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Matete v The Crown (C of A (CRI) 4/2010)
IN THE COURT OF APPEAL OF LESOTHO
C of A (CRI) 4/2010
In the matters between:
MATLAMUKELE MATETE …........................APPELLANT
THE CROWN …........................................RESPONDENT
THE CROWN …...........................................APPELLANT
MATLAMUKELE MATETE ….....................RESPONDENT
CORAM: SMALBERGER, JA
Heard: 7 October 2010
Delivered: 22 October 2010
Bribery and corruption – executive statement by co-conspirator – adequacy of evidence – other evidence to confirm existence of conspiracy – sentence – need for custodial sentence.
 The appellant in this case was convicted in the High Court by Hlajoane J and two assessors on two counts: on the first of contravening section 22 (1), read with sections 20 and 34, of the Prevention of Corruption and Economic Offences Act 5 of 1999; and on the second of fraud. The second accused at the trial, Konica Enterprises (Pty) Ltd, a company registered in Lesotho and which traded as Itec Lesotho, was convicted of contravening section 22 (2), also read with sections 20 and 34 of the Act, while the third accused, Mrs. Matieho Khuele, a director of the second accused and widow of one Khotso Khuele, another director of the second accused, was acquitted.
 The appellant was sentenced to five years’ imprisonment or M10 000-00 on the first count and ten years’ imprisonment or M50 000-00 on the second, it being ordered that both sentences were to run concurrently because, as the trial judge put it, ‘both counts happened inside one transaction.’
 The appellant has appealed against the convictions and the Crown has appealed against the sentence imposed on the first count. An appeal by the Crown against sentence imposed on the second accused was subsequently abandoned by it.
 The allegations made by the Crown against the appellant in the first alternative to count 1 of the charges read as follows:
‘Accused 1 is guilty of Corruption as contemplated in Section 22(1) of the Prevention of Corruption and Economic Offences Act, 1999 read with Sections 2, 20 and 34 of the said Act in that on or about or at a point in time between March 2005 and March 2006 and at or near Maseru, in the district of Maseru, alternatively at a place to the Crown unknown, he being a Public Officer, unlawfully and intentionally agreed or offered to accept for himself a benefit as an inducement or reward for doing anything in respect of a matter in which he was concerned in his capacity as a Public Officer, more particularly he agreed or offered to accept for himself a share or part of the cash the Government of Lesotho would pay Accused 2 for a BizHub 1050 photocopy machine once Accused 2 was paid therefor by Government, in exchange for Accused 1 using his position as Clerk to the National Assembly, to get Government to buy the said machine from Accused 2 at a price of M1,475,259.29.’
 The evidence (which was not answered by the appellant as he closed his case without giving evidence) revealed that the appellant, who at the time was the Clerk of the National Assembly, ordered the photocopy machine referred to in the charge from the second accused at a grossly inflated price. The second accused was unable to obtain the machine from the South African distributors thereof Minolco (Pty) Ltd, trading as Minolta South Africa, partly because its product manager was of the view that the price at which the second accused proposed selling the machine to the Lesotho Government was too high. Mr. Khuele, who, as I have said, was one of the directors of the second accused, telephoned Mr. Alan Griffiths, the managing director of Minolta South Africa, and tried to persuade him to sell the machine to the second accused. In the course of the conversation he told Mr. Griffiths that he had to sell the machine to the Government at the relevant price because he ‘had cut the person placing the order at the National Assembly in on the deal to the value of half a million’.
 This evidence was clearly admissible against the second accused. The court a quo held that it was also admissible against the appellant, as an executive statement made by a co-conspirator. In support of her decision on this point the learned judge relied on two cases on the topic decided by the Appellate Division of the Supreme Court of South Africa, R v Miller 1939 AD 106 and R v Mayet 1957 (1) SA 492 (AD). Both of these cases were cited with approval by this Court in R v Mochebelele and Another C of A (CRI) 2/08. In that case reference was also made to a passage appearing in the judgment of the trial court in R v Leibbrandt and Others, which is quoted in the judgment of the Appellate Division when that case went on appeal (see R v Leibbrandt and Others 1944 AD 253 at 276), and which was expressly approved in R v Mayet, supra. The passage in question reads as follows:
‘As we understand the position, once there is other evidence of the conspiracy and the parties thereto the acts and statements, executive as opposed to narrative, of one of the co-conspirators are admissible to confirm the scope of the conspiracy and the nature of the steps taken to carry it out, and there seems to be no reason why such evidence should not also be used to confirm the other evidence as to the parties who took part therein (see per Tindall, J.A., at p. 126 [of R v Miller, supra]). The danger of arguing in a circle, to which reference is made in Miller’s case, would seem to be present whether the matter in question is the scope of the conspiracy or the identity of the parties thereto. In either case there must be other evidence going far enough to warrant the use of the co-conspirator’s statements but when the foundation exists it may itself be strengthened by the statements provided that they are executive and not narrative’.
 Mr. Matooane, who appeared on appeal for the appellant, contended that the learned judge had erred in admitting the evidence of Mr. Griffiths on this point against the appellant. In this regard he raised three points. The first was that the statement was a confession made by Mr. Khuele and admissible against the second accused but it could not to be used against the appellant because, being a confession, it was rendered inadmissible against the appellant by section 230 of the Criminal Procedure and Evidence Act 9 of 1981, as amended. His second point was that the statement was not an ‘executive statement’ as described in the cases to which I have referred. The third point was that there was no evidence, apart from the statement itself, which supported the suggestion that the appellant was a co-conspirator with the second accused.
 I do not think that there is substance in any of the points raised. Section 230 reads as follows:
‘No confession made by any person shall be admissible as evidence against any other person.’
 For the purposes of this case I am prepared to assume, without deciding the point, that the legal rules regarding the admissibility of executive statements, described by some writers as ‘vicarious admissions’, against co-conspirators are not to be regarded as an exception to the rule laid down in section 230. In my opinion the statement made to Mr. Griffiths cannot be regarded as a ‘confession’ as that expression is used in the Criminal Procedure and Evidence Act namely ‘an unequivocal acknowledgement of guilt, the equivalent of a plea of guilty before a court of law’ (R v Becker 1929 AD 167 at 171). As counsel for the Crown contended, a defence such as duress is not excluded. The fact that such a defence would be hopeless in the light of the rest of the evidence ‘does not provide the missing elements in the statement so as to make it a confession’ (R v Xulu 1956 (2) SA 288 (A) at 294B).
 I also do not agree with Mr. Matooane’s second point. The statement was made to Mr. Griffiths in an attempt to persuade him to allow the second accused to buy the machine from Minolta South Africa so that he could sell it at the grossly inflated price which Mr. Griffiths regarded as too high. The statement was clearly made in an endeavour to advance the common purpose, ie to sell the machine to the Government at an inappropriately high price so as to produce a large profit which could be shared with the corrupt public official who agreed to use his position to get the Government to agree to the sale.
 In order to consider whether there is other evidence, apart from the statement, which goes ‘far enough to warrant the use of the co-conspirator’s statement’ (to use the language of Schreiner J in R v Leibbrandt, supra) it is necessary to summarise some of the uncontested evidence regarding the order for the purchase of the machine and the appellant’s actions in regard thereto.
 A meeting was held on 23 March 2003 attended by, amongst others, the Minister of Finance, Dr. the Honourable Timothy Thahane, the Speaker of the National Assembly, the Honourable Ntlhoi Motsamai, the Acting Principal Secretary of Finance, Mrs. Khechane, the Accountant General, Mr. Hlasa, and the appellant. At the meeting the National Assembly’s need to increase its photocopying capacity was discussed and there was consensus on the point that more than one photocopying machine was required. The Minister stated that he was only prepared to agree that one machine be purchased by way of the waiver procedure and said that any additional machine had to be procured by using what were described as ‘the normal procurement channels’. The evidence established that by that was meant either the selective tender procedure or the normal tender procedure.
 Shortly thereafter pursuant to the Minister’s decision and using the waiver procedure to which he had agreed a high volume Canon 105 photocopier was purchased for the National Assembly from Beaunet Environmental Factors (Pty) Ltd for M562,435-70.
 In May 2005 Minolta South Africa informed its dealers in Southern Africa, including the second accused and its Lesotho competitor, Lesotho Minolta Ltd, that it was introducing to the Southern Africa market a high volume photocopier, the Bizhub Pro 1050. According to the evidence this machine was similar in all material respects to the Canon machine which had been purchased for the National Assembly from Beaunet Environmental Factors (Pty) Ltd. Mrs. Thamae, a shareholder in Lesotho Minolta Ltd, approached the appellant and presented him with brochures she had received from Minolta South Africa describing the Bizhub machine and endeavoured to interest him in buying one for the National Assembly.
 He subsequently told her that he could not buy the machine from her company because such a machine was to be purchased for the National Assembly but that the entity responsible for financing the purchase had identified another supplier. This statement was false.
 At about this time the appellant arranged for an official delegation including persons from the Department of Finance and the Government Printer to attend a trade exhibition in Johannesburg and to choose a photocopier for the National Assembly. The delegation was taken to the exhibition by Mr. Khuele and was only shown the Bizhub Pro 1050.
 Thereafter the appellant ordered the Bizhub Pro 1050 from the second accused, the price being M1 475 259.29, almost three times the price of the Canon 105 machine.
 In November 2005 the appellant applied for a waiver from the Minister of Finance to purchase the Bizhub from the second appellant at the price mentioned. This waiver was eventually granted by the Acting Minister of Finance, Dr. M. Khaketla, on or about 21 November 2005.
 As stated above the second accused later experienced difficulty in getting the Bizhub machine from Minolta South Africa. Eventually in March 2006, after Mr. Khuele had died, his widow arranged with Mrs. Thamae that her company, Lesotho Minolta Ltd, would purchase the machine from Minolta South Africa so that it could be delivered to the National Assembly. Mrs. Thamae prepared a quotation for the supply of the machine and took it to the appellant. He disapproved of it because it was M275 000 less than the price already agreed with the second accused. He insisted that Mrs. Thamae go away and sort things out with Mrs. Khuele. He wanted the price he had agreed with the second accused to be kept intact.
 The evidence I have summarised is sufficient in my view to provide what Schreiner J in the extract from the trial court’s judgment in R v Leibbrandt and Others, supra, called the ‘foundation’ required to warrant the use of the statement Mr. Khuele made to Mr. Griffiths. It follows that the third ground advanced by Mr. Matooane in support of his submission that Mr. Griffith’s evidence on this point was inadmissible against the appellant must also be rejected.
 That evidence taken together with the other evidence I have summarised is enough, especially in the absence of any evidence from the appellant, to justify the finding that the appellant was correctly convicted on count 1.
 The allegations made by the Crown against the appellant in count 2 of the charges read as follows:
‘Accused 1 is guilty of fraud in that on or about 13 December 2005 and at or near Maseru, in the district of Maseru, he did unlawfully and with intent to defraud, misrepresent to the Principal Secretary for the Ministry of Finance and Development Planning, either expressly or by implication, that:
The Honourable Minister of Finance had afforded the National Assembly a waiver to purchase a heavy duty photocopy machine from Accused 2; and/or
That a fair price for the machine so to be purchased from Accused 2 was M1,475,259.29;
and that by reason of the above he requested the said Principal Secretary to use his good office to facilitate acquisition of the said machine from Accused 2 for M1,475,259.29 and did by means of the said misrepresentation(s) induce the said Principal Secretary to the prejudice, actual or potential, of the Government of Lesotho to recommend to the Honourable Minister of Finance (who accepted the recommendation) that the said sum be made available to enable the National Assembly to buy the said machine from Accused 2 at the said price; whereas, at the time Accused 1 made the aforesaid misrepresentation(s), he well knew:
(a) that the Honourable Minister had not afforded a waiver:
to purchase the machine from Accused 2; and/or
at the said price;
(b) that one heavy duty photocopy machine had already been purchased from another supplier to wit from Beaunet for M562,435.70 which machine had already been delivered to the National Assembly all pursuant to the Honourable Minister’s waiver to purchase one machine which waiver the Honourable Minister made in or after March 2005.
In the premises Accused 1 committed the crime of fraud.’
This charge is based on a letter sent by the appellant to the Principal Secretary of Finance on 13 December 2005, which reads as follows:
‘Following the conclusion that there is a need to have two heavy duty photocopying machines through a meeting in which the Honourable Minister of Finance was present, we were afforded a waiver to purchase one machine from Itec Lesotho.
The machine was not provided for in the 2005/2006 budget estimates. Your good office is, therefore, requested to grant us One Million Four Hundred and Seventy Five Thousand, Two Hundred and Fifty Nine Maloti and Twenty Nine Lisente (M1,475,259.29) to facilitate acquisition of the same.’
 It must be borne in mind in considering the evidence on this charge that this letter was written after the Acting Minister of Finance had approved the appellant’s application for a waiver to purchase the Bizhub machine from the second accused for M1,475,259.29, and that, as this purchase had not been budgeted for, it was necessary to apply for the provision of this amount from the Government Contingency Fund.
 I do not agree that the letter contained the alleged misrepresentation that M1 475 259.29 was a fair price for the machine. The letter does not say this nor can it be implied. The alleged misrepresentation to the effect that the Minister of Finance had afforded the National Assembly a waiver to purchase a heavy duty photocopy machine from the second accused was indeed made but its incorrectness was only technical because, as I have said, such a waiver had been given by the Acting Minister, Dr. Khaketla. As it happened, the approval for the amount to be made available from the Government’s Contingency Fund was given by Dr. Thahane himself, who stated that he was influenced to do so by the fact that Dr. Khaketla had already given the waiver.
 In my view the Crown did not prove the appellant’s guilt on count 2 and his conviction on that count should be set aside.
 This conclusion renders it unnecessary to deal with Mr. Matooane’s further contention that the conviction should in any event be set aside as an improper duplication of convictions.
 The following order is made on the appellant’s appeal:
1. The appeal against the conviction on count 1 is dismissed.
2. The appeal against the conviction on count 2 succeeds and the conviction and sentence are set aside.
 I proceed now to consider the Crown’s appeal against the sentence imposed on the appellant in respect of count 1, viz 5 years imprisonment or M10,000-00.
 In terms of section 34 of the Act a natural person convicted of corruption under the part of the Act containing the section under which the appellant was convicted was at the time liable to a fine of not less than M5,000-00 and not more than M10,000-00 or imprisonment for a term of not less than 5 years and not more than 10 years or both.
 This was a serious case of corruption. The benefit which the appellant stood to gain for abusing his powers as a public servant was large, the amount the Government would have lost if the scheme to which he and the second accused were parties had been carried out was considerable and the period of time over which the appellant actively sought to implement the scheme was approximately a year (from the time the delegation was sent to the trade exhibition to the delivery of the machine at the National Assembly).
 This Court has repeatedly stressed the seriousness of corruption, see e.g. Acres International Ltd v The Crown LAC (2000 – 2004) 677 at 707 B-I, sole v The Crown LAC (2000 – 2004) 612 at 655 E-I and Mochebelele v The Crown C of A (CRI) 12/2009 at p17 in which it was stated that it was inappropriate to impose a fine on a natural person in a serious case of corruption (such as this is).
 It is true that the plan was foiled and the expected illicit profit which the appellant hoped to gain did not eventuate but this is still a case where, in my view, a custodial sentence is called for in order, inter alia, to deter others from committing similar crimes in the future. In my view the appropriate sentence in a case such as this is a fine (with an alternative period of imprisonment) plus a period of imprisonment part of which is suspended. The sentence imposed by the court a quo can accordingly not stand.
 The Crown’s appeal in respect of the sentence imposed by the court a quo succeeds and the sentence imposed is altered to read:
‘M10 000-00 or 5 years imprisonment, plus an additional 7 years imprisonment of which 3 years are suspended for 3 years on condition that the accused is not convicted of an offence of bribery or corruption under the Prevention of Corruption and Economic Offences Act 5 of 1999 as amended committed during the period of suspension and in respect of which he is sentenced to imprisonment without the option of a fine.’
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
For Mr. Matete : Mr. T. Matooane
For the Crown : Adv H.H.T. Woker