove that the money was a bribe to
influence the receiver of the money to recommend a tender which the
accused had handed to the
acting major for the purchase of salvage
goods. In this case the accused was (by his own admission) a training
officer of the Lesotho
Defence Force who was responsible for
obtaining itineraries on the basis of which tickets for overseas
travel would be bought from
travel agents.

35

The court
is being invited to hold that the six interest free loans totaling
M20,000.00 were intended to induce the accused to influence
the
Lesotho Defence Force - or the accused himself - to give Millenium
Travel preference over other travel agents in arranging
for the
overseas travel of Lesotho Defence Force officers. The court is also
being invited to disbelieve the accused's defence
that this was a
loan, but to infer that the six payments were a bribe. In R V Sacks &
another page 423 it was said the crime
of bribery has a wide scope.
In the 1995 Edition of Classen's Dictionary of Legal words and
Phrases at page 199 bribery is defined
as:

"The unlawful and intentional taking or giving, or procuring the
taking or giving, of any money or valuable consideration;
or office,
place or employment; or gift, loan or promise of such, or advance of
money; for the performance or non - performance
of a public duty
...or for the performance of an unjust or illegal act."

If go by
this definition the fact that the accused intentionally procured a
loan from Millenium Travel - constitutes a bribe. Consequently
he has
to rebut the presumption that it was for the unjust act of performing
the act of obtaining itineraries from Millenium Travel
in a
discriminatory manner, thereby not obtaining itineraries from other
travel agent as often. Even soliciting for a bribe constitutes

bribery as Innes CJ found in Green v R (1)PH.H44 where the accused
had been convicted for soliciting and

36

receiving
£25.00 as an inducement to influence a councilor to change the
bus stop of a train line. It would therefore appear
when accused
solicited a loan from Millenium Travel to avoid paying interest and
the interest that he saved by obtaining the loan
from Millenium
Travel, that these are benefits within the meaning of Section 20 (a)
and (c) of the Prevention of Corruption and
Economic Offences Act of
1999.

It is
common sense that an official who accepts money from the public he
specifically serves could be classified as a "bought"

official as Baker J remarked in S v Van der esthuizen 1974 (4) SA 61
at page 64. The court has to determine if accused by soliciting
and
getting interest free loans from Millenium Travel whose repayment is
when he chooses is not putting himself on the payroll
of Millenium
Travel and so to speak becoming a "bought" official who in
turn may be under an obligation to give Millenium
Travel preference
in respect of international travel over other travel agencies. The
court has to determine whether it is true
that accused did not act
corruptly in this regard.

In R v
Sole & Others CRI/T/111/99 (unreported) Cullinan AJ (between
December 2000 and March 2001 when he made his ruling) the
focus of
the

37

offence
was on the corruption of official who had allegedly been offered
bribes and allegedly received them. In fact the common
law
indictments concentrate on the offer by the briber of a bribe and its
acceptance by the bribee. In other words state officials
were
invariably the target of bribers who bribed them as bribees - and
these officials were expected to refuse these bribes, if
they
accepted them they became bribees and committed the offence of
bribery along with their bribers.

The facts
of this case are different, the accused says he went and asked for
private loans totaling M20 000.00 from his friend Jack
the Director
of Millenium Travel. They only met at Millenium Travel offices, he
never visited Jack's home. Millenium Travel was
a service provider
for the Lesotho Defence Force. The Crown says these six loans were
advanced in return for services that accused
would render by using
the services of Millenium Travel in preference to other travel
agents. It is in this round about way that
this becomes an official
act and the role of accused as an official becomes pertinent.

The
background to the payment and the how the accused would have
performed a service for Millenium and his possible modus operandi

were

38

wrong -
no doubt because of secrecy in such cases and failure to investigate
the case carefully. For an example it is alleged that
the accused's
activities led to Millenium Travel overcharging the Lesotho Defence
Force. Secondly the practices that give the accused
a whip-hand in
the selection of itineraries were a result of laxity (if not
collaboration) in the office of the Financial Controller.
The
allegations of the Crown were wide off mark. They alleged checks and
balances that did not exist or were not operating.

It would
seen to me that although the precise objective of the bribe need not
be precisely known or achieved when the offer of the
bribe and
payment of money were made, the particulars of the official duties of
the accused must be stated and the way the accused
acted unlawfully,
intentionally and corruptly. See Rex v Naylor 1917 TPD 30, for that
is the case the accused has to meet. In this
case the Crown did not
sufficiently acquaint itself with the facts. It is from these facts
that intention of the accused has to
be inferred in a common law
bribery case.

The other
problem is that the common law of Lesotho now exists side by side
with Prevention of Corruption and Economic Offences
Act 1999. In
South Africa there have been for a long time statutes that overlap
with the

39

common
law of bribery. According to the second edition by Milton of Hunt
Common Law Offences of volume II of the South African Criminal
Law
and Procedure page 217, these are the Prevention of Corruption Act of
1918 and 1958. We now have the same overlap between the
common law of
bribery in Lesotho and the Prevention of Corruption and Economic
Offences Act 1999.

In this
case the accused took the initiative to solicit from a service
provider Millenium Travel to give him six amounts of money
- which
could be loans - or what accused called loans. Millenium Travel might
have been under some indirect pressure to provide
the money for fear
of losing business from the Lesotho Defence Force that was accessed
through invitations made by the accused
for itineraries. Milton in
the 2nd Edition of South African Criminal Law & Procedure Hunt
Common Law Crimes vol II page 215
says sometimes it becomes difficult
"to tell whether an official has impliedly made a threat or
solicited a bribe." Certainly
nothing suggests physical force or
some strong pressure which could make it extortion - but it could be
argued that the request
for money or a loan was a bald solicitation
to bribery having regard to the fact it was accused who invited
itineraries from

40

travel
agents as he found fit and convenient. The office of the Financial
Controller rarely querried the itineraries that the accused
presented
- if at all.

It would
seem on the facts as admitted by the accused, he solicited for money
that he calls loans from Millenium Travels and thereby
expressly or
impliedly offered to accept for himself as an inducement for
continuing or increasing occasions on which Millenium
Travel would be
invited to make itineraries for the Lesotho Defence Force. Overseas
travel in which Millenium Travel did business
was a matter in which
the accused was concerned in his capacity as a public officer. This
conduct in the absence of a satisfactory
explanation in terms of
section 22 (I) would constitute a criminal offence.

On the
facts before me (as admitted by the accused) it would appear it is
the accused who solicited benefits from Millenium Travel.
These
benefits within Section 20 of the Prevention of Corruption and
Economic Offences Act were an interest free loan which accused
from
his admission could pay without any pressure when ever he choze, and
the interest that he saved himself from paying be getting
a regular
loan from a bank or the Lesotho Defence Force Revolving Fund. The
role of Millenium Travel might not be

41

identical
to that of the usual common law briber because evidence shows what
ever money was given was solicited by the accused who
was a public
official. But in giving the interest free loans or payments the Crown
argues Millenium Travels had certain unlawful
expectations. As Mason
J put it in Rex vLavenstein 1919 TPD 348 at page 352:

"One knows quite well, for instance, that if one person has
dealings with an official he may give him money to secure his

influence and to smooth friction generally, without having in mind
any particular act which he wishes the official to do at the
time.
These general bribes, as one may call them, are quite common. It is
not invariably the case that when money is given to an
official it is
for the purpose of doing a specific thing."

The Crown
did not present the evidence in respect of bribery carefully. They do
not seem to have prepared that case carefully in
my view. It seems to
be far better to examine whether facts fit into section 22 (I) read
with the evidXdence terpretation section
45 of thePrevention of
Corruption and Economic Offences Act of 1999. The facts of the case
(admitted by the accused) viewed with
the rest of the evidence point
in the direction of the accused having solicited the interest free
loan which had no terms of repayment
- and which out of alleged
friendship the accused could pay when ever he pleased. This might
make the accused the corrupter rather
than the corrupted in seeking a
benefit from a service provider. If that is so, Millenium Travel was
partially black-mailed into
paying money for fear of

42

losing
present and future business if it refused to pay the money accused
wanted. That money whether it is called a loan or by any
other name,
in the absence of an acceptable explanation might constitute a
benefit within the meaning of Section 20 of the Prevention
of
Corruption Act of 1999.

Section
45 of the Prevention of Corruption and Economic Offences Act of 1999
in its presumption of corruption when an official receives
moneys
does not alter the onus of proof. Accused's burden is discharged if
the accused satisfies the court of the probability of
what he is
called upon to establish. This he does if he satisfies the court with
reasonable evidence that what is contrary to the
presumed facts might
be true. When the court accepts as reasonably true what is contrary
to presumed facts then the accused is
deemed to be innocent. The
burden of proof that is required from the accused is less than that
of the Crown which is expected to
prove its case beyond reasonable
doubt. See Public Prosecutor v Yuvaraj 1970 AC 913.

This
court accepts as the truth that accused did (as he alleges) go to
Millenium Travel to ask (at different times) for these six
amounts
totaling M20, 000.00 (twenty thousand Maluti). The court however,
does not believe that the six amounts were paid innocently
to the
accused by a friend,

43

with
Millenium Travel and Tours (Pry) Ltd cash cheques. Accused said Jack
the director was an ordinary friend not a great friend.
These cash
cheques do not disclose the payee, a fact which taken together with
other facts has left us in no doubt that the payments
were secret.
Having seen and heard the accused both in evidence and
cross-examination we are satisfied that accused (as an intelligent

person) intentionally, corruptly and unlawfully received the money.
These amounts could not be loans because some method of repayment

should have been agreed on account of the large amounts involved in
each cash cheque payment - if in fact they were loans. Secondly
even
if accused and Jack were friends, he could not keep on advancing
money before previous loans were paid. We do not believe
Jack and
accused were real friends. We also do not even believe the amounts
were repaid because even the accused did not say he
had promised to
pay the money back when his gratuity became due. They were open ended
interest free loans - so the accused would
have us believe. My
assessors and I do not believe this.

We
believe the accused when he says he went and solicited for these
amounts and the director of Millenium Travel agreed to give
him these
amounts. The director paid them with Millenium Travel cash cheques,
in

44

order to
promote the interests of Millenium Travel. Whether accused initially
called them loans, it was clear and became clearer
to both sides that
they were not loans because they were not repaid nor were they
repayable. Accused is not telling the truth when
he says he repaid
the loans. Even if he had withdrawn large amounts from the bank
during the period between April and May 2004,
they were not to repay
Millenium Travel.

Whether
accused used other travel agents or not, the court believes Mrs Selio
and Lieutenant General Mosakeng that Millenium Travel
was used more
often than others. Accuseds own evidence shows that he had a free
hand in choosing which travel agents to invite
itineraries for
training courses and conferences of the Lesotho Defence Force
overseas. Accused used this influential and important
post to solicit
for benefits from Millenium Travel, which was induced to give accused
these amounts of money for present and future
travel business that
accused gave to Millenium Travel.

It seems
to me to that the manner the crime of bribery is committed is not
always easy to prove, because it is committed in secret
in may
disguises. In many cases the state official might be the prime mover
but what law enforcers see is the end product. For
an example the
particular state official

45

might be
deliberately slow in serving the public in a queue before him,
thereby inducing some of the public to feel under pressure
to give a
bribe to this slow official to speed up service. If this individual
is caught he will be accused of corrupting officials
when in effect
the official solicited a bribe by conduct.

Alternatively
the official might go to members of the public who often have to come
for service from him and ask for loans. In such
circumstance those
who are approached might find it an opportunity to win the friendship
of that official by giving that loan so
as to get preferential
treatment. Consequently they would not only provide the loan but they
would do so on terms most favourable
to the official. This from the
official is soliciting brides and getting them by indict means.

The
presumption of corrupt intent that section 25 of the Prevention of
Corruption and Economic Offences Act 1999 imputes on a public

official (for the receipt of benefits from the public they serve) is
grounded on the belief that there cannot be something for
nothing. It
is illogical to expect the public to give interest free loans for
nothing - to befriend such public officials for nothing
unless there
is a reasonable explanation.

46

Even if
the court had believed the payments of money which the accused
received from Millenium Travel were in fact a loan, this
court would
still have found the accused guilty of contravening the provision of
section 22 (1) of the Prevention of Corruption
and Economic Offences
Act of 1999. Because that interest free loan payable if and when
accused choze is a benefit within the meaning
of Section 20. The
presumption that section 25 imposes on the accused that the benefit
was received corruptly was not disturbed
because accused failed to
prove the contrary. The reason is that in soliciting the loan the
accused knew or realized that Millenium
Travel was bound to give this
loan on the most favourable terms to enhance its business interests.
In short accused successfully
solicited a bribe disguised as a loan
when Millenium Travel was clearly at a disadvantage. We were
satisfied that accused intentionally
and corruptly squeezed loans he
could pay at will from Millenium Travel. The explanation of the
accused that he hand no corrupt
intention was unsatisfactory,
improbable, unconvincing and false.

I find
the accused not guilty of bribery not because the facts proved might
not fit a case of bribery but because the Crown failed
in proving
most of the

47

crucial
facts it had set out to prove.

However
the Crown has proved the alternative charge.

Therefore
the accused is guilty of contravening the provisions of section 22
(!) of the Prevention of Corruption and Economic Offences
Act of
1999.

SENTENCE:

Accused
is sentenced to five years imprisonment or a fine of M5000.00.

There
fine if paid is to be paid by 31st March 2005.

My
assessors agree.

W.C.M
MAQUTU

JUDGE

For
Crown: Mr Peozorn

For
Defence: Mr Ntlhoki

48