Thakeli v R (C of A (CRI) N0.11/2009)

Media Neutral Citation: 
[2010] LSCA 18
Judgment Date: 
23 April, 2010

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IN THE COURT OF APPEAL OF LESOTHO



C of A (CRI) N0.11/2009

Held at Maseru

In the matter between:-



PEGGY NKAISENG THAKELI APPELLANT



And



REX RESPONDENT



CORAM: SMALBERGER JA

SCOTT JA

HOWIE JA



HEARD: 7 APRIL, 2010

DELIVERED: 23 APRIL 2010



SUMMARY

Fraud on the LHDA (Count 1) by falsifying a payment request faxed to bank and diverting telephone and fax lines so that calls and faxes to the LHDA intercepted, and fraud on LHDA (counts 2 to 5) by falsifying purchase requisitions. Refusal to grant postponement not resulting in unfair trial.



JUDGMENT

SCOTT JA:



[1] Appellant was charged with five counts of fraud. After a lengthy trial she was convicted on all five counts and sentenced to an effective period of eight years’ imprisonment. She appeals against both her convictions and sentence.



[2] It is not disputed that the frauds were committed. What is in dispute is the complicity or otherwise of the appellant. The frauds in the case of counts 2 to 5 followed the same pattern. The fraud in the case of count 1 was different. I shall deal with the evidence advanced on count 1 first. In order to understand how the fraud was

perpetrated it is necessary to first outline one of the various procedures adopted by the Lesotho Highlands Development Authority (‘LHDA’) when paying out large sums of money to creditors.



[3] Broadly stated, it was as follows. A ‘payment instruction’ or ‘draw down’ addressed to LHDA’s bankers, ABSA, was either printed or generated by computer. It directed the bank to pay a specified person a specified amount. Each instruction would bear a computer generated ‘deal number’, would contain details of LHDA’s account, details of the payee’s bank and account number, and importantly, would be signed by two authorised officials. At the foot of the page would appear the words: ‘please confirm this transaction immediately to the service accountant financial support, LHDA’ followed by the fax number. The payment instruction would be telefaxed to the bank in Johannesburg and would normally be followed by a telephone call to the bank confirming that the fax had been sent. On receipt of the fax the usual procedure was for the bank to telephone the LHDA, confirming the receipt and thereafter, as requested, confirm the transaction by fax.



[4] The evidence advanced by the Crown, and not disputed, was that on 17 December 2004 a fax line was installed in the home of one Mr. Stephen Dlamini by the witness Mr. Seqao Phenya, a Telkom official, who had been bribed by Dlamini to do so. Calls and faxes to the LHDA were then diverted by another Telkom official, who had similarly been bribed, so that they would be received by Dlamini on his existing telephone and the fax machine so installed, and not by the LHDA. A false payment instruction was then faxed to the bank. The fax machine had been so programmed that the fax received by the bank would indicate that it had been sent from the offices of the LHDA. The instruction directed the Bank to pay M2.4 million into the account of a certain Soleman-Sameer at the Northland Branch of the First National Bank. It contained detailed information, including a ‘deal number’. Each payment is given a consecutive deal number. No two payments would have the same number. The deal number which the instruction bore was the deal number ascribed to a genuine payment instruction issued the previous day. The two signatures at the foot of the page purporting to be those of the authorised signatories were later proved to be forgeries.



[5] There was no immediate response to the payment instruction. It appeared that the bank official who received it was busy with something else at the time. About an hour later the same instruction was again faxed to the bank. It was accompanied by a second document confirming the payee’s bank details. The two documents were sent under cover of a fax cover sheet which was a printed document that had been filled in by hand. I shall refer to it as A6, being its exhibit number. The hand writing included the fax number, the identity of the recipient, namely ‘ABSA’, the person for whose attention it was sent, namely ‘Marie Strydom’, the identity of the sender, namely ‘Fin/Treasury’, and the date. Adjacent to the printed word ‘Subject’ was written:

‘Payment Instruction & Destinationation (sic)

Bank A/C’



and below that:

fir

‘Pls ignore the previous transmission’

The bank official compared the signatures with the specimen signatures in her possession. The likeness was sufficient to deceive her and she thereupon proceeded to transfer the money from the LHDA’s account to the account specified in the payment instruction and confirmed by fax (intercepted by Dlamini) that she had done so. Shortly thereafter, the money paid into the latter account was withdrawn. The fraud was uncovered on 7 January 2005 when an accountant at the LHDA sought to reconcile the bank statement with the LHDA’s accounts.



[6] Dlamini had no connection with the LHDA. He clearly must have had an accomplice within that organization who not only was fully conversant with its payment procedures but must have been sufficiently involved to have known who the authorized signatories were and what their signatures looked like. He or she must also have known the deal number ascribed to a payment instruction of the previous day and directed to another bank. Had the deal number not approximated the numbers then being generated, the ABSA official might well have queried the instruction. It was common cause that the appellant, who was an employee of the LHDA, was usually conversant with the procedure and had access to all the information Dlamini would have needed in order to implement the fraudulent scheme.



[7] It was common cause, too, that Dlamini and the

appellant were lovers throughout the period the crimes were committed. It was also not in dispute that during that period the appellant was in constant telecommunication with Dlamini from her workplace. I shall explain how this was established when dealing later in this judgment with the other counts.



[8] Phenya, the Telkom official who installed the line for the fax machine in Dlamini’s house, testified that the appellant was present at Dlamini’s house on the morning of 17 December 2004 when the fax machine was being tested. He said that Dlamini introduced her to him simply as ‘Peggy’. He noted that she drove a green BMW motor car and said that he subsequently saw her on many occasions driving the same vehicle. It was common cause that the appellant’s first name is Peggy and that at the time she drove a green BMW.



[9] Following the discovery of the fraud on 7 January 2005 the handwriting on A6 was identified as that of the appellant by officials at the LHDA and also by a bank official at ABSA. A handwriting expert, Mr. Adriaan Bam, was called in and given the appellant’s handwritten application for a new position at the LHDA as a specimen of the writing and asked to compare it with the writing on A6. He produced in evidence enlargements of both the handwriting on A6 and the specimen handwriting and identified no fewer than 14 points of similarity. These he marked on the enlargements using numbered arrows. He explained the similarities and expressed the view that there was no doubt that the handwriting on A6 was that of the appellant. It is necessary to mention that one of the points of similarity was the manner in which the capital letter ‘S’ was written in the name ‘Marie Strydom’. The other points of similarity appeared in the writing adjacent ot and below the printed word ‘Subject’ on A6. In cross-examination he said he had examined A6 for the possibility of ‘manipulation’, by which he meant the creation of a composite document from several using a photostat machine, and dismissed this as a possibility. He explained, too, that he did not normally examine figures (unless they were all he had) as the identifiable features found in figures were less prominent.



[10] In answer to the evidence advanced on behalf of the Crown, the appellant denied that she had participated in any way in the commission of the crimes which were the subject matter of counts 1 to 5 and denied all knowledge of Dlamini’s criminal activities. In particular, she denied having gone to Dlamini’s house on 17 December 2004 or on any other occasion. She said they were ‘secret’ lovers and she could not go to his house for fear of her ‘partner’ learning of her ‘affair’. She was adamant that the handwriting on A6 was not hers. However, the handwriting expert called to testify on her behalf, Mr. Hendrik Du Toit, agreed that the handwriting on A6 adjacent to and below the printed word ‘Subject’ was undoubtedly that of the appellant. But in his view it was not certain that the writing above the printed word ‘Subject’ was that of the appellant. It appeared that his uncertainty was based largely on the differences he observed in the manner in which the figures had been written.



[11] Before considering the grounds upon which counsel for the appellant attacked the finding of the court a quo on count 1 it is convenient first to summarise briefly the evidence in relation to the remaining counts. The reason is that evidence advanced on count 1 has relevance to counts 2 to 5 and vice versa.



[12] It is necessary to commence by outlining the procedure adopted by the LHDA when purchasing materials from suppliers. The starting point was a purchase requisition which was manually filled in on a standard printed form by the particular division requiring the purchase. The requisition would state the name of the supplier and would be accompanied, if the price was greater than M5000.00, by two other quotations which would be for amounts greater than that of the specified supplier. The requisition would be signed by the official requesting the purchase and also by the official who approved it. Once approved, it would go to the budget department where at the relevant time the appellant was employed. Her job was to ascertain whether there were funds available to meet the purchase. If there were, she would write ‘proceed’ on the requisition. It would then go to the procurement section where the details of the requisition would be entered on the computer and the signatures would be checked. The requisition was given a number by the computer which would generate a purchase order. The purchase order would be given to the supplier who in due course would issue an invoice and would be paid on the invoice.



[13] Counts 2 to 5 related to four false purchase

requisitions. The ‘supplier’ in each case was Iketsetseng

Hardware Centre which was later found to be a fictitious entity. By the time the fraud was discovered the requisitions in the case of counts 2 and 3 had proceeded through the system and Iketsetseng Hardware had been paid the amount of M46 780.07 and M146 105.07

respectively. The first payment was made on 20 December 2004 and the second on 7 January 2005. It was only when the fourth false purchase requisition (the subject of count 5) was being processed that the signatures were queried. Shortly thereafter it was found that the requisitions and accompanying quotations in the case of counts 3 and 4 were missing. Their details, had, however, been entered on the computer. The amounts involved were respectively M211 031.75 and M74 058.75. The transaction which was the subject of count 4 had also suddenly been cancelled. An examination of the purchase requisitions which were available (counts 2 and 5) revealed that the signatures were forgeries.



[14] Inquiries at one of the suppliers whose quotation had accompanied a false requisition revealed that the person who obtained the quotation had given his cell number to that supplier. It transpired that the number had been cancelled but a print-out of all incoming and outgoing calls pertaining to that number was obtained from Vodacom, Lesotho. Mr. Tau Phasumane of the Directorate on Corruption and Economic Offences telephoned the numbers on the list and this way contacted a former

girlfriend of Dlamini who identified the number as his. Phasumane subsequently arrested Dlamini and found in the latter’s motor car a document emanating from the Vereeniging Optic Centre in which the appellant’s name appeared as the patient. Each employee at the LHDA has a pin number which he or she enters when making a telephone call. A print-out of the telephone numbers called using the appellant’s pin number revealed that numerous calls had been made by the appellant to Dlamini’s cell number during the period when the frauds were

committed. This led the investigation to the appellant.





[15] In the meantime it was ascertained that the bank account into which the payments in the case of counts 2 and 3 were made had been opened by a man purporting to be Eseel Tlebele who was said to be trading in the name of Iketsetseng Hardware Centre. Further investigation

revealed that after Tlebele had ‘lost’ his passport the photograph in the passport had been replaced with a photograph of Dlamini. It had then been used when the bank account was opened.



[16] Mr. Keketso Makara, an assistant administrator in the information systems department of the LHDA, examined the material stored in the appellant’s computer at the LHDA. His instruction from a senior employer was to look for information relating to Iketsetseng Hardware. He found nothing of consequence on the computer itself. He explained, however, that each computer user at the LHDA is allocated a certain space on a central location where material can be stored. He said that in the space allotted to the appellant he found a folder containing a document which recorded details of building materials that corresponded, line for line, with details contained in a purported purchase requisition in favour of Iketsetseng Hardware, being the subject of count 4, which had been entered on the system when that purchase requisition was being processed. He testified that each user had his or her user name and secret password known only to that user. He said that only someone having knowledge of the appellant’s user name and secret password could have stored the document in question where he found it on the central location.

[17] As in the case of count 1, Dlamini must have had an accomplice within the LHDA who was not only fully conversant with the procurement procedure but must also have known who would ordinarily sign purchase requisitions and what their signatures would look like. Again, it was common cause that the appellant was fully conversant with the procedure and would have been familiar with the signatures appearing on purchase requisitions.



[18] In her evidence the appellant admitted the telephone calls she had made to Dlamini but explained these on the ground that they were lovers. She denied that she had anything to do with the false requisitions and that Dlamini had ever spoken to her about what he was doing. She denied, too, that she had created the document retrieved by Makara and insisted that someone must have planted it in the space allocated to her on the central location. She could not, however, offer an explanation as to how this could have been done.



[19] In this court counsel for the appellant attacked the finding of the court a quo on various grounds. First it was contended that the court erred in accepting the evidence of Phenya implicating the appellant. Counsel argued that the court a quo had failed to take into consideration that Phenya was an accomplice and to warn itself of the dangers of convicting on the evidence of an accomplice. It is true that the court a quo did not expressly do so. But it was clearly aware of the fact that Phenya was an accomplice and was at pains to examine his evidence in the light of other evidence implicating the appellant. Ultimately the court concluded that Phenya was a truthful witness with no motive to fabricate his evidence. The criticisms directed at this witness were in any event of little consequence. It appeared that he had previously made a statement as well as a subsequent affidavit. In the one he said the appellant had been introduced to him as ‘Peggy’. In the other, he said he did not know her name. Much was made of this apparent contradiction. But the affidavit is consistent with his not knowing her surname. The difference does not warrant an adverse finding as to his credibility. Much was also made of Phenya’s observation that the appellant appeared to have lost weight since December 2004, whereas she had actually gained two kilograms. Again this is of little consequence. The appearance of being slimmer than before is often the result of the clothes one wears and Phenya’s observation could have been no more than on impression. In any event, Phenya’s evidence was not the only evidence implicating the appellant.



[20] The court a quo was further criticized for its failure to accept as a reasonable possibility that the appellant was a victim of a conspiracy to falsely implicate her. Counsel for the appellant contended in this regard that Du Toit’s evidence that someone other than the appellant was possibly responsible for some of the writing on A6 was indicative of such a conspiracy. More particularly, it was contended that A6 could be a composite document that had been manufactured with the use of a photostat machine from one or more documents containing the handwriting of the appellant.



[21] In my view there was nothing to support such a far reaching hypothesis which was in any event most improbable having regard to the evidence as a whole. To begin with it will be recalled that the appellant was adamant that the writing on A6 was not hers. The manipulation theory was initially advanced as an alternative and only later fully embraced once it was established beyond doubt that A6 contained the handwriting of the appellant. But the manipulation theory was put in cross-examination to Bam who rejected it as a possibility and gave his reasons for doing so. This evidence was not challenged by the appellant’s expert, Du Toit, who I might add, was afforded months to consider it. Indeed, Du Toit made no mention of the manipulation theory in his evidence in-chief. It was only in re-examination and response to a question put by the court that he tentatively suggested as a possibility that a fax cover sheet on which the appellant had written only what appeared adjacent to and below the printed word ‘Subject’ could positively have been found and then completed by someone else. But this. hypothesis is so improbable that it can be rejected out of hand. The words undoubtedly written by the appellant included ‘Pls ignore the previous transmission’. It will be recalled that the fax in question had been sent subsequent to a previous transmission. The suggestion that a fax cover sheet bearing these words just happened to be lying around somewhere in the appellant’s office waiting to be put to use by an unknown conspirator defies belief.



[22] Similarly, counsels’ suggestion that someone other than the appellant had planted the incriminating document in the space on the central location allotted to the appellant lacked any reasonable foundation. The person who saved the document to where it was found would have had to have known the appellant’s password. No explanation was offered as to how someone else could have acquired that knowledge. In any event, had someone else loaded the document in the appellant’s computer with the object of it being discovered and implicating the appellant they would have saved it in the computer itself where it could easily be retrieved. It is highly improbable that they would have saved it to the central location where it was less likely to be discovered.



[25] In a further effort to bolster the conspiracy theory counsel sought to place some reliance on the disclosure made by counsel for the crown before leading his first witness. What was disclosed was that on the morning of 17 December 2004 an official at ABSA had indeed telephoned the LHDA on receiving the faxed payment instruction and spoken to a woman. The conversation was recorded and subsequent examination by a voice expert revealed that the voice was not that of the appellant. As the call would have been diverted to Dlamini’s house, this indicated, argued counsel, that it was not the appellant who was involved in the scheme but some other female employee of the LHDA. But the inference sought to be drawn is unjustified. The mere fact that another woman was involved does not mean that the appellant was not. What is more, the appellant could hardly have absented herself from work at the critical time when the lines were diverted. Her absence would have been conspicuous in the circumstances and aroused the suspicion of her fellow employees.



[24] But the whole conspiracy theory is premised on the assumption not only that Dlamini was working with some other person within the LHDA who was similarly familiar with the organisation’s payment and procurement procedures, but that there must have been a conspiracy between this person and Dlamini-who had to be a party to it-to leave a number of carefully planned clues for those investigating the crimes hopefully to come to the conclusion that it was the appellant and not the true culprit who was the person involved in the commission of the crimes. Not only is the theory contrary to the evidence but it becomes all the more improbable when one bears in mind that throughout the period in question the appellant and Dlamini were engaged in a love affair and were in constant telecommunication with each other. In my view the appellant was correctly convicted on all five counts and the appeal against her conviction must fail.



[25] As far as the appeal against sentence is concerned, it was submitted that the court a quo misdirected itself in adopting the attitude that it was bound to impose imprisonment as opposed to a non-custodial sentence such as a fine. In my view a non-custodial sentence, given the seriousness of the crimes and the amounts involved, would have been wholly inappropriate. I can see no reason for interfering with the sentence imposed by the trial court.



[26] There remains a further issue that requires consideration. It was submitted in this court that the appellant did not have a fair trial because (a) counsel for the appellant (who was not the counsel who appeared in this court) was refused a postponement at the commencement of the trial which he sought on the grounds that he had not yet had the opportunity of consulting with a handwriting expert, and (b) he was required to cross-examine Bam in the absence of Du Toit and before he had been able to consult with him. In my view there is no merit in the submission. To demonstrate this it is unfortunately necessary to set out in some detail the manner in which the trial progressed over a period of more than two years.

[27 The trial commenced on 20 February 2007. But some two years previously, in 2005, Bam had testified at the appellant’s disciplinary inquiry. His evidence on that occasion was much the same as at the subsequent criminal trial. He was cross-examined by the appellant who was given a copy of his report dated 21 April 2005. Thereafter, and by October 2005, the appellant had consulted no fewer than two handwriting experts. Once the trial commenced in February 2007 evidence of a largely uncontested nature was adduced for some two weeks. Thereafter the matter was postponed for about 4 months. Prior to Bam giving his evidence in-chief, which he did on 14 June 2007, it was agreed that his cross-examination would stand over until a date to be agreed upon. In these circumstances, the refusal to grant a postponement at the commencement of the trial could not possibly have resulted in any prejudice to the appellant.



[28] After Bam had completed his evidence in-chief it was agreed that he would be cross-examined on 28 August 2007. On that day the matter was postponed to 2 October and then to 30 October 2007. In the meantime, and subsequently, the appellant’s counsel raised and argued at great length a number of points which at best can only be described as wholly without merit. These cost both time and money.



[29] On October 2007, after Bam had entered the witness box and was ready to be cross-examined, the appellant’s counsel applied for a further postponement on the grounds that Du Toit was not present in court because the appellant had been unable to pay his fee. He sought a far-reaching order that the Crown be ordered to pay in advance the costs of bringing Du Toit to Maseru from Pretoria (including the costs of his accommodation) for

consultations; the costs of bringing him back to Maseru when Bam was cross-examined, and again the costs of bringing him to court when he finally gave his evidence. The application was opposed by the Crown and after hearing argument the court a quo ruled that Du Toit’s costs would ‘be catered for’ once he had attended court. In other words, the court declined to direct that the latter’s costs be paid in advance.



[30] The trial was then postponed to 19 February 2008 but it was arranged that Bam would be cross-examined on 27 February. On 20 February 2008 counsel for the Crown sought on assurance that Bam would be cross-examined on 27 February 2008. The appellant’s counsel responded that he was in possession of Du Toit’s report which he said was only a summary (it was the only one ever produced) but said he had not consulted with Du Toit. He sought ‘a final opportunity to sort ourselves out’. The court a quo acceded to his request and ruled ‘most reluctantly’ that Bam would not be cross-examined on 27February 2008.

[31] On 6 May 2008, being the date on which it was agreed Bam would be cross-examined, counsel for the appellant again asked for a postponement. He said he believed that the court had ordered the Crown to pay Du Toit’s costs in advance and only discovered his mistake when he presented an invoice to the registrar for payment and was advised that payment could not be made in the absence of a court order. By this time the court’s patience was understandably exhausted. It ruled that Bam was to be cross-examined the following day.



[32] By 7 May 2008 the appellant had been in possession of Bam’s report for some three years. Bam’s evidence in-chief, given as far back as 14 June 2007, had long since been transcribed and handed to the appellant’s counsel. The latter had been in possession of Du Toit’s report since at least 20 February 2008.



[33] Further postponements followed and Du Toit finally gave evidence on 4 March 2009. What is significant is that after all that had gone before, Du Toit’s evidence in-chief went no further than what was contained in his report. As previously indicated, he made no attempt to challenge Bam’s evidence that A6 had not been ‘manipulated’ in the manner suggested to Bam in cross examination. Nor did the appellant’s counsel, whether after he had consulted with Du Toit or after Du Toit had testified, apply for Bam to be recalled to be further cross-examined. The contention that the appellant did not have a fair trial is wholly, without substance.

[34] The appeal against both the conviction and sentence is dismissed.



_____________________________

D.G. SCOTT

JUSTICE OF APPEAL


I agree:

______________________________

J.W. SMALBERGER

JUSTICE OF APPEAL



I agree:

_______________________

C.T. HOWIE

JUSTICE OF APPEAL



Counsel for the Appellant

M.E. TEELE KC

S. RATAU


Counsel for the Respondent:

H.H.T. WOKER