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Director of Public Prosecutions v Billy (C OF A (CRI) NO.7/2009)

Media Neutral Citation: 
[2010] LSCA 13
Judgment Date: 
23 April, 2010

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IN THE COURT OF APPEAL OF LESOTHO

C OF A (CRI) NO.7/2009

In the matter between:

THE DIRECTOR OF PUBLIC

PROSECUTIONS APPELLANT


and


MACAEFA BILLY RESPONDENT


Coram: Scott, JA

Howie, JA

Farlam, JA


Heard : 12 April 2010

Delivered: 23 April 2010


SUMMARY


Sedition – appeal by Crown – whether s 3(2) of Sedition Proclamation applied – whether respondent had seditious intention.


JUDGMENT

FARLAM, JA

[1] The respondent in this matter, Mr. Macaefa Billy, was indicted in the High Court before Nomngcongo J, sitting with two assessors, on a charge of contravening section 4(1) (read with sections 3(1) (i), (ii) and (iv) of the Sedition Proclamation 44 of 1938 (what I shall call in what follows ‘the Proclamation’), alternatively on a charge of subversion in contravention of section 7 (d), read with sections 3 (1) and 12 (1), (2) and (3) of the Internal Security (General) Act 24 of 1984 (what I shall call in what follows ‘the Act’). He pleaded not guilty to both the main and alternative counts. At the conclusion of the Crown case he was discharged on both counts. An appeal brought by the Director of Public Prosecutions against this discharge succeeded: see Director of Public Prosecutions v Billy Macaefa C of A (CRI) No. 9/2008 delivered on 17 October 2008. On the resumption of the trial in the High Court, after the respondent had given evidence as the sole witness for the defence, he was found not guilty and acquitted. The Director of Public Prosecutions now appeals against the respondent’s acquittal.


[2] The judgment delivered by the learned judge at the end of the trial was not recorded. Attempts made by the Crown attorney to whom the task of seeing to the preparation of the record of the appeal in this matter was entrusted to obtain a copy of the judgment from the judge’s secretary have been unavailing. What has been put before this Court in place of the trial court’s judgment is a transcript of Crown counsel’s notes made when the judgment was delivered, a copy of which was sent to the respondent’s attorneys, with a request that they provide their written input regarding the contents if they were able to do so. The respondent’s attorneys responded by saying that they had not taken any notes while the judgment was being delivered and that they would not criticize anything contained in the note made by Crown counsel. They stated further that they would leave it to the court to decide whether, as they put it, the material in the hands of the Director of Public Prosecutions would constitute a complete record. As will appear from what I say later in this judgment, I am satisfied that Crown counsel’s notes of the trial judgment are sufficiently comprehensive to enable this Court to deal adequately with the appeal.


[3] The prosecution of the respondent followed upon a speech he made at a lawful political rally at Makhaleng in the district of Maseru on 8 April 2007. Before I set out particulars of the alleged offences which formed the subject matter of the main and alternative counts in the indictment, together with the full text of the English translation of the respondent’s speech, it will be convenient if I quote the provisions of the Proclamation and the Act which are relevant in this case. Section 2, Section 3(1) (i), (ii) and (iv), section 3(2) and section 4(1) (b) of the Proclamation read as follows:

2. In this Proclamation:-

……..

“seditious words” means words having a seditious intention.’


3. (1) A “seditious intention” is an intention –



  1. to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, Her heirs or successors, or the Government of the Territory as by law established; or


  1. to excite Her Majesty’s subjects or inhabitants of the Territory to attempt to procure the alteration, otherwise than by lawful means, of any matter in the Territory as by law established; or


  1. to bring into hatred or contempt or to excite disaffection against the administration of justice in the Territory; or


  1. or to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of the Territory; or

……..

But an act, speech or publication is not seditious by reason only that it intends –


  1. to show that Her Majesty has been misled or mistaken in any of her measures;


  1. or to point out errors or defects in the government or constitution of the Territory as by law established …..with a view to the remedying of such errors or defects; or


  1. to persuade Her Majesty’s subjects or inhabitants of the Territory to attempt to procure by lawful means the alteration of any matter in the Territory as by law established.


(2) In determining whether the intention with which ….any words were spoken, ….was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.’


4. (1) Any person who –

…………

(b) utters any seditious words; ……….

shall be guilty of an offence and liable on conviction for a first offence to imprisonment for two years or to a fine not exceeding two hundred rands or to both such imprisonment and fine, and for a subsequent offence to imprisonment for three years.”


[4] Sections 3(1) and 7 (d) of the Act read as follows:

‘3. (1) In this Act, unless the context otherwise requires.

……..


public officer” means a person holding or acting in any office of emolument in the service of the King in respect of the Government of Lesotho and includes, to the extent of his authority, a person for the time being authorized to exercise the functions of that office;

……..

subversive” without limiting its ordinary meaning, includes –


  1. supporting, propagating or advocating any act or thing prejudicial to public order, the security of Lesotho or the administration of justice;

  2. inciting to violence or other disorder or crime, or counselling defiance or disobedience to the law or lawful authority;

………’


7. A person who, with subversive intention, inside or outside Lesotho,

………….


(d) utters or writes any words; ……

is guilty of the offence of subversion.’


It is unnecessary to quote the wording of section 12 of the Act because it deals with the penalties prescribed, inter alia, for the offence created by section 7 of the Act.


[5] It was alleged in the main count in the indictment that the respondent on the date and at the place stated and ‘at a lawful political rally duly organized by the All Basotho Convention Party pursuant to securing notice of holding same in terms of section 3(1) of the Meeting and Procession Act No.2 of 1993 unlawfully and with seditious intent utter[ed] words with intent to unlawfully defy and subvert the authority of the Government of Lesotho’, the words so uttered being set out in a transcription attached to the indictment of the speech allegedly made by the respondent in Sesotho at the meeting together with an English translation.


[6] It was alleged in the alternative count that on the date and at the place specified and at the political rally referred to in the main count the respondent ‘unlawfully and with subversive intent inside Lesotho utter[ed] words intended to incite to violence or other disorder or crime or counsel defiance or disobedience to the law or lawful authority’, the words relied on being those set out in the transcription attached to the indictment.


[7] The following is the text of the English translation of the respondent’s speech (I have inserted numbers therein in order to facilitate reference to specific passages later in this judgment):

Speaker : Shine!

Response : The Sun!

Speaker : I appreciate this opportunity of addressing you

after the elections.


  1. I am sure some of you were wondering as to why I did not speak to you immediately when we came from the elections. The main reason, inter alia, is that in our coalition with Kobo-tata and Worker’s Party, when we have visitors, I always consider it that it suffices that the leader, ntate Tom for the merger to speak alone. May I remind you that when I fight, it is not so much that I fight for seats. In fact I would like to put the record straight, because I have had some people quote me from the Parliament that it is as though we have been cheated as regards the seats by Kobo-tata. I would like to make this clear here and now that we Workers’ Party, our aim and intention with Kobo-tata is not the seats. Our aim and intention is to remove that person who has become a stumbling block when it comes to starvation. If we can manage to remove that person from Qacha, that is all I want.


  1. My masters, I want to give you an assurance, if I had an opportunity of making an address after the election, on the very day that the Leader addressed you at Ha Mopapa; if I spoke on that day, things could have gone bad from that day. Let me remind you that his responsibility as a Leader and further tell you that we, who usually talk about these matters, they say we are delaying; this will make them cool down. I would like to tell you friends, that to-day I share the same sentiments with you. But, don’t put the Leader in a fix; don’t put him in a fix. If I may teach you, the main responsibility of the Leader is to restrain you. After you having done what? After you have acted. I assure you, friends, that there is never going to be a day when ntate Tom will stand here to say you should do this. His is to be heeded when he restrains you. Once he says ‘stop’, you stop.


  1. Should I tell you the affairs of this country? The affairs of this country can’t be solved round a table. As for these discussions, let me tell you, I Billy stand here with certainty, I don’t see any head-way. That notwithstanding, let us respect our Leader and let him go to those discussions. If after this thing called SADC, Troika’ which thing I don’t know, there is no solution, Comrades, I tell you that we shall call one meeting that will give us the way forward.


  1. We are not going to waste time. I want to tell these my fellow NSS members who are present here that it is no secret that I together with some others, I know they are many here, this man from Qacha looks down on us as though he is the only man. I hate a man who, when talking to other men, says he spans a bull while it is bellowing. I think it is because we don’t want to talk about the affairs of this country. If we were to recap a little, things are much better, he should have long been toppled.


  1. You can go round the whole of Lesotho right now. Yesterday I was at my home, Matelile. Matelile people ask how they did not succeed! The whole nation is upset; you can go round the whole country of Lesotho, Right now people are wondering what is happening because the elections went well. I mean you know that the elections were conducted fairly. Mr. Thabane, that thing I spoke about these computers! As for this faxing! Goodness me! Things change. These children who are Returning officers are bribed. They change our elections results. My fellow people, I say it is well that we still listen to our Leader, but I would say, as for the stay-away, I thank you who participated, we did well. For that matter it was successful. My plea is that there be no other stay-away. There is going to be one thing only, that is after these SADC discussions which I trust ntate Tom to ably handle; I don’t want to get to that. I can turn those discussions tables up-side-down. He, as the Leader can go to those discussions. If they out-vote him, because they know how to negotiate those things, we, Billy and others should be told that they have hit a rock. But we are not going to stage a stay-away this time, we will “announce” in our last meeting what the way forward is. We are not going to have a man that we have expelled from Maseru turning back along the way.


  1. My fellow-people, I don’t want to derail the purpose of this today’s occasion, I want to believe that it is to introduce to Makhaleng community what Kobo-tata is. They should know that it is all-encompassing, the tame, the belligerent, the normal, the spiritisists, the recently traditionally circumcised young men, we are here; the workers as well. We would like you our fellow-people at Makhaleng to agree with us on one thing and that is here in Maseru, as you reside in Maseru district, the aim is that where you see a bird, you chase it away. When you se two or three birds, consider them dangerous, put them out of sight.


  1. As Maseru people we say we chase this person away to return to Qacha, he has failed in administration, we don’t want to see him being elected by means of those computers. I am sure you are witnesses that after the elections, these commissioners of IEC ran all over spending millions of monies for a short vacation. They toured. My fellow-people, I assure you, please remember what the responsibility of the Leader is. If you were to watch television, not necessarily going to those places, you would notice that in Africa as well as in Europe, you will see people running in towns, young and old, sweating, getting rid of a person who has become a stumbling block. I am saying this time we do not go for a stay-away. He who has ears should hear properly. We are going to go on our own, we will properly go to Maseru. We are not going to beat about the bush; we will lawfully go there with our matter, seeking one thing, that is Mosisili should go, we are not going to waste time.


  1. Mr. Thabane, go and talk to those your Troika people, talk in any manner you choose and then tell us the result. They should know that I purposely speak before they come that if they are not going to take you seriously but look at Mosisili, we stand ready for command.


Power!


Shine!”


[8] Three witnesses testified for the Crown, Sergeant Mohlomi and Trooper Mohale, the members of the Lesotho Mounted Police Service who attended the meeting addressed by the respondent, and Mr. Mathinya Sesioana, a retired senior interpreter in the High Court, who transcribed the speech made by the respondent from a recording thereof and then made an English translation, which he confirmed to be accurate. The correctness of the transcription and translation was not disputed by the respondent at the trial nor by his attorney on appeal.


[9] When the trial resumed after this Court had set aside the order made at the end of the Crown case the respondent, as I have said, gave evidence in his own defence. He stated that the main purpose of his address was to persuade the majority of the voters in the impending election in the Makhaleng constituency to vote for the candidate he supported. The meeting was held two months after the general election, which was won by the Lesotho Congress for Democracy (which I shall call in what follows ‘the LCD’). One of the candidates nominated in the constituency had died during the run-up to the general election and this necessitated the postponement of the poll in the constituency. The respondent is the leader of the Lesotho Workers’ Party, which had formed an electoral alliance with the All Basotho Convention (also known as Kobo-tata), whose leader is Mr. Thomas Thabane, and of which he is the secretary-general. (In what follows I shall refer to the parties making up the alliance as the ‘LWP’ and ‘the ABC’.) The candidate in whose support he spoke was put up by the alliance, which, though it had not won a majority of the seats in the election, had won most of the seats in the Maseru district. He explained that the main theme of his address was to indicate the weaknesses of the other parties taking part and those of their leaders, as well as the qualities and prospects, as he put it, of the alliance, so that the voters would understand these matters. He said that the motto of the ABC was that a great enemy of a person is starvation. The person from Qacha, to whom he referred several times in his speech, was Mr. Pakalitha Mosisili, the Prime Minister of Lesotho and the leader of the LCD. The respondent said that he referred to Mr. Mosisili throughout in his capacity as leader of his party and not as Prime Minister.


[10] He strongly denied that he had a seditious or subversive intention in making his speech. When he had said that it was the aim of the ABC-LWP alliance to remove Mr. Mosisili (who, he had said in paragraph 1 of his speech, had ‘become a stumbling block when it comes to starvation’) he had not intended to indicate that this removal was to be achieved by civil disorder or tumult or by unlawful action of any kind but by lawful processes, such as demonstrations, petitions and picketing. He pointed out that he had said (in paragraphs 3 and 5 of his speech) that this would not be done by a stay-away but that they would call a meeting and announce what the ‘way forward’ would be if the discussions organized by the SADC did not provide a solution to the problems of the country. This he had subsequently done, when he arranged a peaceful demonstration which was held in Maseru, three months after his speech, on 5 July 2007. He said that he had told the police that he would be responsible for seeing to it that the demonstration would be peaceful, as it was. Indeed he and the police had worked harmoniously together and the police had thanked him for this. This happened, he stressed, before he was aware that he was to be prosecuted for what he had said at the rally on 8 April 2007.


[11] He explained his statements (in paragraph 1 of his speech) ‘when I fight it is not so much that I fight for seats’ and ‘we Workers’ Party, our aim and intentions with Kobo-tata is not the seats’ by saying that they were a reference to an allegation that had been made that his party, the LWP, had been cheated because it only received three seats, while its alliance partner, the ABC had taken seven proportional representation seats. He stated that he meant that he was not fighting for those three seats but to remove what he called the Mosisili government.


[12] Dealing with a suggestion made by counsel for the Crown, he denied that he had done what Mark Antony had done in his speech in Shakespeare’s play Julius Caesar by saying one thing and meaning the exact opposite. He referred again in this regard to the peaceful demonstration he had organized on 5 July 2007 and to another held in December 2008.


[13] When questioned about his reference (in paragraph 6 of the speech) to considering ‘two or three birds dangerous’ and putting them out of sight, he said he was referring to the election symbols of the LCD and another party, the NIP, and had meant that the voters should not, as he put it, ‘elect those two birds’.


[14] He denied that when he said (in paragraph 5 of his speech) that the elections went well and were conducted fairly, he had meant the exact opposite. He stated that the elections had been conducted peacefully but that did not mean that the alliance had not been cheated in some constituencies.


[15] When it was put to him that his allegations against the Independent Electoral Commission were serious he would not admit it and contented himself with saying that the allegations were not accusations.


[16] As I said earlier, the learned judge’s judgment acquitting the respondent at the end of the trial was unfortunately not recorded and attempts to obtain his notes have not been successful. I am satisfied, however, that it is possible to reconstruct the main points made in the judgment from the copy of the notes made by counsel for the Crown, on which I have based the summary that follows.


[17] The judge read out the translation of the respondent’s speech, which had been placed before the court. He referred to R v Nkatlo 1950 (1) SA 26(C), a decision of the Cape Provincial Division of the Supreme Court of South Africa, in which it was said (at 31) that if the language used in the speech was ‘reasonably capable of another explanation the inference of intent cannot be drawn’, and stated his agreement therewith. He said the speech had to be viewed holistically. He pointed out that it centred on Mr. Mosisili, and not the Prime Minister, and that it contained no reference to the Government of Lesotho. He drew attention to the fact that the speech had been made during the course of an election campaign.


[18] The judge referred also to R v Ngono 1961 (3) SA 222 (SR) where in a case under similarly worded legislation in Southern Rhodesia, now Zimbabwe, Young J had said (at 230 B-C) ‘the path of criticism is a public way in which even the wrong-headed are entitled to wander, provided they act bona fide.’ The judge then mentioned R v Bunting 1916 TPD 578, where Wessels J, in considering a statute similar to the Sedition Proclamation, said that a statute of this nature must be strictly construed so as not to interfere with the liberty of the subject beyond what the law clearly requires.

[19] Referring to the suggestion made by counsel for the Crown that the respondent had, as the judge put it, quoting from R v Ngoni (at 231 F-G) ‘resorted to the notorious tactics of Mark Antony on another occasion’, by saying one thing and meaning the exact opposite, the judge said that there was some doubt on the point but that the respondent would be given the benefit thereof.


[20] He drew attention to the fact that the respondent had said that the audience should not act. He stated that the Crown had misconstrued what the respondent had said. The purpose of an election is to remove or unseat the party in power (the notes say the ‘opposition’, but either the note-taker wrongly recorded what the judge said or the judge was guilty of a slip of the tongue). The judge referred to the respondent’s statement that he meant lawful demonstrations such as the protest which took place on 5 July 2007. Viewing the speech holistically, he said, he could find nothing to suggest that the respondent did anything to bring hatred or contempt on the Government of Lesotho or to incite disaffection against it. At best, the judge held, the speech constituted a diatribe directed ad hominem (i.e, against Mr. Mosisili) and not against the government. The respondent was accordingly found not guilty and discharged.


[21] In conclusion the judge expressed his displeasure that the High Court was seized with the matter and that the government had incurred the expense of engaging the services of a senior and experienced practitioner to pursue a minor infraction of the law. The Sedition Proclamation, he said, is an archaic piece of legislation and even the colonial legislator did not regard an offence under its provisions as requiring more than a punishment of a fine of R200-00. The judge said that he did not know why a minor offence such as a contravention of the proclamation had formed the subject of a prosecution in the High Court.


[22] Counsel for the Crown submitted that the trial court had erred in not analyzing the evidence of the respondent and in not making a credibility finding against the respondent. He contended that an examination of the speech as a whole leads to the conclusion beyond reasonable doubt that the respondent was, as counsel put it, preaching civil unrest. In regard to the passages in the speech where the respondent said that the action that was to be taken would be lawful, counsel submitted that the rest of the speech was inconsistent therewith. In this regard he pointed specifically to six passages in the speech. They were:


  1. The statement in paragraph 1 that the respondent’s aim was not to fight for seats but ‘to remove that person from Qacha’ (i.e. the Prime Minister);


  1. The respondent’s references to the Prime Minister as ‘the person from Qacha’, ‘this man from Qacha’ and ‘Mosisili’, and never as the Prime Minister or the leader of the LCD;


  1. The respondent’s statement (in paragraph 2) that Mr. Thabane, the leader of the ABC-LWP alliance, would be listened to after the members of the audience had acted;


  1. The respondent’s statement (in paragraph 3) that the affairs of the country could not be solved round a table;


  1. The respondent’s attack (in paragraph 5) on the Independent Electoral Commission, whose members he said had been bribed and had changed election results; and


  1. The respondent’s reference (in paragraph 7) to people ‘running in towns, young and old, sweating’ getting rid of persons who had become stumbling blocks.


[23] Counsel contended further that the evidence of the subsequent peaceful demonstration on 5 July 2007 was irrelevant and could not be relied on in support of the respondent’s denial that he had a seditious or subversive intention when he made his speech.


[24] Counsel criticized the approach of the court in R v Nkatlo, supra, on which the trial court relied, and contended that the test applied in that case would, as he put it, have to yield to the deeming provision in section 3(2) of the Proclamation.


[25] The attorney who appeared for the respondent submitted that the trial court had been correct in finding that the respondent did not have a seditious or subversive intent when he made his speech. He argued further that the evidence of the respondent’s subsequent conduct could be looked at in order to resolve issues where there was ambiguity. He contended that what the respondent meant could be determined from the last two lines of paragraph 7 of the speech, in which, it will be recalled, the respondent said:

we are not going to beat about the bush; we will lawfully go there with our matter, seeking one thing, that is Mosisili should go, we are not going to waste time.’



[26] He also argued that the decision in R v Nkatlo, supra, was relevant and should be followed. What appeared from that case, he contended, was that section 3(2) does not have the effect of shifting the burden of proof to the defence and that the onus of proving the accused’s guilt beyond reasonable doubt remains with the Crown.


[27] In my view the six points raised by counsel for the Crown, whether taken singly or together, do not provide evidence which can support a finding that the respondent’s references in his speech to lawful conduct can be ignored and that he in fact intended, as counsel for the Crown put it, to topple the Prime Minister by unlawful means.


[28] In my opinion the respondent satisfactorily explained his statement that his aim was not to fight for seats. He said that this remark had been prompted by a suggestion that his section of the alliance, the LWP, had been cheated by the other section, the ABC, in the allocation of Parliamentary seats. He wanted to make it clear that he was not concerned about the seats; he wanted the Prime Minister to be removed.


[29] I also do not think that the fact that Mr. Mosisili was not referred to as the Prime Minister or the leader of the governing party takes the case any further. The speech was after all made in the course of an election campaign and its purpose was to criticize the leader of a party competing with the alliance for the votes of the electorate in the Makhaleng constituency.


[30] The statement that Mr. Thabane was to be listened to after the supporters of the alliance had acted also does not in my view support the Crown case. The respondent made it clear in paragraphs 3 and 5 that if the discussions organized by the SADC troika did not bring a solution to the problems of the country then he and his colleagues would call a meeting to provide the way forward, which would be announced at the meeting. In other words, there would be no action until the SADC troika discussions were over and a meeting was held thereafter, at which the supporters would be told what to do.


[31] The statement that the affairs of the country could not be solved round a table was merely indicative of the respondent’s pessimistic belief that the round table discussions convened by the SADC troika would not solve the problems of the country.


[32] It was not suggested in cross-examination that the respondent’s attack on the Independent Electoral Commission was not made in good faith and that he did not believe in the truth of his allegations. Indeed he pointed to at least one constituency where a serious mistake was made. In this regard Young J was correct in my view in R v Ngoni, supra, in pointing out, in the passage quoted by the trial court, that the path of criticism is a public way in which even the wrong-headed are entitled to wander provided they act bona fide. The respondent’s criticism of the Independent Electoral Commission may well have been unfounded and ‘wrong-headed’ but in the absence of a suggestion that it was not made in good faith it is difficult to see how it can bring the Crown home in this matter.


[33] The respondent’s reference to people ‘running in towns, young and old, sweating, getting rid of a person who has become a stumbling block’, colourful though it is, is not inconsistent with his suggestion that he envisaged his supporters going to Maseru in a demonstration, carrying petitions for the removal of the Prime Minister. It does not necessarily indicate that unlawful conduct was envisaged for immediately thereafter he urged his followers to go to Maseru ‘properly,’ and ‘lawfully’.


[34] I do not agree with counsel for the Crown’s submission that the respondent’s subsequent action in organizing a lawful demonstration, with the concurrence of the police, can be ignored in deciding what his intention was when he made his speech. While it may well be correct (and I express no view in this regard) that in general such evidence would be inadmissible, that is not the case here where future action to be announced later was fore-shadowed in the speech and the conduct in question took place before the respondent was aware that he was to be charged with sedition and subversion for what he had said. In my view the trial court correctly had regard to this evidence, which in the circumstances of this case provided powerful corroboration of the respondent’s assertions regarding the intent with which he made his speech.


[35] I am also of the opinion that the deeming provision contained in section 3(2) of the Proclamation does not assist the Crown in this case. An identically worded provision, section 53G (2) of the Penal Code of Northern Rhodesia, now Zambia, was considered by the Federal Supreme Court of the Central African Federation in Buchanan v R 1957 R & N 523 (FSC). In that case Clayden FJ (with whom Lewey ACJ and Griffin ACJ (Northern Rhodesia) concurred) said (at 526E – 527F):


One difficulty arises on the words of sub-section (2), and its use of the word “deemed”. This sub-section could mean that natural consequences of a publication must be taken as having been intended, irrespective of other facts which might show that they were not intended. If that were so the Court would be in a position similar to that discussed by LORD HALSBURY in Shepheard v. Broome, [1904] A.C. 342 at 345: “… it is a painful duty to treat that as fraudulent which in truth was not fraudulent … The statute, rightly or wrongly, contemplated the possibility of there being no actual fraud, and intentionally enacted that even if there were no fraud in the ordinary sense, … such prospectus should be deemed fraudulent.”


If this were the proper construction, it is difficult to see why the words “seditious intent” and “intent” were used at all in the section. For if a publication were calculated to cause ill-will and hostility between classes, or any of the consequences set out in sub-paragraphs (i) to (iv), the crime would be committed because the intent was deemed to be present, and all that it would have been necessary to enact would have been that it was a crime to publish matter calculated to bring about the enumerated consequences. What may be called the non-seditious acts, set out in sub-paragraphs (a) to (d), would be the only matters in which actual intent was of importance.


But the section does consistently use the word “intent”, and that it is the intent which makes the crime is apparent from the very definition of “seditious publication” in section 54. And by section 53G (2) itself its provisions are to be used in determining whether the intention was seditious or not.


Obviously the non-seditious acts enumerated in sub-paragraphs (a) to (d) are not the only circumstances in which an intention may not be seditious. Indeed that these acts have to be classified as non-seditious is indication that but for that classification they might be held to be done with seditious intent.


Section 53G (2) bears every indication of having come from Article 115 of Stephen’s Digest of the Criminal Law; there is an omission in regard to agreements (for Article 115 deals also with Seditious Conspiracy) but otherwise the wording is identical except that “shall” is used instead of “must”. That article has a heading “Presumption as to Intention” and is based on cases dealing with presumption. In both The King v Burdett, 4 B. & Ald. 95; 106 E.R. 873, and The King v Harvey, 2 B & C 257: 107 E.R. 379, there are passages in most of the judgments showing plainly that what was spoken of was an inference which would be drawn from the publication itself in the absence of contrary evidence. In the Criminal law the maxim that a man is presumed to intend the natural consequences of his acts is ordinarily a rebuttable presumption. And the use of the word “shall” instead of “must” is another indication that the word “deemed” was not meant to allow artificial intention to shut out actual intention.


For these reasons sub-section (2) must be interpreted to allow of the consideration of evidence outside the publication itself in deciding whether or not there was seditious intention.’


(See also Chipembere v R 1961-63 ALR Mal 83 (FSC), another judgment of the Central African Federal Supreme Court, cited with approval by Kheola CJ in R v Sekhonyana 1991-1996 LLR 1354 (HC) at 1356-7.)


[36] I agree with Clayden FJ’s interpretation of the section. I accordingly cannot accept the contention advanced by the respondent’s attorney that section 3(2) does not shift the burden of proof to the defence. In my view, for the reasons given in the Buchanan decision, it creates a rebuttable presumption, of a kind preserved in Lesotho by section 12(11) (a) of the Constitution.


[37] It is not clear, however, in my opinion, that ‘the consequences which would naturally follow’ from what the respondent said at the relevant time and under the circumstances then prevailing, would have been the removal of the Prime Minister by unlawful means. The natural consequence which would have followed would rather have been inaction on the part of the members of his audience until they were informed what the way forward was to be after the conclusion of the discussions organized by the SADC troika. The presumption created by section 3(2) accordingly did not come into operation.


[38] Counsel for the appellant did not suggest that if the appeal against the acquittal on the main count failed the result would be different on the alternative count.


[39] Accordingly the appeal is dismissed.



I.G. FARLAM

JUSTICE OF APPEAL


I AGREE:

D.G. SCOTT

JUSTICE OF APPEAL


I AGREE:

C.T. HOWIE

JUSTICE OF APPEAL



For Appellant : Adv. R.A. Suhr


For Respondent : Mr. E.H. Phoofolo