IN THE COURT OF APPEAL OF LESOTHO
C OF A (CRI) 3/09
In the matter between:
HALEKHETHE NTSANE FIRST APPELLANT
KELEBONE PHATE SECOND APPELALNT
MOKHATHI SELEPE THIRD APPELLANT
THATHO THATHO FOURTH APPELLANT
KHOSI PHATE FIFTH APPELLANT
MOJELA THAMAE SIXTH APPELLANT
CORAM: RAMODIBEDI, P
HEARD: 7 APRIL 2010
DELIVERED: 23 APRIL 2010
Criminal Law – Murder – Crime committed by the appellants acting together and in concert – The Crown relying on the doctrine of common purpose – Appeal dismissed.
 The appellants, who were members of what was termed the Prevention of Crime Unit, faced an indictment in the High Court compromising Four (4) counts, namely:-
Count 1: Murder, it being alleged that on 6 August
2005 and at or near Pontseng Hospital in
Qacha’sNek district the appellants unlawfully and intentionally killed one Remaketse Mojaki (“the deceased”).
Count 2: Assault with intent to cause grievous bodily harm. It was alleged that on 6 August 2005 and at or near Pontseng in
Qacha’sNek district the appellants unlawfully assaulted Nkasooa Tomose with sticks and stones with intent to cause him grievous bodily harm.
Count 3: Assault with intent to cause grievous bodily harm. It was therein alleged that on 6 August 2005 and at or near Pontseng in Qacha’sNek district the appellants unlawfully assaulted Libupuoa Ntsane (PW1) with sticks and stones with intent to cause him grievous bodily harm.
Count 4: Arson. The allegation against the appellants was that on 6 August 2005 and at or near Pontseng in Qacha’sNek
district they, acting unlawfully and with intent to injure Lefu Tomose in his property, set on fire and thereby damaged his house being an immovable property.
 The appellants were found guilty as charged. They were each sentenced as follows:-
Count 1: 7 years imprisonment.
Count 2: 1 year imprisonment.
Count 3: 1 year imprisonment.
Count 4: 3 years imprisonment.
All the sentences were ordered to run concurrently, thus making an effective sentence of 7 years imprisonment for each appellant.
 The appellants have appealed to this Court against conviction only. Essentially, they complain that the court a quo (Teele AJ) erred in convicting them on the doctrine of common purpose in circumstances where there was no evidence implicating them individually. They rely on the admitted fact that there were other people at the scene of the crime, numbering “not less than twenty people.”
 The background facts show that the appellants and others suspected the deceased and PW1 of having stolen seven sheep belonging to the first appellant. As indicated earlier, they were members of the Prevention of Crime Unit. On 6 August 2005, they set out on a “mission”, ostensibly to arrest the suspects at the latter’s cattle post where they were employed as herdboys. As it turned out, the “mission” went horribly wrong, either through unexpected resistance, on the appellants’ version, or through unprovoked attack on the suspects by the appellants, on the Crown’s version. It is, however, not seriously disputed that the appellants’ group pelted the deceased and PW1 with stones, thus forcing them to flee home. The appellants then engaged in hot pursuit of the two men all the way up to the village. It was there that the deceased and PW1 hid themselves inside Lefu Tomose’s house, the subject of the arson count. They duly reported the appellants’ assault on them.
 While the deceased and PW1 were busy reporting the appellants’ assault on them, the latter arrived, each on horseback. They enquired about the whereabouts of the two men. Nkasooa Tomose, the complainant on count 2, had the quick mind to tell them that the two men had not arrived. Hence the appellants went away, claiming that they were going to the chief’s place. They threatened, however, that they would soon come back. And so they did under the cover of darkness.
 It is not disputed that at about 8 o’clock in the evening of 6 August 2005, the appellants came back to Lefu Tomose’s house where the deceased and PW1 were in hiding. PW1 enquired about what was happening. Significantly, the fifth appellant retorted “We have come to kill you.” The second appellant also retorted that they had nothing against the children - inside the house but that they wanted to kill PW1 and the deceased. There is no evidence that any of the appellants dissociated themselves from these chilling statements. It will be necessary to revert to this aspect of the case later when dealing with the doctrine of common purpose. It shall suffice at this stage to record that, in an apparently well orchestrated attack, the appellants started off by evacuating the children who were inside the house. This was clearly to ensure that they were not injured in the impending assault on the deceased and PW1. These children were evacuated through the window.
 As soon as the evacuation was completed the appellants, on the Crown’s version, started throwing stones into the house through the window. Indeed PW1’s evidence goes further. He says that the appellants proceeded to take a bundle of wood, put it next to the door and set it alight. The door “burnt until it was over.” Burning grass was thrown in through the window.
 The deceased and PW1 tried to put out the fire but in vain due to the hail of stones being thrown by the appellants’ group from outside. The house was burnt down completely. During this melee, PW1 saw the fourth and fifth appellants holding spears, something that could not have escaped the attention of the other appellants. This notwithstanding, there is no evidence that the appellants dissociated themselves from the attack. But more tellingly, if I may say so at this stage, the presence of spears is a clear manifestation of the appellants’ intent, either to kill or to cause grievous bodily harm.
 As luck would have it, PW1 managed to escape from the inferno. As he did so, he saw that the deceased had fallen to the ground. At that stage the sixth appellant threw a stick at PW1 who escaped, with his eyes covered in blood. He had sustained two open wounds on the head. He had also been assaulted on the teeth.
 The evidence also established, and this is indeed common cause, that the deceased was subsequently found dead, lying on his belly near the burnt-down house. He had sustained five open wounds on the head as well as weal marks on the body. There were also three broken pieces of Lebetlela stick next to him. The cause of death was……
 It is convenient to digress there to consider the appellants’ case as foreshadowed in their heads of argument. Essentially, they raise a two-pronged challenge to the Crown’s case, namely:-
That the deceased’s killing was justified
under section 42 (1) of the Criminal Procedure and Evidence Act 1981 (“The Act”)
in as much as he was fleeing from arrest.
That there is no evidence which implicated
the appellants individually in the deceased’s
killing, more especially the first appellant. It may be noted at the outset that this submission stands somewhat as a contradiction to the appellants’ defence that the killing of the deceased was justified under the Act, something that logically implies an admission to the killing in the first place.
 The appellants’ defence based on justifiable killing under section 42 (1) of the Act can quickly be disposed of. That section reads as follows:-
“42. (1) 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 of having committed
any of the offences mentioned in Part II of
the First Schedule, attempts to make the
arrests, 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
 Admittedly, as pointed out in paragraph  above, the appellants set out on 6 August 2005 on a mission to arrest the deceased and PW1 at the cattle post. PW1, however, immediately raised a query on the ground that they could not be arrested without their employers having been consulted. At that stage, the appellants retreated to some short distance, saying they were going to discuss amongst themselves. The next thing, according to the unchallenged evidence of PW1, the appellants were seen collecting stones in their blankets. In due course, they pelted the deceased and PW1 with stones, forcing them to flee home as outlined above. As can be seen, the appellants’ conduct was more consistent with an outright assault than an attempt to arrest the deceased and PW1.
 The evidence established beyond reasonable doubt in my view that the appellants’ subsequent attack at Lefu Tomose’s house was not aimed at a mere arrest of the deceased and PW1. There was no prior warning of any intended arrest at that stage. As pointed out earlier, some of the appellants announced their intention in no uncertain terms that they had come to kill the suspects. As a demonstration of their resolve in that regard, they evacuated the children from the house in which the suspects were holed up. This was followed by the vicious attack as outlined above. Furthermore, Selebalele Tomose (PW3) was also assaulted by the third and sixth appellants, simply for enquiring what was happening. There was no mention of an “arrest.” Similarly, Lathiswa Tomose (PW2) was also hit by stones thrown by the appellants’ group. Nkasooa Tomose, the complainant on count 2, was also assaulted in the process. In these circumstances, the court a quo made the following finding in paragraph  of its judgment:-
“They (the appellants) never intended
to arrest him (the deceased).”
 The above finding is, in my view, fully justified on the facts. The appellants’ reliance on section 42 (1) of the Act cannot, therefore, avail them. Furthermore, and in the context of the appellants’ own defence, section 42 (1) must obviously be read together with section 39 (1) of the Act. The latter section reads as follows:-
“39 (1) Every male person between the ages of 16 and 60 is, when called upon by any policeman in making any arrest which by law the policeman is authorised to make, of any person charged with or suspected of the commission of any offence, or to assist the policeman in retaining the custody of any person so arrested.”
 It is common cause that the police were not present both at the cattle post and at Lefu Tomose’s house. The conclusion is therefore inescapable that they were not assisting the police to effect an arrest after all. On the contrary, they were initially carrying out the arrest themselves. Significantly, they did not rely on section 30 of the Act which authorises any private person to arrest upon reasonable suspicion that the person concerned has committed any of the offences specified in Part II of the First Schedule.
 The appellants’ submission that they should be acquitted merely on the basis that there is no evidence which implicated them individually is, in my view, equally devoid of merit. The court a quo convicted the appellants on the doctrine of common purpose. It is not disputed that the appellants were present and acting together throughout the attack on the deceased and PW1, both at the cattle post and at Lefu Tomose’s house where the deceased was finally killed. But more importantly, and as indicated in paragraph  above, the second and fifth appellants openly retorted in the presence of the other appellants that they had come to kill the deceased and PW1. The appellants did not dissociate themselves from the subsequent murderous attack on the two men. Nor is there any room to doubt the Crown’s version in this regard, seeing that the appellants did not testify in the matter. Hence such failure to testify, in my view, strengthened the prosecution’s case in the circumstances of this case. See for example S v Mehlape 1963 (2) SA 29 (A) at 34 – 35.
 It remains for me to mention that the doctrine of common purpose is part of our law in this jurisdiction. In essence, if two or more people associate together for a common purpose to commit a crime, the acts of one are imputed to the other or others as the case may be. See for example, Ramaema v Rex 2000 – 2004 LAC 710 at 729 – 730 (and the cases cited therein). In S v Mgedezi And Others 1989 (1) SA 687 (A) at 705 – 706, the Appellate Division, following S v Sefatsa 1988 (1) SA 868 (A), laid down the following prerequisites for criminal liability based on common purpose in the absence of proof of a prior agreement:-
The accused must have been present at the scene where the violence was being committed.
He must have been aware of the assault on the victim.
He must have intended to make common cause with those who were actually perpetrating the assault.
He must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others.
He must have had the requisite mens rea.
 Adv Pitso for the appellants relied heavily on the fourth requisite set out above. He submitted that the appellants could only be convicted on the basis of common purpose if the evidence manifested their sharing of a common purpose with the perpetrators of the crimes in question by themselves performing some act of association with the conduct of the others. Such evidence, so it was submitted, was lacking more especially with regard to the first appellant. It will, therefore, be convenient to briefly review the prosecution evidence against the appellants. In doing so, it will further be convenient to deal first with the case against the second to sixth appellants. The case against the first appellants will be reviewed last. One starts from the premise that all the appellants were admittedly together during the attacks in question. This is indeed common cause.
The case against the second appellant
 It is not disputed that upon arrival at Lefu Tomose’s the second appellant uttered the chilling words “we have come to kill you.” He added that he did not have anything against the children. He wanted to kill the deceased and PW1.
The case against the third appellant
 He was amongst the group of people throwing stones through the window of the house which was eventually burnt down. Moreover, he assaulted PW3 with a stick on the arm. Simply for enquiring what was the matter.
The case against the fourth appellant
 He was holding a torch, obviously to facilitate the attacks. More importantly, he also held a spear. At some stage he offered an iron rod which was used to break down the walls of the house in which the deceased in PW1 were holed up.
The case against the fifth appellant
 He was one of the people seen holding spears. He, too, uttered the chilling words, “we have come to kill you.”
The case against the sixth appellant
 He threw a stick at PW1. He also hit PW3 with a stick on the head. This, simply because PW3 enquired from the appellants what was happening.
 It follows from the facts as outlined above that the second to sixth appellants were correctly convicted on all the counts. Quite apart from their own individual circumstances, they actively associated together with the others in the commission of the offences charged. I consider that all the requirements referred to in paragraph  above were present in the case of each appellant.
The case against the first appellant
 Although the prosecution failed to establish any specific acts perpetrated against the first appellant from the individual point of view, it is common cause that he was together with the perpetrators of the crimes charged. He was present throughout the attacks in question. At no stage did he seek to dissociate himself from these criminal acts. As will be recalled, the second and fifth appellants publicly announced that they had come to kill the deceased and PW1. By using the word “we” they clearly included the first appellant who nevertheless went along with the others. There cannot be any doubt in my mind that any person in the first appellant’s position, in these circumstances, must have foreseen the consequences resulting in the four counts charged. By going along with the actual perpetrators of the crimes in question the first appellant was already manifesting his sharing of a common purpose with the others. In these circumstances, I consider that there must have been a prior agreement by the first appellant and two others to commit the crimes as confirmed by the aforementioned res gestae statements of the second and the fifth appellants that the appellants (including A1) had come to kill the deceased and PW1. At the very least, I consider that the prosecution succeeded in proving a prima facie case against the first appellant. As indicated earlier, he failed to testify in his own defence to rebut the prima facie case. I am satisfied from the circumstances of this case that such failure is a factor which strengthened the prosecution case. See, for example, Mehlape’s case (supra).
 It follows from these considerations that the first appellant equally was correctly convicted on all the four counts charged.
 In the result the appeal is dismissed.
PRESIDENT OF THE COURT OF
APPEAL OF LESOTHO
I agree: ____________________
JUSTICE OF APPEAL
I agree: ____________________
JUSTICE OF APPEAL
For the Appellant: Adv. Pitso Pitso
For the Respondent: Adv. L.M. Mofilikoane