R v Du Plooy (CRI/T/111/1999)

Case No: 
CRI/T/111/1999
Media Neutral Citation: 
[2003] LSHC 122
Judgment Date: 
17 October, 2003

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CRI/T/111/1999

IN THE HIGH COURT OF LESOTHO


In the matter between:


REX

v

JACOB MICHAEL Du PLOOY


For the Director of Public Prosecutions : Advocate G H Penzon

: Advocate H H Woker

For the Acused : Advocate J Gilliland


SENTENCE


Delivered by the Honourable Mr. Justice T. Monapathi on the 17th September 2003


This is about the sentence of this Accused, Mr Jacob Michael "Giel" Du Plooy, who has already been convicted of bribery on his own plea.


This prosecution of Mr. Du Plooy is in the line of three or two others which have preceded it, starting with R v Masupha Ephraim Sole


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CRI/T/111/99 per Cullinan AJ. The others were prosecutions against


International Civil Engineering and Construction Giants or consortia as follows: R v Acres International, Lehohla CJ, 13th September 2002, the last R v Lahmeyer International, CRI/T/144/02 Mofolo J 17th June 2003. The prosecution of these cases has commenced about four years ago. I am informed that there is one yet to follow.


The most important thing about this case is that it is the first in which an accused person has admitted guilt and being an individual, not a company or a consortium or something like that. I place a lot of importance to this aspect that Mr Du Plooy has admitted guilt and I, without much ado, note that he has shown remorse and onto that again I place great significance and value.


We are at a stage where in this jurisdiction we have developed a lot of case law and jurisprudence involving the Lesotho Highlands Project. These number of cases show that there had churned out a lot of principles which have been annunciated concerning the principles about conviction and sentencing of accused in bribery cases. I associate myself with all those, including the approaches made in those cases in the High Court and in the Court of Appeal.


I have also been greatly assisted by both Counsel, in this case. As a result


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I rely very much on the manuscript of their summaries when they addressed me or in argument as it were, not in argument but in their submission and I have relied very much on the transcript which has come out, because contains a lot of useful principles and approaches about which Counsel have addressed me.


What I consider most important and most particularly is this report by the forensic criminologist, Dr Irma Louise Labuschagne. This report has been very useful to us. It not only speaks about the theories and principles of criminology. Most importantly it is a gold mine about the background of the accused himself, so that at this stage we know who this accused is. We have been greatly assisted, this is as a result, in having to deal with sentencing of this accused around his personal circumstances as fully disclosed.


This report by the forensic criminologist has gone on to discuss other aspects that touches on the nature of sentencing itself, the principles of sentencing. It still speaks about motive intent, remorse and other principles of sentencing. It also speaks about the worrisome aspect of whether people should be sent to prison. About this I can instantly comment that sentencing people to prison remains in the Statue Book. Indeed, it is being said it should be a last resort. While I agree with that, I will also endorse that it is one of the punishments by which the Courts indicate their displeasure at the seriousness


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of an offence. It is because it is in its attitude to serious crimes that the Court demonstrates this in a proper manner. Again, so that, Courts as servants of the community, should justify their existence to the community itself, in that the sentences by Courts do not appear to be shoddy or not well thought out. That the community will in the result respect the Courts who will not be brought to disrepute.


The report again speaks about the aims of punishment, which includes deterrence, rehabilitation, etc and a lot of things including why the sentence in this case and in like cases should be suspended. This report consequently has been very useful and has been pertinent in guiding this Court as to the sentence that it shall impose.


This Court has again been favoured with affidavits from this Accused person. Through these affidavits the Court has now an insight as to the system of bribery which seems to have permeated the Lesotho Highlands Scheme. This affidavit has shown us further insight into the workings of the system. Indeed, these revelations contained in this affidavit and other revelations which are in the record of the Director of Public Prosecutions and other departments are commended as much more useful than have otherwise been thought.


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These revelation include Accused's role and benefits received by him in


the form of large sums of bribery money. He met certain influential people who included a former Prime Minister and former Chairman of the Military Council. The Accused owned up to having ad aborigine intimated to a certain Mr. Sole how together they could benefit from corruptly making money out of the Lesotho Highlands Project. And furthermore Accused revealed how that Mr. Sole was lured to European capitals to meet big middlemen for the mentioned construction giants. And how they were finally played one against the other or preferred in an under-hand manner by MR Sole by reason of bribery money.


That the Accused actually bared his chest is not an understatement. It has been said therefore a lot of unknown secrets were revealed as a result of the cooperation of this Accused. I have also noted this most seriously. I am coupling this with the fact that the Accused has shown remorse and has not wasted the time of the Court.


It is these few things that add circumstance to my conclusion that there will not always be parity between the briber and the bribee as to sentence. I am saying that Mr. Du Plooy's role as a briber is such that in sentencing him, I will look at the individual circumstances of his case.


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As to sentence I will not attempt to equate the sentence that I will mete out to him with the sentence imposed on Mr Sole, for example. In the end I believe that my sentence will be seen to be very lenient through other eyes. I have warned myself against perceptions such as those. I have benefited from the approaches and principles in these other cases which have preceded this one.


What is most important is that a few things will be observed to be unique to the case of Mr Du Plooy. I however, will underline that the crime that he has committed is a serious one. It is not only the concern of our country, but it appears to be a global concern in projects of this magnitude, in projects such as this one where bribery is thought to be a common practice.


In one of the cases decided before in this Court I have mentioned how this crime of bribery is described in many ways. See R v Lebua Letsie CRI/T/3/2001 29 October 2003. It is said to be a scourge, it is said to be a cancer, so many words of that kind are used in those judgment, something that eats into the system, something that disturbs the order of the Courts and administration the moral fibre of the society in general, something that eats into the fibre of justice. It further disturbs the public administration, and fuels a multitude of other types of corruption. Indeed, it is a cancer.


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I have also noted that Mr. Du Plooy has been involved in many philanthropic projects of this country. He has done so many things that have benefited this country. He has devoted a lot of time to improving the lot of other people. That also stands him in good stead. However he must be punished, because he has committed a serious crime. Despite, that as a result of his revelations I repeat the seriousness or the magnitude of the crime that has pervaded the Lesotho Highlands Project can now be fully understood.


I cannot, however, hide the fact that I have benefited from the cooperation between the Crown and the Defence, which has made it easy for me to deal with this sentence with speed, although I have gone against the principle in that I will have to have my full reasons after I have passed the sentence. Counsel agreed that it is a wise thing to do.


One of the things that I took into account is that this is an old case the first postponement is as old as 18 November last year and it is a high profile case. I can imagine that it is costly to the State and it is costly to Mr Du Plooy himself and it has also disturbed the administration of this Court about its several postponements which were necessary in any event, disturbing the Court's roll in so many ways as a result of sometimes it is for a good cause that we have postponements. One of them was that Counsel was going overseas to do a good


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job related to a case of this kind.


I intend to sentence you, Accused, in the following way: indeed, you will have to pay that M500,000.00 as your Counsel has asked. I also give an option of imprisonment for five years. There is a number of years imprisonment which I impose, but which I suspend for three years on condition that you do not commit a crime involving dishonesty. Those that I suspend are three in number, three years imprisonment. Those which are an option of this fine are five.


Payment of the fine will be as follows: A deposit of Ml00,000.00 to be paid immediately. The balance of M400,000.00 to be paid as follows M200,000.00 be paid on or before the 1st March 2004 and the balance of M200,000.00 to be paid on or before the 1st September 2004. This is in compliance with section 315 of the Criminal Procedure and Evidence Act 1981 which deals with suspension and postponement of sentences.


T.Monapathi

Judge

7th September, 2003