IN THE COURT OF APPEAL OF LESOTHO
C OF A (CRI) NO. 8/09
In the matter between:
KHOHLANE BOI FIRST APPELLANT
PATU TŠITA SECOND APPELLANT
SEKAKE MOHALE THIRD APPELLANT
MONAHENG MOHALE FOURTH APPELLANT
MPITI MOHALE FIFTH APPELLANT
SELLO MAMPASE MASHAMPHANE SIXTH APPELLANT
LEJONE RAMARUMO SEVENTH APPELLANT
LETSEMA RASELEMANE EIGHTH APPELLANT
MAPHOMENG MOKHATHALA NINTH APPELLANT
MOEKETSANE MOKUOANE TENTH APPELLANT
MOHALE MOHALE ELEVENTH APPELLANT
NTAI MOKUOANE TWELVETH APPELLANT
LEETO MOKONE THIRTEENTH APPELLANT
MOLIBETSANE MOKONE FOURTEENTH APPELLANT
CHABANA MOKONE FIFTEENTH APPELLANT
CORAM: HOWIE, JA
Heard : 13 April 2010
Delivered: 23 April 2010
 On the morning of 17 April 2005, in a rural area near Ha Mokotane, Mantŝonyane in the district of Thaba-Tseka, Mahooana Molupe (the deceased), was running away from a group of pursuers who were throwing stones at him. One of the stones hit him on the head causing fatal injury. The Crown charged various people, including members of the group, in the High Court before Hlajoane J and assessors with having murdered the deceased. All were convicted and each was sentenced to seven years imprisonment. The appeal is against all the convictions and sentences. (It is to be noted that the person referred to in the case heading as the fifth appellant did not stand trial but the original numbering has been retained for convenience.)
 The main defence raised in the trial court, and persisted in on appeal, is founded on s.42 (1) of the Criminal Procedure and Evidence Act 1981 (the Act).
 The subsection says:
“When any peace officer or private person authorised or required under this Act to arrest or assist in arresting any person who has committed or is on reasonable grounds suspected to having committed any of the offences mentioned in Part II of the First Schedule, attempts to make the arrest, and the person whose arrest is so attempted flees or resists and cannot be apprehended and prevented from escaping, by other means than by the peace officer or private person killing the person so fleeing or resisting such killing shall be deemed justifiable homicide.”
 Section 30 of the Act authorises a private person to arrest any other person without warrant if the former has a reasonable suspicion that the other has committed an offence referred to in Part II of the First Schedule. Stock theft is such an offence.
 A brief survey of the relevant evidence is this. By way of introduction, cattle belonging to appellant 6 were stolen on a night some months before the fatal stoning. Their spoor was followed by him, the first appellant and others. It led to the cattle post of Moeti Mahohle.
 According to the first appellant, who was the only defence witness, and whose evidence was not rejected by the trial court, when the search party reached the cattle post they found Taeke Sello there (PW1). They obtained information from him that he, the deceased and a third man had stolen the cattle. He indicated where the cattle and the other two men had gone. That precipitated certain investigations. Although the third named person was found, neither the cattle nor the deceased were traced. The matter was reported to the police but before long PW1 and the deceased had disappeared from the area. After an interval of about three months they returned to their homes. By inference, their return soon became known because the first appellant and others among the appellants (he did not say who, and was not asked) proceeded on the day in question to fetch PW1 and the deceased in order to take them to the Chief’s place. The group comprised local villagers designated by the Chief to constitute what was referred to in the evidence as an anti-stock theft unit. They were on their way to the Chief with PW1 and the deceased when the deceased, as the first appellant put it, insulted them and, having produced a firearm, fired a shot at them. They ducked, it missed and the deceased fled. They followed and threw stones at him. Asked why, his answer was:
“Because we wanted to arrest him….. Because he had frightened us and we were suspecting him of [stealing the] cattle.”
 As to the reason for this suspicion, the first appellant indicated that it was based on what PW1 had said at the cattle post and because they had traced one of the men who PW1 had said had gone ahead with the cattle.
 Reverting to the pursuit of the deceased, the first appellant said the pursuers caught up with the deceased by which time he had sustained the wound which eventually caused his death. Referred to the evidence of PW1 (to which I shall refer in due course) who said that the fatal stone was thrown by appellant 13, the first appellant said he did not see who threw it. His evidence was:
“We were many people who were throwing stones at him so I don’t know which stone hit him, and again he fell from the cliffs.”
(The reference is no doubt to cliffs alongside a river towards which the deceased had been running.) Having caught up with the deceased next to the river they “drove” him (the appellant’s word) to the Chief’s place. The first appellant concluded his evidence-in-chief by saying that prior to the deceased being caught appellants 8 and 9 were not involved in the relevant events.
 Under cross-examination he was asked to state who had not been in the group at the time the deceased fired at them. In addition to the appellants 8 and 9 he mentioned appellants 14 and 15. Concerning the shot he said this:
“At the time when he was aiming at us, he had not yet pulled something at the back. I observed as he was pulling something from the back, and at that time the gun faced upwards and that is why the bullet went over our heads.
It was pointed at us because we were even insulted.”
 Turning to the Crown evidence, the only witness of relevance as to the stoning of the deceased, and the s.42(1) defence, was PW1. In the course of his evidence under cross-examination it was put to him that the police had asked for assistance in arresting the deceased and PW1 for having stolen the cattle. He said he did not know that. The record of his evidence goes on:
“My instructions are further that the following morning that is when they set out to go and arrest you: Any comments?
I only know that they went to arrest us but I didn’t know that they were sent by the chief or by the police.”
This was the high point of the evidence which could be said to support the defence. However, he was not asked to elaborate on when he came to acquire that knowledge. On the face of it he was referring to his knowledge as at the time of the trial. He did not say that the deceased knew, or must have known, that the group was intent on arresting them.
 The passage in PW1’s evidence just referred to must be considered in conjunction with the other relevant parts of his testimony.
 His evidence-in-chief was that the first appellant and others arrived at his house on the morning in question. They asked him to go to the deceased’s house. The deceased was at home. He says they were told they should go to the Chief’s place “and register”. He and the deceased sought an opportunity to tell the latter’s grandmother, Maseoe (PW2), where they were going but their request was denied. The group then “drove” them towards the Chief’s place. Then followed the shooting, the stoning and the capture of the deceased. He said the stone that hit the deceased was thrown by appellant 13. He managed to run away and hide, last seeing the deceased as the latter made for the river.
 The following passage appears later in his evidence-in-chief:
“CC: Did they tell you why they wanted you to go to the Chief’s place?
CC: Did you ask them why they wanted you to go the Chief’s place?
PW1: Yes we asked them.
CC: What was their response?
PW1: They said we should go and give a statement.
CC: …. What exactly did they say?
PW1: When they arrived there at home they said we should go and write some papers. We asked them what papers they were, they didn’t tell us what they were.
CC: Did you ultimately get to know why these people assaulted you on that particular day?
PW1: Yes we came to know when we arrived at the Chief’s place.
CC: Why were they assaulting you?
PW1: (Appellant 6) said we have taken his cattle.”
By the time they reached the Chief’s place the deceased had, of course, been fatally injured.
 Cross-examination did not serve to destroy or water down the evidence in the passage just quoted.
 The acting chief of the area gave evidence as PW4. He said that when PW1 had been linked to the theft some months previously, he had actually been arrested. Not only that, the deceased, too, had been arrested. However, both escaped from police custody. At the time of the events in issues therefore, they were both wanted by the police who had asked PW4 for his assistance. According to him the police said that the wanted men should either be arrested and brought to the police or that the police should be informed of their whereabouts.
 The foregoing summarises the evidence that is material to the s.42 (1) defence.
 In so far as the question is concerned whether the Crown must disprove the s.42 (1) defence or whether it is for the accused to establish it, the answer in South Africa, in respect of a virtually identical provision in that country’s 1917 and 1955 statutes dealing with criminal procedure, was that the onus was on the accused: R v Britz 1949 (3) SA 293. At 303 it was pointed out that neither directly nor by implication did the legislature’s language place the onus on the accused. However, at 304 it was concluded, that because of the grave risk of ill-considered use of firearms in cases of suspected offences that were not very serious, and bearing in mind the sanctity of human life, the legislature must have intended that, because these risks “would be very materially increased” if the onus lay on the prosecution, one who had killed another and sought the very special protection of the provision in question bore the onus. Although doubt on this issue was expressed in Matlou v Makhubedu 1978 (1) SA 946 (A) at 956A and 962D-E, Britz was not overruled. Indeed Britz was expressly approved in S v Swanepoel 1985 (1) 576(A).
 This country has since advanced into the constitutional era and the Constitution of Lesotho, under the heading “Right to fair trial”, provides in s.12:
“(2) Every person who is charged with a criminal offence –
shall be presumed innocent until he is proved or has pleaded guilty, …..”
However that section goes on to provide:
“(11) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of –
subsection (2) (a) to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts ….”
 The constitutionality of s.42 (1) is not in issue. The question, then, is whether that subsection does impose the burden of proving the factual elements of the defence on the accused.
 By the time the Act became law in 1981 the relevant South African legislation providing for justifiable homicide had been changed. The decision of the Lesotho legislature not to adopt the then current South African provision and to enact s.42 (1) in terms materially no different from those of the South African provision that was considered in Britz is indicative of a conscious choice as to which model to adopt. It could also be inferred that in making that choice the Lesotho legislature was aware, inter alia, of the interpretation of the South African provision that was expounded in Britz. In any event, if the proper interpretation of s.42(1) has to be decided by this Court there is no ground upon which to differ from the conclusion reached in Britz which, in my view, correctly states the position as to the onus of proof in regard to s.42(1). I conclude, therefore, that it was for the appellants, provided the prosecution proved that the killing was otherwise an unlawful homicide, to establish the s.42(1) defence.
 As to the action which the subsection permits the accused to take, the words “cannot be apprehended and prevented from escaping, by other means than by …killing” clearly indicate that the killing has to be necessary. What the legislature does not expressly state is whether that means “reasonably necessary”. In Britz the court said in the course of its reasoning that if killing were necessary it did not matter that it might be unreasonable (at 303, 304). However, in Matlou, supra, the South African Appellate Division (in a majority judgment of four Judges) in a case dealing with the same provision that was involved in Britz, said that it was clear that the section envisaged that lawfulness only arose where no other force than killing could reasonably be applied to overcome resistance or escape (at 957H-958A). Here, too, so it seems to me, the then South African position as reflected in that passage correctly reflects the law of Lesotho in respect of s.42(1). It follows that the killing in the present matter had to be shown to be reasonably necessary.
 The trial Judge held that no lawful arrest had taken place because the suspects were not told that they were under arrest on suspicion of stock theft. She relied on s.32 (4) of the Act which requires that when a person effects an arrest without warrant he must inform the arrested person of the cause of the arrest. Of course, in the instant case the defence is not that the deceased escaped after having been arrested. In the appellants’ reliance on s.42 (1) it is implicit that they accepted that there had been no arrest but that the relevant appellants were attempting to make an arrest. Nevertheless the crucial point is that unless the intended arrestee knows that it is sought to arrest him (leaving aside what the cause of the attempted arrest may be) it cannot be said that he resisted or seeks to escape from an attempted arrest within the meaning of s42 (1). Unless he is resisting a lawful attempt to arrest him no force, much less lethal force, can be used to try to stop him fleeing. Therefore, to bring the attempt and subsequent force within the protection of s42 (1) the intended arrestee must know that an attempt is being made to arrest him. This is particularly so where the intending arrestor is in civilian clothing and even more so where he is known as a civilian to the intended arrestee. The latter would otherwise be entitled to regard resistance or escape as entirely lawful and to act accordingly. The current South African provision (s49 of Act 51 of 1977) contained in subsection 1, legalizing, in specified circumstances, less than lethal force, the express requirement that it must be clear to the intended arrestee that an attempt to arrest him is being made. This, in my view, merely spells out what is in any case intended by the provision which constitutes s42 (1).
[22 Having evaluated the evidence in the light of the legal position set out above, the first question to be answered is whether the appellants who went to fetch PW1 and the deceased ever attempted to make an arrest.
 The events relevant to this question can conveniently be divided into two phases. The first phase preceded the shooting. PW4 did not testify that he had told members of the anti-stock theft unit that the police wanted the deceased arrested or their whereabouts known. Assuming that he did, there is nevertheless no evidence that any of the appellants was told what effecting an arrest legally entailed or that if they failed to comply with the law in that regard they could be guilty of assault if they simply physically detained the wanted men without more.
 The inference that the appellants were ignorant in that regard is strengthened by the evidence of PW1 that he and the deceased were told nothing more than that they were to go to “register” at the Chief’s place. Even if all the appellants at all material times did harbor a reasonable suspicion that the two men had stolen the cattle, the fact is that PW1 and the deceased were being arrested or that it was sought to arrest them. The first appellant’s evidence, if anything, points the other way. He refers to their having “collected” the suspects and his first reference to arrest relates to the second phase. He did not suggest that they had in fact arrested the deceased before the shooting. There was no attempt to arrest within the meaning of the subsection during the first phase.
 The consequence was that at the time of the shooting the liberty of the deceased had been unlawfully constrained by those of the appellants involved at that stage. He was accordingly entitled in law to take reasonable measures to secure his freedom.
 Turning to the second phase, and the claim of the first appellant that they threw stones in order to arrest the deceased, one must begin with the consideration that having not told the deceased during the first phase that he was being arrested – when there was adequate time to tell him – it is highly unlikely that in the circumstances that developed after the shooting that they had either the time or the intention to make him aware that they wanted to arrest him. Indeed, the first appellant does not allege that they even tried.
 In summary, because the deceased was not informed at any time relevant to his flight and injury that it was intended to arrest him, the conduct of the relevant appellants did not constitute an attempt to arrest within the meaning of s42 (1). (I would add that that would be my conclusion even if the onus on this element of the case were on the Crown.) It follows that the deceased was not resisting or seeking to escape from such an attempt and his pursuers were not legally entitled to use lethal force to try to stop him. The defence based on the subsection therefore cannot succeed.
 The next question is whether any of the appellants was proved guilty of murder. PW1 alleged that appellant 13 threw the fatal stone. The first appellant could not dispute that allegation and appellant 13 did not testify. He was therefore proved guilty of an unlawful killing. Counsel for the appellants rightly conceded that intentionally throwing a stone at the head of another generally justifies the inference that the thrower must have foreseen the possibility of death but acted regardless of that consequence. The evidence fails to indicate the distance between appellant 13 and the deceased at the crucial time or any other feature by reference to which one could determine what the appellant thought the chances were of hitting the deceased on the head. The Crown is entitled to rely on the inference that the appellant intended to land his missile on the deceased’s head or upper body with sufficient impact to deter him from further flight and was indifferent to whether any resultant injury was fatal. The defence led no evidence that appellant 13 aimed low or that there was any other reason raising reasonable doubt impeding the drawing of the inference referred to. In my view appellant 13 was therefore correctly convicted of murder.
 Whether any other appellants were proved guilty of murder depends on whether the Crown established that they participated in a common purpose which resulted in the deceased’s death. The inescapable fact is that once the deceased took flight there immediately came into being a common purpose among all the appellants then involved to throw stones at him. They did so. The others manifestly had the same object as appellant 13. Absent any lawful reason for their conduct (for reasons already given) their purpose was inevitably unlawful. All those then concerned therefore participated in an unlawful common purpose in the execution of which the crime of appellant 13 was committed. The final question in this regard is whether each had the necessary mens rea. As in the instance of appellant 13, the inference favouring the Crown case was not displaced by any defence evidence. Not even the first appellant gave any evidence conducive to a reasonable doubt in his favour. An individual’s guilt on the basis of common purpose requires proof of five facts: his presence on the relevant scene; his awareness of an assault in progress; his making common cause with the perpetrators(s); his performing some act of association; and his having the intent to kill, at least because he foresees the possibility of the victim’s death and performs his particular act reckless as to whether that death results. S v Mgedezi 1989 (1) SA 687 (A) 705I–706B. These facts were proved in respect of all the appellants who took part in the stone throwing. I accordingly conclude that they were, on the basis of the doctrine of common purpose, guilty of murder.
 As to who was proved to have participated, PW1 said who chased him and the deceased. They were all the appellants save appellants 8, 9, 14 and 15. (He also included the erstwhile fifth accused who, as already mentioned, was not convicted because he was not tried.) There is no reason to doubt the evidence of PW1. The testimony of the first appellant was that when the shot was fired the only appellants not present were the four excluded by PW1. It follows that appellants 1, 2, 3, 4, 6, 7, 10, 1 and 12 were also correctly convicted of murder.
 It remains to determine whether appellants 8, 9, 14 and 15 were shown to have committed any offence of which they could properly have been convicted on the charge preferred.
 PW2 said that at a stage which must have been after his pursuers caught up with the deceased near the river, she saw them standing round him beating him. She was a distance away but claimed to have seen who was involved. In addition to those properly convicted of murder to whom I have referred, she said she identified appellants 9, 14 and 15. She said specifically that appellant 8 was not there. Her purported identification of appellants 9 and 14 is problematic. Apart from the fact that she twice referred to appellant 9 as present and once as “not there”, PW1 said that during the morning in question this appellant was seen on horseback on the other side of the river and not in the group with the deceased either before or after the shooting. PW1 also said that he saw the deceased being brought back from the river and appellants 9 and 14 were not among the people with the deceased. It is a reasonable inference that the people with him at that stage were the people assaulting him near the river. These shortcomings in the evidence of PW2 render it unsafe to convict appellants 9 and 14 of assaulting the deceased near the river. That being so, there is no reason to regard her implication of appellant 15 as any more reliable. The prosecution case against those three appellants was a weak one. Even though it was unanswered the Crown case cannot be said to have been proved beyond reasonable doubt.
 I have not overlooked the evidence of Muso Setlaba (PW3) who was at the Chief’s place at about midday when the deceased was brought there. This witness included appellant 9 among those who brought him. However the appellant’s presence at that juncture is insufficient to justify the conclusion that he was one of the group when any of the earlier events of the day took place. In the result no offence was proved to have been committed by appellants 9 and 14. I shall revert to the case of appellant 15.
 The next piece of evidence to be considered is that of PW3 concerning his account of what occurred after the deceased had been brought to the Chief’s place. He testified that PW4 ordered him and appellants 1 and 8 and the erstwhile fifth accused to take the deceased back to the river to look for his firearm (it being common cause that he had thrown it into the riverside bushes just before being cought.) The deceased was made to walk alongside a horse ridden by appellant 8. The latter was holding one end of a short rope, the other end of which was tied to the deceased’s bound hands. At the riverside the others who were in the group went down the cliff to search the bushes while PW3 remained at the cliff top. The firearm could not be found. In the course of the search the witness saw appellant 8 holding the deceased and whipping him with a sjambok till the deceased cried out.
 PW3 was thoroughly cross-examined as to a written statement he had signed and made to the police. It was not proved in evidence but counsel put it to the witness that he had said in the statement that the deceased had taken them to the place where the gun had fallen whereas the evidence of the witness was that he had not himself gone down to where the gun had fallen but had instead remained on top of the cliff. The witness maintained that he had indeed seen this assault by appellant 8 from where he was on tope of the cliff.
 Counsel put it to PW3 that appellant 8 denied having beaten the deceased but the appellant did not give evidence.
 PW4 confirmed that he ordered a search for the firearm and his evidence corresponds with that of PW3 as to who was in the search party.
 In my view the quality of the evidence of PW3 was such that it called for an answer. Appellant 8 was entitled to maintain his right to silence but he did that at his peril. I hold that the Crown proved beyond reasonable doubt that he assaulted the deceased with a sjambok in circumstances which justify the inference that he did so with intent to cause serious bodily harm. I draw that inference given all the circumstances relevant to the assault. Having suffered a severe head would from which he died nor much later, the deceased had been driven on foot, in effect bound to a horse,, from the river to the Chief’s place and back again. All this had served severely to compromise his state of health and resistance to further injury. He was then struck with a sjambok, a weapon notoriously associated with severe beatings. The assault persisted until he cried out in pain. Indeed, infliction of pain was the object of the exercise: the gun could not be found and the inference is inescapable that he was being pressured into showing where he had thrown it. The absence of evidence that this assault actually caused a serious wound is not material. It was committed with the intention to cause serious harm.
 The last aspect of the case to be considered is the evidence in respect of appellant 15 given by PW1. This was to the effect that after the gun could not be found and he and the deceased were being taken on foot to the police. They were bound together and were being whipped as they were being driven along. Their assailants were appellants 1, 6 and 15. At a certain point along the road the deceased fell and was unable to get up. To prompt him to do so, appellant 6 whipped him on the stomach with a sjambok. When he failed to get to his feet appellant 15 placed some wood on top of him, saying he wanted to burn him. This episode was only ended by the arrival of a police vehicle. They were all taken to the police station where the deceased died shortly after arrival. This evidence proves a concerted assault involving appellant 15 and, for substantially the same reasons as pertain to the case against appellant 8, I consider that even in the absence of the assault having caused a serious wound it was intended to cause substantial physical suffering.
 To sum up:
(a) Appellant 1, 2, 3, 4, 6, 7, 10, 11, 12 and 13 were correctly convicted of murder. Their appeals against conviction must fail.
(b) Appellants 8 and 15 were wrongly convicted of murder. However their appeals have achieved limited success. They were proved to have committed assault with intent to do grievous bodily hard and convictions for that offence must be substituted.
(c) Appellants 9 and 14 were wrongly convicted of murder and were not proved to have committed any other offence. Their appeals must succeed.
 As regards the matter of sentence, counsel for the appellants did not seek to make any submissions and understandably so, in my view. The seven year sentence imposed on those convicted of murder is not, in the case of any of the appellants concerned, open to interference. Their appeals against sentence must fail.
 As for appellants 8 and 15, their seven year sentences must be set aside. A fitting sentence for the assault committed by each is, in my view, one of two years, half conditionally suspended.
 The order of this Court is as follows:
1. The appeals of appellants 9 and 14 are upheld. Their respective convictions and sentences are set aside.
2. The appeals of appellants 1, 2, 3, 4, 6, 7, 10, 11, 12 and 13 are dismissed.
3. The appeals of appellants 8 and 15 succeed to the extent that while their respective convictions and sentences for murder are set aside the following is substituted for the order of the High Court with regard to each of them:
“The accused is convicted of assault with intent to do grievous bodily harm and sentenced as follows:
2 years imprisonment, one year suspended for five years on condition that the accused is not convicted of a crime committed during the period of suspension and involving violence to the person of another for which unsuspended imprisonment is imposed.”
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
For Appellants : DR K.E. MOSITO KC
For Respondent: ADV. TLALI