Notes
1 High Court of Lesotho (unreported, 5 February 2008); Court of Appeal of Lesotho [2008] LSCA 30.
2 The Commission was later re‐named the Lesotho Highlands Water Commission.
3 For an analysis of the cases see C Nicholls et al, Corruption and Misuse of Public Office, 1st edition (Oxford University Press, 2006), p 435 et seq.
4 Per Howie, AJA, giving the judgment of the Court of Appeal of Lesotho in Crown v Mochebelele and Molapo at para 9 (the CAL judgment).
5 Ibid, para 2.
6 Nomngcongo J sitting with two assessors.
7 This position dramatically changed with the 1997 signing by the Federal Republic of Germany of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the OECD Convention) and its subsequent enactment into domestic law through the Act on Combating Bribery of Foreign Public Officials in International Business Transactions (Gesetz zu dem Übereinkommen vom 17. Dezember 1997 über die Bestechung ausländischer Amtsträger im internationalen Geschäftsverkehr – IntBestG) dated 10 September 1998 (Federal Law Gazette [Bundesgesetzblatt] Part II p. 2327, Annex 1). The Act entered into force on 15 February 1999 (the date of entry into force of the OECD Convention). The OECD Convention addresses ‘active bribery’ and requires State Parties to criminalise the offering, promising or giving of a bribe to a foreign public official.
8 Bam died in 1999.
9 CAL judgment, para 14.
10 Ibid, para 15.
11 [1964] 2 All ER 881; [1965] AC 1001.
12 At p 21.
13 Crown counsel also argued that the documents constituted relevant circumstantial evidence from which the only reasonable inference was that references to Lahmeyer paying RM and LM what in law were bribes were true. This is based on the old common law rule that out of court assertions and actions of conspirators may be admissible as circumstantial evidence of a conspiracy and thus operate outside the operation of the hearsay rule: see R Cross and C Tapper, Cross on Evidence, 7th edition (Butterworths, 1990), p 589. The point was not addressed in the judgment of the Court of Appeal.
14 Ibid.
15 (1844) 6 QB 126.
16 For example, R v Levy and Others 1929 AD 312; R v Leibbrandt 1944 AD 253; and R v Mayet 1957(1) SA 492 (AD).
17 At para 90.
18 Over 100 preliminary issues were raised by the construction companies/consultants prior to start of the trial of Acres International: see Nicholls et al (n 3) p 436.
19 See generally J Colares, ‘The Evolving Domestic and International Law against Foreign Corruption: Some New and Old Dilemmas Facing the International Lawyer’ (2006) 5 Washington University Global Studies Review 1.
20 Siemens is listed on the New York Stock Exchange and accordingly it is subject to the FCPA.
21 The memorandum is available at http://w1.siemens.com.press.pool.de.events.2008-12-PK.DOJ2.pdf.
22 SFO Press release, 6 October 2008.
23 See Serious Fraud Office, Approach of the Serious Fraud Office to Dealing with Overseas Corruption (2009).
24 This can refer to the group, a UK company or an overseas subsidiary, ibid, p 2.
25 See Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council of 31 March 2004. See further, J Hatchard, ‘Recent Developments in Combating the Bribery of Foreign Public Officials: A Cause for Optimism?’ (2007) 85 University of Detroit Mercy Law Review 1 at 23–28.
26 For example, in Teper [1952] 2 All ER 447 at 449 the court noted that ‘The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested in cross‐examination and the light of his demeanour would throw on his testimony would be lost’.
27 The Group comprised legal practitioners and academics from around the Commonwealth. The current writer served as a member of the Group. In all, the Group drew up model laws on six topics: I. Documentary evidence including business, banking and public documents; II. Foreign evidence; III. Video/satellite evidence in relation to persons outside the country; IV. Vulnerable witnesses; V. Corroboration; VI. DNA.
28 The Group recommended that ‘Document’ should mean ‘information recorded in any form’ whilst the definition of ‘Business’ should be broadly framed to cover both private enterprise and government activity.
29 Commonwealth Secretariat, Report of Expert Working Group on Evidence (2001), p 2.
30 Ideally this should be part of a concerted effort to reform the hearsay rule in general.
31 For example according to the Transparency International Progress Report 2009: Enforcement of the OECD Convention on Combating Bribery of Foreign Public Officials the enforcement of the OECD Convention is extremely uneven. Of the 36 (out of the 38) State Parties covered in the Report, there was active enforcement in only four countries and little or no enforcement in 21 others. The authors of the Report also argued that increased efforts are also needed in countries with moderate enforcement because their level of enforcement is not high enough to provide effective deterrence.