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The Crown v Ntaote (C OF A (CRI) NO.13/09)

Media Neutral Citation: 
[2010] LSCA 11
Judgment Date: 
23 April, 2010

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IN THE COURT OF APPEAL OF LESOTHO

C OF A (CRI) NO.13/09

In the matter between:

THE CROWN APPELLANT

v

MOTSOTUOA BERNARD NTAOTE RESPONDENT


CORAM:

MELUNSKY, JA

HOWIE, JA

HLAJOANE, JA


Heard : 8 April 2010

Delivered: 23 April 2010


SUMMARY

Criminal law – fraud – misrepresentation – senior police officer charged, on two counts with having secured a payment of greater daily subsistence allowances for international journeys than entitled to – acquittal by High Court – appeal by Crown – sufficiency of evidence – appeal succeeding on first count, failing on the other.

JUDGMENT

HOWIE, JA

[1] This is an appeal by the Crown against the respondent’s acquittal in the High Court on two counts of fraud.

[2] A Deputy Commissioner of the Lesotho Mounted Police Service (LMPS), the respondent was accused of misrepresenting to the Lesotho Treasury, in respect of two separate international journeys, firstly, that he was entitled to a subsistence allowance at the full daily rate and, secondly, that, inter alia, the Minister of Home Affairs and Public Safety had authorised payment to him accordingly. The Crown alleged that these representations, which the respondent knew to be false, induced the Treasury officials to pay him the full rate when, again to his knowledge, he was only entitled to one quarter of that rate.


[3] Having heard the Crown and defence evidence the trial court (Mofolo J and assessors) concluded that the essential Crown evidence was false in material respects and it accepted the evidence of the respondent who denied any wrongdoing.

[4] The first count concerned an international police sports meeting in Gauteng, South Africa, from 10 to 23 September 2005 (the games). Lesotho sent a team of participants. Accompanying them was a group of senior LMPS officers as delegates. The respondent was the leader of this group.


[5] The LMPS “Guidelines for Application of Subsistence Allowance” were handed in by counsel for the Crown at the trial. Subsistence allowance is paid in lieu of subsistence expenses and is provided to cover accommodation, meals and travel among other expenses. The full daily allowance is payable where the individual officer’s subsistence expenses have not been covered by the host country or organisation. Where accommodation and meals are provided by the host country or organisation the officer will be eligible for payment of a quarter of the full rate.

[6] According to the evidence for the Crown, which was undisputed in this regard, the question whether a claimant is entitled to the full allowance or a quarter is determined in practice by reference to the terms of the written invitation, the acceptance of which gives rise to the international journey concerned.


[7] Also undisputed was the Crown evidence describing the following payment process. The claiming officer initiates a subsistence allowance application which is taken up by the LMPS training office, employing a two-page form headed “Application for International Travel” and divided into Parts A, B, C and D. Parts A, B and C are on the first page. The second page contains Part D. Part A comprises a request addressed to the Principal Secretary of Home Affairs and Public Safety to authorize attendance at the international event to which the officer has been invited. Part B is completed in the training office and gives details of the officer, the event and the reasons for his or her attendance. The form, with the invitation, then goes to the LMPS accounts section. An official of that section determines the rate of allowance in the light of the terms of the invitation and fills in the monetary details in Part C. The form is then sent to the LMPS Financial Controller who ascertains whether funds are available. If they are, the necessary confirmation is recorded in Part D, above the signature of the Police Paymaster. The form then goes back to the training officer. It is accompanied by information as to the amount for which authorisation is to be sought. Details of the payee, the amount and the dates of the journey are recorded in a register and the return of the form to the training office is signed for. The form is then taken to the Commissioner of Police for her recommendation. If it is granted, the document is presented to the Principal Secretary for approval. If that is given, the final endorsement required is that of the Minister.


[8] These authorisations having been obtained, the signed form is returned to the accounts section where a payment voucher is prepared. The form and voucher are then forwarded to the Treasury for the issue of a cheque in the relevant amount.


[9] The principal Crown witness, Mamahlohonolo Peko (PW2), was at the relevant times Financial Controller in the LMPS. The respondent, in the capacity of head of the LMPS Department of Administration and Finance, was her superior. She was initially charged as the second accused. The charge was withdrawn with a view to her being called by the prosecution. During the course of her evidence counsel for the Crown asked the trial Judge to warn her as an accomplice under section 236 of the Criminal Procedure and Evidence Act, 1981. The learned Judge is recorded as saying “… just to remind you that you are an accomplice, I am not saying more”. (Nothing turns on it in this matter but a proper warning in terms of the section involves telling an accomplice witness that he or she is compelled, inter alia, to answer any question the reply to which would tend to incriminate him or her in respect of the offence charged but that, having fully answered to the satisfaction of the court all lawful questions, he or she shall be discharged from liability to prosecution.).


[10] As regards count 1, the evidence of PW2 and the other relevant Crown witnesses from the respective LMPS training, finance and accounting sections was, in broad summary, to the effect that the applications of the respondent and his five fellow delegates were accompanied by documentation on the contents of which the witnesses determined that the claimants were entitled to a subsistence allowance at a quarter of the full daily rate. The applications began then to be processed accordingly.


[11] At the stage of the process after the availability of funds had been confirmed and the forms were returned to the training office for registration of the claims amount, relevant entries were made in the register to which I have referred. The register was produced in evidence and reveals that on 25 August 2005 the six claimants were recorded as payees in respect of a journey from 10 to 23 September 2005 and due for payment to each of M3 096.86. The significance of that amount is that it represented a total subsistence allowance for the overall period based on a quarter of the full daily rate. Had they been entitled to payment at the full rate the amount would have been M12 387.44.


[12] The applications were referred for authorisation and duly authorised as follows: by the Commissioner of Police the following day (26 August 2005); by the Principal Secretary on 29 August 2005; and by the Minister on 1 September 2005.


[13] After authorisation of a quarter rate, the application papers were taken to the accounts section. Before payment was effected the respondent went to the accounts section and – having learnt, one infers, that he and his fellow claimants were to be paid at a quarter rate – demanded payment at the full rate. PW2 was summoned by a colleague and spoke with the respondent. She drew his attention to the documentation which had been relied on in determining a quarter rate. He said it did not apply to him, merely to the participants. Upon her request for documentary substantiation, he said he would go to look for it. He came back with two pages. Later she realized they were the first two pages of the documentation on which a quarter rate had been assessed initially. At the time, however, she simply noticed no reference to accommodation. This consideration, and more especially persistent and forceful demands by the respondent, induced her and the other relevant subordinate officials to relent and give in to their superior. They accordingly proceeded to arrange for alteration of the allowance to that based on the full daily rate.


[14] What is of particular importance in relation to the decision of PW2 to give in, is her evidence in the following extract from the record –

CC: When he came to you and brought this invitation, did he discuss anything further?


PW2: He only said that I should make a full rate, the time was running late and he was in a hurry and he demanded that I should make this a full rate for him.


CC: Did you indicate to him that it will be necessary if he wanted full rate to get the full authorization from the Minister and the department?


……..


PW2: He said that I should make that full rate for him and I tried to indicate to him that this thing had to go for an authorization but he pointed out that it was late, that I should proceed with the full rate. By then he was my senior officer and he also indicated that this journey to Gauteng had already been authorized.”


[15] In the circumstances PW2 arranged for the first page of each of the six applicants to be replaced by one which provided in Part C for an allowance based on the full rate and attached the two pages given to her by the respondent. What she failed to do was to submit the altered applications for re-authorisation. They were presented to Treasury and eventually paid. The upshot, according to the prosecution, was that the Treasury was deceived into paying the six applicants a full daily allowance instead of one quarter per day.


[16] PW2 admitted that she had destroyed the original first page of each application form and that she had acted wrongly in doing so. Counsel for the Crown sought at one stage to contend that she had acted under duress. However, faced with the respondent’s demands, she could in all probability have found a timeous opportunity to see the Commissioner, explain her predicament and obtain appropriate instructions. Of course, that might have made future relations with the respondent extremely difficult for her but, all things considered, she was not in a situation of duress within the legal meaning of that term. Extenuating as her circumstances were – assuming the truth of her version – she was wrongfully and intentionally complicit in the perpetration of the relevant misrepresentations. She was therefore an accomplice and evaluation of her evidence demanded the application of particular caution, as the well-known case law requires.


[17] The defence case put in cross-examination of PW2 by the respondent’s counsel was that the Commissioner told the respondent that she had established a committee of senior officers to lead the police participants in South Africa and that she had already made the necessary arrangements that they should be given subsistence allowances at the full daily rate. PW2 said she knew nothing of that. Significantly, it was not put to the relevant Crown witnesses who it was who had been ordered by the Commissioner to implement the alleged arrangements.


[18] In subsequent cross-examination of PW2 it was put to her that the respondent would testify that he never spoke to her about anything to do with the allowance applications. She said that would be untrue. She gave the same reply when it was put to her that he would deny having exerted any pressure on her.


[19] With reference to a joint consultation involving the witness, the respondent and their respective legal representatives before the charge against her was withdrawn, it was put to her that the Commissioner and Inspector Thibeli had prevailed on her falsely to implicate the respondent. She said she had never met with them and the allegation was false.


[20] Another witness in the processing chain, PW3, an official in the LMPS accounts section, said under cross-examination that the altered applications ought to have been submitted for authorisation and that nothing prevented him from doing so. However, it was also his evidence that PW2 told him that the alteration had to be made and it is clear that he was not normally instrumental in the presentation of completed applications to the higher authorities for their authorisation. He also said that he was afraid to do anything that might be seen as preventing the processing of the application, the implication being, in my view, the application as the respondent wished it to be dealt with.


[21] A further important Crown witness on count 1 was PW13, one of the senior officer delegation. He said members of the delegation met on 7 September 2005 to discuss the forthcoming games. At that meeting the respondent said that he had arranged for payment to each of them of an allowance at the full daily rate. He also said that because the rewards and fines fund from which the money for sporting engagements was usually drawn, was unable to meet the expenses for which it was intended, the delegation members would have to use their allowances to cater for the welfare of the participants. The witness said their accommodation and meals in South Africa were paid for (as the officials who had calculated the allowance had understood the position indeed would be) and he was able to pay for drinks, medication and incidental expenses. Defence counsel put it to him that the appellant never said that it was he who had arranged for the full rate but the witness stood by his evidence.


[22] PW13 went on to say that when they returned to Lesotho the Commissioner summoned them and told them complaints had been lodged with the anti-corruption unit. She required them to report on how their money had been spent. The record includes copies of reports by five of the delegation, including the respondent. None of the items of expenditure mentioned includes accommodation or meals. Four officers referred to receipt of M12 387.44, including the respondent.


[23] In his report the respondent stated that he did not keep receipts as he “never had information that this was accountable imprest”. (An accountable imprest, as the term indicates, is an advance payment, the expenditure of which, unlike the case of a subsistence allowance at full or quarter rate, has to be accounted for on return.) What the respondent significantly did not say was that the reason why he did not expect to have to account was because the Commissioner had herself arranged for payment of the full daily subsistence allowance. And, as mentioned above, the evidence of PW13 was that the respondent did not tell the delegation members that it was the Commissioner who had arranged for payment at the full rate.


[24] The reports referred to were forwarded to the Commissioner on 3 January 2006. The investigating officer, Inspector Thibeli, (PW1), became involved in the matter when he received a report from the Commissioner. That was in July 2006. He was not a member of the LMPS but of the Directorate on Corruption and Economic Affairs. He explained that he interviewed both the respondent and PW2 in February 2007. She asked to be a witness since, in the words of the witness relaying her comment, she did not “know much of the matter.” He declined because he was not satisfied with what he called her explanation. It was only later, in consultation with prosecuting counsel and the Director of Public Prosecutions, that it was decided to use PW2 as a witness. It is not clear what could have been meant by saying that PW2 did not “know much of the matter.” It was not suggested she did not know about the events or procedures about which she testified; the proposition put to her was not that her evidence was erroneous but that it was knowingly false.


[25] Reverting to the report which Inspector Thibeli received and which required his investigation, it concerned not the full daily allowances but the payment to the respondent, also in connection with the games, of M20 000. The Crown evidence was that he made requests to the Commissioner for payment of two amounts in respect of the games: M22 000 for the hire of a bus and a fully accountable sum of M40 000 for “maintenance of our fleet” and “to maintain our players”. The bus hire cost was met but the Commissioner approved only M20 000 as regards the second request. Why, in the light of her approval, there was any need to investigate the payment of M20 000, the evidence does not reveal. The respondent was not charged with regard to that amount. At all events, it was in the course of investigating that matter, according to the Inspector, that he received further information which related to the present issue. The relevance of this situation will become apparent in due course.


[26] Cross-examination of Inspector Thibeli concluded with the accusation that he had

sought to influence witnesses to falsely implicate the accused, you were not fair in your investigations?”


The answer was

“This is not true.”


Remarkably, the matter of improper influence was confined to that stark allegation. It was not foreshadowed in his earlier evidence under cross-examination and it was not put to him who the witnesses were or where, when or how he had influenced them or, most importantly, why. It was not suggested to him that he had suborned the witnesses at the instigation of any one else.


[27] As mentioned earlier, what was put to PW2 was that the Commissioner and Inspector Thibeli had persuaded her to implicate the respondent falsely. In other words, by the time that she testified the allegation of improper influence had expanded to include the Commissioner. However it was not suggested why either the Commissioner or Thibeli had done this.


[28] No other Crown witness was faced with the accusation that the Inspector had influenced them despite the fact that some gave incriminating evidence against the respondent.

[29] When the penultimate witness (PW14) gave evidence what was put to him was:

“….there has been a conspiracy hatched to get the accused out of the Lesotho Police Service”.


The witness would not accede to that proposition.


[30] If, as was impliedly suggested to PW14, the conspiracy stemmed from ill-feeling against the respondent in the force engendered by his supposed rapid rise up the ranks, one would have expected that the conspiracy allegation would not have been delayed till after many Crown witnesses had testified. In any event the point put to PW14 left it unclear whether possible ill-feeling was general or harboured by anybody in particular.


[31] The only evidence relevant to that consideration other than the respondent’s testimony is a letter, a copy of which was handed in at the trial, which the respondent wrote to the Commissioner dated 29 November 2006. In it he expressed his concern in respect of two alleged incidents which in his view, he said, indicated that the Commissioner suspected him of working to unseat and succeed her. (The charges were brought early the following year.) This letter is an indication that the person he suspected of the relevant ill-will was the Commissioner but the tenor of the passages in cross-examination to which I have referred show a certain inconsistency in the presentation of the conspiracy theory.


[32] Material to another aspect of the defence case, namely that it was the Commissioner who arranged for payment of the full rate, is the fact that on the initial first page of the application forms involved in the second count (where, again, a quarter rate was authorised and the first page of the form was later replaced by one reflecting entitlement to the full rate) the figures employed in the calculation shown in Part C included the fraction “¼”. There is no reason to conclude that this fraction was not evident in the initial first pages involved in count 1. Moreover, PW14 who, as Acting Commissioner, authorized a quarter rate in respect of count 2, said in evidence that he noted the quarter rate, and the reason for it, before appending his recommendation. Although the Commissioner was not called to testify, there seems sound reason to infer that she would have been equally perceptive when she signed her recommendation upon the forms used in respect of count 1. If she had, only a few weeks earlier, made arrangements for payment at the full rate it is inherently unlikely that she would have authorised a quarter rate.


[33] A further feature of the respondent’s case as presented in his counsel’s cross-examination was that errors in an application form in respect of a claim for the international subsistence allowance can in any event be rectified even after the Minister’s approval has been endorsed on the document. When this was put to PW2 she said the rectified form would have to be resubmitted to the Minister. When the same topic was canvassed with PW14 who, as Deputy Commissioner of Police, Operational Services, was the Commissioner’s second in command and stood in for her when the subsistence claims concerned in count 2 were authorised for payment, he said that he had never heard of that. He went on to say that, in a discussion with the respondent after the investigation of the charges began, the latter told him it was normal, and he had done it in the past, to alter applications even after authorisation by the Minister. It was put to him that the respondent would deny having said that.


[34] That brings me to count 2. Based on the invitation presented with the three application forms, an allowance of a quarter rate was authorised for each of the respondent, PW15 and their driver in respect of a two night visit to Pretoria from 6 to 8 December 2006 to visit security facilities.


[35] The invitation applicable to this journey stated that the host would provide accommodation and breakfast for two people and that the Commissioner – to whom it was addressed – was at liberty to nominate two extra people but that all their costs were payable by the LMPS.


[36] Crown witness PW4 said that just before the three authorised claims were presented to the Treasury for payment (having been determined at a rate of one quarter) the respondent came to him at about 9h00 the day before departure complaining that he had been allowed only a quarter and suggesting that the invitation had not been read correctly. At that point PW2 entered and sought to persuade him that a quarter was right. The respondent was so assertively critical that she and PW4 agreed to the full rate. Subsequent to the substitution of the first page of the forms, the full rate was paid to all three claimants, Treasury having been led to believe that such rate had been authorised. The witness said he had not thought, given that approved applications normally had to reach Treasury by 11h00 to be paid the same day, that there had been enough time to submit the claims for re-authorisation.


[37] Under cross-examination PW4 conceded that because the invitation offered only part funding, the claimants had been entitled to a quarter allowance plus an accountable sum to cover the other two meals of each day. He also conceded that a third person, being entirely unfunded by the host, would have been entitled to the full allowance.


[38] PW14, when cross-examined, made essentially the same concessions. However, he said he was unaware of the practice which, so it was put, the respondent would say existed in the LMPS, namely, that when not all invitees were sponsored the more senior officers were given the full rate. He also conveyed that had Treasury known that the full rate had not been authorised the claims would not have been paid.


[39] Relevant to the appellant’s state of mind concerning this claim was PW14’s evidence as to what transpired after Inspector Thibeli showed him that the claims he had authorised had been changed. PW14 asked the respondent how this had happened. He recounted the respondent’s answer as follows:

“ …….we made changes there and ….I asked them to provide me with an accountable imprest in addition because I was not aware of how the accommodation would be, the one that I would be offered.”


When the witness said that the form referred not to an accountable imprest but to an allowance at the full rate, the respondent, according to the evidence, went to check. After some time he returned and said that PW14 was correct. The witness was then asked why he had not been asked to authorise the change. He said that the respondent answered that it was normal to effect necessary changes even after authorisation by the Minister. As he reported the respondent’s words – “they make those changes and keep the signatures that have already been endorsed.” The witness was adamant that he had not heard of that before.


[40] It was put to PW14 that the respondent denied that they had discussed the contents of the form as he had testified. The witness said the denial was false.


[41] Coming, now, to the evidence of the respondent, I have already referred and shall not unnecessarily repeat, the salient aspects of his case that were put to the Crown witnesses. He confirmed those allegations in evidence. Elaborating, he said a list of the Lesotho participants in the games had already been sent to South Africa by the time the Commissioner spoke to him in mid-August 2005. The list did not include his delegation. Because the organisers had urged that, for purposes of arranging accommodation, squads not be increased, he did not see how he and the other delegates could be included at that late stage. This was when the Commissioner told him she had instructed that they be paid the full allowance so that they could pay for their accommodation and meals. He then pointed out that nobody of his seniority had led a team from Lesotho before to which the Commissioner replied that she wanted him involved on this occasion because she intended that he would head the team for the next such occasion in August 2006.


[42] When the respondent mentioned his concern that his request for M40 000 had resulted in a grant of only M20 000, the Commissioner reminded him they would be receiving the full daily allowance and that players’ needs would have to be met from that.


[43] He said he had had no part in the processing of the applications relating to the games and attributed the evidence of PW2, which he denied, to a plot by the Commissioner and Inspector Thibeli falsely to implicate him. This was consistent, he suggested, with several prior insinuations by the Commissioner that he was planning to oust her so that he could become Commissioner. The existence of the plot was conveyed by PW2 in consultation with their lawyers before the charge against her was withdrawn.


[44] Concerning count 2, he said he was nominated for this visit to South Africa and that, according to established practice, was entitled, as the senior member of the trio, to an allowance at the full rate seeing that the invitation only sponsored two people. When he discovered that a quarter rate was due to be paid, he went to the force accountant, PW4, to point out that this was a mistake and that he should get the full rate. According to him PW4, and PW2, who had arrived in the interim, both readily agreed. He then left them, expecting that the necessary alteration would be lawfully effected before the next day’s departure.


[45] As regards his evidence under cross-examination, the respondent was confronted with the fact that his group of six had received, over and above the quarter allowance duly authorized, some M74 000 for the games journey which, according to him, was meant for expenses such as players’ needs arising during the tournament. Asked what happened to all that money, the respondent said they used it. Asked on what, he said, referring to himself, that he paid for incidental expenses and telephone charges and used some of it on players. The reports which he and four others in the delegation submitted to the Commissioner afterwards refer to items of consumables and sundry expenses which, if they occasioned expenditure of M74 000, would have been really remarkable. The respondent said he did not keep receipts as the money was not accountable.


[46] The respondent conceded that PW2 had no personal reason falsely to involve him and was unaware that she had stood to gain from doing so. He was also unable to suggest a reason, other than his conspiracy theory, why any of the other Crown witnesses who implicated him would do so falsely.


[47] The trial judge’s decision to acquit the respondent, in which decision the assessors concurred, was based predominantly on the view that the main Crown witnesses were, in his words, “cheap fraudsters” and that in singling out the respondent for prosecution when his situation did not really differ from that of the other police personnel who had been paid the same as he was, the prosecuting authorities had dealt with him in an unacceptably and unfairly discriminatory fashion. The trial judge’s reasons, unfortunately, do not involve a systematic analysis of the evidence or an appraisal, however brief, of the material witnesses or an examination of the issues, and they are not always readily comprehensible. For example, in so far as the main Crown witnesses were unarguably dishonest in their processing of the relevant applications, the trial judge did not evaluate the evidence to test whether they had acted at the times concerned out of self-interest or, as they alleged, as a result of overbearing pressure from him, or, as he alleged, in pursuance of a conspiracy instigated by the Commissioner.


[48] As regards the judge’s finding of unfair discrimination, it is for the prosecution to decide who, of several suspects, it will indict and once an accused has been indicted the non-prosecution of other persons is only relevant if it can reasonably possibly bear on the issues arising in the trial against the accused. In this case the non-prosecution of his colleagues has no relevance as regards the guilt or innocence of the respondent.


[49] In my view the trial judge’s approach in the two main respects referred to so clouded the trial court’s judgment that the decision to acquit on account 1 cannot stand. This Court is consequently at large to draw its own conclusions on that count. Count 2 stands on a different footing and will be referred to again in due course.


[50] Focusing then on count 1, the respondent could not deny that a quarter rate had been authorised by the Commissioner and the Minister. The evidence of PW2 is corroborated by the entries made in the register referred to above, that a quarter rate was put up for authorisation. The dates to which those events relate also supported PW2 when she said that when the appellant intervened, authorisation had already occurred. His denial that he had anything to do with her in regard to these applications implies that she testified falsely for some reason. It was not for personal gain. Either she was truthful or, as the only other possibility, she was prevailed upon as the respondent suggested. What I have called the conspiracy theory is, however, countered by the following considerations.


[51] On the respondent’s own case, the Commissioner wanted him to lead the Lesotho contingent to the games in both 2005 and 2006. By inference, she must also have been content that he was nominated to lead the group that went to Pretoria in December 2006. That was subsequent to the date of the respondent’s letter to the Commissioner. And it is not without significance that by the time he wrote it the investigation in respect of count 1 had already begun. These are all indications that, at least, she had nothing material against him.


[52] The suggestion that Inspector Thibeli was a party to the conspiracy is too far-fetched to be plausible. He was not a member of the LMPS and it is improbable that if the police authorities wanted an independent investigation the Commissioner would then have reduced that to a sham by enlisting his aid in the pursuit of her own vendetta.


[53] As analysis of the cross-examination of Crown witnesses shows, articulation of the conspiracy allegation took a significant time to develop as the trial progressed. This gives it the hall-mark of an invention.

[54] If a conspiracy existed it would probably have pre-dated the bringing of charges and PW2 would probably have been party to it then. It would have been a charade, and unnecessary, to charge her for the sake of appearances and then withdraw the charge. It is unlikely that this occurred.


[55] It is also inherently unlikely that cross-examination would not have exposed a conspiracy involving so many witnesses of different ranks and from different sections of the force. In any event the only witness squarely confronted with alleged involvement in a conspiracy as such was PW14.


[56] Turning to the question whether the Commissioner instructed that the respondent and his colleagues be paid a full daily allowance, the respondent’s evidence on this score is rendered unacceptable for two reasons. First, the Commissioner was unlikely to have forgotten that instruction in the couple of weeks preceding her signing her recommendation on the application forms. As mentioned already, it is likely that the forms showed that the amounts payable represented a quarter rate. She could hardly have thought that some M3 000 odd per claimant was enough to pay board and lodging for two weeks. Secondly, when the respondent wrote his report to the Commissioner he said he did not keep receipts as he “never had information that this was accountable imprest”. If the Commissioner had arranged allowances at the full rate he would surely have reported to her that there was not an accountable imprest at all and, furthermore, that she herself had instructed payments at the full rate.


[57] For the reasons advanced above in regard to the alleged conspiracy and in regard to the respondent’s unacceptable evidence that the Commissioner ordered payment of the full allowance, it was not necessary for the Crown successfully to establish its case that the Commissioner be called as a witness. It follows that no inference adverse to the Crown arises from her not testifying.


[58] I have already indicated that the respondent’s evidence was unacceptable for his inability to begin to explain how he and his co-delegates had expended over M70 000. It is also improbable that they made no prior arrangements for accommodation if they really were to pay for it out of their allowances; and that accommodation was readily offered when they had been warned it would be limited. These factors tend to confirm that their visit was fully funded and that they were not entitled to the full allowance.


[59] In the light of these considerations militating against the respondent’s case and credibility there was no good reason for the trial court not to accept the Crown evidence which implicated the respondent, even allowing for some of it being accomplice evidence, and for that court not to reject the respondent’s evidence. On the well-established authority of R v Ncanana 1948 (4) SA 399 at 405 the risk of a false conviction on accomplice evidence is safely discounted if it is corroborated or the merits of the accomplice or accomplices and the demerits of the accused are beyond question. In my view, both considerations apply here in so far as count 1 is concerned.


[60] It was contended by counsel for the respondent that if the altered applications were not submitted for re-authorisation that had nothing to do with the respondent. He expected, so it was argued, that the officials concerned would do what was legally necessary. However, it does not lie in his mouth to say that now. His evidence was that he had no contact with PW2 in respect of this count. Her evidence was that he, in effect, urged her not to submit the forms for re-authorisation, saying that time was short and his trip had already been authorised. As I have said, her evidence should have prevailed.


[61] A further submission by the respondent’s counsel that requires mention is that in so far as the charge alleged his having made false representations to Treasury, there was no evidence that he was in contact with Treasury officials in any respect at any time. There is no merit in this argument. If he said and did what the relevant Crown witnesses say, then he knowingly caused the alleged representations to be made to the Treasury.


[62] It follows that the Crown’s case on count 1 was proved and that he ought to have been convicted on that count.


[63] Turning to count 2, the concessions by PW4 and PW14 are important. They convey that had they applied the information in the invitation correctly they would have concluded that one of the trio was entitled to an allowance at the full rate. Even if one rejects the respondent’s evidence as to a prevailing practice to give the most senior claimant the full rate in a case such as the one with which count 2 was involved, there seems no sound reason to think that the officials concerned would not have given the full rate to him, rather than to one of the other two claimants had they considered the invitation properly. It follows that the Crown failed to prove that the respondent was in no circumstances entitled to the full allowance. It must also follow that the first misrepresentation alleged in this count – that he was entitled to the full allowance – was also not proved.


[64] Given the credibility findings already recorded, one may safely reject the respondent’s evidence that alterations were routinely made in such applications without submission for re-authorisation. It follows that the Crown did prove the second misrepresentation alleged in the charge, namely that the respondent misrepresented to Treasury that the full allowance had been authorised by the Minister.


[65] However, even if he did make the proved misrepresentation, the Crown’s case was, as it had to be, that he did so with intent to defraud, that is, with the intent to cause prejudice to the Treasury. Even if his evidence, where it conflicted with the Crown evidence, was properly to be rejected, it was nevertheless reasonably possible, again on the Crown evidence, that he considered himself entitled to the full allowance and that it would eventually be sanctioned. The corrected documentation could have been rectified at any time, even after his departure. The fact is that had the application been assessed correctly the payment to him of the full allowance was not proved to have been to the prejudice of the treasury. Nor was it proved beyond reasonable doubt that he intended to cause any such prejudice. Proof of fraud involves proof of the intention, not only to deceive, but to cause prejudice: South African Criminal Law and Procedure, Vol II, 3rd ed. 733.


[66] The respondent was therefore entitled to his acquittal on count 2 albeit for reasons other than those given by the trial court.


[67] The appeal therefore succeeds in part and fails in part. This Court’s order is as follows:

1. The appeal against the respondent’s acquittal on count two (2) is dismissed.


2. The appeal against the respondent’s acquittal on count one (1) is allowed. The order of the court a quo for the acquittal of the respondent on that count is set aside. Substituted for that order is the following:


On count one [1] the accused is convicted as charged.”


3. The matter is remitted for the hearing of evidence and/or argument in relation to sentence, and the imposition of sentence thereafter.



C.T. HOWIE

JUSTICE OF APPEAL


I agree :

L.S. MELUNSKY

JUSTICE OF APPEAL


I agree :

A.M. HLAJOANE

JUSTICE OF APPEAL



For Appellant : Adv. R.E. Griffiths SC


For Respondent : Adv. Z. Mda