CRI/T/13/2006

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:-

REX

VS

1. NEO
MACHELI

2.
MOLEMOHI NTEBELE

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo On the 15th June, 2007

This is a
case in which accused persons are charged with:-

Count I

On or about 26/11/2004 accepting bribes in the sum of Ml,950.00 from
Molapo Magaga and Dingaan Khasemene for declining to prosecute

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and/or withdrawing or causing to be withdrawn or dismissed charges or
destroy evidence in respect of charges of Housebreaking with
Intent
to Steal and Theft against Lehlohonolo Magaga, Mokhethi Khasemene and
Mabusetsa Moqelane per CR 173/04.

Count II

(Contravention of Sec. 21(1) of Prevention of Corruption and Economic
Offences Act of 1999. On or about 26/11/2004 unlawfully and

intentionally agreeing to or offering to permit their public conduct
as public officers to be influenced by a gift, promise or
prospect of
benefit to be received by them, or by any person, from any person to
wit, an amount of Ml,950.00 from Molapo Magaga
and Dingaan as a
consideration for declining to prosecute and/or withdrawing or
causing to be withdrawn or dismissed charges and/or
destroy evidence
in respect of charges of Housebreaking with Intent to Steal and Theft
against Lehlohonolo

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Magaga, Mokhethi Khasemene and Mabusetsa Moqelane per Cr 173/04.

Count III

(Contravention of Sec 22(1) of the Prevention of Corruption and
Economic Offences Act 1999. On or about 26/11/04 did unlawfully
and
intentionally accept for themselves, or for any other person, a
benefit as an inducement or reward for doing or forbearing
to do
anything in respect of any matter in which they are concerned in
their capacities as public officers, to wit, the accused
accepted for
themselves or any other person the sum of Ml,950.00 from Molapo
Magaga and Dingaan Khasemene as consideration for
declining to
prosecute and/for withdrawing or causing to be withdrawn or dismissed
charged and/ or destroy evidence in respect
of charges preferred
against Lehlohonolo Magaga, Mokhethi Khasemene and Mabusetsa Moqelane
per CR 173/ 14.

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Accused
persons seem to have been charged at common law and statutory law at
the same time and when the court drew Mr. Matooane's
attention to the
fact he has explained statutory charges are in the alternative and
Mr. Masiphole has accepted this accused persons
having pleaded not
guilty to the charges and Mr. Masiphole having acknowledged the plea
was in accordance with his instructions.

The Crown
called six (6) witnesses to prove its case and it was Pwl
Motsarapane's evidence sworn that he was born in 1933 and he
lived at
Mphaki, Monyeni, Quthing. He was literate having done Standard VI at
school and knew accused before court having been
under arrest for
house breaking and theft. His son was Lehlohonolo, having been
arrested in 2004 though he was not sure of the
month. He says his
means of meeting accused person was that they said they would destroy
evidence. His son was not on bail and
was no longer detained. He had
not gone to prison awaiting trial.

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And after
being charged he was released home as he was young being 16 years old
and he was released to him attending remands with
him. In attending
remands, something happened between him and accused being that
accused persons said they wanted Ml,000.00 from
Dingaan Khasemene,
'Mathato Moqelane and himself to assist them with regard to their
children who were charged together. He says
it was 26/11/04 on a
Friday and A2 had called him into the office from outside court
together with Dingaan, 'Mathato and Molapo
Magaga (his son) to whom
he explained money was wanted; two days before money was wanted from
him he explained to Molapo. It was
A2 who asked for money from him.
When money asked for he was with Dingaan, 'Mathato and Molapo Magaga
and they reported themselves
to A2 and while in the office A1 entered
and they produced the money; it was Molapo who produced the money
giving Ml,000.00 to
A2 who signalled that money be given Al. They had
then left the office. Cross-examined by Mr. Masiphole the witness has
testified
he is 73 years old and remembers making a statement in
Quthing on 02/12/2004 which was reduced to writing

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before a
policeman contents of which were read to him. He gave the statement
in Sesotho and it was read back to him in Sesotho and
he signed it.
He told the policeman he was born in 1933. He says the policeman
missed his statement though, then, Lehlohonolo was
16 years old his
first child having been born in 1959 and not recalling when others
were born. Lehlohonolo was his daughter's son
though he stood in loco
parentis to him for the reason that his mother is unmarried. The
child had been released to him without
paying bail.

He
doesn't know what happened to the others. He says he does not know
whether the others were released on Ml,000.00 bail. He says
he first
met A2 on 26/11/2004 and he is right to say he knew A2 for the first
time on 26/11/2004. He says A2 came to him to induce
him. He agrees
nobody came to him directly to pay M1,000.00. He agrees in his
evidence-in-chief he said 'Mathato and Dingaan told
him A2 wanted
Ml,000.00. He also agrees in his evidence-in-chief he did not say
accused said what is attributed to him but that
what accused said
came from 'Mathato and Dingaan for he

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heard
from Mathato and Dingaan that Ml,000.00 was wanted and having
received the information he came to see Molapo for the money.
He says
his request to Molapo happened in the presence of Molapo's superior
in A2's office wherein were himself, Dingaan, Molapo
and 'Mathato and
Mokhethi in presence of Al and A2. The five of them had gone to pay
Ml,000.00 each and with Molapo they paid Ml,000.00.
'Mathato paid
M600.00 and it was only him and 'Mathato who paid. "Mathato had
given the money to Molapo to give to Al. He
agrees neither Al nor A2
demanded money from anybody in respect of the criminal case. He
disagrees Al did not accept money from
Molapo on 26/11/04 and equally
disagrees A2 did not gesture the money be given A1.

No
re-examination.

Pw2
Molapo Magaga sworn states he is a Detective Tpr. NO.999859 stationed
at Maseru Rural and remembers November, 2004 when he was
stationed
where he is at present and knows accused persons before court having
been with

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them at
Quthing on 26/11/2004 and had gone to Quthing Police Station
following a message he received.

On
13/11/2004 he made a report he had received to Mr. Hlaele, Senior
Superintendent in charge of Special Investigations Department
and
having made a report he constituted a team consisting of Sgt. Lesholu
(now Inspector) Tpr. Lepolesa, Tpr. Fothoane and himself
following a
report that a crime had been committed and a police trap was mounted
in the amount of Ml,000.00 and was able to identify
the money by its
serial numbers namely, 1 x M 1000.00 bearing numbers D162900; 1 x
M100.00 G912017; 3 x M100.00 G989576; 4 x M100.00
G779958; 5 x
M100.00 F07899; 6 x M100.00 F971486; 7 x M100.00 H129694; 8 x M100.00
F039597; 9 x M100.00 E792941; 10 x M100.00 F321223.
He says they then
left the Magistrate Court Quthing and met 'Mathato' Tau Makara (Pwl),
Dingaan Khasemene and they set outside
the court room calling Al to
the prosecution office. Dingaan had no money and Mathato gave him
M600.00 whose serial numbers he
noted namely 6 x

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M100.00
serial numbers H397843; M100.00 H120053; DJ5027333; DA8171422D,
DG8589193D and H397843. He says he also had the M1000.00
and they
proceeded to the office, Al inquiring them how prepared they were and
he said they were ready he having proceeded to the
office with
Dingaan, 'Mathato' Pwl and the two accused persons. In giving the
money to A2 he had said the money was to be passed
on to Al and he
gave Al the sum of Ml,600.00 which he put in his back pocket and they
had left the office informing his colleagues
that they had taken the
money. He says the identifying marks "police trap" are not
visible to the eye. Al had been arrested
and money he'd been given
found on him. Lesholu had reconciled the notes to ascertain it was
the same money given to him and Lesholu
in the presence of the
magistrate lit the money to prove it was "police trap" of
Ml,000.00 from headquarters. Lesholu
had recovered the M600.00 from
Mathato and they had left with Al.

Cross-examined
the witness says Al was searched by Lesholu and Lepolesa. The witness
testified that money in the

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sum of
M350.00 was taken from the right pocket of Al he could not deny. He
says the M350.00 was not the only money found on Al.
The witness
admits he did not say in his evidence that he was in magistrate's
chambers. Re-examined he says he knew of Al's arrest
because he was
present in magistrate's chambers. The witness disappeared before
released by court and the attempt to locate him
fruitless. It was
Pw3, D/Inspector Lesholu's evidence who sworn stated that he was
based at Police Headquarters, 3rd Division,
CID where he was in 2004
and knew Al before court by reason of having trapped him. They were
approached by Supt. Hlaele himself.
Sgt. Lepolesa, Pw2 and Tpr.
Phothoane relating to some information and a sum of Ml00 x 10 was
arranged stamping letters that were
not visible to the eye "police
trap" the money having been given to Magaga (Pw2). At Quthing
they had met Pwl and a gentleman
called Khasemene and Mathato.
Khasemene said he had no money and 'Mathato said she had M600.00 and
the money was given Tpr. Magaga
to give the prosecutors while himself
Lepolesa and Phothoane went outside the office, Tpr. Magaga, Mathato,
Khasemene

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and Tau
going into the office. After sometime Molapo Magaga (Pw2) emerged
saying he'd given the money to one of the prosecutors.
They had gone
into the prosecution office and not finding the man given money they
went into another office and Pw2 showed them
the man he gave the
money. On searching Al Ml,600.00 had been found on him in his right
pocket and he kept the money as an exhibit.
Cross-examined the
witness says he gave Pwl the Ml,000.00 marked "police trap"
to give the money to one of the prosecutors
as well as the M600.00
from Mathato. In course of cross-examination of Pw3 Mr. Masiphole has
maintained Lehlohonolo Magaga is not
a policeman at all and in any
event Pw2 gave his names as Molapo Magaga. Put to the witness that in
his statement to the police
he said he found Ml,000.00 and before
court he said he found Ml,600.00 in back pocket and why he did not
say this in his statement
the witness says he chose to write the
statement in the manner he did. Mr. Matooane has objected saying the
defence case is that
no money was found on Al save the M350.00. Put
to the witness that M350.00 was found on Al, the witness says it was
Ml,600.00 on
his back

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pocket.
Put to the witness on finding M350.00 the witness had exclaimed: no,
this is not our money, the witness denies. Further
cross-examined the
witness admits he did not give money found on Al a distinctive mark.
Mr. Masiphole has queried the non-submission
of the exhibit to the
Clerk of Court or the Registrar and Mr. Matooane has countered this
by saying such exhibits are properly
kept in police register.
Envelope containing money is handed in and marked.Exh. "A"
and the register reflecting exhibits
is marked Exh. "B".
Pw4 Tpr. Kobeli sworn had stated among other things Al was searched
and money found on him and lit
had revealed "police trap"
though he did not know how much it was. However, in cross-examination
the witness testified
money found on Al was Ml,000.00. Pw5 is a
witness who saw money when torched though he could not say how much
it was. Pw6 implicated
accused persons saying they demanded Ml,000.00
from him but he gave them M350.00. Pwl contradicted himself
materially in his evidence
by saying accused persons solicited money
from him changing along the line saying he'd heard from 'Mathato and
Dingaan that Ml,000.00
was wanted

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from him,
'Mathato' and Dingaan. Not only this, having heard from 'Mathato and
Dingaan this is the man who went to recruit Pw2 into
trapping accused
persons. Further, it is Pw1s evidence that him and 'Mathato
contributed money towards the trap. And while 'Mathato's
contribution
is acknowledged, there is no evidence about Pwl's contribution, Crown
evidence in any event seriously conflicting
in this respect bearing
in mind Pwl was empathic it was only him and 'Mathato who paid. This
is the witness who also testified
neither Al nor A2 demanded money
from anybody in respect of the criminal case.

Contrary
to Pwl's evidence, Pw2's evidence was that Mathato gave him M600.00
and he had Ml,000.00 on him which, in giving it to
A2 the latter
motioned that it be passed on to A1 and of those present when this
happened were Pwl, Pw2 and Pw6. I have gone through
the evidence and
find that Pwl did confirm that A2 when given the money signalled that
it be passed on to Al but according to the
witness it was Ml,000.00
and not Ml,600.00. In so far as Pw6's evidence

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Dingaan
is concerned, he says Pw2 gave the money to accused persons saying
nothing of A2 motioning that the money be passed on to
Al.

Pw3's
evidence was when Al was searched Ml,600.00 had been found in his
right pocket and he is the one who kept the money as an
exhibit. A
strange thing about this witness is that asked why in his statement
he said Ml,000.00 was found on Al and in court he
testified he found
Ml,600.00 his reply was that he chose to give statements as he did.
All the court can say is that the statements
are in any event
self-contradictory.

Pw4
confirmed money being found on Al and lit electronically had revealed
"police trap". In cross-examination the witness
testified
money found on Al was M1,000.00 and I may mention that this is what
other witnesses testified to making one wonder what
happened to
M600.00 which could in any event if found on Al could have been shown
onlookers. Pw6 implicates accused persons saying
they demanded

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Ml,000.00
from him but he gave them M350.00. It is this M350.00 which accounts
for the total sum of Ml,950.00 in the charge sheet
making one wonder
if true Pw6 gave accused the money why it was not found; taxed to the
limit none of the Crown witnesses claimed
the M350.00, Al claimed to
be his. It could have come from Pw6; instead Crown witnesses could
not commit themselves whether the
M350.00 was Al's or otherwise.
'Incidentally, according to Pwl, this Dingaan (Pw6) was one of those
from whom accused persons demanded
money from but having no money it
was only him (Pwl) and 'Mathato who paid. Going by Pwl's testimony,
Pw6 (Dingaan) had no money
to pay accused persons and yet he paid
accused persons M350.00. If so, why didn't he tell Pwl he had already
paid instead of saying
he had no money?

Importantly
though, A2 has denied this evidence. The court had occasion to look
at Exh. "B" the police register where
it is shown on
reverse of folio E24902 serial NO.8 R.C.I 28/11/04 notes and their
serial amounts being all in all Ml,600.00. According
to the charge
sheet, accused persons

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were
charged of counts in the sum of Ml,950.00 and the question arises as
to the whereabouts of M350.00 considering Al claimed it
was his and
it was Pw2's evidence in cross-examination that he is not able to
agree or deny that M350.00 was taken from him; further,
that it was
Pw2's evidence that M350.00 was not the only money found on Al. If
M350.00 was found on A1 and the probability is it
was, there is
nevertheless no iota of evidence that it was Pw6's for money unless
marked loses its identity. If money found on
Al it would doubtless be
an exhibit before court. In any event I have rejected Pw6's evidence
as false, accused persons inter alia,
having been charged on his
shaky evidence

Mr.
Masiphole has complained that exhibits seized have to be surrendered
to the Clerk of Court or Registrar of this Court for save
keeping and
that it was irregular in this case for police to keep the exhibits.

In R v
Passano and Another, 1958 (2) SA 610 (SWA) in a trap case like the
present, it was said trap money in no sense

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passes
into the possession of the police or an agent of the police such as a
trap but into the custody of the Crown police having
only temporary
custody or control on behalf of the Crown.

On appeal
it was found the decision was in conflict with that in Rex v
Swanepoel and Van Wyk, 1930 TPD 214 where the court decided
earlier
relying on the decision in Rex v Seebloem, 1912 TPD 30 that money so
paid over to a trap is in possession if that trap
in that Swanepoel's
case being a decision of a full court was a binding decision more so
because it appeared to have been followed
in the courts of the
province for 30 years with similar decisions arrived at in various
provinces, resulting in the court concluding
it cannot be said the
decision in Swanepoel above is erroneous, a case which in similar
fashion, this court endorses.

S. Ganie
and Others, 1967 (4) SA 203 (N.P.D) was a trap case in which it was
argued a trap being a government servant as in the
case of a
policeman, such a trap is an accomplice

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requiring
corroboration. The court rejected the contention saying so long as it
was in pursuant of official duty policemen could
not pass as
accomplices and consequently their evidence required no
corroboration. The court nevertheless, while confirming the

conviction and sentence of two appellants, the court found itself
unable to do the same in respect of the 3rd appellant whose appeal

was upheld saying there wasn't "sufficient evidence against him
to establish that he was criminally liable for the giving
of the
bribe".

The
magistrate had convicted 3rd appellant on the ground that he was
privy to the offer. The court had, however, rejected this on
the
basis that the conclusion was insufficiently persuasive to have
resulted in proof beyond reasonable doubt for "evidence
against
him was a brief passage in Joubert's testimony ..."

Having
regard to Pwl's evidence, it does not appear that A2 solicited money
from anybody, Pwl's evidence in other respects is unlikely
having
been denied by A2 and the court

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not
having in the least believed it. Besides, it cannot be said that A2's
gesturing is conclusive for it could also have meant why
me, take it
away. No conclusive inference can be drawn from a gesture. How could
he when, according to Crown evidence, he did not
solicit money from
anybody knowing nothing of the fact that money would pass hands? In
any event, if he knew, why did he not take
the money? Is it not
another possibility that A2 passed the buck if Al had reason to take
the money? It is against logic to conclude
that A2 gestured as he did
because he was privy to the scheme for no foundation has been laid
for this or indeed that A2 was in
complicity with Al save being
colleagues. The M350.00 of which Pw6 spoke cannot have had anything
to do with A2 for it was Pw6's
evidence that he gave M200.00 to
accused persons and questioned by the assessor he claimed Macheli
(Al) took the money while he
said M150.00 he gave to Al. How, on this
basis, could A2 be privy to the transaction recalling, dimly in any
event, Al was claimed
to have a sum of M350.00? What about the
Ml,000.00 Pwl claimed to have paid, what became of it?

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In any
event, overwhelming evidence is that Ml,000.00 was found on Al;
consider the amount which reflected "trap money"
was the
Ml,000.00; if found on Al where was the other M600.00 not displayed
for everybody to see? Even if seen, was it the money
taken from
'Mathato and why did Mathato not testify money came from her? Even if
she did, could she identify it?

Seems to
me corruption having been smelt in some prosecutors' office(s) a
sweeping statement spread that all prosecutors' offices
are rotten.
Maybe, but not this one. We've heard of these wild statements taking
rounds and the good painted with the same brush
with the evil like
Russians are Communists and all Russians are Communists. A2 was
facing a very serious charge and I am not satisfied
that so far as he
is concerned the Crown has proved its case beyond reasonable doubt.
In the result, he is found not guilty, is
acquitted and discharged. I
may mention that during the trial Al disappeared and separation of
trial was ordered.

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As for
the exhibits, Ml,000.00 with "police trap" is to be
returned to where it was found. Since Mathato has not given
evidence
before court to confirm that the M600.00 is hers, she is at large to
claim same by approaching the Registrar of this Court
within 30 days
of this judgment.

G.N.
MOFOLO

JUDGE

For the
Crown : Mr. Matooane

For the
Defence: Mr. Masiphole

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