R v Seleke (CRI/224/2000 )

Media Neutral Citation: 
[2003] LSHC 144
Judgment Date: 
27 November, 2003

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CRI/224/2000

IN THE HIGH COURT OF LESOTHO


In the matter between:


REX

Vs

SELEKE


JUDGEMENT


Delivered by the Honourable Mrs. Justice K.J. Guni on the 27™ November, 2003


Charge - Theft - what constitute theft - The taking, endorsing and cashing of the cheques of another admitted by the accused - claim that the accused had permission of the owner - When to raise such a defence- Burden of proof - where does it rest.


  1. CHARGE


The accused is charged with twelve (12) counts of THEFT or FRAUD. If I may summarise the allegations made against this accused, briefly they are as follows; The accused took from the Ministry of Justice the GOVERNMENT OF LESOTHO cheques issued by the said Ministry of Justice to the complainants, who are the landlords whose properties are rented out to the Ministry. The said cheques were issued to and made payable to those landlords. The accused taking them from the Ministry, endorsed and encashed the said cheques. After encashing the cheques the accused misappropriated portion at times the whole amount of the proceeds of those cheques.


  1. PLEA


The accused denies the charge. He claims that he collected the said cheques from the Ministry of Justice on behalf of the landlords and at their special request. The accused further claims that he endorsed and encashed the said cheques with the permission of the payees-the landlords. Once the cash proceeds of the cheques were in his hands the accused passed on to the landlords what they were entitled to receive.


  1. HISTORY OF THE CASE


The accused, was at the time of the commission of the alleged offence, the resident Magistrate of QACHA 'S NEK. QA CHA 'S NEK is one of this Kingdom's most mountainous districts. It is inaccessible, obscure and very remote. It was the policy of the first democratically elected government of the day to take services to the people even in those remote inaccessible areas. In pursuit of that policy the government through its Ministry of Justice, established local courts at QABANE and MATEBENG areas of QACHA'S NEK district. As the resident magistrate, the accused was the most senior judicial officer in that district. As such he had the duty to supervise all the courts in that district. His supervisory


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role included actual physical inspection of the courtroom premises of the local courts in the district. It was while performing this supervisory function over the courts of law in that district, that the accused observed that the local courts at QABANE and MA TEBENG were functioning but in the most unsatisfactory manner from the most unsuitable and improper premises for the courts of law. He properly decided to take steps to relocate the said local courts.


(4) The accused must have reported his observations maybe together with recommendations to re-locate in respect of those local courts to his superiors at the Ministry's Headquarters. The accused had already identified suitable and proper accommodation for the said courts of law. He negotiated with the owners of the properties which he had identified as proper and fit to accommodate those courts of law, to rent out or sell to the GOVERNMENT OF LESOTHO their properties. As the most senior judicial officer in that district the accused represented the LESOTHO GOVERNMENT. When negotiating with the landlords the leasing or sale of their properties to the GOVERNMENT. He was negotiating on behalf of the GOVERNMENT. The accused was not only the first GOVERNMENT representative the landlords came to know and deal with, he was in fact the one they had most contact with due to the remoteness and inaccessibility of QACHA'S NEK. If the landlords were to put the face on the GOVERNMENT OF LESOTHO, as the other party to their agreement/ the accused was to them, that face.


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(5) Apparently, the accused grew up in the QABANE Area of QACHA 'S NEK as he told this court. He was therefore very familiar with that area. He had known MR. TATOLO MOLIKO - The Sub-leassor of the QABANE premises, for many many years as the businessman in that area with some of those premises being used for residential purposes and others as shops. Having secured the consent of the landlords to lease out their properties to the GOVERNMENT OF LESOTHO the accused, together with the delegation from the MINISTRY OF JUSTICE Headquarters, headed by the then PRINCIPAL SECRETARY - one MR. KALI carried out the physical inspection of the premises to be leased at QABANE. There were preliminary oral terms of sublease agreement negotiated by the accused. It seems the landlord MR. TATOLO MOLIKO and the accused had initially agreed on the amount of (M800.00) eight hundred maloti per month for those premises.


(6) As the result of that inspection by the delegation from the Headquarters, the relocation of the local courts to the new premises was approved. The terms of the sub-lease agreement were reduced to writing with a major modification of the terms as regards the amount of rental payable per month. It is apparent that the PRINCIPAL SECRETARY'S Team was very impressed with those premises to the extent of unilaterally increasing the amount of rent from M800.00 to M1 500.00 per month for MR. TATOLO MOLIKO'S premises. This is the amount which appears at paragraph 4 of the sub-lease Agreement The said sub-lease agreement was signed by the parties on the 21st March 1997. This


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was partly done in MASERU where the PRINCIPAL SECRETARY MR. R. KALI signed on behalf of Government-the tenant together with his Deputy Principal Secretary MR. M.F. THABANE. The landlard-MR. TATOLO MOLIKO and the senior clerk of court subordinate court QACHA'S NEK, R.M. MOTLOI who is PW2 in this trial signed at QACHA'S NEK. MR. TATOLO MOLIKO (PW1) is illiterate. He barely writes his name. He told this court that this accused called him into his office where he read to him the sub­lease agreement and asked him to sign. He signed. He was not given the copy of that sub-lease agreement. Being illeterate he accepted what the accused read over to him. He can barely recall what it was. This landlord knew for the first time eighteen or so months after the sub-lease was signed that he was in terms of that sub-lease agreement entitled to receive M1 500.00 per month totalling M4 500.00 per quarter when he was at the Ministry's Headquarters to complain about none payment of his rent.


(7) The Sub-lease Agreement between MR. PHIRI DANIEL MOTIKOE and the Ministry of Justice was signed on the 1st September 1997. The terms of his sub-lease agreement are identical to the sub-lease agreement between the Ministry of Justice & MR. TATOLO MOLIKO except for the amount of rent payable. In respect of MR. MOTIKOE'S property the rent was one thousand four hundred maloti M1 400.00 per month. In both cases the rent was payable quarterly by cheque issue and made payable to the landlords. All the cheques were crossed. All the cheques issued out in 1998


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were endorsed NOT TRANSFERABLE on their faces.


(8) STATEMENT OF AGREED FACTS


At the beginning of the trial, the accused formally made certain admissions including, though not limited to, the fact that he signed for all the twelve cheques in question when he collected them from the Accounts Department of the Ministry of Justice Headquarters. He admitted that the signature appearing at the back of each cheque as an endorsement is his own signature. He also admitted encashing all the cheques at the three businesses in QACHA 'S NEK town:- being LESOTHO CASH STORE, HYPER SAVE SUPERMARKET and the LESOTHO BANK QACHA'S NEK branch. The majority of the cheques were encashed at the LESOTHO CASH STORE, then followed the HYPER SAVE SUPER MARKET. Only one cheque, the very first cheque, was cashed at the bank - LESOTHO BANK QACHA'S NEK BRANCH.


(9) The apparent issue which falls for determination in this case seems to me to be whether or not the accused was entitled to collect, endorse, cash the cheques in question and keep for his own use the whole or part of the proceeds? Evidence led before this court has shown that communication between the officials of the government of Lesotho in MASERU and those in the mountain districts was by telephone and airmail. According to PW2 who was the Senior Clerk of Court at QACHA S NEK MAGISTRATE'S Court at that time, she collected the mail from the pilot of the aroplane. There was an


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aeroplane from MASERU to QACHA'S NEK everyday of the week except Sundays. Amongst her duties the Senior Clerk of Court collected revenue, paid staff and registered the court cases. It was one of her responsibilities to receive and distribute cheques. She knew that the Ministry of Justice had rented the properties of Messrs MOLIKO and MOTIKOE. Although it was her responsibility to distribute the cheques, the cheques for payment of the rent of the leased properties of those two gentlemen, never ever came into her care and custody. Those cheques as the register of the Ministry Headquarters - EXHIBIT B - shows, were kept there and collected personally by the resident Magistrate, this accused at that time. For example the first cheque was issued out on the 19th May 1997 but collected on the 26th May 1997. The second cheque was issued out on 30th July 1997 and was collected by the accused on the 12th August 1997. Why? All other cheques were sent by mail which was taken by plane every day.


(10) Evidence led before this court has shown that nearly all the time, in all material respects the landlords dealt with the accused. Mr. Moliko told the court that he was informed that he will receive his rent from the Magistrate - the accused. Presumably this information was given to him by the members of the delegation which came from the Ministry of Justice Headquarters or from the accused as the person who represented the ministry there at QACHA 'S NEK. The accused came down from QACHA 'S NEK and


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personally collected and signed for all the cheques issued to the landlords for the payment of the rent of their premises. They were never sent by mail. They were retained at the headquarters until he came to collect them. When PW1 came the very first time to collect his rent the accused who was at work took PW1 to his residence and paid him there an amount of M2 400.00 maloti in cash. Every time when PW1 came to the accused to ask for his rentals, the accused told him that the payment is still being processed.


(11) The very first cheque for payment of rent was endorsed and cashed by the accused at LESOTHO BANK QACHA S NEK BRANCH on the 30th May 1997. Thereafter each and every cheque was endorsed and cashed at LESOTHO CASH STORE where the lady PW5 had an exaggerated trust or extreme naivety because she saw the pay advise clearly indicating that the cheque is for payment for the leasing of the houses as court premises. She could not have encashed those cheques had she not seen that pay advise, so she said. Despite the fact that the name on the cheque - payee was not the accused, this witness - PW5 felt she had an authority to pay the cheque proceeds to this accused simply because the accused exhibited the pay advise, ft therefore follows that the owner of that cheque, presenting it together with that payadvise would have had no problems to cash it. Out of twelve cheques forming the subject matter of the twelve counts, she encashed eight of them while the rest were encashed elsewhere


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(12) Did the accused have the authority and/or permission of the owners of the cheques to endorse and encash them? At what stage was that authority given? To all the people the accused asked to encash the said cheques, he said he had the authority of the payee. That means he was given that authority prior to the encashment of those cheques. To the bank clerk at LESOTHO BANK QACHA'S NEK BRANCH the explanation given by the accused then, was that the owner of the cheque is not feeling well. PW4 - the bank clerk according to his evidence trusted him because of his position as a magistrate. He did not doubt him. It seems to the police at the time this witness recorded his statement, he alleged that the accused claimed to work together with the owner of that cheque. The accused seemed to question the correctness of the explanation allegedly given by him regarding Mr. Moliko's health. Accused seems to accept the explanation he put to this witness, that he worked together with Mr. Moliko or he rejects them both without specifically saying so. This leaves a doubt whether or not he gave any explanation at all. Does this mean he could cash anybody's crossed cheque without giving any explanation? The accused seemed to attack the credibility of this witness without putting to him the alternative version which is considered correct by him.


(13)To PW5 - the accused appears to have persisted on the allegation that the owner of the cheque has given him the authority to endorse and encash it. He added that the owners of those cheques sometimes borrow money from him so this is to ensure that they


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reimburse him. At the inquiry conducted at the Ministry Head quarter accused did not claim then that he had the authority. He pleaded ignorance of the proper financial procedures. He never said he had obtained the consent of the owners to do what he did with their cheques.


(14) When did he obtain the consent? This is the matter which is perculiariy known to the accused. It pertains to him and only he could definitely know whether or not he had the consent of the owners. S v BOESAK (3) SA 2000 381. The disclosure of the fact that he had the consent of the owners was very material at that meeting which had been convened especially to deal with their complaint of none payment of the rent Both PW4 and 5 told this court that they would have encashed those cheques even if they were presented for payment by their owners i.e. Messrs Moliko and Motikoe. The requirement would have been proper identification such as passport if they were not as well known to these cashiers as the resident magistrate - this accused. The accused did not challenge these cashiers on this point - His silence could reasonably be interpreted as an acquiescence. S v BOESAK (3) SA 2000 381. After the conclusion of the crown case the accused in his defence elaborated how he was asked by the lordlands to assist to cash their cheques. Accused told the court that he went together with the owner of the cheques to the cashier who had refused to cash the said cheques for the owner but agreed to cash it and in fact cashed it after the accused had requested for its encashment and after


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endorsing it. The accused claims to have done this in the presence of the owners of the said cheques: This the accused did not put to those witnesses at the time they testified that he, came alone and gave the explanations they accepted such as the owner is sick or comes only at night. No part of his elaborate -explanation, (for example that he gave the complainant the cheque. The complainant went away. Thereafter the complainant returned and said he was unable to cash his cheque), was put to any of the crown witness-particularly PW1.


(15J The explanation why the accused presented for payment another person's cheque varied a little when the accused requested PW3 -the owner of Hyper Save Supermarket. The accused told PW3 that the owners of those cheques live out- (presumably meaning out of town of QACHA'S NEK.) He said the owners usually come in very late in the evening and depart very early the following morning. By implication, the cash must be with him ready for them to take at night. This witness told the court that he was happy to cash crossed cheque belonging to someone else as long as the person presenting it for encashment is known to him. Did the accused cross-examine him to test if the landlords could have had their cheques cashed if they requested this witness to do so? The accused did not challenge or dispute this evidence. The owners of these cheques may be known to this guy or may make themselves known by properly identifying themselves with their passports. The accused is well known to all the cashiers of those businesses where


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he cashed all the cheques in question. He enjoyed treamendously all their trust. None seems to have required him to identify himself. That does not give him the right to cash someone's cheque.


(16) Both MR. MOLIKO and MR. MOTIKOE went to the Ministry headquarters to complain about none payment of the rent for their properties by the ministry. They were both advised to reduce their complaints to writing. They both complied with that direction. Their letters of complaint are contained in EXHIBIT B Bundle at pages 49,50,50.1-50.3. The meeting was held on the 30th November 1998, to find out why the landlords have not been paid when in fact the cheques for the payment of rent have been issued to the said landlords and apparently those cheques have been presented for payment (The minutes of the meeting are at page 37 of the bundle EXHIBIT B).


(17) This was the first opportunity given to the accused to explain the shortfall. He did not deal directly with that issue. He merely pointed out that the landlord-MR. MOLIKO had requested originally an amount of eight hundred maloti (M800.00) as rent per month. Per quarter according to this accused Mr. Moliko should have expected two thousand four hundred (M2 400.00). This infact is what Mr. Moliko told this court that the accused paid him in cash whenever he effected payment of rent and at other times Mr. Moliko was not paid any amount at all.. In those minutes of the meeting of the 30th November 1998 this accused pointed out that PW1 initially agreed to M800.00 per month which came to M2 400.00 per quarter . He


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seemed to question the complainant's demand for the higher rate blaming the landlord's attitude on the PRINCIPAL SECRETARY'S alleged advise and/or encouragement. The correctness of the unilateral increase of the rent by the PRINCIPAL SECRETARY is not an issue. The accused himself went on at some length describing the admirable facilities, provided by the landlord, the quality and general condition of the property leased from Mr. Moliko. But more importantly there were specific terms of the sub-lease agreement which provided for the payment of the rent in that amount of one thousand and five hundred maloti (M1 500.00) per month. Therefore MR. MOLIKO was entitled to receive that amount. Whether or not initially when the accused negotiated with him the rent he accepted the lower rate of M800.00. The orally agreed term is superceded by the written provision.


(18) The accused did not explain what happened to the rent then in that meeting when confronted for the first time face to face with the complainant who alleged that he was not receiving his due rentals in full. Silence in the subject matter - could reasonably be seen as an admission (S. v BOESAK (3) SA 2000 381-393-395.) He claimed that he effected the rental payment in cash and not by cheque because he did not know the proper procedure to be followed and did not know it was wrong. His ignorance cannot be a valid defence particularly because he is not an ordinary person but an advocate who practiced then as a resident magistrate. Ignorance of the law is no defence even to ordinary man. It was at this stage -during that inquiry, that the accused should have disclosed that he


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had the authority from the owner if he had any such authority. All other financial matters were performed by the clerk of court who was the only person there responsible to handle financial matters. Why did he surruptitiously take that responsibility away from her in respect of these particular cheques only.


(19) Was there a private arrangement between this accused and MR. MOLIKO that the accused should collect, endorse and encash his cheques? Why is this defence resorted to for the first time at the end of the trial? The accused must have known about the arrangement prior to putting it into practice. Why did he not mention its existence on the 30th November 1998 meeting? Why was it not put to PW1 in cross-examination? MR. MOLIKO denies that there was ever such an arrangement. Evidence has been led before this court where this accused met with MR. MOLIKO at The Ministry of Justice headquarters after the political crisis which resulted with the burning of MASERU. Accused found Mr. Moliko with his son-PW6. He took Mr. Moliko away from his son and in private asked him what he wanted there. Mr. Moliko told accused that he has come there to enquire about his rentals. Accused pursuaded Mr. Moliko to go back to QACHA'S NEK with him and that he will help him there. Mr. Moliko refused to go with the accused. Although the accused and PW1 spoke in private their disagreements resulted in their shouting as they argued. The accused trying to convince PW1 to go with him back to QACHA'S NEK while PW1 refused. PW6 heard the accused shout that


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PW1 refuses to go to QACHA'S NEK with him as they parted. According to PW1's evidence the accused pointed out to him that no one knows him there and therefore no one will help him. This was partly true because PW1 had to explain himself and records or his file was brought out. PW1 made a few amazing discoveries (e.g that he should be receiving an amount of M4 500.00 not M2 400.00.) That sub-lease agreement was read to him again.


(20) On that same day as the accused persuaded PW1 to go back to QACHA'S NEK with him, he had just collected from the Accounts Department there the cheque issued to PW1 in an increased amount of four thousands nine hundred and fifty maloti. There was rent escalation clause in the sublease agreement. The rent had gone up by 10%. The cheque must have been on the accused person as he spoke to PW1 promising that he will assist him with that inquiry he was going to make there of none payment of his rentals by the ministry. But strangely enough, the accused did not then and there tell PW1 that he is in possession of his cheque. He left and PW1 proceeded to go and inquiry whereupon he was informed that the accused had only just collected his cheque and that they should follow him to go and collect it from him. If there was a private arrangement between the accused and PW1 why then was PW1 not informed by the accused when they met there at the Ministry of Justice Headquarter that he has already collected the cheque as per their private arrangement. The onus of proof rests upon the accused to establish his defence. Of course the accused denies meeting the


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complainant there on that day. Evidence of PW7, 6, 7 and 9 shows this court, without a doubt that the day the accused collected the last cheque is the day PW1 came pursuant to his claim of non payment of rent by the Government. There at Justice Headquarters they instructed PW1 and 6 to chase after the accused to QACHA 'S NEK and get that cheque from you.


(21) at QACHA'S NEK when PW1 and his son confronted the accused, why then did he not in the presence of PW1 's son tell PW1 that he has collected his cheque and has already encashed it as per their special private arrangement? Evidence shows that this accused at ail times, isolated PW1 and attempted to deal with him secretly where there is no opportunity for anyone to witness what he did with PW1. Accused went to the extreme of isolating and insulating PW1 from outside influence by even throughing PW1 's own son into jail when he refused to let accused continue to deal in private with his father. Accused claims he ordered the arrest and detention of PW6 because he committed an offence. It is the fourth year since then but the accused never charged PW6 with the commission of any offence. There was never any complain by the accused that PW6 had done anything wrong, it was just an order to arrest and detain without any charge. The privacy was being forced upon PW1 by this accused. PW1 was being denied an opportunity to receive assistance of any kind from anyone by the accused's manipulations. PW1 is very advance in age, almost like a child. His illiteracy has compounded his vulnerability. There is no evidence that there was


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any such special arrangement between PW1 and the accused. I reject the accused's defence of the existence of the said special arrangement because the accused has failed to establish his defence on the balance of probabilities.


(22) PW1 is 75 years old, illiterate mosotho man. He told this court that as the problem of none payment of the rent by the Ministry of Justice went on he even began to complain about it to those members of the staff of the courts of law which operated from his sub-leased premises. They advised him to enquire further from the authorities as they found the methods of payment as performed by the accused as described by PW1 very strange and contrary to procedures followed by the same ministry in their own cases. If there was that private arrangement between them why was PW1 going through all this trouble of asking other people and complaining to them about not receiving his rent from the ministry? It is clear that there was no such private arrangement between this accused and PW1 for the accused to collect, endorse and encash his cheques.


(23) The accused is charged with the crime of theft alternatively fraud. What is theft The person is guilty of theft if he, dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. S v Kotze 1965 (1) SA118 (A) 123. The accused had admitted taking away from the Ministry of Justice Headquarters the cheque belonging to the landlords.


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The accused has accepted that the signature appearing as an endorsement at the back of each of the twelve cheques - subject matter of this trial, is his. He has gone further to admit that he cashed ail those cheques: He however denies appropriating the proceeds for his own use.


(24) The two landlords approached the Ministry of Justice Headquarters separately at different times. Each one of them complained of not receiving his rentals from the Ministry. This was not conspiracy. The accused too could not say the landlords conspired against him. The reasons he gave at the time he requested to be paid the cash for those cheque, prove his intent to appropriate the cash he so received e.g. that the owners of those cheques borrowed his money so he cashes them so that they can re-imburse him. Is there any reason given why they would not re-imburse him if their cheques were handed to them. There is none. Again the accused claimed that they live far. Which was true. They came into town-QACHA 'S NEK late and depart very early. Why? What did they come there for? Just to sleep and then go back to their home? What reason would they have come there for? PW1 told this court that it took him two days to travel by bus from OABANE to QACHA'S NEK town. He was a business man. He has a bank account and a passport. At the time this accused paid the portion of the proceeds of the cheques, he did so broad day light during office hours - not at night. Why would the landlords come like thieves at night for their own money? This is not true, it is highly improbable that the landlords could


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come into town to spent the night and leave without conducting any business while they have an opportunity to be in town and return into their remote inaccessible rural areas.


(25J The bank clerk testified to the effect that when a customer has proper identification such as a passport he would help such a customer to encash his/or her cheque. PW1 told the court that he could encash his own cheque if at all it came into his hands, but those cheques never came into his hands. PW4 also could encash those cheques if they were presented by the owners who were at the time in possession of proper identification plus a letter from the district secretary. PW1 in particular pointed out in his evidence that he would have no problems to cash or deposit his own cheque in his hank account. There was no form of identification required from the accused. But he would go out of his way to give false reasons why he is cashing someone else's cheque. From the evidence of all the cashiers who cashed the cheques in question, the owners of those cheques could also have had no problems to cash the same. The allegation by the accused that the owners had problems and therefore requested him to help them is false. From the evidence of these cashiers the owners would have had no problems. The accused's defence that the owners of the cheques said that they have problems to cash or deposit their cheques is not only highly improbable, it is apparently incorrect. PW1 never saw his cheque. But if he was handed that cheque he could have had no problems to deposit it in his bank account or to cash it.


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(26) At one time he said the owner is not well and could not come himself. But at the same time the accused claims he changed those cheques in the presence of the owners who had asked him to assist as they were having problems. None of those managers or bank clerk saw the owners of the cheques in the company of the accused or anywhere near.


(27) Because of the remotness of QACHA'S NEK and its inaccessibility it needed special effort for those landlords to come down to MASERU to complain. But they did. The journey is not only long by road, it is also costly. The journey by an aeroplane is even more expensive. But they made the journey rather journeys as the Ministry also send them back to write out their complaint in order that it could be properly investigated. The investigations were carried out at the Ministry because of the persistence of the complainants that they have not received the rentals for their properties. PW1 even though he was made to sign the sub-lease at the accused's office, the accused did not give him the copy of that lease. So he was not aware of the increased amount of rent until he came to the Ministry Headquarters when payment had altogether stopped


(28) The taking away of the cheque is itself theft. S v GRAHAM 1975 (3) SA 569 (A). The misappropriation of the proceeds of the cheque is also theft. The burden of proof rests upon the crown to establish the commission of this crime. The crown has successfully established its case. The accused can competently be convicted of


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theft of those cheques which he collected from the Ministry Headquarters without the consent of their owners - S v GRAHAM (supra). He can again be convicted of the theft of the amount of money stated on the said cheques. All the various transaction which this accused carried out, e.g. collection of those cheques from Headquarters, endorsing and encashing of the same, were primarily for achieving one object, (i.e. to take for his own use the complainant's money.) The court does not regard him as having committed theft of the cheques and thefts of the amount of the cheques which he appropriated.


(29) The accused is found guilty of twelve counts of theft. The assessors agree with this finding.


SENTENCE


The accused is convicted of 12 counts of theft. Convicting the accused was not a difficult exercise. The law draws the line, and once the person have crossed that line it is clear he has committed an offence. Sentencing a person after conviction is not so easy, an exercise - despite the guidelines provided by previous cases. It is generally accepted that in like cases, the accused must be treated the same way. Pursuant to this belief the learned author's of BLACKSTONE'S CRIMINAL PRACTICE 1998 EDITION researched many cases and compiled invaluable guidelines to assist the court to assess appropriate sentences which fit the crime and the criminal.


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THE CRIME


All cashiers expressed their trust in this accused. Not a single one of them doubted that the accused could possibly be doing something wrong. The Magistrate in their eyes is the man of law. He administered the law and dispensed with justice. PW4 in particular mentioned that he was returning a favour because the accused helped their store with regard to treatment the accused meted out to shoplifters. The accused was not just expected as a magistrate to uphold the law but was actually seen in action upholding the law. It is rather unfortunate that PW4 regarded that as a favour to their store or to them when infact the accused was merely performing his duty in accordance with what is expected of him as a magistrate. But still it does not deviate from the general expectation that he was the man of law and should behave accordingly that is, to uphold the law rather than break it.


The accused has not just brought magistracy into disrepute, he has infact brought the whole legal profession into disrepute because when he was charged and the trial had commenced he resigned from the magistracy and went into private practice as an advocate. A wise move! Maybe not. Did it mean what is not good enough for the magistracy is alright as an advocate? May be because there are legal practitioners who have criminal records but have practiced as though nothing has happened. May be the law society will not continue that practice. The move from magistracy to advocacy was not an honourable thing to do.


The accused enjoyed treamendously the trust of the community including


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that of his victims. PW1 whenever he came to the court there at QACHA'S NEK subordinate court to collect his rent he never made a mention to the senior clerk of court what he had come for. This is the person-clerk of court whose responsibility was to distribute cheques and/or make payments. She dealt with revenue.


PW1 never suspected the accused and then the accused got more greedy instead of taking only the portion of the rent, he then took the whole amount. This was after sometime. When there was nothing at all coming his way the complainant's trust of this accused began to dimmish. If the accused continued to give him that 50% of his rent, and keeping 50%, may be this day may not have come.


PLAN


From the on-set the accused appear to have decided to make himself the partner or a shareholder. That is a conscious and deliberate decision. He is not a fallen Angel. He did not suddenly and unexpectedly succumb to the temptation. Why were those cheques in particular not sent by mail with the rest? Why did he make a special trip to come and collect them each time? The withholding of those cheques after they were issued and their retention until the accused came to collect them instead of sending them by mail by aeroplane which was conveying the mail daily, was a plan and definitely not a mere coincidence.


Another plan was devised, to cash those cheques. Twelve times he had the convincing explanation to give the cashier to whom the cheque was


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presented for payment. This plan brings in yet another aggravating aspect to this case i.e. the sophistication with which the offences were perpetrated. His skills of advocacy came in handy to convince ail those cashiers that all was well when in fact all those transactions were a breach of the law.


The offences were committed over a long period, from May 1997. There was no stopping for this accused. Accused went on collecting, endorsing and encashing those poor men's cheques without consideration to stop. He was stopped at the stage where he was apparently with all arrogance the law. The victims were not only being denied their right to their money but even their liberty was actually threatened. How did PW1 and his son feel when they were told at Justice Headquarters that the accused had just at the very moment taken yet another cheque and they should run after him to get it. When they got him and asked for the cheque what did the accused do? Throw PWI's son in jail...... was the jail PW6'S place or accused's? There was no stopping with the accused's arrogance. Here in court the accused made insulting remarks regarding PW1's wife totally and absolutely unnecessarily. Those remarks were irrelevant but just intended to humiliate the complainant.


CHOICE OF VICTIMS


The most vulnerable members of the society. The elderly and the illiterate were taken the advantage of.


PERSONAL CIRCUMSTANCES OF THE ACCUSED


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Married man with one 13 years old child. His wife and the child are his dependants........ taking away from them their only breadwinner is a punishment to them, it is certainly not my fault that they will be left to fend for themselves. The accused made the decision himself twelve times over a period of (18) eighteen months whether or not he should take the risk to leave his family. He decided it was worth it considering what he was getting for them each time.


Attempts were made by various officers at Justice Headquarters to settle the matter amicably. Accused was requested to fill and sign the report form of lost property. The accused refused to fill and sign that form. Meetings were held where he was asked to explain the apparent discrepancy that the landlords complained that they were not receiving their money for rent but the ministry had issued the cheques which had been presented for payment Accused deliberately and arrogantly refrained from explaining his role in the disappearance of that money. He was then playing catch me if you can.

True your fife will change. That is inevitable - we can only hope it will be for the better - But how - These social ills you suffer from only God knows how you will be cured. You are the person to make a concerted effort to search and find the cure within you. There are those external factors which might if you find them influence your change of direction which is a must if there is to be any hope that you will be rehabilitated.


You have shown or expressed no remorse whatsoever. Is it because you


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have accepted the way you behaved as a proper way of fife and you have no regrets? That will be another huddle that you have to overcome in the process of your rehabilitation.


DETERENCE


The sentence that you receive must deter you from repeating the same thing. 12 counts of theft shows that after every interval you had an opportunity to think again. The following questions mut have occurred in your mind. Is what I am doing right now. Should I continue or stop? Had you been caught everytime and got convicted separately you would be having the record that is as long as your arm. - Circumstance were on your side but at the same time they put a long rope around your neck for you to hang yourself. The law is made and enforced by the have a lot. As a result the trend

generally in the whole world as your counsel pointed out is to regard economic crimes as more serious and deserving severe punishment than the crimes of murder, and/or assault. Hitting the richman at his pocket is worse than threatening or taking his life. I see things differently - taking the man's life is still the most serious offence.The way

you abused your position and power should be restrained, you and those like minds should be deterred. So the type of sentence to be past is intended to have that effect.


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SENTENCE


3 years (36 months) imprisonment 1 year (12 months) of which is suspended for a period of five years on condition that during that period you do not commit any offence involving theft or fraud. A further 4 months is suspended on condition that you repay that amount of money that you stole.


- Leaving you an effective period of 20 months imprisonment.


K.J. GUNI

JUDGE


Assessors agree: Mr. Kolobe

Mr. Khoboko


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