Chapter 7

LEGISLATION TO COMBAT ORGANISED CRIME IN LESOTHO

Introduction

Lesotho is a landlocked country which lies in the belly of its only neighbour, the Republic of South Africa. It shares all its borders with South Africa and conducts most of its commerce with this country. There is much movement of people, goods and services between the countries.

Most of the movement to and from South Africa is by Basotho nationals who are either traders, miners or factory workers who make their living in industries in South Africa. For all practical purposes, Lesotho is therefore an open market for goods and services emanating from South Africa.

Most of the borders between the two countries consist of easily passable rivers and poorly fenced land enabling routine and unchecked movement to the border towns, farms and villages on either side of the border.

It is within this geocommercial context that the efficacy of Lesotho’s legislative endeavours to combat organised crime has to be appreciated.

Philosophical underpinnings of legislative strategies

An analysis of legislative responses to organised crime reveals a five-pronged strategy:

The first is to reduce and eliminate the proceeds of or benefits from participation in criminal enterprises. The strategy is to include provisions in laws that empower law enforcement agencies to seize the assets of criminal suspects and forfeit them to the state, particularly in cases of corruption, motor vehicle theft, drugs and arms-trafficking.



The second is that of rendering unusable or non-negotiable property and finances derived from criminal activities. This is found in the money-laundering draft bill currently under discussion in Lesotho.



The third involves the deployment of the ‘know your client’ principle which enjoins institutions to evaluate the character and activities of their customers or risk criminal liability if they fail to do so. Such institutions include banks, professional bodies, voluntary associations, traders and dealers.



The fourth is to make instant millionaires account for wealth that is disproportionate to their known, legitimate and above the board wealth-creating activities. In this approach, unexplained lifestyle is criminalised. This is found in corruption laws.



The fifth is that of cross-jurisdictional co-operation and mutual assistance in evidence-gathering, the extradition of offenders and the transfer of property found in one jurisdiction that is the subject of criminal proceedings in another jurisdiction. Laws relevant to this prong would be extradition laws and mutual assistance treaties.

Legislative regimes

Participation in organised crime

Organised criminal activity is prescribed by section 183(2) of the Criminal Procedure Act (No 7 of 1981) which states that:

"Any person who

conspires with any other person to aid or procure the commission of an offence; or



incites, instigates, commands or procures any other person to commit an offence, whether at common law or against a statute or statutory regulation, is guilty of an offence and liable to the punishment to which a person convicted of actually committing that offence would be liable."

Conspiracy to commit an offence, whether under common or statutory law, arises once there is a meeting of minds. It is not necessary to prove the existence of any further acts or conduct in the execution of the agreement. The meeting of minds to commit an offence is, without more, in itself an offence.1

The following principles can be extracted from case law:2

The gist of the offence of conspiracy lies not in doing the act, or effecting the purpose for which the conspiracy is formed, but in forming the scheme or agreement between the parties; and the external or overt act is concert, by which mutual consent to a common purpose is exchanged.



Conspiracy envisages the involvement of not less than two conspirators as an individual cannot conspire with him or herself. Therefore, if all other conspirators are acquitted, the one remaining conspirator must also be acquitted.



Except where two or more conspirators are charged with others who are not before the court, and it is proven that those not before the court were involved, either of the conspirators before the court may be acquitted despite the conviction of the other(s) and vice versa.



A conspiracy does not have to be established by proof that brings the parties together, but may be shown, like any other fact, by circumstantial evidence. Thus, a conspiracy may exist between persons who have never known or seen each other, provided there is an awareness and acknowledgment of an illegal enterprise.



Where circumstantial evidence is used to infer the existence of a conspiracy, not only must the inference contended be consistent with all the proven facts, but the proven facts should also negate the existence of any other contrary or competing inference save the one sought to be drawn.



It is not necessary for all conspirators to join at the same time, nor for all conspirators to remain in the conspiracy all the time. They may join at various times or opt out at various times. Therefore, it is not a defence to indicate that there was a change of mind or withdrawal later. However, such a change of mind or withdrawal may be relevant in mitigation of sentence.

Obstruction of justice

Obstruction or defeat of justice consists in unlawfully and intentionally engaging in conduct which defeats or obstructs the course or administration of justice. Snyman observes that this compendious description overlaps with other crimes such as contempt of court, perjury, tampering with witnesses or exhibits, obstructing the police in the course of their duties and being an accessory after the fact to another crime.3

An accession after the fact to a crime arises where a person covers up a crime or remains passive and does nothing in order to accomplish something prohibited by law, for instance by refraining from arresting an offender thus giving an offender an opportunity or assistance to evade justice.4 The necessary intent is supplied if the accused associate themselves with the crime knowing of its commission, regardless whether their purpose is to benefit themselves or the principal offender.5

The Criminal Procedure and Evidence Act (No 7 of 1981) requires every male person between the ages of 16 and 60 to render assistance to the police in arresting suspected offenders or retaining them in custody. Failure without a reasonable excuse to render such assistance when called to do so is a criminal offence.6

The Act also provides for the arrest and imprisonment of witnesses and other persons who default when summoned to attend proceedings, abscond from giving evidence or refuse to be sworn, answer questions put to them or refuse or fail to produce documents or other proof required of them.7

The effectiveness of the administration of justice is also served by the power and ability of a court of law to punish summarily or otherwise for contempt of court. The rationale and basis for this offence is not to "pander to the wounded feelings, real or imaginary, of judicial officers as individuals but to protect the social fabric of society and to enable the court to function free from pressure, with decorum and in dignity."8

Barring contempts committed in the face of the court (in facie curiae), which call for rapid redress, the principles followed by the courts are:9

Except in flagrant cases where a warrant of arrest may be issued, sufficient time should be afforded between the date of the order or the rule and the date of return to allow the contemptor to reply and prepare his or her case.



The nature of the contempt complained of should be explained in as much detail as possible, and supported where necessary by documents and by affidavits if facts are likely to be disputed.



The person called to appear should be urged to do so and to seek legal advice, and should be allowed to have legal representation at the hearing.



The person should be given ample opportunity to file replying affidavits by him or herself and/or others in advance of the hearing.



The person must be afforded the right to take an oath to swear to facts as known to him or her and to explain his or her state of mind in open court.



If facts are material to the resolution of the issue, oral evidence should be heard.

The Internal Security (General) Act of 1984 contains provisions that could be used to prosecute people who engage in conduct that impinges on the administration of justice and the enforcement of law. Section 28(1)(c) makes it an offence to prevent or defeat by violence or by other unlawful means the execution or enforcement of any law or to lead to defiance or disobedience of any law, or of any lawful authority. The penalty is a M2 000 fine or imprisonment of five years, or both. Section 29 makes it an offence to use violence or intimidation against a person or his or her spouse or children, or to injure his or her property, to follow him or her persistently from place to place, watch or beset his or her house or other place of abode, work or business with the intent to compel him or her to abstain from doing, or to do an act which he or she has a legal right to do or not. The penalty is a M1 000 fine or imprisonment of three years, or both.

Clearly, the fines have to be reviewed to increase them so that these should not be easy options for what are undoubtedly serious offences.

A gaping hole in the battery of laws on the obstruction of justice is the absence of procedures and administrative arrangements on witness protection. This is a matter that needs urgent attention. Fortunately, the culture of witness intimidation or harm has not developed to the extent that it could be said to paralyse the administration of justice. The current practice is that the prosecution liases with its witnesses, the chiefs and the police regarding the welfare of witnesses and problems that they may encounter.

Gun control

The Internal Security (Arms and Ammunition) Act no 17 of 1966 prohibits the possession, sale or transfer of a firearm and/or ammunition without a licence issued by the Commissioner of Police. The Act also prohibits the purchase and possession of firearms and ammunition by people under the age of 18, alcoholics, mentally disturbed people and people with a criminal record for an offence involving violence and attracting punishment for a term of six months or more. The latter prohibition has to be for a period of five years from the date of their release from jail.

Where a person is convicted of an offence under the Act or any crime for which he or she is sentenced to imprisonment or such a person has been ordered to be subject to police supervision or to enter into a recognisance to keep the peace or be of good behaviour with a condition that he or she shall not possess, use or carry a firearm, the court may make an order of forfeiture or disposal of any firearm or ammunition and cancel such a person’s firearm certificate.

Upon receipt of such a court order, the Commissioner of Police has to cause the convict to surrender the certificate within 21 days. Failure to surrender the certificate is a criminal offence punishable by a M100 minimum fine or a minimum of three months imprisonment, or both.

The effective control of the acquisition of guns and the regulation of their use are crucial for the safety of individuals and for the reduction of crimes of violence.

The penalties for contravening the provisions of the Internal Security (Arms and Ammunition) Act (1966) were increased through the Internal Security (Arms and Ammunition) Amendment Act (No 4 of 1999). For example, purchasing or possessing a firearm or ammunition without a certificate or making a false statement when applying for a firearm certificate, carries a penalty of a minimum of M500 or a minimum imprisonment of six months, or both. The use of or attempt to use a firearm or ammunition with the intent to endanger human life or cause injury to any person or property attracts a minimum sentence of five years imprisonment. Carrying or using a firearm with the intent to commit an offence or to prevent or resist lawful apprehension or detention carries a minimum penalty of 10 years imprisonment. Failure to renew a firearm certificate attracts a penalty of M10 for each month that the offence continues.

Notwithstanding these penalties and the administrative set-up for enforcement, there has been an increase in the use of unlicenced firearms in the last five years in the commission of offences like the crossborder theft of stock, robberies and murder. The increase in the circulation of unlicenced firearms was exacerbated by the political violence and army mutiny that followed the abortive 1998 general elections. Police stations and an armoury at one of the army barracks in Maseru were broken into and arms and ammunition stolen.

In an attempt to stem the tide, the government established the Counter Crime Unit in March 1999. This is a special body comprising police officers and soldiers whose task is to search for unlicenced firearms and arrest the culprits. According to superintendent Sekoateng Serabele of the Lesotho Police Service, the Unit has managed to unearth more than 2 000 unlicenced firearms so far ranging from heavy calibre to light calibre weapons.10

A significant infirmity in the Act is the absence of a definition of ‘possession’. The legislature left it to the courts to interpret. This has resulted in the term being interpreted as implying more than mere physical detention of uncertificated firearms. The courts have held that ‘possession’ of an article under the Act envisages both the physical detention of the article and the mental element of an intention to control the article.11

There is therefore a need to consider amending the Act by at least adding to the definition of possession a presumption of physical detention as sufficient to put the accused on defence. This will ease the investigative and prosecutorial task of the Crown and, hopefully, yield more convictions that might serve as deterrents.

Drug-trafficking

The draft Drugs of Abuse Bill (2000) seeks, among others, to prevent the diversion from lawful trade of controlled chemicals, equipment and materials for use in the unlawful manufacture of drugs. It also seeks to provide for criminalisation and punishment of drug-trafficking and other drug abuse.

More importantly, the draft bill seeks to bring Lesotho’s drug laws in line with the following international drug conventions: the 1961 Single Convention on Narcotic Drugs and its 1962 Protocol; the 1971 Convention Against Psychotropic Substances; and the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

It is suggested that a body known as the Lesotho Narcotics Bureau should be established by law and should consist of the following:

a chairperson nominated by the Minister of Health;

a magistrate nominated by the Chief Justice;

the Attorney-General or nominee;

the Commissioner of Police or nominee;

the Director of Public Prosecutions or nominee;

the Director of Customs or nominee;

the Director of Legal Affairs in the Ministry of Foreign Affairs or nominee;

the Director-General of Foreign Affairs or nominee;

the Chief Medical Officer or nominee;

the Chief Pharmacist or nominee; and

the Legal Officer in the Ministry of Health.12

The Bureau will have advisory and legislative review powers. It will also play a co-ordinating role, and will be tasked to collect and analyse data on types of drugs, abuse patterns, trafficking routes and seizures in order to plan for proper intervention measures. The Bureau should be proactive and pilot alternative income-generating projects in the dagga cultivation areas. It should assist the government in implementing the relevant conventions and the SADC Protocol on combating drugs and illicit drug-trafficking.13

The draft bill proposes the establishment of an account in the Consolidated Funds of Lesotho to be known as the Lesotho Fund for Prevention and Control of Drug Abuse.14 The Fund shall be under the Narcotics Bureau, which will submit annual reports to parliament regarding its administration.15

The assets and monies of the Fund will be credits of:

sums of money allocated from time to time through parliamentary appropriation;



property paid or transferred to the Fund pursuant to or in accordance with the provisions of the laws on money-laundering, the proceeds of crime and mutual assistance in criminal matters;



voluntary payments, grants or gifts made by any person; and



any income derived from the investment of any amount standing to the credit of the Fund.16

The Fund will be used to meet the expenses incurred in carrying out and promoting the purposes of the draft bill, more particularly, the prevention of drug abuse, providing treatment and rehabilitation facilities and services to drug dependent persons, and the detection, investigation, prosecution or adjudication of proceedings under the draft bill. It will also be used to render assistance and co-operation under the laws governing international mutual assistance in criminal matters.17

The use of covert monitoring devices in the investigation of offences is allowed. Where a person is reasonably suspected of having committed an offence under the draft bill, or is about to do so, a police officer of the rank of superintendent or above and a customs officer of the rank of principal customs officer or above may apply to the court for a time-specific permission or order to monitor and record covertly by any means the suspected person’s conduct, movements and communications (including telecommunications).18

Evidence unearthed, obtained or collected by or through covert monitoring is admissible in any proceedings relating to an offence under the draft bill and may be communicated to any competent national or international authority.19

It is also proposed that the prosecution service, the police and the customs department should be allowed to engage in an investigative technique called ‘controlled delivery’. This involves allowing an illegal or suspect consignment of drugs, equipment, material or property, believed to be derived directly from any offence, to pass in or out of the country under the supervision of an authorised officer to gather evidence on the identity and involvement of any person in such a consignment.20

The Director of Public Prosecutions, senior police officers and customs officials are also to be empowered to give written approval to their colleagues to monitor and detain for further investigation suspect mail and to approach the courts for authority to access computer systems for data, to enter specific places and to conduct a search. They can also search a person, his or her clothing and internal body cavities, provided this is done by a police officer of the same gender.21

Property liable to forfeiture is defined as property derived or realised directly or indirectly from such an offence and includes, on a proportional basis, property into which any property derived or realised directly or indirectly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains derived or realised from such property at any time since the commission of the offence.22

Any person (natural or legal) who conspires, aids, counsels or procures another to commit or attempt to engage in conduct that constitutes an offence under the proposed provisions, or incites, urges or encourages any conduct that is prohibited, will be liable for prosecution and punishment similar to the actual offender. In determining the nature and severity of punishment, the court will have to take into account, inter alia, whether the convicted person belonged to an organised crime syndicate, used violence or firearms, or is a health professional, or person responsible for combating the traffic in or abuse of drugs.23

Lastly, the draft bill proposes trial and punishment in Lesotho of persons who assist in or induce the contravention of a drug law of another state.24

If Lesotho can adopt and pass the proposals of the draft bill into law, it will have made a decisive break with the antiquated legal regime of the Dangerous Medicines Act (No 21 of 1973). This law lacks all the progressive investigative, international and extraterritorial jurisdictional dimensions that feature so prominently in the draft bill. In this era of rapid globalisation where cross-country movement is easy, drug laws have to run in tandem with international trends and co-operation in combatting trafficking and abuse of drugs.

Stock theft

The Stock Theft Act (No 4 of 2000) was enacted against the background of crossborder theft of stock involving residents of both Lesotho and South Africa. This had become so serious that it involved raids of villages on the Qacha’s Nek and Matatiele border and resulted in the destruction of life and property of Basotho and South Africans.

Section 3 puts an acquirer or receiver of stock or produce on guard regarding the legitimate or lawful title of the person from whom the stock or produce is acquired or received. The acquirer or receiver has to have a reasonable belief that the stock or produce is the property of the person from whom the stock or produce is acquired or received.

The police, chiefs and ordinary citizens have been given the power to arrest without warrant any person who is found in possession of stock or produce if there are reasonable grounds to believe or reasonable suspicion that the possession is unlawful and such a person is unable to give satisfactory account of its origin.25

A person to whom stock or produce is sold, bartered or given, or who has acquired, in any manner, the stock for any purpose, has to register the stock within seven days of acquiring it.26 The registration is done by the chief under whose jurisdiction the possessor or owner of the stock falls. The chief has to verify ownership or possession of the stock before registering it.27

Failure to register stock within the stipulated period or at all is a criminal offence. The making of a false statement or entry in the register is also a criminal offence.28

Other critical parts of the Act relate to the authority to convey stock and the times within which it can be conveyed, delivered or accepted. Section 9 provides that stock cannot be conveyed from or through the jurisdiction of one chief to another unless the conveyor has the authorisation of the owner or possessor of the stock. Such authorisation has to be in the form of bewys (proof) in respect of the stock. Section 10(1) provides that stock or produce shall not be conveyed, delivered or accepted between the hours of sunset and sunrise. The purpose is to curb the nocturnal movement of stock and delivery of produce — something which is common. It will serve the police well, as thieves will not want to be exposed in daylight.

Stock cannot be sold, bartered or disposed of in any other manner unless accompanied by its bewys which must have been issued by the bewys writer not more than three months before the disposal of the stock.29

At the time of writing, none of the provisions of this Act had been litigated in the High Court. All the cases that have been dealt with in this respect were heard in magistrates’ courts at district level. Therefore, there has not been any authoritative interpretation of the provisions of the Act.

The Stock Theft Act suffers from a number of limitations. Firstly, it does not cover cases of actual theft of stock as did the repealed Stock Theft Proclamation. In this law, theft was defined to embrace, besides actual stealing:

"(1) receiving knowing to have been stolen, (2) attempting to steal, (3) being or having been in unlawful possession not being able to give a satisfactory account of such possession, and (4) inciting or counselling or procuring the theft of stock or produce."30

The Act does not even bother to define theft. At best, it empowers a chief, a police officer or any person authorised under the provisions of the Criminal Procedure and Evidence Act (No 7 of 1981) to arrest without warrant any person who is found in possession of stock or produce where there are reasonable grounds or suspicion that the possession flows from unlawful acquisition or receipt and the person is unable to give a satisfactory account of such possession.31 The offence for which such a person should be prosecuted remains a mystery.

It is difficult to appreciate why such a provision was inserted in the Act without clearly stipulating the nature of the charges that the arrested person should face. If this provision is an aid for further investigation, then it offends against the principle that an arrest should follow investigations and not vice versa, barring imminent harm to life, limb or property.32

It is suspected that the drafters failed to appreciate the relevance of defining theft to include, inter alia, being or having been in unlawful possession, not being able to give a satisfactory account of such possession, or criminalising the inability to give a satisfactory explanation as was done when the Stock Theft Proclamation as amended by Act No 33 of 1967.

Consequently, the theft of stock cannot attract any of the heavy penalties that have been provided for under the Stock Theft Act of 2000. Indeed, the prosecutors and magistrates do appreciate this fact and moves are afoot to amend the Act to plug this gaping hole.33

Thirdly, even if a charge of stock theft is preferred, following "failure to give a satisfactory account or explanation of unlawful possession," it would not stand unless the prosecution has evidence to show that the stock belonged to someone, or was lost by someone, or was recently stolen from someone, or there are circumstances (other than failure to give a satisfactory explanation) from which an irresistible inference can be drawn that theft had originally taken place.34

Motor vehicle theft

The Motor Vehicle Theft Act (No 13 of 2000) was published in the Government Gazette number 92 of 26 October 2000. It is therefore a new law of which the full character will be developed in time. For the moment, its textual analysis will reveal its skeleton. The essential features of this Act are to curb the illegal importation, ownership, registration and trade in motor vehicles and spare parts.

Section 14 provides for the search, seizure and arrest of persons and vehicles reasonably suspected of being involved in suspicious or criminal enterprises. Police officers are empowered to stop, search and arrest any person found driving, or in possession, in charge, or in control of a motor vehicle reasonably believed to be stolen and to seize the vehicle and documents relating to it35 and to take the person and the vehicle to the nearest police station.36

Where criminal proceedings are instituted in relation to the seized vehicle, it cannot be released by the court until the prosecution of the matter has been concluded and within six months of the date of such a conclusion or the date of seizure of the vehicle, whichever is later, an application is made supported by satisfactory documentary proof of lawful ownership or possession. Otherwise, the vehicle shall be handed back to the police at the end of the six months after prosecution to be dealt with as an unclaimed vehicle.37

Unclaimed vehicles are dealt with under a scheme provided for under section 19. Motor vehicles that are found abandoned on any road, convenient place or premises and those seized in accordance with the provisions of the Act and of which their owners are unknown or cannot be found, or the accused is at large or deceased and the cases cannot be finalised, may be removed to the nearest or most convenient police station to be disposed of as unclaimed vehicles.38

The procedure for disposing of an unclaimed vehicle requires the Commissioner of Police to publish details in a Gazette and in at least one newspaper circulating in Lesotho, and at a place outside Lesotho where the motor vehicle is suspected to be registered. This notice should give the particulars of the vehicle, or where no particulars are available, a fair description of the vehicle. The life of the notice is defined as a reasonable period of time, but it is envisaged that there should be at least two such notices. If no person comes forward to claim the vehicle, it will be forfeited to the Crown and sold by public auction or dealt with as the Commissioner may direct.39

Disposal, purchase and sale of motor vehicles are regulated under section 7. It is a criminal offence to sell, transfer or otherwise dispose of a motor vehicle or to purchase, receive or accept delivery of a motor vehicle without a document effecting such sale, transfer, purchase or delivery.40

It is, however, a sufficient defence for a purchaser making use of a dealer to produce a declaration or certificate from such a dealer specifying the dealer’s name and place of business and stating that the vehicle has been lawfully sold to the purchaser. The following also apply:

In the case of a vehicle purchased outside Lesotho, the declaration or certificate must be produced before a customs officer and stamped at the point of entry into Lesotho. Within seven days of such importation, the purchaser must present the vehicle, together with the declaration or certificate, to a police station for verification.



In the case of a vehicle purchased in Lesotho, the purchaser must present it, together with the declaration or certificate, to a police station within seven days of the purchase for verification by the police.41

A vehicle dealer who refuses or fails to issue a declaration or certificate as required or who issues a false declaration or certificate, and any purchaser who fails to present a vehicle and a declaration or certificate to the police for verification commits an offence and is liable, on conviction, to imprisonment for a period of not less that three years or to a fine of not less that M5 000.42

The significance of these provisions is that they compel sellers and buyers of vehicles to get proper and authentic documents for the vehicles and keep the records of the identity and address of persons they engage with in business.

Section 6 obliges dealers to report forthwith to the nearest police station, any vehicle delivered or received in the course of business suspected to be stolen or tampered with. Failure to report is a criminal offence punishable with a minimum imprisonment of five years or a M5 000 fine, or both. In addition, the convicted dealer’s license or permit has to be cancelled or suspended for a period of not less than two years.

Public officials who fail, omit or neglect to do their duties under the Act or any other law regulating the registration of vehicles or their importation commit an offence punishable by a minimum fine of M12 000, or imprisonment for a period not exceeding six years, or both. If the dereliction of duty relates to a vehicle proven to be stolen, the public official involved may be prosecuted and punished as an accomplice to the theft or any other offence involving the vehicle.43

Where it emerges that the convicted public official intentionally failed, omitted, or neglected his or her duty, he or she will be liable to summary dismissal from service with loss of benefits.44 The Act provides for orders of compensation to victims of offences under the Act. Compensation may cover the actual and consequential loss.45 Lastly, the police have powers, subject to judicial control, to investigate and seize assets of persons reasonably suspected of engaging in the business of stealing, receiving or dealing in stolen vehicles and any other fraudulent activities. Any other person who has an interest in the seized assets has the right to apply to the court for their release.

Laundering of the proceeds of crime

Lesotho does not have any law regulating or proscribing activities of laundering money and other ill-gotten property. There are moves, however, to put in place administrative procedures to scare off money launderers. The Central Bank set up a special committee to make recommendations on how commercial banks should approach the problem. The committee has produced draft legislation for consideration by the Attorney-General’s Chambers.

The draft bill, bearing the title Anti-Money Laundering Bill 2000, has nine parts, apart from the definition section.

Part II deals with identification procedures to be followed when establishing a business relationship or concluding a single transaction with an accountable institution. An accountable institution is defined as:

a legal practitioner as defined in terms of the Legal Practitioners Act of 1983;



a board of executors or a trust company or any other person that invests, keeps in safe custody, controls or administers trust property;



an estate agent as defined in the Estate Agents Proclamation;



a group of persons that may be described by the term or concept known as ‘stokvel’ which-

(i) establishes a continuous pool of capital by raising funds by means of the subscriptions of members;

(ii) is a formal or informal rotating credit scheme with entertainment, social and economic functions;

(iii) consists of members who have pledged mutual support to each other towards the attainment of specified objectives;

(iv) grants credit to and on behalf of members;

(v) provides for members to share in profits and to nominate management; and

(vi) relies on self-imposed regulations to protect the interests of its members;



a person, other than a bank, who carries on the business of-

(i) collecting money from other persons into an account or a fund; and

(ii) depositing the money in such an account or fund into a bank account on behalf of the persons from whom he had collected the money;



a person who carries on ‘insurance business’ as defined in the Insurance Act of 1976;



a person who carries on ‘the business of a bank’ as defined in the Financial Institutions Act of 1973;



a person who carries on the business of a casino or gambling institution;



a person who carries on the business of dealing in bullion;



a person who carries on the business of effecting a money lending transaction directly between a lender and a financial institution as borrower through his intermediation;



a person who carries on the business of exchanging amounts in one currency for amounts in another currency;



a person who carries on the business of lending money against the security or securities, excluding-

(i) the Central Bank of Lesotho;

(ii) any person registered as a bank under the Financial Institutions Act of 1999; and

(iii) any person registered as an insurer under the Insurance Act of 1976;



a person who issues, sells or redeems travellers’ cheques, money orders or similar instruments;



a public accountant as defined in the Accountants’ Act of 1977;



a member of a stock exchange;



a totalisator agency board or a person operating a totalisator betting service."

The draft bill suggests that accountable institutions, as soon as they have been approached by a prospective client, should obtain the prescribed proof of such a client’s identity.46 Where a prospective client acts in a representative capacity, the accountable institution will have to obtain proof of:

the identity of the person on whose behalf such a prospective client is acting; and



the authority of the prospective client to establish the business relationship or to conclude the transaction.47

If a transaction is proposed to be concluded in the course of an established business relationship, the accountable institution will have to ascertain:

the identity of the person who approached it;



the identity of the client with whom the relevant business relationship was established; and



the identifying particulars of all accounts at the institution that are involved in the transaction.48

Part III of the draft bill obliges the keeping of records for business relationships and transactions for a period of at least five years commencing from the date that the relationship ceases or the activities relevant to a transaction are completed.49 It will be for each accountable institution to formulate and implement an internal policy that will ensure the capture of information and keeping of records.50 The accountable institution will have to take reasonable steps to ensure against unauthorised access to its records.51

Part IV deals with the reporting of transactions above a prescribed limit, suspicious transactions, electronic fund transfers and transfer of cash into or out of Lesotho.52 It also deals with protection from legal suits for reporting.

The Bill proposes that reports should be made to a Financial Intelligence Centre. The Centre will be responsible for:

collecting, retaining, compiling and analysing all information disclosed according to the provisions under Part IV;



disseminating information to the relevant investigating authority where such information warrants a criminal investigation;



advising and assisting a relevant investigating authority; and



supplying information relating to criminal conduct to an investigating authority upon request.53

It is proposed that no duty of secrecy or confidentiality or any other restriction on the disclosure of information about the affairs of a client or customer of an accountable institution, whether imposed by any law — statute or common law - or any agreement must affect duties imposed on the institutions and persons under the provisions of the draft bill. Further, it is suggested that evidence on the identity of individuals who disclosed or initiated the disclosure of information should be inadmissible as evidence in criminal proceedings.54

An exception to the duty to disclose will have to be made in respect of the obligation of secrecy and/or restriction based on the common law right to professional privilege between an attorney and his or her client in respect of information communicated to the attorney to enable him or her to provide advice, to defend or render other legal assistance in connection with a criminal charge under any law, or in respect of an investigation with a view to institute criminal proceedings.

Information retained by the Financial Intelligence Centre will be accessible only to:

a relevant investigating authority in respect of information about a reportable transaction;



an investigating authority, inside or outside of Lesotho, which the director of the Centre reasonably believes requires the information to investigate criminal conduct;



an authority outside of Lesotho performing similar functions to that of the Centre in respect of which the director reasonably believes that such information, or an analysis of it, is required for the purpose of investigating criminal conduct;



the Commissioner for Income Tax; and



any other person that may be entitled to the information by virtue of an order of the court or under any other law.55

Information obtained from the Centre can only be used for the purpose stated in the request and shall not directly or indirectly be communicated to another person.56

Lastly, Part IX provides for offences and penalties for failure to obtain the required proof of identity of prospective clients, to keep records, to report transactions to the Centre, and the abuse or misuse of information released by the Centre.57

This draft bill encapsulates commendable approaches to be taken when tackling the problem of the concealment and laundering of money that is the product of a crime. The broad range of institutions that is proposed to be involved in this effort is testimony of the necessity for a multifaceted approach to combat the laundering of the proceeds of crime.

Corruption and bribery

The common law knows no crime called corruption. What it recognises is bribery, which has been defined to include the offering of a gift to an official of the state to induce him or her to do something in the interests of the offerer. It does not matter that the public official’s assistance is sought in an issue that is not within his or her official functions. Nor is it important that the bribe is made to induce the official to refrain from executing his or her functions unlawfully.58

In an endeavour to move beyond the narrow compass of common law bribery, parliament passed the Prevention of Corruption and Economic Offences Act (No 5 of 1999). Although this important law came into operation on the date of its publication in the Gazette on 12 August 1999, the investigatory institution created in it, called the Directorate on Corruption and Economic Offences, has not been established due to financial and human resource constraints.

The functions of the Directorate are:

to receive and investigate complaints alleging corruption in public bodies;



to investigate alleged or suspected offences under this Act or others disclosed during investigations;



to investigate alleged or suspected contravention of fiscal and revenue laws;



to investigate conduct of any person which may be connected with or conducive to corruption;



to prosecute, subject to the DPP’s consent, any offence committed under the Act;



assist law enforcement agencies in the investigation of offences involving dishonesty or cheating of the public revenue;



examine practices and procedures of public bodies in order to facilitate discovery of corrupt practices and to secure the revision of methods of work or procedures which may be conducive to corrupt practices;



instruct, advice and assist any person, on the ways in which he/she may eliminate corrupt practices;



advise heads of public bodies on change in practices or procedures compatible with the effective discharge of the duties of such bodies and necessary to reduce the likelihood of the occurrence of corrupt practices;



educate the public against the evils of corruption;



enlist and foster public support in combatting corruption; and



undertake any other measures for the prevention of corruption spots and economic offences."59

The Directorate can demand that any suspected person must enumerate, in writing, all movable and immovable property belonging to or possessed by him or her in Lesotho or outside of Lesotho and the mode of such acquisition or possession; furnish all information or documentation in connection with a suspected person or his or her accounts and bank statements and specify any money acquired in or outside Lesotho or sent out during such a period, as may be specified. Failure to comply is a criminal offence punishable with a maximum fine of M2 000 or imprisonment not exceeding two years, or both.60

Corruption is defined in eleven sections,61 to cover the following conduct:

the making of a promise or the acceptance of a gift to do a public duty or not;



acceptance of a gift as a reward to do or a public duty or not;



participation or voting in the proceedings to conclude a deal involving a public body and a company or undertaking in which an employee of a public body or an immediate family member has a direct or indirect interest and failing to disclose the exact nature of such interest;



bribery to influence or assist in promoting, administering, executing or procuring (including any amendment, suspension or cancellation) of any contract (including a subcontract) with a public body;



cheating the public revenue;



offering or accepting a bribe or promise by an agent to do anything or not in relation to his of her principal’s affairs or business;



offering or accepting a bribe or promise to withdraw or refrain from making a tender for any contract with a public body; and



offering or accepting a bribe to refrain from bidding at any auction conducted by or on behalf of a public body.

It is clear that a swath is cut across the public administration and the private sector.

An offence with wide ramifications and implications for the property rights of public officers looming on the horizon is that of the possession of unexplained property. The Directorate has the power to investigate, where there is reasonable suspicion, a public official who:

maintains a standard of living not commensurate with his or her present or past known source of income or assets reasonably suspected to have been acquired illegally; or



is in control or possession of pecuniary resources or property disproportionate to his or her present or past known sources of income or assets reasonably suspected to have been acquired illegally.62

There is a presumption of corruption if a public official fails to explain to the Directorate’s satisfaction how he or she was able to maintain such a standard of living, or how pecuniary resources or property came under his or her control or possession.63

In a prosecution for an offence of the unexplained possession of property, if the court is satisfied that the resources or property is held by some close relation of the accused or some other person without adequate consideration from the accused, it will be deemed, until proven otherwise, that such property or resources have been under the control or in the possession of the accused.64

The Act also provides for the protection of informants and the non-disclosure of the identity of other persons who might have assisted the Directorate in its functions.65 Last, but not least, the Act provides for the arrest and prosecution of citizens and those resident in Lesotho whose acts and conduct of corruption:

have consequences with an effect or intended to take effect outside Lesotho;



is committed outside Lesotho, provided that an act of the kind in question corresponds to offences of the same nature that are punishable under the law in force in the foreign country; and



is committed outside a territory recognised by international law as belonging to any state, irrespective where the actual or intended consequences of the corrupt act have taken effect or have been intended to take effect.66

It can be said that the extent of the definition of corruption in the Act exhibits the seriousness with which the legislature views corrupt practices. It manifests the resolute purpose with which it has to be tackled.

Apart from the Prevention of Corruption and Economic Offences Act, the Public Service Act (No 13 of 1995) also applies. This Act is specifically meant to regulate the conduct of public officials and to ensure that they do not abuse their offices. Part 2 contains a code of conduct which, among others, decrees that a public official should not be employed in any other paid occupation outside the public service, or accept any money, fee, gratuity or reward for services rendered otherwise than in the public service. However, the Minister of Public Service may approve the non-observance of these provisions. As there are no written criteria or guidelines on which the minister’s decision is based, nepotism, arbitrariness and political discrimination may influence decisions.

The minister may also exempt a public official or a group of public officials and any kind of interest or employment from the provisions of section 16 of the Act. Such an exemption may be absolute or subject to conditions that should be specified in a notice published in the Gazette.

Where a public official has a direct or indirect financial interest (including loans and shares) in any undertaking, and if such interest is incompatible with the discharge of the public duties of such an official, then the official has to disclose such interest to the minister for the latter to require such an official to dispose of all interests specified by the minister.67

Public officials are also prohibited from accepting any fee, reward or remuneration of any kind beyond their emoluments for the performance of any service to government. However, the door can be opened for receipt of such fees or reward if authorised by law, in the terms of appointment, or by the minister.68 A breach of the code of conduct can attract penalties ranging from caution or reprimand to outright removal from office following a disciplinary enquiry.69

The drawback in this Act is that public officials are left to police themselves and their colleagues. Such an arrangement leaves room for collusion and may explain the reason why there are no reported instances of disciplinary proceedings involving the unauthorised receipt of fees, rewards or remuneration for private employment and the pursuit of private interests. Senior public officials are those with the social influence to engage in private employment or hold interests in private sector enterprises. Given the hierarchical chain of command and their proximity to the minister, they are unlikely to expose themselves.

International co-operation

The Fugitive Offenders Act (No 38 of 1967) provides for the return of offenders to countries that are designated from time to time in a Gazette. The designation has to recite or embody the terms of the arrangement with the country to which it refers.

Persons liable to be returned are those accused of relevant offences or alleged to be at large after conviction of relevant offences. Section 5 of the Act classifies a relevant offence as one:

against the law of the designated country, however described, falling under any of the descriptions set out in the First Schedule of the Act, and punishable under the law with imprisonment for a term of 12 months or more; and



in which the act or omission constituting the offence or the equivalent act or omission, would constitute an offence against the law of Lesotho in the case of an extraterritorial offence, in corresponding circumstances outside of Lesotho.

Offences in the First Schedule of the Act pertinent to this article are bribery, perjury, subornation of perjury or conspiring to defeat the course of justice, an offence against the law relating to dangerous drugs or narcotics, stealing, embezzlement, fraudulent conversion, false accounting, obtaining property or credit by false pretences, receiving stolen property or any other offence in respect of property involving falsitas or fraud.

General restrictions are that:

the offence must not be of a political character;



the request must not be for the purpose of prosecuting or punishing the person on account of race, religion, nationality or political opinions;



there should not be any potential trial prejudice, punishment, detention or restriction of personal liberty by reason of race, religion, nationality or political opinion;



it should not appear that, if charged with the same offence in Lesotho, the person would be entitled to be discharged under any rule of law relating to previous acquittal or conviction;



provision should be made by the law of the requesting state or by arrangement that the person will first be given an opportunity to return to Lesotho before he or she is dealt with in respect of any other offence committed before the request for his or her return except if:



the offence in respect of which his or her return under the Act is requested;



any lesser offence proven by the facts is proven before the court of committal; or



any other offence being a relevant offence in respect of which the Minister of Foreign Affairs may consent that a person may be dealt with.

The Fugitive Offenders (Amendment) Order (No 38 of 1971) provides for the obtaining of evidence in Lesotho by other countries, or testimony of any witness in relation to a criminal matter pending in a court or tribunal of such a country. The only exceptions are criminal matters of a political nature.

Of the SADC countries designated so far, Zambia is the only one to which offenders may be returned. This designation was done in March 1972. The legal notice in which the designation was done further provided for co-operation with any other country party to any treaty or other international instrument concerning unlawful acts on board or in relation to aircraft to which Lesotho is a contracting party.70

South Africa and Lesotho entered into a bilateral extradition agreement on 20 June 199571 which lists, among others, the following offences as extraditable on a reciprocal basis:

murder, sedition and rape;



bribery, whether under the common law or a statutory provision;



escaping from lawful custody in respect of any of the listed offences or in respect of an offence of escaping from lawful custody;



forgery, fraud and hijacking;



theft, whether under the common law or statutory provision;



receiving stolen property with the knowledge that it has been stolen;



any offence under any law relating to the illicit dealing in or possession of precious metals or stones;



any offence under any law relating to the illicit killing of an elephant, a black or white rhinoceros, or any such animal; and



any offence under any law relating to the illicit possession, conveyance or supply of dependence-producing drugs.72

Apart from the list of offences liable for extradition, there is also a sentence-based approach and extradition shall be granted:

in respect of offences punishable by a sentence of imprisonment for a period of not less than six months, or by some other severe penalty and not only a fine;



for the purpose of enforcing a sentence in respect of a person convicted and sentenced for a listed offence that attracts a minimum sentence of six months and not only a fine;



in respect of a person convicted but not yet sentenced for a listed offence or one categorised as punishable with imprisonment for a minimum period of six months and not only a fine; and



on a discretionary basis in respect of requests relating to more than one offence with the punishment for some of these offences less than six months imprisonment.73

The treaty also provides for the handing over of property which may be required as evidence and which has been seized under the authority of a search warrant, or which was found in the possession of the person whose extradition is sought at the time of arrest. Such property may be handed over even if extradition, having been granted, cannot be carried out for any reason.74 Such property shall be handed over on condition that it is returned after the completion of criminal proceedings in the requesting party if it is liable to seizure or confiscation in the requested party, or where a requested party or third parties may have acquired rights in it unless such rights have been waived.75

Mandatory grounds on which extradition will be refused are offences regarded by the requested party as political offences or offences connected with or related to a political offence; military offences; if under the laws of either party, the person whose extradition is sought has become immune from prosecution or punishment for the extraditable offence including lapse of time, or final judgement has been passed by the competent authorities of the requested party on the person in respect of the offence.76

Discretionary grounds on which extradition may be refused include offences which carry the death penalty in terms of the laws of the requesting party and not the requested party. In such cases, extradition may be on condition that the requesting party provides written assurance that the requested party considers to be sufficient that the death penalty will not be imposed or, if imposed, will not be carried out.77

Other cases of the discretionary refusal of extradiction are where the competent authorities of the requested party are initiating proceedings against the offender in respect of the offence, or where such authorities have decided either not to institute proceedings or to terminate proceedings in respect of the same offence.78

It should be realised that the weakness with discretionary refusal, even when the competent authorities have decided not to institute proceedings, is that an offender may be provided with a safe haven by the requested party. This could strain co-operation between countries especially if the benefactor of the decision is a national of the requested party.

A comment is also necessary in relation to political offences. This is in the exclusive domain of the requested party. It is this party that has to determine whether or not an offence is of a political character or is an offence connected with or related to a political offence. Perhaps aware of the various and even complex permutations that may lead to the omission of offences deserving extradition, the parties have chosen the option of definition by exclusion rather than inclusion. Hence, the treaty provides that offences of a political character shall not include:

an offence against the life or person of a head of state, deputy head of state or acting head of state, or a member of his or her immediate family or any related offence, consisting of aiding and abetting, counselling or procuring the commission of, or being an accessory before or after the fact or attempting or conspiring to commit such an offence;



an offence against the life or person of a head, deputy head or acting head of government, or a minister of a government, or any related offence;



murder, or any related offence; and



an act declared to constitute an offence under a multilateral international convention of which the purpose is to prevent or repress a specific category of offences and which imposes on the parties an obligation either to extradite or to prosecute the particular person.79

The last word on the treaty is that it has not been incorporated into domestic law and is therefore not enforceable.80 This serious omission is not even appreciated by the Director of Public Prosecutions who has attempted to institute extradition proceedings against four Lesotho nationals wanted by South Africa in connection with offences ranging from burglary, theft, armed robbery, attempted murder and murder.81

The Acting Director of Public Prosecutions has argued in court that the publication of the treaty in a Gazette is an act of its incorporation into municipal law. This contention has been rejected on the trite reasoning that international agreements are not enforceable nor justiciable in municipal courts, unless and until they have gone through the ratification process at parliamentary level. Hence, the gazetting of the treaty by the government of Lesotho fell short of the required sanction to make it binding.

Mutual legal assistance

Mutual legal assistance is governed by the Foreign Tribunals and Extradition Acts Procedure Proclamation (no 5 of 1911) amended by Order no 39 of 1971. This Proclamation provides for rules that govern the taking of civil, commercial and criminal evidence pursuant to letters of request or commissions rogatoire under the Foreign Tribunals Evidence Act of 1856 or the Fugitive Offenders Act 1967.

When it appears to the High Court that any foreign tribunal of competent jurisdiction is seized with a civil, commercial or criminal matter and desires to obtain testimony in Lesotho relating to any witnesses within the High Court’s jurisdiction, the High Court may issue an order for assistance.82

An order for examination of the witness may be obtained ex parte upon application by any person authorised by the foreign tribunal or court and on production of the commission rogatoire, letter of request or other evidence that may be required by a judge of the High Court. The application has to state that a competent court of foreign jurisdiction is desirous to obtain the testimony of witnesses within the jurisdiction of the High Court in a matter pending in a foreign tribunal.

The examination may be ordered to be taken before any fit and proper person nominated by the applicant, or before the judge.83 The judge has the discretion to determine the manner in which the examination may be taken and may direct it to be in a manner or form requested by the foreign court or tribunal or, in the absence of special directions from the requesting court, to be taken in the manner in which evidence is ordinarily taken on commission de bene esse.84

After the examination is concluded, the registrar of the High Court has to certify the original court order and the examination and depositions taken pursuant to the order and then transmit them to the registrar of the requesting court for transmission to the latter court’s judge.

No case law was found that elaborates on the provisions of the Proclamation and the parameters of its implications for Lesotho courts. Experience from elsewhere is that the principles on which the court’s discretion has to be exercised are that:

judicial and international comity require that requests should be treated with sympathy and respect;



compliance should be to the extent that domestic law permits;



applicable principles are those which are applied to the calling and examination of witnesses initiated in the requested court;



the procedure under the Foreign Tribunals Evidence Act (1856) is not to be used to obtain discovery against a person not party to the proceedings; and



courts are reluctant to accede to requests where the evidence required is of a material nature and it is necessary to observe the witness’s conduct and demeanor to make a just assessment.85

Conclusion

Although the survey of Lesotho’s laws on organised crime reveals serious efforts being made to align municipal laws with international trends, there remain three areas that need attention.

The first is a specific law on organised crime that definitively answers the question of what an organised criminal gang is and the kind of legislative regime that will yield effective investigative techniques and seizure of illegally acquired assets.

The second terrain that needs to be covered relates to computer and internet crime. Special legislative efforts must be made to amend and reform procedural, evidentiary and substantive laws in order to meet the challenges of the globalisation of crime and to facilitate co-operation through technology in areas of evidence-gathering.

The third terrain that has to be covered is that of the effective protection of witnesess. There is a growing culture of intimidation and murder of witnesses. This calls for the development of witness protection measures so that justice cannot abort at the behest of criminals.

Notes