CRI/T/97/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

vs

TS'ABO
JACOB MACHESA

Judgment

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 20th August, 2007.

The
accused appeared before Court charged with the offence of Bribery or
alternatively contravening the provisions of Section 22
(1) of the
Prevention of Corruption and Economic Offences Act of 1999.

The
allegations were 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 forbearing
to do anything in any matter in which he was concerned in his
capacity as a public

2

officer
by facilitating payments of invoices submitted by Millenium and East
West to the Department of Health, alternatively was
in a position to
do so.

This case
was first set down for hearing on the 9th august, 2004 but suffered
so many postponements due to the accused's ill health.
Today when it
finally came before me the accused was present but still looked
sickly. He could not even afford to stand up for
anything more than
five minutes.

After the
main and the alternative charges were read to him, he pleaded guilty
to the main charge and the defence counsel conceded
that the plea was
in accordance with his instructions. There was no need even to make
an outline of facts as the indictment had
been informative enough to
have covered all the relevant facts surrounding the case.

The
indictment revealed that the accused had received from Millenium and
East West travel agencies cash cheque payments totalling
M70 060.00
in his capacity as an Accountant, which monies were intended to
influence him. When such payments were so received by
the accused, he
accepted them wrongfully, intentionally and corruptly.

3

The facts
as contained in the indictment which were admitted by the accused
disclosed the offence of Bribery and the accused was
thus found
guilty as charged in the main charge, and my assessors agreed with my
finding.

The
accused was found to be a first offender.

In
Mitigation of sentence counsel for the accused cited cases similar to
the present where the accused though had pleaded not guilty
were
found guilty as charged and sentenced to a term of five years
imprisonment with an option of a fine or suspension of part
or the
whole sentence. Cases at issue being CRI/T/96/2004 Rex vs Letsolo
Peter Kholoane (unreported) where the accused had received
monies
from Millenium Travel with corrupt intent. He had pleaded not guilty
but was found guilty and sentenced to a term of five
years
imprisonment with an option of a fine.

Again in
'Masehlooho Kao vs Rex 1993 - 94 LLR &LB 483 the Appellant had
been convicted on her own plea and sentenced to a term
of five years
imprisonment for unlawfully and intentionally communicating an
official secret file to a foreign agent. As can be
observed from
these authorities there has been some element of dishonesty in the
conduct of the accused persons.

4

The
cumulative effect of the mitigating factors such as the fact that the
accused pleaded guilty to the charge and that his health
is failing
him should surely substantially mitigate the objective seriousness of
the offence as was the case in Kao's case supra.
Three medical
reports were handed in as exhibits from three different doctors. The
reports all show poor health condition of the
accused with a heart
problem. The last doctor who attended the accused recommended that
the accused could stand trial but not fit
for adverse environmental
and stressful physical situations.

The
proper sentence therefore under the circumstances of this case would
be a term of five years imprisonment, wholly suspended
for a period
of three years on condition that the accused is not, during the
period of suspension found guilty on a similar offence
involving
dishonesty. A further condition being that the accused should
cooperate folly with the Crown in other anticorruption
cases and be
willing to testify whenever required to do so.

1. M.
   HLAJOANE
   

   
   

JUDGE

For
Crown: Mr Surh

For
Accused: Mr Shale

Assessors:
Mr Kolobe & Mr Makhera