IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CRI/T/175/2004
In the matter between:
MILLENNIUM TRAVEL AND TOURS (PTY) LTD ACCUSED 1
JAYAKRISHNAN APPUKUTTAN NAIR ACCUSED 2
‘MAMOLISE MARY KAMOHI ACCUSED 3
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 11th May, 2011
 Reference is made to Mr. Penzhorn’s opening address on behalf of the Crown where he refers to discussions between himself and members of the defence team discussions which in course of this judgment the court could return to.
Accused 1 is Millennium Travel and Tours (Pty) Ltd
Accused 2 is Jayakrishnan Appukuttan Nair
Accused 3 is ‘Mamolise Mary Kamohi
Charges of Fraud: Count 1 to 233 and 457 to 503 refer to accused persons in that on or about the dates as mentioned in column 2 of Schedule “A” and at Maseru the said accused did unlawfully and with the intent to defraud, misrepresent to the Department of Government as set out in column 3 of Schedule “A” and or Government of Lesotho, by submitting invoice number as set out in column 4 of Schedule “A” for payment, that the cost of the air ticket and or accommodation and/or the transportation of luggage and cargo for the passenger as set out in column 5 of Schedule “A” was the amount as set out in column 6 of Schedule “A”, and did thus induce the said Department and/or the Government of Lesotho, to be prejudice of the said Department and/or the Government of Lesotho to pay to Millennium Travel the said amounts.
 Whereas, when the Accused made the said misrepresentation, they knew full well that the cost/purchase price of the said air ticket and/or accommodation and/or the cost of transportation of luggage or freight was in fact the amount as set out in column 7 which amount was the amount that Accused had paid to the travel agent and/or the airline company and/or the cargo company as set out in column 8 of Schedule “A” from which they had purchased the said air ticket and/or accommodation and/or which had provided the transportation of luggage and cargo. The Accused thus fraudulently overcharged the said Department and/or the Government of Lesotho in the amount set out in column 9 of Schedule “A” and thereby committed the crime of fraud. Counts 234-427 for theft being withdrawn. The charges read to Accused all accused through their Counsel had pleaded Not Guilty on all the counts.
 Accused were also charged in the main charge of Count 428 of Bribery, it being alleged Accused are guilty of bribery in that on the following dates the Accused paid Machesa, a public official, unlawfully and with the intention to bribe the said Machesa, the amounts as set out below in the circumstances as described in the preamble payments dated from 18 January, 1999 to 3 August 2001 ranging from M1,100.00 to M300.00 amounting in all to M70,060.00 the alternative charge reading … Accused are guilty of contravening Section 22 (2) of the Prevention of Corruption and Economic Offences Act that 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 paid as benefits to the said Machesa, as an inducement or reward, the sums set out in the main charge, for doing or forbearing to do anything in any manner in which the said Machesa was concerned in his capacity as a public officer, more particularly as described in the preamble. Asked to plead Accused persons through their Counsel had pleaded not guilty.
 Count 429: Bribery
Main charge it being alleged Accused are guilty of bribery in that on the following dates Accused paid Rasethuntša, a public official, unlawfully and with the intention to bribe the said Rasethuntša the amounts as set out below described in the preamble payments from 6 April 1999 to 2 October 2001 ranging from M2,000.00 to M20.00 amounting in all to M17,620.00.
 Alternative charge it being alleged Accused are guilty of contravening Section 22 (2) 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 paid as benefits to Rasethuntša, as an inducement or reward, the sum set out in the main charge, for doing or fore bearing to do anything in any matter in which the said Rasethuntša was concerned in this capacity as a public officer, more particularly as described in the preamble. Asked to plead Accused through their Counsel had pleaded not guilty.
 In both Counts 430 and 431 Accused were charged in the main count of bribery and in the alternative of contravening Section 22 (2) of the Prevention of Corruption and Economic Offences Act of 1999 and asked to plead their Counsel had pleaded not guilty on their behalf.
Accused 1, 2 and 3 were charged on Count 432 to 433 of Foreign Exchange Fraud and asked to plead Accused had pleaded not guilty while Accused 1 and 2 pleaded not guilty on Count 457A relating to Tax Return Fraud.
 On Counts 1 to 233 and 457 and 503, the Crown relied on the evidence of Trevor Sean White who testified on oath he is a Chartered Accountant and Forensic Auditor and Partner in Price Waterhouse Coopers and was requested by the Crown to compile a report relating to documentation which is before this court and he has testified he compiled such a report plus two supplementary reports. Mr. White has testified he has given evidence for both public and private sector clients and has given evidence before as an expert in the South African High Court as well as the South African Regional and Districts Courts and has also given evidence twice in the Lesotho High Court. He presented evidence to a Commission of Inquiry as well as Conciliation Mediation and Arbitration and various disciplinary inquiries and hearings having been trained in auditing techniques with a Bachelor of Commerce Degree obtained in 1987 and a Post-Graduate Diploma in Accountancy obtained in 1989. He is admitted as a member of the South African Institute of Chartered Accountants. He is a fraud examiner admitted as a member of the Association of Certified Fraud Examiners this being a Texas Board Organization in the United States of America of which he is a member. He says his specialized area of expertise is Forensic Auditing and he has extensive experience in analyzing, reviewing and verifying financial information and accounting records and has chaired three Investigative Commissions of Inquiry in Swaziland having to do with fraud and corruption.
 Mr. White has also testified he was given a mandate on behalf of the Crown having been appointed by the Attorney-General to undertake a forensic investigation into affairs of Millennium Travel and Tours (Pty) Ltd being Accused 1 in these proceedings all work having been done under his direction and supervision and opinions and conclusions being his own so that, effectively, Mr. White is an investigator into financial affairs of Millennium Travel and Tours and it appears his task was:
(1) A review of accounting records including bank statements and paid cheques;
(2) Identify any missing accounting records that the prosecution could attempt to locate where possible;
(3) Prepare a summary of fees charged by passengers differentiating between various government departments and private companies or individuals and analyse fees charged to identify the basis on which various Millennium clients were charged and to comment on any trends;
(4) Quantify the difference between what a registered International Association of Travel Agents (IATA) would have charged and what Millennium Travel charged;
(5) Identify whether accounting records reflect loans were made to any government officials and whether these were paid;
(6) Whether relating to charges there was some agreement between Millennium Travel and Lesotho Government and if not whether these are in terms of IATA guidelines;
(7) Any other investigation analysis required by the prosecution in preparation for trial including assisting that a search and seizure of accounting records of City Centre Maseru Travel Agency.
 Mr. White has testified on oath when an air ticket is purchased by the travel agent from the airline, the commission is received directly from the airline it having been built into the selling price of the ticket and he says, what can be seen from the Sure Travel invoice is that while they earned a 9% commission for issuing a ticket, they passed 3.5% of that commission to Millennium Travel by discounting the price of the ticket sold to Millennium Travel. He says Millennium Travel were not an IATA registered travel agent and could not issue air tickets and had to get a registered agent to issue the ticket and in this case Sure Travel shared the Commission with Millennium Travel and according to Mr. White’s illustration of overcharges and inflation of charges by Millennium Travel a ticket that cost Millennium Travel M7,882.10 was inflated and charged to government in the sum of M16,656.15 (see pp 42-45 of Record of Proceedings) and as in the example Mr. White gave and the present figure if Millennium Travel had issued the invoice to government department on the face value of the ticket there would be no charges against Millennium Travel. In this regard though the record is littered with examples big and small the modus operanti being the same, Millennium after purchasing a ticket from a registered agent and paid commission instead of invoicing government department or ministry the amount from the registered travel agent inflating the amount in its claim from government. In another example by Mr. White Sure Travel invoiced Millennium in the amount of R20,633.70 and Millennium invoiced government in the amount of M32,827.00, R12,000.00 more than it cost the ticket. In relation to this, Mr. White has also testified Millennium Travel appears to have invoiced government on the same day they received the order even before the ticket had been issued by Sure Travel and were aware what the cost of the ticket would be (see page 53, 1st paragraph of the Record of Proceedings) meaning, in my view, in charging government Millennium did not appear to rely on the cost of the ticket as a guideline. In the instant case at any rate as already shown, Millennium charged M12,000.00 more than it cost the ticket. And where a government order was “supply us with an invoice for Mr. Ramoeli to be flown to Frankfurt - Hanover and come back to us on such-and-such a day” and returning a ticket costing Millennium Travel M20,000.00 the government being billed for M32,000.00 the Crown claiming it’s no wonder being because Millennium Travel cannot issue own ticket it compensates itself by defrauding government and what to charge the Millennium Travel the sky being the limit. As for the reason for overcharge, we have repeatedly stated according to Mr. Penzhorn the reason was to defraud government. In exchange with the court, Mr. Penzhorn has given an example of A sending B to buy a kilogram of bananas and B reporting back that the cost was R16.00 and B discovers later that actually they cost R8.00 in which case B defrauded A by R8.00 to be recalled we are here dealing with an agent from whom the utmost good faith is required. Has he displayed it? (see pp 58-59 of record). While on Mr. White’s evidence and analogies given by Mr. Penzorn as of a driver who says coke cost him R12.00 when it cost R8.00 and cornered says no, no, that R4.00 extra was because I had to walk all the way to Spar and stand in the queue, does this defence hold water, really? As we trudge along Mr. White’s evidence (p.63) a ticket that cost R4,566.65 the government was invoiced for M14,361 there being a M10,144.45 overcharge and as I have said the pattern is the same and the defence has not denied the overlapping amounts save giving excuses for the overcharges. Mr. White has further testified “where there are additional charges that could be specified, like the PTA charges, they are specified on Millennium Travel invoice, so they have actually highlighted the additional service they have provided and the cost of that being 350 Maloti” and I am wondering why in respect of other additional service rendered the amounts are not shown? (pp 64/65) Mr. White has further testified once again even although a portion of the cost of the ticket for the commission that would have been earned by the travel agent was passed on to Millennium Travel the latter still charged over M10,000.00 more on top of the price of the ticket (p.65).
 As for baggage Mr. White has testified “the class of passage is economy” and the difference between this and other requisitions is that there is a specific reference baggage entitlement of M500.00 and the order entailed a specific request for additional baggage entitlement of M500.00 and by this I understand cost of the ticket does not include baggage. Mr. White has further testified to a case where the original order was from Maseru to Addis Ababa it being a Sky link Travel invoice flight booked from Johannesburg to Addis Ababa and the amount including baggage shown as 4725. Mr. White says they could not find record of the ticket being purchased from Maseru to Johannesburg even though the order was originally from Maseru to Johannesburg and yet the ticket which Skylink sold to Millennium Travel for R4,725 was sold to government for M10,987.00. The court queering why it was so easy for Treasury Personnel to pay these ridiculous claims the answer was the only document the officers saw was the invoice this having been discovered by subpoenaing the Skylink records from South Africa and only then did it transpire that whereas Millennium billed government M10,000.00, Millennium had paid Skylink only M4,000.00 this being the Crown case and documents the court sees being documents that were discovered as a result of an investigation. The Crown claims over a period of three or four years overcharge amounts to R4.6 million. On baggage once more Mr. White has testified where CK Freight charged Millennium M63,164.00 Millennium Travel charged government M78,014.00. Another example is given of where CK Freight charged Millennium 3,924.25 and Millennium Travel charged 24,700.00 and what cost Millennium Travel M63,164.85 costing government, a figure in excess of what cost Millennium Travel. Mr. White has also referred to instances of transporting families and a group and has given Major Shivastara and family as a typical example where tickets cost Millennium Travel M27,368.00 and the government was billed 67,464 Maloti. Mr. White has claimed on Count 216 there was an overcharge of 40,000 in respect of ticket and 65,000 in respect of freight.
 Mr. White has testified operating expenses in the year ended 31 March 2002 were M311,495 and selling price of the invoices during the year ended 31 March 2002 subject-matter of the indictment would have been an amount of 195,003 Maloti: Net profit Millennium made on sale of 3,250,054 invoices was 1,384,749 Maloti, being invoices to government, less amount due to the South African travel agent, less the allocated portion of the actual operating expenses. As for the financial year 2003 i.e 31 March, 2003 financial statements approved by Board of Directors of Millennium Travel and Tours (Pty) Ltd on 9 June 2003 and signed by Mr. Nair, Managing Director - Accused 2 prepared by S and B Consultants which reads: “We have prepared the financial Statements … to comply with international accounting standards … and general accepted accounting practice and comply with the Companies Act 1967 as amended …”. Mr. White has gone on: “… I say the income statement on page 3 for the year ended 31 March 2003 and Annexure 1 on page 4, reflects that Millennium Travel had the following income from passenger travel bookings of 8 539 591 and there was other income from rental of vehicles of 108 213 there were discounts received of 26,860 and there was sub letting of office space of 4,950, giving a total for the year of 8,679,414. Business activity reads as follows: “The principle business activity of Millennium Travel and Tours (Pty) Ltd is to provide service to international travelers by booking for their travel, provide them with air tickets and arrange for their connection up to their destinations.” Without deciding anything, this appears to be a gigantic task for a travel agent requiring him to keep a watchful eye over his clients from the time of embarkation to disembarkation, a rather burdensome job depending, of course, on its terms and conditions.
 Mr. White has said income statement for the year ended 31 March 2003 reflects expenses incurred in generating income as 8,679,414 (pp 105-108) Mr. White has remarked the biggest expense was purchase of tickets in excess of R8 million followed by administration and hire of vehicles, accommodation bookings having not been made. He says Millennium Travel made a gross profit of 464,970 from air travel. He says he is unable to reconcile the cost of passenger tickets of 8,074,421 as stated in the financial statement -included on Schedule A to the indictment being 21 invoices covering Counts 186 to 205 the profit Millennium made on the 21 invoices, if their share of the commission plus the increased selling price are taken into account being 358,470 the total value of the 21 invoices being 715,012 Maloti the cost to Millennium Travel of the 21 invoices being 356,542 in calculating their selling price Millennium Travel having increased the cost of the ticket included on these 21 invoices by 100.5% and based on information set out in the 31 March 2003 financial statements, Millennium Travel would therefore have only made a gross profit of 106,500 on the other 240 invoices issued during the year the invoices having had a value of 7,824,379 Maloti – he says it is unlikely such a low gross profit would have been made on these invoices which would be for less than commission earned from airlines.
 He says his third supplementary report confirms and shows the profits were understated. He says as to his mandate to identify missing accounting records the prosecution has located them and specific ones are some he has referred to being ones obtained from Lesotho revenue authorities being financial statements and correspondence for tax authorities. He says the third aspects of his mandate was to prepare a summary of fees charged differentiating between various government departments and private companies/individuals and analyze fees charged with a view to identifying the basis on which the various types of clients of Millennium Travel were charged and trends that may be identified in the analysis. He says of the 233 Counts, Ministry of Defence accounts for 73 and their invoices paid in excess of 3.6 million Maloti Ministry of Defence and Health being the largest to book air travel through Millennium in money terms Ministries of Defence, Health, Local Government and National Assembly responsible for 131 or 59.3% of overcharged invoices in money terms amounting to 5,287,406 Maloti or 76.1% of the total. He says the least a ticket was increased by is 5% escalating to 280 percent. On Count 175 the mark up was 25%. The witness has testified there was no consistent basis on which Millennium Travel marked up the cost of price of the air ticket …”
 Importantly, he says representations made by Honey Attorneys in a letter dated 1 March 2005 to the Director of Public Prosecutions on behalf of their clients state: “We are instructed that the fees charged by our clients did not only include the cost of travel, accommodation and luggage, it also included compensation for their time spent, for telephone calls, for their expertise and for their professional services amongst others.” Mr. White says documents he has do not support Honey Attorneys assertions for the following reasons:
1. “A review of Lesotho Government documents nowhere mention or authorize reservation or payment of accommodation and the indictment reveals in no instance is accommodation mentioned and I may mention above it appears accommodation is treated separately from the purchase of a ticket. In any event, this is a major item in traveler’s priorities requiring an agent in submitting his invoice to itemize it, and annex proof for payment of accommodation. Presentation of an air ticket and its value is proof of purchase, the same goes for accommodation.”
It will also be noted, according to Mr. White, that there were three instances for 500 Maloti and one instance of 300 Maloti in Count 87 in respect of which Millennium Travel invoiced government and most probably the one I referred to. Mr. White has said as for professional services claimed, there is no breakdown of the cost. Mr. White has testified if it was not charging the cost of the ticket other services must be itemized on the invoice for one to know what he/she is being charged for. I agree it is not so much a question of law but of good common sense. A question must still be answered by Treasury Personnel for acting so tamely. In my view, they were bound to know the cost of the ticket than hearing from Accused 2 the normal thing being to inquire as to cost of tickets and draw a chart in their office as reference so that when an agent says it’s so much you are able to say no, it is not. I fail to grasp this idea of being clever after the event. While as Mr. Letsoela testified, government was taken advantage of, it could be though I cannot understand the attitude of government paymasters so easily duped. As to how travel agents are paid for their services, Mr. White has testified as a rule they are paid a commission as the basis and were it a registered travel agent, they deal directly with an aircraft while Millennium Travel source a ticket from an agent the norm being to buy a ticket from a registered travel agent with no increased amount. Actually in his evidence Accused 2 agrees he charged for professional services and Mr. White has argued if so it should have been reflected in his financial statements and sent to Revenue authorities ostensibly for tax assessment. As it is Accused 1 and Accused 2 have given Revenue authorities wrong financial returns by hiding what Accused 2 actually earned so as to evade paying tax question being whether if Accused 2 is convicted on this count it will be fraud or evasion of tax.
 Mr. White has also testified he was mandated to investigate and identify whether the accounting records that reflect loans to government officials whether there are agreements and evidence that they are being repaid. Mr. White has however testified from Millennium financial statements no loans to government officials or any individual are reflected and as to bribery counts it would appear Honey Attorneys as they appeared for accused persons then wrote: “We are instructed that the payments alleged in the indictment (those are payments related to the bribery counts) all represented loans and payments which had nothing to do with bribery.” Mr. White has, however testified financial statements he has referred to do not reflect there were any loans to any government official or any other person. The only witness called regarding loans or advances was Machesa who denied in giving him money Accused 2 was bribing him so as to expedite payment of his invoice. Machesa’s evidence was that he treated travel agent the same way expediting their payments as a general policy for they were encouraged to expedite payment of these. He was supported in this by testimony of Mr. Letsoela of the Treasury who said departments and ministries are exhorted to deal with these payments so as not to put government in bad light. Mr. White has testified though he’s been unable to conclude whether prices charged by Millennium were in terms of written contractual agreement he has, however, been able to conclude that prices charged to government by Millennium Travel for air tickets are unreasonable and excessive. Many examples were given but Hon. R. ‘Mokose’s ticket seemed to attract Mr. White more, a flight from Bloemfontein to Cape Town back to Bloemfontein and it cost R5,344 and it was business class.
 He says there’s no business class ticket available on South African Airways flying between Bloemfontein and Cape Town. He says while the ticket cost R2, 651.00 government was charged R5,344. R2,493 more than cost of the ticket the price having been inflated by 87%.
 By comparison, another travel agent called City Centre Maseru Travel Agency (Pty) for the same route purchased a ticket for R2,849 R2 cheaper than the one Millennium had bought two days before and Maseru Travel would have received their profit of 7% directly from the airline and invoiced Vodacom the same amount of R2,849 for which they bought the ticket, something which, according to Mr. White, was expected of Millennium Travel were it not charging government unreasonably and excessively. This illustration expanded and with additions from judgment of the Court of Appeal in City Centre Maseru Travel Agency (Pty) Ltd v The Crown (C of A (CRI)13/2007), although the cost of ticket as shown above between Maseru Millennium Travel Tours and City Centre Maseru Travel, there was considerable difference between what these two did firstly from an illustration by Mr. White in City Centre Maseru Travel for though the two charged the same price of the air ticket, City Centre Maseru Travel restricting itself to submitting an invoice, the price of the ticket, satisfied with the 7% commission so that government departments and ministries knew what they were paid for. Millennium Travel Tours submitted an invoice without the cost of the ticket Treasury staff not knowing what they were paying for. In ordinary commercial transactions unless there is an agreement in place, a claim is accompanied by an invoice with specifications.
 In Millennium Travel case only an invoice was submitted for payment Treasury staff denied the opportunity to compare or set invoice and air ticket side by side air ticket not submitted to deceive Treasury officials as to what the real cost is. The cardinal different is, as the Court of Appeal has observed, that in City Centre Maseru the Treasury staff knew what they were paying for and in the instant Millennium case they did not know what they were paying for. As to why in Millennium Travel case Treasury staff was so hoodwinked this is a matter for inference depending on whether only one inference can be drawn from a set of circumstances. Secondly, from Mr. White’s illustration above City Centre Maseru Travel did neither charge exorbitantly or unreasonably and the fact that Millennium Travel was entitled to ½ the 7% commission is neither here nor there for there was a remedy to approach government to up the difference or have Millennium registered as a travel agent other than to have acted so stealthily and prejudicially if disastrously to government financial interests. In any event between the two travel agents City Centre Maseru and Millennium Travel, there is no comparison or similarity save both being travel agents. It will be observed source tax is not in issue in the instant case.
 Mr. White has also given instances of cases where “Ministry of Health was charged for flights that were booked and Millennium Travel appears to have paid a portion of the overcharge to the person who was supposed to have used the tickets” this is Count 63 in respect of the Dr. Rahman, Mrs Rahman, Miss FR Rahman and Miss JRR Rahman the route being Maseru/Johannesburg/Singapore/Dacca. Mr. Engelbrecht has objected to Mr. Penzhorn pressing ahead with the indictment in that the charge relates to theft. Mr. Penzhorn has denied and the court has ruled evidence be led to allow the court to decide the issue at the end of the day. The total charge for the tickets is 86,275 Maloti for Dr. Rahman, his wife and two daughters. Mr. White says scrutinizing Sure Travel documentation he found them to travel different routes to that traveled by Dr. Rahman and with different surnames and from documentation available there is no evidence that ticket for which government was charged 86,275 Maloti were booked. He has also referred to fixed deposits in favour of Jiya Christian, A Nair and Brena Jiya Christian saying amounts invested in India in cause of Accused 2 and wife are 12,770.26 dollars, 15,718.79 dollars, 20,018.43 and 16,275.63 dollars. He says at the same time thousands of maloti were being invested in the State Bank of India director’s remuneration for Accused 2 and wife were being paid 51,000 Maloti for year while in the same year investments with the State Bank of India on behalf of Accused 2 and wife were 742 570 Maloti on behalf of Accused 2 and his wife not as directors’ fees on salaries for the year ended 31 March 2003. He further says at the same time a Mr. Eck auditor of Accused 2’s books has attempted to justify the state of Accused 2’s books which were in fact in shambles for the “amount which Millennium Travel declared in their financial statements is 903 440 Maloti while during the same period profit calculated from their own invoices deducting prices paid to Sure Travel and Sky link for purchase of tickets amounts to 2 443 237 Maloti” there being, at the same period, amount of 1.5 million maloti not declared to Revenue Authorities. Mr. White concluding for three years ended 31 March 2003 Millennium Travel made a gross profit in excess of 6.4 million maloti that was not declared to Lesotho Revenue Authorities.” Mr. White has further stated according to presentations made by Honey Attorneys 7.3 Maloti was charged for expertise and professional services Millennium Travel provided and Accused 2 in his evidence has confirmed this. And yet the invoice says nothing of the sort this defence, in my view, coming as an afterthought and to be rejected out of hand. To be observed too that, according to Mr. White, if 168 700 Maloti was paid to directors and staff for expertise and professional services, only 2.35 of the Millennium Travel gross profit was paid to the said directors and staff.
 As for alleged mispresentations to the Lesotho Revenue Authority, Count 457. Mr. White has testified in order for the prosecution i.e. DPP to issue or charge an offence arising from tax returns, the consent has to be attained from the Revenue Authority and according to Mr. White “this report was basically prepared for the purpose of obtaining that consent from Revenue Authorities, and it was for that reason that this report was prepared. Mr. White has testified:
“The effect of the 1.2 million understated income is that the Lesotho Revenue Authority under-assessed Millennium Travel for income tax in excess of 430,000 Maloti.”
 He has testified overcharge for Counts 434 to 456 amounts to 415 227. Regarding Counts 457 to 503 the overcharge is 596 426. Counts 1 to 233 the overcharge is 3 639 703 amounting in all to 4 651 349 Maloti 95 cents. The defence reserved cross-examination; case couldn’t proceed because of Accused 3’s illness and it was agreed the Crown interpose the witness Thabo Machesa who became Pw2 and gave evidence on oath he was Chief Accountant, Department of Health and Social Welfare and between 1996 and 2002 had had dealings with travel agents. He testified he made orders for Accused 2 and paid the invoice. He testified it was his duty to ensure invoices are paid timeously. He says he did receive payments from Accused 2 and 3 and some he asked for to pay fees for his son at university and Mr. Nair (Accused 2) gave him 30,000 which he put into his account and the others may be 10 or 20,000 he also paid for his son. He says 30,000 was for study permit at university. He agrees a number of cheques were made out in his favour by Mr. Jack (Nair). He says 30,000 was repaid and other amounts not repaid. He says he was given money to pay for his son at university. He says the 10,000 he remembers he wrote a letter asking for the money and the others was a present. As to whether he did anything for Accused 2, the answer was a flat: “No” and he continued: “What I can say is that in my office I had to see to it that every agent, that his invoices are paid timeously and so on. Yes I did for him.” He has also testified there were complaints cheques were not paid in time and he ensured they were paid timeously. He says Accused 2 gave him the money so he could be well treated by paying his invoices timeously. He says all companies their cheques are paid within three weeks.
 In cross-examination, Mr. White has testified his instructions were to review all the accounting records that had been seized by Lesotho Police. He has also testified he was unable to find any documentary evidence or contract or letter or anything also confirming what the contractual relationship was. He has testified there was no contractual relationship and seemed to remember this was conceded on behalf of accused by their representatives. In this connection I don’t know how result of meetings will be resolved recalling in City Centre Maseru Travel the Court of Appeal attitude leaned towards keeping minutes of a meeting where it was claimed certain points were threshed out and conceded by an opposite party. He says he was given information by Mr. Sykes and found no reason to reconfirm it. Another mine ditch here should it be claimed this is hearsay unless Mr. Sykes confirms the allegation in his evidence. So far as this court is concerned, there was no evidence of contractual relationship between Millennium Travel and the government save perhaps an implied relationship not going beyond payment of commission by an aircraft hired by Millennium Travel whose relationship with government was to submit an invoice for payment which government paid and honoured without demur notwithstanding that it was not backed by a ticket as was the case in City Centre Maseru Travel giving one possible impression that these errors were condoned as against Mr. Letsoela’s evidence and hence Mr. Penzhorn’s submission that it was nothing but taking advantage of government off guard in its defences. Importantly though, it was Mr. Penzhorn’s submission that Treasury Personnel was bribed by Accused 2 to pass the duplicitous and contentious invoices something this court is called upon to decide ultimately.
 As to booking and paying process, Mr. Engelbrecht appears to have asked pertinent questions for example:
“… in order to receive payment for a booking, what documents were required by different ministries to effect payment.”
Mr. White: “… my understanding of the process is that there would need to be an order in place, to start with - and a warrant, requisition a typical example being on Count 25 page 79 of prosecution documents requesting certain air ticket to be booked on behalf of a government official. To the question I am interested to know what documents Millennium Travel had to submit to receive payment for work done being a booking or obtaining an air ticket Mr. White’s reply was “the only document that they submitted was attached to the payment process was their invoice.” As so often happens, the real answer was not forthcoming for the question was what should have been submitted by Millennium Travel to be paid or put in another way, the basis on which Millennium Travel should have been paid. Order No.E15901 was issued by Ministry of Natural Resources to Millennium Travel with an order to reserve passage for P.S Ramoeli from Bloemfontein airport to Johannesburg, Frankfurt, Hanover and Frankfurt. I am not able to certify what the internal air transport (Maseru to Bloemfontein) cost but it would appear Minister the Hon. Moleleki was with P.S Ramoeli who were respectively invoiced by Millennium for payment of R42,500 and R32,827 respectively amounting in all to R75,327. Passage requisitions speak only of reservation of passage and invoices in each case seem to claim Maseru/ Johannesburg/ Frankfurt/ Hanover/ Johannesburg/Maseru costs are not broken down for different destinations and ex facie are purely for air tickets. Surely Treasury staff cannot but know what air tickets costs in routes they are involved in internationally, they must be having such charts to be able to query offline invoices unless there was whole scale scheme to rob government?! As to overcharges, there is sufficient evidence to support them mindful Accused 2 accepts them but gives them another name which does not, in my view, wash.
 Another aspect of this case not to go unnoticed is the fact that notwithstanding that Millennium Travel was registered on 11 May 2000 and by 8 August had own stamp page 77 of Vol.1 appears to bear an East West stamp. In course of cross-examination by Mr. Engelbrecht, Mr. White queried wondering how booking a business class ticket to London can escalade to a cost of R60,000 and needless to say throughout this is how air ticket figures have been manipulated under pretext of telephone calls, compensation for time spent, expertise and professional services seeing no reason why, even if the law did not require this services were not itemized for scrutiny by Treasury staff nor sight can be lost of Mr. White’s testimony under cross-examination that “those fees are not recorded in their financial statements” the reason, according to Mr. White being that “somebody wants to hide the fact that they’re making such high profits and secondly to avoid tax for those high profits.”
 It was also put to Mr. White that commission received from South African travel agents shared with Millennium Travel “did not adequately compensate Millennium Travel for work done” and despite Mr. White having disagreed with this, I am tempted to interpose as to whether Millennium overcharged to compensate itself for the low commission received. I have already answered this elsewhere that Millennium Travel had a remedy and in any event by reason of volume of work could have worked out a figure with government. Whatever the excuse, I do not think these extraordinary charges were justified.
 Pw3 - Mr. D.J Sykes testified on oath he was an investigator with the office of the Attorney-General having been seconded to the Directorate on Corruption and Economic Offences here in Maseru and he was an investigator in the instant case. He has testified as a result of a search being conducted on premises of accused seized documents were placed in his possession comprising Exhibit A and he also received from Mr. Letsoela the Deputy Accountant-General original payment vouchers and documentation as well as some from South African travel agents and freight agents. He says the documents were sent to Price Waterhouse Coopers for a forensic report and he had found in course of his investigation a series of payments to various persons - he hands in Exh. E. East and West Travel and Tours used by Ministry of Health 13 times with invoices to the value of 541 524 Maloti being invoiced to government. Total amount paid to travel agents being 2 495 403, 15 million and of that 2.4 million East and West Travel Tours and Millennium Travel earned 1,245 million Maloti. The witness has testified cheques cashed by Accused 3 from both Nedbank and Standard Bank amounted to 560 035 Maloti. Mr. Sykes’ evidence seemed to be going over what Mr. White has testified to. In course of cross-examination by Mr. Engelbrecht, Mr. Sykes seemed to be under the impression it was immaterial whether the invoice was Millennium Travel Tours or East and West Travel. No, East and West Travel Tours is an entirely different entity from Millennium Travel Tours and as Mr. Engelbrecht has correctly showed Millennium Travel cannot be held responsible for conduct of another company after all it is Millennium Travel and not East and West Travel and Tours that is charged. In course of Mr. Engelbrecht’s cross-examination it turned out “we don’t know the counts to which Golfis report refers” and in any event there are no vouchers to support a number of counts and to be exact counts numbers 2,3,4,5,6,7,8,9,10 and 11 and Mr. Sykes has admitted there are several payments to East and West Travel and Tours and “we don’t know the counts to which this Golfis report refers. There’s also the question of Captain Mahase who, apparently, comforted accused in his trauma after thieves fell upon him when he was from a bank and as a result friendship blossomed between them and Captain Mahase being a farmer, Accused 2 bought sheep and pigs from Captain Mahase. Also, Mr. White has not denied Accused 3 did her duty as instructed by Accused 2. The Crown then called Mr. Letsoela and his evidence was short being to the effect as far as he was concerned departmental and ministerial heads are encouraged to pay agents’ claims timeously. When it became clear some agents were taking advantage of the system circulars had been issued to stem the tide of fraud by demanding that agents itemize their costs on the invoice. He also testified because for a while government was caught off-guard in its defences it was no reason to defraud government. The Crown closed is case and an application for discharge by the defence was dismissed. The defence called Accused 2 whose long evidence can be condensed into he is aware East and West Company is not part of the proceedings and the search conducted at his premises was by people who came from the Directorate of Corruption and Economic Offences, Maseru who produced a search warrant stipulating what was to be searched. He says property to be searched belonged to himself and his wife. He further testified he did appear before a magistrate. He says people at his premises also included some from LRA. Policemen carried guns. In course of Dr. Mosito leading the defence witness Mr. Penzhorn has interposed saying “all documents that are before your Lordship are by agreement between the parties and Mr. Engelbrecht has agreed “I am saying that the documents are before you by agreement.” (page 437 of the Record of Proceedings). Mr. Penzhorn has also added that some agreement was reached to bring some documents before court did not mean additional documents could not be brought which were relevant. Accused 2 has testified personal returned cheques from the bank were seized from him as well as electrical equipment and computers and accessories and calculators and it was said in respect of Counts 1 to 233 the accused misrepresented the true cost of the air tickets.
 He says the air ticket as processed by them would be accompanied by an invoice from the company the air ticket not being handed to the traveling officer directly and official from the ministry came to collect tickets and invoice payment procedures being started and there never was a time when a department complained charges were too high. He says where the total amount of the ticket is 8160 it is broken up and will have to add it up. He says an invoice is combination of other tickets being not just one and the amount appearing on the invoice say 16 656 is sent to the ministry. He says Millennium invoice does not say what the cost of the ticket is - in that for payment the ministry relies on the invoice and tickets sent along with invoice. He says when the ministry pays it would have seen the invoice and air ticket. Asked about an invoice from Millennium in the amount of 15 731 Maloti whether it is the amount of the ticket Accused 2 says it doesn’t say anywhere and he adds on the invoice there is not mention of the actual amount for the ticket - he says this is the common pattern in relation to invoices that are sent by Millennium to the Ministry. He says actual cost of the ticket “is never the same in that responding to Dr. Mosito, “we would have to have profit,” and … “we cannot supply anything at the same cost of the purchase price.” Accused 2 says amount of the ticket is not the same amount on the invoice because other overheads would have been added. On this very taxing issue it would seem, according to Accused 2 invoice issued by Millennium is not only the cost of the ticket that is added but there are other overheads added arrived at by Millennium Travel and ordering department and the reason the invoice is never queried. Never queried because according to Accused 2:
“… from the Ministry or department … we would then take down details of the person, the official who is supposed to travel, the dates that he needs go and the route to follow or as it were destination. Usually upon receiving such information we would then return the call once we have made a booking with details saying whether it is confirmed, the travel journey, the itinerary, whether we have got seats or not. We would then call them back and say okay, we have acquired seats, we will now fax you the itinerary and we would fax the itinerary and would scrutinize whether the travel itinerary is suitable or not for the official traveling and they would call us back to confirm we go ahead with booking and also ask us how much our travel invoice is going to be and we would tell them what our travel invoice is going to be.” (I have underlined)
It would be absolutely ridiculous to imagine all a travel agent does is to negotiate and purchase an air ticket issuing it at cost because he’s been paid commission. According to Accused 2 a passage is negotiated and several things are done by the agent who, on completion, receives an air warrant or passage requisition from the ordering department when tickets are issued along with invoices the cost of which is negotiated and agreed upon by the agent and ordering department or ministry. According to Accused 2, he dealt directly with staff of ordering departments and ministries and it is an odd feature of this case that those who dealt with Accused 2 received and approved his otherwise bare invoices, were not called by the Crown which conveniently relied on the assertion they were afterall bribed while the defence case appears to be that invoices not queried by reason of a prior agreement as to the cost of the travel invoice mindful, according to Accused 2, an invoice is not and can never be cost of the ticket several items being added on the overall cost negotiated and agreed upon in course of negotiation between the agent and representatives of departments and ministries.
 We now have a situation where the defence says an invoice is not and can never be price of the ticket since other items have been added and I am of the view a proper person to have denied Accused 2’s allegations are officials he dealt with in particular departments and ministries of government. Secondly, during the defence case a defence has arisen that the price charged was negotiated and agreed upon and as is often said in legal circles, the onus is on the Crown to prove its case and a question is whether a defence arising during the defence case does not need to be negated by the Crown or put in another way, the proper stage at which defence allegations are to be negated by the Crown.
 After Accused 2, the defence called Accused 3 who denied allegations against her and the defence closed its case.
 This is a case in which a relationship developed between Millennium Travel and Tours and government departments and ministries of the Government of Lesotho by which government departments and ministries ordered travel passage from Millennium Travel as agent. Having secured passage Millennium Travel habitually invoiced the government department or ministry for its expenses. This invoice was consistently paid without demur until government not happy with what was happening appointed investigators to look into affairs of Millennium Travel and Tours and its Director Accused 2, Mr. Nair and hence the several charges leveled against Millennium Travel and Tours, Mr. Nair and ‘Mamolise Kamohi, the Secretary.
 As shown above, the Crown called four witnesses namely: Mr. White, Mr. Machesa, Mr. Sykes and Mr. Letsoela and the defence called Mr. Nair and Mrs Kamohi and it is against the backdrop of their evidence that this court must decide this case.
Mr. Penzhornfor the Crown has submitted accused are charged of:
Counts: 1 to 233 and 457 to 503 - Fraud
Counts: 428 to 431 - Bribery
Counts: 432 to 433 - Fraud (Foreign Exchange)
Counts: 457A - Fraud (Tax Return)
Mr. Penzhornhas further submitted Exhibit A - Vol. 1 - 3835, are not in dispute being what they purport to be - see correspondence between the parties included in Volume 29 i.e. the letter of 24 February, 2005 and that of 27 July, 2005 and in particular the minute of the meeting of 22 July, 2006 between legal representatives. From the documents paragraphs 1-9 of the indictment being admitted subject to minor corrections … Writing and signatures of Accused 2 and 3 appearing in the documents and also Accused 3 in employ of Accused 1 and 2 at the material times admissions having been read into the record during the opening address of the Crown and defence counsel confirming them at no stage defence counsel having raised any objection to any of these documents being produced during the leading of evidence having also agreed in the correspondence being letter of 24 January, 2005 that documents can be produced by either side including photo static copies without proof and such documents being what they purport to be and where either side objects to production of any particular document such document having to be proved in the ordinary way.
 Mr. Penzhorn has further submitted in cross-examination and during exchange with the court counsel for the defence informed the court that he was not deviating from his admissions and not disputing the contents of the documents. Further, in the cross-examination of Mr. Sykes and dealing with documents recovered from Accused 1 and 2 no objection was raised to these documents being placed before the court having it put to in cross-examination that a full set of documents including invoices from South Africa travel agents was recovered accused counsel for the defence having conducted the entire cross-examination of the various witnesses on the basis of the contents of the Crown documents not once having been in cross-examination or even suggested that the content of the documents (Exhibit A) was in dispute the reaction by Mr. Penzhorn above being his answer to the defence application that:
“The real evidence (documents) relied upon by the Crown should be excluded as they have been illegally obtained as evidence.”
The defence complains of constitutional rights of accused being infringed there being two grounds why evidence of the Crown should be excluded first, Lesotho is a constitutional state every citizen entitled to:
(f) freedom from arbitrary search or entry
(h) right to fair trial
(m) freedom from arbitrary seizure of property
I answer (f) above by saying there was no arbitrary search or entry the search and entry having been in connection with tax connected with property that is lawfully on those premises belonging to government. As for (h) above this case is adhering to time schedules and the court is impartial.
The second ground must simply fall by reason of the fact that according to 4.1 of the defence Heads:
“The second ground of objection to the admissibility of evidence sought to be introduced was that the search in the home of Accused 10 was in itself irregular and illegal because it was conducted without a search warrant …”
There was no search and entry into the home of Accused 10 and Accused 10 not being a party to these proceedings this Court cannot rise to defend violation of his rights.
 This court is at a loss what Counsel for accused is attempting to get at for being a search warrant dated 20-01-2004 authorized by the Chief Magistrate to search premises of Accused 1 and 2 regarding certain documents, tickets and other relevant documents. As already remarked, according to accused’s Heads of Argument, it is claimed that search was to be in the home of Accused 10 and with respect there is no Accused 10 in the instant case. These factors apart, there never was a hint that documents seized would be objected to Mr. Engelbrecht having cross-examined on them at length and possibly elicited something out of them in favour of the defence case. If so, how can he benefit from them and later have them discarded?
 Mr. Engelbrecht cross-examined Mr. Sykes at length and as a general rule it is always “necessary to take an objection at the outset” for in most cases failure to do so will cure the defect or constitute a waiver of the irregularity complained of resulting in the objection not being permitted – see Beck’s Theory and Principles of Pleading in Civil Action page 154 and Slaser v Mill ward 1950 (4) SA 587 (W).
 Mr. Penzhornas already observed has submitted in cross-examination of the defence there was no inkling whatsoever that documents recovered from Accused 1 and 2 would be challenged as illegally obtained nor was this put to Crown witnesses in cross-examination and what’s more, in course of cross-examination of Mr. Sykes it turned out some counts as we have already intimated were not supported by vouchers and were related to East and West Travel and Tours prompting Mr. Engelbrecht to remark a company cannot be responsible for conduct of another. I do not think it is proper that the defence should be allowed to eat its cake and have it and consequently the application to exclude so-called illegally obtained documents from premises of Accused 1 and 2 is dismissed.
 In so far as fraud charges Counts 1-233 and 457 to 503 are concerned, Mr. Penzhorn has submitted Crown case is embodied in invoices to government such invoices misleading and their submission to government fraudulent and in support of his contention he has quoted from South African Criminal Law and Procedure, Vol II – 3rd Edition where the misrepresentation element in the crime of fraud is defined as:
“A misrepresentation is a perversion or distortion of the truth. X makes a misrepresentation when he represents to Y that a fact (or facts) exist which in reality do not exist. Representations may be made by words (spoken or written) or by conduct.”
There can be no doubt that when Accused 2 in submitting his invoice for payment claimed it was in respect of the ticket this would be nothing but distortion of the truth for Crown witnesses have made a comparative study and claimed bearing in mind what the ticket cost there was an overcharge an overcharge because according to them apart from minimal charges all that Millennium Travel and Tours or as it were its Director Accused 2 was entitled to is commission. Fine; but this is from the Crown’s perspective mindful Millennium Travel was not regulated or expected to follow particular modus operandi. From Accused 2’s testimony invoices submitted for payment did not represent cost of the ticket at all for this was submitted to the department and ministry separately the amount of invoice representing an amount he had in course of conversation agreed to between himself and representative of the department or ministry and the reason, incidentally, why there was never demur by departments and ministries about the charge. To be remembered there were no standard charges. These passages were not for local air traffic, they were mostly international and I am beginning to wonder whether in course of Crown evidence we were told from Johannesburg to Hanover/Hamburg costs so much, but you have charged an amount in excess of so much? How overcharges are this court has consulted Crown’s Heads of Argument and find for example: Makhele whose order number was E14286 dated 8 May, 2000 (belonging to East and West since Millennium Travel registered on 11 May, 2000) traveling from Maseru to Tel Aviv bought an air ticket in the amount of M7,940 commission @ 3.5% amounting to M277.90 and extras totaling in the amount of M220 and for this Millennium Travel and Tours charging a M16,656.15 and making a whooping profit of M8,774.00? It could well be this is Millennium Travel and Tours entitlement, but it is not accounted for and besides, whenever and wherever these overcharges appear, the method is the same and I do not think Mr. White’s testimony in this regard can be faulted Accused 2 having admitted their occurrence but for different reasons question being whether Accused 2’s defence, coming late as it does and in face of this Court’s finding that defences, if true, must come on the onset to give the Crown an opportunity to deny them, it denies the question whether such a defence can succeed which must in any court fail mindful the situation in this case is that for purchasing a ticket Millennium was entitled to reimbursement of the cost of the ticket plus ½ commission from the airliner, a practice that has been in vogue for quite sometime the court disagreeing the misrepresentation relied upon in the indictment has not been established when, on the contrary, it has been established by Crown testimony.
 To be noted evidence relied upon to prove Counts 1-233 is the same evidence relied upon to prove Counts 457-503 and accordingly, in respect of counts in which I have convicted. I have found nothing wrong with Crown testimony which I have believed the Crown, consequently, having proved its case beyond reasonable doubt. Consequently, I have found Accused 1 and 2 guilty as charged on Counts 1-233 and 457-503. I cannot, however, agree with Mr. Penzhorn that because Accused 3 issued invoices on Accused 1’s letterheads this amounts to common purpose on her part because in doing so it was in course of duty and within the scope of her employment. Besides, it was not disputed by the Crown that Accused 3 is a servant of Millennium Travel and Tours obliged to take instructions from its Director, Accused 3 is obliged to take instructions from Accused 2 and cannot choose what instructions are improper not being privy to deliberations between Accused 2 and government departments and ministries not sitting in board meetings where decisions are taken and I have not been told she attends such meetings. However glorified her status may seem to be, she remains a servant of Millennium Travel and Tours unable to do anything on her own. She is found not guilty and is acquitted and discharged.
 As for bribery Counts 428 to 431 although Machesa the only witness called by the Crown has flatly denied the moneys he received were bribery in that though he treated Accused 2 well it was not only him but other agents received the same treatment they being encouraged to treat agents well by paying their dues timeously, a fact confirmed by Mr. Letsoela the Deputy Treasurer, Machesa’s denials apart there isn’t the least evidence of entering into a bribery pact with Accused 2 all he knew being that Accused 2 was good to him. True other jurisdictions fully aware of how difficult it is to prove bribery legislate for tougher measures and making it a strict liability. Thus the English Law in terms of Public Bodies Corrupt Practices Act, 1889 66 1, 2 Corruption in office is a misdemeanour for:
“Every person who shall by himself or by or in conjunction with any other person, corruptly solicit or receive or agree to receive for himself, or for any other person any gift, loan, fee, reward or advantage whatsoever as an inducement, or reward for or otherwise on account of any member, officer, or servant of a public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the said public body is concerned, shall be guilty of a misdemeanour.”
Also under the English Prevention of Corruption Act 1906, an agent who deceives his principal by a false, erroneous defective receipt/account or other document is guilty of a misdemeanour being, in my view, a far cry from instant indictments. Besides, the defence has submitted and a submission I subscribe to, that if the evidence were to be viewed in the light of explanation given by A², it will be apparent that the Crown has not proved, in this instance, its case beyond reasonable doubt that the so-called payments complained of were improper payments made for an improper purpose. In view of the fact that there isn’t enough evidence to convict, accused are found not guilty and they are acquitted and discharged both in the substantive and alternative charges.
 Regarding Foreign Exchange charges Counts 432-433, although Accused 3 having obtained forex did not travel, she has explained it was exigencies of duty that stopped her from traveling. As to whether she returned the forex accused has claimed she did. Here again, documentary evidence instead of viva voce evidence was preferred Accused 3 for no apparent reason having been given an onerous task of going through documents to identify whether she could spot the forex she allegedly returned. This was an unnecessary and laborious exercise for all that should have happened was to call officers of banks concerned to point at the entry. I take it to be hearsay to have somebody who does not keep books to point out entries and I have not hesitated dismissing the counts and finding all accused not guilty either in the substantive and alternative charge.
 In so far as Count 457A is concerned, I have believed Crown testimony and found defence evidence self-contradictory in essential elements of the case. I have, however, rejected the notion that Accused 3, Secretary of the Company who does not sit in board meetings of the Company, cannot influence policies of the company or earn rights and privileges of the company on principles of common purpose she is guilty for, in my view, being no more than a servant of the company like auditors of the company she cannot bear misdemeanours of the company.
 I have consulted Gowers Principles of Modern Company Law 2nd Ed. and find atp.133 he says generally speaking functions of a Secretary are purely administrative and she is not charged with exercise of managerial powers and cannot bind the company by entering into contracts or other commitments except as regards such matters as engagement of clerical staff. She is charged with primary task of ensuring company’s documentation order and keeping of registers and it is her that will in practice obtain authenticated copies of contracts and resolutions decided upon by the board the act providing that anything required to be done by a director and secretary shall not be done by the same person acting as both. Also, despite the increasingly important status of the secretary, courts still treat her a Subordinate Servant without ostensible authority … the public being entitled to assume that she has authority to perform the normal duties undertaken by secretaries, which duties are extensive and important and, in my view that Accused 3 engages in important and extensive duties does not make her bear misdemeanours of the company because, basically, she is still a Secretary.
 While Accused 1 and 2 have been convicted in the substantive charges of Count 457A, Accused 3 has been acquitted in both the substantive and alternative charges.
My Assessor agrees.
For the Crown : Mr. G.H. Penzhorn SC
For Accused : Mr. J. Engelbrecht SC
Dr. K.E. Mosito KC
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