R v Monyau (CRI/T/111/2002)

Case No: 
CRI/T/111/2002
Media Neutral Citation: 
[2004] LSHC 115
Judgment Date: 
27 September, 2004

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CRI/T/111/2002

IN THE HIGH COURT OF LESOTHO


In the matter between:

REX

V

THABO ANTHONY MONYAU


JUDGMENT


Delivered by the Honourable Mr Justice T Monapathi On the 27"' Day of September 2004


The Accused is Minister of Religion of the Roman Catholic Church. He was stationed at Maseru at Our Lady of Victory (Mofumahali-oa-Tlholo) mission church and cathedral at all material times. He had an office. The mission has got a convent. He was not a member of Lesotho Defence Force (L.D.F.).


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Accused is charged with one count of High Treason and two alternative charges. The first alternative is that of Sedition and the other one of Contravening section 7 read with section 1, 2, 3 and 12 of THE INTERNAL SECURITY (GENERAL) ACT NO.24 OF 1984. The second count is that of contravention of section 183(2) of the CRIMINAL PROCEDURE AND EVIDENCE ACT 1981 (as amended). Accused pleaded not guilty to all the charges in the indictment. The counts were as follows:


The first Count is that of High Treason. It is alleged that: "Whereas during the whole period covered by this indictment the said Accused owed allegiance to the Kingdom of Lesotho (hereinafter referred to as the kingdom) and whereas during the whole of the said period, the kingdom was ruled by a lawful and democratically elected government, the said accused did unlawfully and with hostile intent against the kingdom to overthrow or coerce the government of the Kingdom, commit certain hostile acts, the particulars whereof arc as follows:


In that during or about 1998 and at or near Maseru the said Accused did conspire with Private Phaila. Second Lieutenant Phaila, Private Hosanna Sako. and other persons to. the Crown unknown, to arrest and to detain and or to kill senior officers in the Lesotho Defence Force, and members of the Executive of Lesotho Government and thereby overthrow the Government of the Kingdome of Lesotho.


The first alternative charge was that of Sedition in which it was alleged:


"In that during or about 1998 and at or near Maseru, the said Accused did unlawfully and with seditious intent participate in various gatherings of a number of people (at) which gatherings and intent unlawfully to defy and subvert the authority of the Government of the Kingdom of Lesotho by detaining and or


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arresting and or killing senior officers in Lesotho Defence Force and members of the Executive of the Government of Lesotho.


The second alternative charge was that Accused contravened section 7 read with section 1,2,3 and 12 of the INTERNAL SECURITY (GENERAL) ACT NO 20 OF 1984:


"In that during or about 1998 and at or near Maseru the Accused did together with Private Phaila, Second Lieutenant Phaila, Private Hosanna Sako wrongfully, unlawfully and with subversive intent, thereat to have certain members of the Lesotho Defence Force and members of the Executive of Lesotho Government arrested and or detained and or assaulted; spoke of a plan to bring about such arrest, detention and assassination and or supported certain persons who intended to bring about such arrest, detention and or assassination."


The Second Count was in terms of section 183(2) of the CRIMINAL PROCEDURE AND EVIDENCE ACT 1981 (as amended).


"In that upon or about 1998. and at or near Maseru, the Accused did wrongfully and unlawfully and intentionally conspire with Private Phaila. Second Lieutenant Phaila. Private Hosanna Sako and other members of the Lesotho Defence Force to the prosecution unknown, to and or procure commission of or to commit the crime of murder viz. kill Prime Minister. Thomas Thabane. General Mosakeng, Colonel Lefosa and Colonel Matobakele and Maope."


The case for prosecution was supported by seven witnesses who testified and thereafter closed its case. The Accused in turn testified in his own defence and closed his ease. The Crown witnesses were as follows: Brigadier Sebajoe (PW 1). Colonel Lesitsi (PW 2). Private Hosanna Sako (P\V 3). Joseph Ndaba (PW 4). Lance Corporal Azael Tsoeu Tsukulu


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(PW 5), Captain Gerard Matheolane Mafoea (PW 6), John Makhele (PW 7). PW 3, PW 4 and PW 5 were accomplice witnesses.


As respect the different meetings about which the above witnesses testified to have attended with the Accused, the fact of the meetings were not denied by Accused in his defence. Most if not all these several meetings anchor the Crown's case. Indeed PW 3 spoke of about seven of such meetings. None of the witnesses were unknown to the Accused. The witnesses will on most occasions in the judgment be referred to by the last names for convenience and without disrespect.


Sebajoe testified that he knew Accused as the priest of the Roman Catholic Church in Maseru for a long period of time. They often would talk about church affairs. This was not denied by the Accused.


On the 6th September 1998 which was a Friday Sebajoe received a message to telephone Accused on a cellular phone whose numbers were provided to the witness by an officer who had recorded the message. Sebajoe met the Accused at about 1.30 pm after inconsiderable waiting.


Accused then told Sebajoe that he should know that they were intending to arrest his "boss" Lieutenant General Mosakeng'(Mosakeng)


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and other officers. He referred to Lesitsi (PW 2) and one Lefosa who are both Colonels and others. Sebajoe was promised that he would be spared of the intended arrest, if he agreed to participate. Accused was asked by the witness as to what Mosakeng had done. The witness was asked by the Accused as to why he did not know that Mosakeng did not like the church and he fought against the church. In addition he had failed to take action against one or some senior officers of the army for improper behaviour.


Sebajoe also asked Accused how as a priest he was going to arrest members of the army. His reply was that he had a hundred soldiers under his control. This allegation Sebajoe never investigated. The witness and Accused became involved in a heated discussion during which Sebajoe said he indicated to Accused that he was not going to be part of the plan. He was quite frightened by Accused's suggestion as he testified. The witness left. He said he later reported the matter to General Mosakeng. About ten days later the witness and other senior officers were arrested at gun point. They were imprisoned at the Central Prison from which they were released after two days.


Sebajoe was adamant under cross-examination that the above discussion took place although he did not report it to the police. Accused


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denied that he had ever invited the witness as testified. Accused's position was to say that as the spiritual leader of both the witness and General Mosakeng he was not pleased with reports concerning corrupt behaviour of the General and that was his sole concern. These included rumours that the General had a farm in South Africa, he slaughtered a sheep to feast certain politicians, and he was a member of the ruling party. Accused said the butt of the discussion or what he discussed were the issues and that he advised the witness to speak to General Mosakeng about them. This the witness denied. He conceded however that there was never any agreement between him and the Accused to arrest officers or to assassinate any government officials. He agreed that the Accused was not seen by him to have participated in the events of the 11th September 1998 which was the date of the Senior Officers arrest.


As 1 concluded Sebajoe (PW 1) was an honest witness who seemed to testify to the truth and did not deceive. I found no reason for this witness to have sought to deceive. It was not suggested that there was any motive on his part to fabricate. He was impressive and forthright in his demeanour.



Lesitsi it should be remembered was PW 2 and is a Colonel in the LDF. He testified that he had known the Accused for a long time. He


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attended at Accused's church. He testified that he attended a 6.30 Sunday Mass and even made church announcements. During July and August, 1998 Accused had made a request for both of them to meet after Mass. He did not know what was to be discussed or what the meeting would be about. The witness had himself made attempts to meet Accused on three occasions but had failed.


At one time Lesitsi found a telephone message from Accused in which he asked him to meet at church. They subsequently met at Accused's office. Accused said quite hurriedly that he wanted to have General Mosakeng arrested. The witness then asked Accused what Mosakeng had done. His response on the second occasion was to say quite dejectedly: "Men, have we elected the wrong person" having hesitated on the first occasion. The Sesotho expression for men is "banna": It is used as an exclamation for alarm or surprise either to oneself or to those persons being addressed. Here it underscored an element of dejectment or being dispirited. This statement, when it was made, it was accompanied by movement of his hands and head as Lesitsi demonstrated in Court.


Lesitsi further testified that. Accused added that for the venture to succeed "cool" heads were needed for the operation could result in


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bloodshed. The witness ended by informing the Accused that he was going to report the matter to General Mosakeng which he did. This information was given further to Major-General Thibeli and Colonel Mofolisa of the Military Intelligence. The witness had not agreed to the Accused's suggestion which he had found to be most unacceptable.


Under cross-examination the witness agreed that Accused was never seen by him at any of the army premises on the 11th September 1998 nor was he seen in command of the soldiers.


The witness was cross-examined at length about why in the church building, particularly in the Sacristy, would the Accused propose a meeting as alleged. This was intended to dent the witness's veracity, may be as to the truth of what he said or the specific statements but all in all it ended up not being clear as to what would be denied by the Accused. As I said before the meeting itself was not denied although it was suggested that there had been previous discussions about the worrisome aspects of the conduct of General Mosakeng in his running of the army.


It did not seem that the Accused, although he denied meeting Accused on not more than two occasions in July and August 1998. he denied meeting the witness on this specific occasion when a discussion


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(although a brief one) took place. I would conclude that on this specific occasion they did meet I surely did not see any reason why the witness and the Accused who were well known to each other could however not have met on several occasions. What was important to me was that it appeared to be beyond doubt that the witness came on as a result of being called by the Accused.


It became clear to me that what Accused and Lesitsi discussed could only have been according to the version of the witness. Lesitsi was not the only witness who was called by the Accused about the matter of senior officers who had to be arrested and the problem of General Mosakeng's management of the army. He was substantially corroborated by Brigadier Sebajoe. I found no reason to doubt that. In any event the arrest of the army officers was discussed as a matter of a proposition by the Accused himself


Again with respect to Colonel Lesitsi it was not suggested why he would have a reason or motive to fabricate. In the person of Lesitsi I found most impressive witness who told his story in a forthright manner. Me was not shaken in cross-examination. Indeed he exuded the utmost air of one who enjoyed and liked the army career pure and simple. His


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demeanour was impressive. I found him a truthful witness. Again similar to Sebajoe he did not go along with what Accused suggested.


The third witness Hosanna Sako came in as an accomplice witness and was accordingly warned. He carried a baggage of having been convicted in charges or of crimes having a similar background to those under inquiry in these proceedings. He has also testified in the Leon Commission that traversed almost the same events. Defence Counsel were therefore sensitive to the fact that he could have told his story differently on the previous occasions and he would therefore be unreliable. Not necessarily. The Court would have to be strongly persuaded that it was so and if so it had to be pointed out as to the specified areas of his testimony and as to what necessary inference would have to be drawn.


The witness testified that he was currently in prison at the Central Prison. He had been found guilty by a Court-martial and sentenced to a long term of imprisonment. He knew the Accused very well.


At all material times the witness Sako testified that he had been working at the LDF base at Ha Ratjomose. On a certain day he met one Warrant Officer Lerotholi. who did not testify in this proceedings at one


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of the gates. It was about the beginning of the month of August 1998. Lerotholi requested that they should discuss something. As requested by Warrant Officer Lerotholi the witness agreed that they meet at Lerotholi's home at Mohalalitoe village in Maseru near a restaurant that evening.


The witness and Lerotholi did eventually meet as arranged. When the witness arrived there was already parked a maroon 4x4 vehicle parked near the house at which they were to meet. Inside that vehicle there were two people. The witness was called by Lerotholi who was inside the vehicle. In the vehicle he found Chief Khoabane Theko, the Principal Chief of Thaba-Bosiu in the company of Warrant Officer Lerotholi.


The witness. Lerotholi and others agreed to remove from Mohalalitoe village where they went to Our Lady of Victory Roman Catholic Cathedral (the Accused's church) which is not very far from the village. When they arrived at the church Chief Khoabane Theko phoned someone through his cellular telephone. A man suddenly appeared. He happened to be the Accused before Court. After introductions were made. Warrant Officer Lerotholi started off discussion by saying things they had already discussed before meeting the Accused. A certain message was said to have been received by Warrant Officer Lerotholi. It


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was what had previously been told to the witness and Chief Khoabane Theko as having emanated from Colonel Leoatla. It was revealed there and then to have concerned the intended arrest of senior army officers. After this Chief Khoabane Theko indicated the urgency of the matter and that there was "a job to be done".


The message which allegedly come from Colonel Leoatla was supposed to have emanated from the King through the Colonel down to Warrant Officer Lerotholi. The defence made issue of the absence of testimony of the King and Colonel Leoatla. that the evidence was not admissible on that account. I would agree with respect if the truth of the message was sought to be proved. It was not relevant nor was the message in issue . The real lest in my view is whether the holders of the meeting themselves had intention or resolved to do certain things which were unlawful regardless of their source or motivation. Was there some agreement about something that became common cause as it resulted then? If the answer is yes what is real importance is not where the original motivation, if it was true, came from. Certainly it is said by the Crown Accused was part of the conspiracy that came out of these meetings.


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It was resolved by those present at the above meeting that another meeting was to be held and more people were to be recruited to join the venture. The significance of all that transpired so far is that the Accused, as testified, was not against the things that were discussed but became part of them as the prime mover.


A few things are to be said for the above conclusion. Firstly as Sako testified the meeting and others that followed were held at the church under Accused's auspices if he was not the prime mover. If he did not agree he would have made it clear that he was not part of that discussions. Further and to my remembrance it was Accused who suggested that the gentlemen were again to meet at the upper place of the hall. The upper room of the hall. At that meeting, as PW 3 testified, the arrest of senior officers of the LDF was discussed.


As was concluded at the last mentioned meeting and as all agreed many soldiers were required to carry out the operation and the responsibility to recruit such soldiers was left to W/O Lerotholi. S/L Phaila. In addition the witness. Chief Khoabane Theko and the Accused would as agreed, be responsible for communication and transport. The Accused would provide cellular telephones for communication. Accused ultimately did provide as the witness testified further.


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Sako testified further to say: "At the end of the meeting we were shown that the place where the meeting was held, church premises, we don't consider the place ok." That is why in order to procure a better place Chief Khoabane suggested Victoria Hotel where the chief had his own room. The number of the room was identified by its number by this witness as room 412. A third meeting would follow at Victoria Hotel

It was later in the said room 412 that a third meeting was held. The Accused allocated cellular telephones (already activated) to S/L Phaila and PW 3 which were to be used for communication and bore numbers 581470 and 851471 respectively. Airtime was to be provided by the Accused as he had undertaken. It was then that "conclusions and follow ups" of the previous meeting were to be considered.


it was suggested that leaders of "C" Company of the LDF whose commander was Lieutenant Sekoati and the Band Company were to be approached by Lerotholi, the witness (Sako) and Phaila. One W/O Mafoea was said to have been one of the band management who knew about the intended arrest. Lieutenant Sekoati was mentioned by name because he was to be met in Mohale's Hock. He was the person who Chief Khoabane professed to know. That Sekoati was in fact ultimately


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met by the witness and Chief Khoabane Theko at a place called the Farmers Training Centre (FTC) in Mohale's Hoek. This was to constitute another meeting in line with the intention to arrest senior army officers.


The next meeting which was to be near a dam in Mafeteng followed. Accused drove there in a white Corolla salon in which he conveyed Warrant Officer Lerotholi. Second Lieutenant Phaila and the witness. Others arrived including Second Lieutenant Sekoati, Corporal Seoka and Lance Corporal Tseko. The latter drove on a grey Mercedes-Benz Saloon in which the meeting took place. Tseko and the Accused did not take part in the meeting but after its conclusion Accused drove back to Maseru with those who had accompanied him in his car. Then followed in the beginning of the month of September 1998 which was held at Chief Khoabane Theko's place.


At Chief Khoabane Theko's place there were people who were not soldiers, and soldiers (including the witness) and the Accused. The Accused's participation was debated so as to disqualify him from the motive to topple government as Accused's Counsel argued. In addition it was submitted that the soldiers through Tsukulu distanced themselves from what appeared to be a scheme plotted by civilians as will be discussed below in this judgment.


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On arrival, PW3 found Chief Khoabane Theko. Mrs Mamello Morrison, Chief Selala Sekhonyana, Mr Moeketse Malebo. Father Hlalele and one Mr Mokotoko (a lawyer) present. Chief Selala stated that as LDF officers were to be arrested, he and the others should be in partnership with them and should snatch the power of government and he said they (the soldiers) should support them. Apart from Chief Khoabane Theko with whom they had had the meetings and working relations about arrest of soldiers, the witness had not previously known any of the others present.


It had appeared to the witness that all those who had been in the room agreed with the various remarks that they made. These remarks the witness could not recently recall. The response from Tsukulu who spoke for the soldiers was however not to accept that they (soldiers) could participate and assist the civilians in their proposed venture. Chief Khoabane tried to convince the soldiers by saying that they should not be afraid as the lawyer present (Mr Makotoko) would help them.


It should be recalled that one of the suggestions to the soldiers was that all they had to do would be to stand back while certain steps were taken to overthrow government. Incidentally the witness spoke about


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knowledge on the part of Selala that soldiers were to be arrested and that they would like the soldiers to "contribute" to the civilian plan. No details were presented to the Court. There was no dispute that Accused did not say anything for or against the suggestion made to the soldiers. Accused would say it was more than that. It is that he was never inside the room but was attending to a radio news broadcast. This was about the only departure from the trend of the witnesses evidence which in any event did not meet any considerable challenge and was generally truthful as I concluded.


The witness said that after this meeting Accused transported them all home. That is those people with whom had come. The witness testified further that he had not known in advance what the meeting would be about and that when Accused asked him to go with him. Accused had not told him that they were going to attend a meeting at Chief Khoabane Theko's house. It was merely that they were going somewhere with Lance Corporal Ndaba. Lance Corporal Tsukulu. This was so even after the two officers were collected by the Accused. But it was not difficult for the witness "to work out in his mind" that they were going to Chief Khobane Theko's place because of the direction which they took. To be noted was the fact that amongst those people who were


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found already present at Chief Khoabane's place it was him only with whom the witness the other soldiers had had prior working relationship.


The sixth meeting all allegedly took place at W/O Mafoea's place "who had to be talked to first" There the witness travelled with Accused, W/O Lerotholi in a white Land Cruiser vehicle, which belonged to the Accused's church and had been driven by the Accused. The witness was accompanied by W/O Lerotholi and S/L Phaila. It is true that there was confusion about either the presence of the Accused together with S/L Phaila at the first or on the last meeting with W/O Mafoea. But as the witness said there was more than one meeting and at one of the meetings Accused was present. W/O Mofoea belonged to the Band company.


At one of the meetings at W/O Mafoea's place both Accused and W/O Lerotholi had been present it was at that meeting where there a bereavement was reported by W/O Mafoea following death to one of his family. It was shown to W/O Mafoea or rather he was invited to support the venture for arresting officers. The details thereof were discussed. The reasons for seeking his support were given and clarified by W/O Lerotholi. This included the intention to prevent or foil the quelling of a protest at the Royal Palace by a group of army officers who had to be arrested before their attempt to disperse the protesters. W/O Mafoea


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seemed to be in agreement with the scheme. He ended up requesting for a sketch to give a "picture" of the mission." This was promised to him.


The witness further spoke about what is recorded as the seventh meeting. This meeting was said to have been a continuation of one which had been held at the office of the Chief of Likhoele. This one took place at St Gerard Mafeteng. Present thereat were Accused L/Corporal Ndaba and L/Corporal Tsukulu (PW 5). The meeting was to receive a report concerning recruitment of military officers of Band Company of the LDF and other aspects including the time for arrest of the officers had to be familiarized. W/O Lerotholi had already indicated that he could not be part of the meeting because he had had to go to South Africa to fetch fodder for his animals. Accused drove the mentioned officers to the meeting. He drove a white Corolla Sedan.


PW 3 continued in his testimony to say that when the senior officers of the army were ultimately arrested on the 15th October he went into hiding. There he phoned the Accused who picked him up at Katlehong on the outskirts of the Maseru City Centre. He took PW 3 to a place in the direction of Mafeteng. Accused was driving a Nissan van which he later changed to a white Corrolla at Borokhoaneng in Maseru. While in hiding he maintained contact with the Accused, who often


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advanced money at the witness' request. The contact and assistance continued until the witness was arrested.


PW 3 stated towards the end of his testimony that the Accused, a cleric by the name of Father Khutlang. S/L Phaila and the witness had together written a letter at the Roman Catholic Church hall, dealing with inter alia the allegations against General Mosakeng, in that the latter had had a farm given to him in South Africa and other aspects of maladministration, discrimination in the army which the witness described among other grievances. To this letter as I gathered there was no dispute by Accused that the mentioned persons were the authors. The letter was photocopied and broadly distributed.


The witness agreed that he testified at the Leon Commission and at the Court Martial. He conceded that he had given different versions on some aspects which were different from the one that he was giving before the Court. He said the last version was the ultimate truth. He explained that he later came out with the version before this Court which he felt he ought to reveal "as the real truth". He gave reasons for this change of heart.


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Accused's Counsel suggested, as surely one would, that it said a lot and. indicated much as to the witness' unreliably in that he told different versions at different times. I agreed that that may ordinarily be so. But I became concerned that as respect the meetings that were held at which the matter of arrest of senior military officers were discussed these were amply corroborated by almost every witness. In these meetings as I have earlier suggested Accused was present and became part of the discussions if not more. He was being a willing participant who indicated acquiescence at the very least. If however there are issues which were said to indicate or as submitted showed lack of blameworthiness on the part of the Accused they are suggested by the line of cross-examination of PW 3. But not denied was that Accused attended meetings and participated therein. The issues are as follows:


Firstly. PW 3 conceded that Accused was not informed about the exact time of the arrests of senior military officers and that in relation to the arrest of the officers, many meetings were held at which the Accused was not a party, the Accused not being a key person in the actual operation.


PW 3 said that there was no intention on his part to overthrow the Government or on the part of S/L Phaila or W/O Lerotholi. Indeed this


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would be said as concern L/Corporal Tsukulu (PW 5) and other officers who attended at the home of Chief Khoabane Theko. While one can merely suspect (at most) that the Accused may have known of the plot or nefarious intention of Chief Khoabane and his civilian friends one cannot say even on a balance of probabilities that the Accused was proved to be part of that particular plot which civilians seemingly orchestrated . This is distinct from his moves or contacts in relation to arrest of senior army officers.


PW 3 would say that he and Accused enjoyed a close relationship and met on matters unrelated to the LDF. This could lead to or called for an inference that these meetings with Accused could have been about other things other than arrest of senior officers. I do without hesitation, whatever these may amount to. conclude that the evidence seemed to be overwhelming that arrest of senior military officers was discussed by the Accused by way of encouraging others to buy into the venture. This is based on abundant corroboration and accordingly and consequently became overwhelming. That will be my conclusion.


PW 3 was driven to accept that on the day of arrest of army officers, the vehicle previously used by Accused were not used in arrest


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of the senior officers. I observed that that had been no suggestion from the Crown that the vehicles were so used.


I have already indicated that on the relevant issue of the meetings and Accused's participation the witness was firm in his testimony and was not shaken by Mr Semenya searching cross-examination. There were no tendencies towards exaggeration on the part of the witness or such like. He was. in my view, a witness to the truth and I believed him on the relevant issues. No motive was suggested for this witness to have fabricated against the Accused. 1 found none.


Joseph Ndaba who was the fourth Crown witness was a member of the LDF. He was serving a term of imprisonment as a consequence of his participation in the events of October 1998 about disturbances in the army. The first meeting he attended was one at Mafeteng between August and September 1998. The purpose of the meeting was to enable PW 3 and others to give a report about what was being dealt with by PW 3 and others. There he met Accused for the first time. Others present besides the Accused was PW 3 S/L Phaila, L/C Tsukulu.


PW 4 attended another meeting on the 7th September 1998 at the home of Chief Khoabane Theko. It was at night. He said he had no idea


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that such a meeting was going to take place. He had been at his home when Sako (PW 3) and Accused arrived. PW 3 called him out of his house and then they travelled in a motor vehicle driven by the Accused. They proceeded to pick up L/C Tsukulu. The witness said further that he did not know about the meeting "from the beginning." Neither was he told where he was going, nor did he not know the owner of the place where the vehicle stopped.


On entering the house together with PW 3, Accused they found Chief Khoabane Theko. Mr Moeketse Malebo. Mrs Mamello Morrisson. Father Hlalele. a certain lawyer and Chief Selala present. The latter seemed from the evidence to have had most words to say on behalf of his group.


During the meeting Chief Selala requested support from the witness and his companions to overthrow the LCD Government "since they were not satisfied with it." L/C Tsukulu disagreed with this request and none of the soldiers agreed to go along with the plan to overthrow the Government. This was despite entreaties from Mrs Morrison such as: "Gentlemen we really need your support" Incidentally the cleric in the group (in order to underline the seriousness of the discussions) is reported to ha\e said "Gentlemen now that there is no agreement won't this issue


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be treated confidentially because if this is to be known, these people will kill us".


According to PW 4 Accused was present throughout the meeting. When the meeting was concluded Accused drove them back to Maseru.


I placed value on the testimony of the witness to say that meetings had been held at which a report was given about PW3's dealing and that further meeting was held at which no agreement was reached about the intention to overthrow lawful government and the attitude of the military men at those meetings. To the extent that the evidence was not challenged it is to be accepted as the truth of what PW 4 said transpired.


PW 5 was Lance Corporal Azael Tsukulu. He was a member of the LDF. He testified to say that sometime before September 1998 there was a meeting at St Gerard Mission in Mafeteng which he attended accompanied by S/L Sekoati. There also attended the Accused. PW 3 L/C Ndaba and S/L Phaila.


The meeting discussed and all were in agreement about arresting of senior officers of the LDF. At some stage during the meeting Accused pointed out that W/O Lerotholi had failed to attend and seems not to


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attend their meeting, like that meeting of Mafeteng......but he chose to go for fodder."


A second meeting occurred at Ha Tsosane Maseru at Chief Khoabane Theko's place a few days before 11th September 1998. PW 5 had not been aware that such meeting would take place except that he was collected without prior notice by Accused. L/C Ndaba and PW 3. The vehicle that carried the group was driven by Accused.


All entered Chief Khoabane Theko's house. Chief Selala Sekhonyana opened the discussion in the presence of civilians referred to by PW 4 in his testimony and in the presence of all of officers in the group with which he came. Chief Selala asked for help to overthrow the Government of Lesotho. PW 5 disagreed and warned that people would die and others would be arrested.


Chief Selala said that they would be assisted with a lawyer who was also present in the meeting. The lawyer would provide legal services as the witness replied when questioned. It must have been his understanding. After the meeting at which there was apparent lack of agreement PW 5 left with his group. This included the Accused.


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The witness was not cross examined. I would pass the same remark as to the previous witness about the value of the unchallenged evidence. It proved beyond a reasonable doubt that meetings were held at which it was agreed that senior army officers were to be arrested.


Captain Gerard Motheolane Mafoea became the sixth witness for the Crown. The witness had in July 1998 spoken to the Accused at Accused's church about the funeral arrangements of the witness' wife. The Accused did not however conduct the funeral. Accused was therefore a person the witness was used to dealing with.


At some stage S/L Phaila. Private Phaila and Accused visited the witness at his home. A discussion ensured about past national election about which there was dissatisfaction because allegedly the elections had been rigged. The soldiers were said to have been unhappy with those results and had said that something should be done.


The witness testified further that the same three persons who had visited him previously again visited him. The previous discussions were re-visited and opened by Private Phaila and that the situation "of dissatisfaction with elections" should be normalized by arresting some of the senior officers of the LDF. The strike at the Lesotho


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Telecommunications was cited as one indication that there was dissatisfaction. It was said further that a large portion of the army was dissatisfied. This discussion reached some depth. It was even said that SADCC was going to be consulted if government of one member was destabilized. That SADCC had however failed to participate to prevent the political unrest of 1994. This can only show that the discussions were quite involved. The fear of involvement of the SADC was repeated by this witness when questioned by the Court. Apparently some officers may have underestimated the aspect SADCC involvement. One of them was S/L Phaila. History was to prove this in a way that was so severe and unforgettable


The need to recruit soldiers was shown but PW 6 who pointed that this would not be easy and it would be dangerous. He even as he testified lied that "the head of intelligence was at my home" and therefore "something can happen to them." The threats by the witness did "not succeed the person who was a bit threatened was the Accused soldiers were not scared they insisted on going ahead." That the witness intended not to go along with the mission needs only to be observed by his attitude and the threatening attitude of PW 3 to him. The witness did not agree that soldiers should be recruited from his platoon because he said it was not easy.


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Another visit followed at PW 6's home. Those present told him that the LDF and a large part of the army had decided to carry out the mission of arresting senior officers. Again the witness expressed reservation and he said he lied that the Head of Intelligence Branch had got wind of the plan and had visited the witness' home to indicate that this was the situation. Accused who was present at the meeting was looking scared. During Cross examination of the witness astonishment was expressed at the attitude of the witness in having had to have continue to entertain the meetings when he was, as he says, not prepared to co-operate. From examination of the witness by the Court hinted at the anomaly. I would observe that, strange as it was. Another meeting followed. It was the fourth meeting.


The same group visited PW 6. They included PW 3. The latter produced a document detailing the plan of how the arrest were to be conducted. It included an indication that senior officers were to be expelled, some would be imprisoned and some would be killed.


PW 6 explained that according to the plan which was to be executed on the 5th September 1998 on a Saturday according to the witness' "a platoon Irani the south would enter Makoanyane." take some


30


soldiers there and proceed to LDF headquarters at Ratjomose. Then they start arresting officers some will be expelled, some will be imprisoned and some will be killed."


Another development during the discussion was that PW 3 wanted to know what PW 6's platoon would do at the time. PW 6 testified to say: "I told him that I was not going to be part of that. They seemed dissatisfied when I said that. PW 3 pointed me with a finger and said "we will meet". He did not say that politely. It was a threat.


Yet another aspect was what Accused is said to have said when the meeting was about to disperse. He said to PW 6 that it seems the soldiers and the community were supportive and all what remained was as to who is going to pull the trigger. Then the witness continued "After they left I then realized that I had failed to "work my way out. that they should drop the issue of arresting officers. I then picked up the phone and reported to my seniors." The Court was never to learn what the seniors did by way of a reaction if the witness told the truth on this aspect.


Indeed this witness was one of the three who went through the thorough cross-examination brush of Adv. Semenya. But concessions and contradicts if any were few and insignificant. PW 6 conceded that


31


Accused, as far as he knew was only involved at the meetings but not in the actual execution of the arrest of officers, to wit:


DC : Do you know nothing about his participation in the execution of the mission?


PW 6 : That is so My Lord."


Defence Counsel's attitude, if the answers that followed are indication of PW 6*s attitude, was that if the witness was present in the meetings and entertained no thought of arresting officers that would similarly be so with the Accused. With respect that cannot be so because the witness openly distanced himself from mission. It was not so with Accused.


Another answer which was brought out by defence Counsel's cross examination on


PW 6 is interesting for the answer it elicited thus:


"DC: PW 3 tells us. and it is uncontradicted evidence that the military were opposed to the overthrowing of the government of Lesotho. You concur with that?


PW 6 : I have no knowledge.


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DC: No intention by the military to subvert the government can't deny can you?


PW 6 There was a plan to subvert the powers if officers were to be arrested"


No doubt that this suggested an inference or implication of overthrowing of government as the Crown later submitted.


PW 6 disputed that Accused was not present when the detailed plan "about movement of platoons" was discussed.


It was put to PW 6 that he was untruthful about the soldiers (PW 3 and others) visiting him on four occasions and that if he did not want to participate they would not have repeatedly visited him. He insisted that it was never his intention to participate in the plan.


I concluded that the aspect of the witness entertaining meeting to which his soul was not involved can only say that he is a weak person I cannot however go to an extent of saying that he was proved to be a liar nor was he shaken in cross-examination throughout. Fortunately his evidence is such that it has been corroborated. He cannot have been


33


proved to be a liar on the crucial aspect of his testimony namely that Accused attended a number of meetings with soldiers some of them who testified before this Court such as PW 6 and PW 3. It was mainly to arrest senior army officers PW 6 was a credible witness in the result.


The last Crown witness was John Mokhele (PW 7). He had been a member of the LDF with the rank of Second Lieutenant. In 1998 he was dismissed from the army. A suggestion was however made by the witness that a Court of law had declared his dismissal unlawful. As a matter of fact he had not been re-instated. It would be remiss of me not to describe the character of PW 7. He was obviously stylish and confident in a combative kind of way. He obviously relished the challenge that an accomplished cross examiner like Mr Semenya would offer, I thought the witness was an intellectual sort of With early reading habits and good grounding he would have become one. It was obvious.


PW 7 said under oath that in about July 1998 he received a telephone call from Accused who he had not known to see him urgently at Our Lady of Victory Roman Catholic Church. He met Accused late in the afternoon in his office. Accused said to the witness that he had already spoken to S/L Sekoati, S/L Phaila, Colonel Masupha, Colonel


34


Lesitsi, Brigadier - Sebajoe (PW2), Private Sako (PW 3), L/Corporal Ndaba (PW 4) and L/C Tsukulu. Accused inquired from the witness as to what kind of a person Brigadier Sebajoe was.


Accused told him that he was in a plot to eliminate Prime Minister Mosisili, his deputy Mr Maope, and other members of parliament. He contended that it was a lesser evil (to act that way) and it was necessary to save the nation and said he had been advised by Colonel Lesitsi (PW 1) to call him as they wanted to restructure the army. He added that the government had ruined the elections "and they did not want the report of Justice Lanka to be released. That is why they were trying to act immediately." PW 7 said he told the Accused that he would not have anything to do with the suggestion and Colonel Lesitsi could do as he pleased. The witness, when examined by Crown Counsel, denied that the Accused suggested to replace the government with another except that certain people were to be eliminated. In response to whether there would be people supporting the plan he only alluded to "soldiers who were assisting the Ministers as body guard and drivers. He mentioned Lance Corpora) Malitsane who he thought was the driver to the Prime Minister.


PW 7 was one of the Crown witnesses who suffered a lengthy cross examination from Mr Semenya. PW 7 denied that he wished to


35


implicate Colonel Lesitsi who however had been responsible for having him dismissed from the army. He neither wished to get even with him. PW 7 stated in addition that he was testifying against the Accused not PW1.


PW 7 denied that the Accused had called him to discuss the annulment of his marriage. The witness agreed that he wanted his marriage annulled and this could have got certain publicity if Father Seakhi who handled the annulment spoke about the issue to him.


I did not discern any specific area in which the witness was proved to be a liar, indeed a lot of things had to do with his colourful character or that much of it which he exhibited in Court. But it was not any more than that. I thought he ought to be believed to the extent that there are two things which the Accused told him about. This is besides whether the Accused told him the truth about for example what the Accused alleged said he talked to Colonel Lesitsi about. It did not appear that he accepted to engage in or go along with the invitation by Accused to join military officers either to topple government or to arrest senior army officers. It was not suggested that there was any motive to lie against the Accused. I found none.


36


Accused testified in his own defence and he was the only witness for defence. He denied all the allegations in the indictment which were put to him by his Counsel thus declaring his innocence. Accused said he has been a priest of the Roman Catholic Church since 1992. Among his duties was counselling of people who had difficulties or problems.


Accused testified that he came to know about the arrest of senior officers of the army through junior officers of the LDF before it took place. Sako (PW 3) Tsukulu (PW 5) Ndaba (PW 4) and others had approached him with their concern about Lieutenant General Mosakeng. The allegations against were that he had been bought farm and a motor vehicle by the Government, and had bought sheep belonging to the army when entertaining Ministers of state. These issues were raised in certain pamphlets which had been disseminated.


When junior officers discussed the matter with him they indicated that the solution to the problem would be arrest of senior officers while he believed that the solution lay in holding discussions, as the arrest would bring about bloodshed.


Accused denied he phoned Brigadier Sebajoe and told him about the imminent arrest of his boss and other officers. Accused further


37


denied that he spoke to Brigadier Sebajoe explaining that the reason for arrest of Lieutenant General Mosakeng which was that he disliked the church. Accused had had. according to him, an open relationship with Brigadier Sebajoe who was "like a friend" to him although he was older than the Accused. "Again he was Chairman of the Legion of Mary."


Accused said he did speak to Colonel Lesitsi about the rumours. The latter did acknowledge that there were difficulties in the army. He denied however that he told Colonel Lesitsi that he was in charge of 100 soldiers and that Lieutenant General Mosakeng should be arrested.


Accused admitted that Lance Corporal Ndaba (PW 4) was correct when he said that he was present at Chief Khoabane's home. He said he went there to see the Chief and that he was accompanied by Sako (PW 3), Ndaba (PW 4) and Tsukulu (PW 5). He denied that he was part of the discussion about overthrowing the Government. As the Court observed nothing is reported in anywhere about the attitude of the Accused. One would readily think that if there was any item which the Accused shared with the soldiers it was the question of arrest. It never became clear that this was discussed, at least, at. the meeting held at Chief Khoabane Theko's place in the presence of civilians such as the talkative Chief Selala. Accused denied however that he was part of the discussion about


38


overthrowing the Government. On my part, as I did observe and of course it seemed to be common cause not all agreed with the idea of overthrowing government. It was never made clear that the Accused fell on the side of overthrowing the Government. He would obviously deserve benefit of doubt on this aspect.


Accused further said he knew PW 7 from when he came to the church seeking to have his marriage annulled. He denied having any conversation with him about restructuring the army. As regard PW 3 Sako, Accused said he knew because he had come to the church seeking for guidance on work related problems. It should be remembered that PW 3 is that impressive witness who laid down a story so replete with detail not coming about contact with the alleged ubiquitous Accused and about so many thing e.g. hotel room, cell phones and others. He referred to the pamphlets against General Mosakeng which Accused allegedly co-authored from the testimony of PW 3. I found no motive from PW 3 to have fabricated against Accused as I have concluded earlier in the judgment. I would without hesitation reject Accused's denial of PW 3's story.


Accused admitted that PW 3 was correct that he was at Chief Khoabane's place, but denied that he agreed with any of the suggestions


39


made. I have already said the Accused was to be given benefit of doubt. This is so despite a strong suspicious that that having recruited the soldiers to the meeting at Chief Khoabane's place he must have had an idea about what was to be discussed+-. It however remains unproved that Accused was on the side of Chief Selala and his cohorts . My impression about this group is of people who will never know the meaning of true patriotism.


Accused conceded that he had given cellular telephones to PW 3 and Phaila because after discussions they heard about the rumours he felt it was wise for them to communicate thereafter. But this as Accused protested was not to extent that he could rightly be said to have been in charge of communications. Under cross-examination he said since soldiers had come to him he was going to assist them to facilitate discussions between soldiers and senior officers. He had had open relationship with certain members of the LDF.


Accused denied phoning his partners (soldiers witnesses) on the 11th September. 1998 (on the day of arrest of senior officers) nor on any other day. Nor was it intended that he should not phone them on that day. He denied that he ever made his car available on the day of the actual operation nor was it intended that it would he used. He was accordingly


40


surprised on hearing the news of the arrests. He did not try to get any information from any of the soldiers witnesses. He never even met them later.


Accused agreed that as a citizen of this country he knew that the country had parliament which made laws for its people.


Soldiers would come easily to the Accused for any kind of problems for which they asked for his assistance. If there was tension he would calm the situation. He admitted that he would end up knowing problems in the army because such problems were brought to him. He ended knowing pamphlets that were distributed in the street about complains against General Mosakeng. This the Accused said they were public knowledge.


Accused said Lieutenant-General Mosakeng was well known to him. He was a member of his congregation. He first knew of the complaints against him in 1998 through the pamphlets that were circulated. This distribution of pamphlets disturbed him more especially because they concerned Lieutenant General Mosakeng about whom he was to see to it that: "where a person lives there is rest and peace."


41


Accused's intention as he contended had been to assist with regard to those problems or related complaints. This was one of the things he was going to address. Towards that he even contacted Brigadier Sebajoe, Colonel Lesitsi: "Colonel Lesitsi. we met without calling him". It turned out later when Accused was cross examined he had merely heard people talk about the papers. He had not personally seen them. Accused was therefore asked to phone the Lieutenant General about "What is it that I read about you? What is the problem? What is going on?" He did not however call Lieutenant General Mosakeng.


Accused did not also call Lieutenant General Mosakeng when he heard a certain complaint about Lieutenant General's promotion which resulted from "the pressure of politics". About this the Accused and fellow priest Father Mahlangu attempted to call the General on a certain day when Father Mahlangu spoke to the General Accused was unable to do so. He was absent. He apparently knew about Lieutenant General's discussion with Father Mahlangu. He was however not satisfied about what transpired. He however decided to call junior officers instead. He did not call him because "there are many ways of killing a cat."


The aspect of the pamphlets was put to Accused in cross-examination. The impression had been that's he had himself seen the


42


pamphlets with his own eyes. This he denied. He had merely heard about the pamphlets and what they contained. This I found difficult to believe. This is against the background that PW 3 had testified that Accused was a party to the drafting of the pamphlets at the Roman Catholic Church and this had not been disputed. Accused could not in my view credibly deny that he had knowledge of the origins of the pamphlets.


Accused said he had always understood that the arrest of soldiers would lead to bloodshed because it was a serious thing. Then surprisingly he said he neither told Colonel Lesitsi and Brigadier Sebajoe about. One of the issues could be that he ought to have suggested to Brigadier Sebajoe that the junior and senior officers be made to discuss the problems and to avoid serious consequences. It was to be expected that he would follow upon Brigadier Sebajoe which he did not do. Instead he said he did something.


Adv. Himraj asked Accused what he did and he replied. "I was praying". Much as Accused was a man of prayer. I could however observe the way he treated the matter of intending to see, negotiate or intervene was without conviction. As the lengthy questions on the matter revealed prayer and intention to enter into negotiations in this matter


43


military conundrum or saga was in my opinion the last thing on Accused's mind.


When Accused said he discussed the matter with Brigadier Sebajoe, he did not advise him to discuss those issues with Lieutenant General Mosakeng. However when it was specifically put in cross-examination of Brigadier Sebajoe that Accused told him to speak to Lieutenant General Mosakeng about these issues, he could not explain why he had later conceded that he did not specifically say that Brigadier Sebajoe should go and talk to Major General Mosakeng. This showed an obvious contradiction in his evidence.


With respect to Colonel Lesitsi Accused said he showed a very warm relationship with him. He said that the meeting that he had with Colonel Lesitsi where the various issues were raised was not pre-arranged. He denied that he telephoned Colonel Lesitsi at his house and asked to meet him. Nor that he on. a number of occasions, asked to meet with him after mass. He said Colonel Lesitsi had fabricated on this.


During 1998 as the cross examination of Accused, revealed he had had use of vehicles belonging to the church and he would sometime give soldiers a ride. He had merely accompanied Tsukulu (PW 5). Ndaba (PW


44


4) and Sako (PW 3) when they went to Chief Khoabane's place. I observed that during the cross examination of the Crown witnesses he did not distinctly suggested that this was the case. This was expected of someone who came into the witnesses by chance or of someone from whom transport was requested for. I would say even that probability was not suggested. I did not believe the Accused on this aspect.


Accused said he gave cellular telephone to Phaila not knowing the other person to whom the second cellular phone would be given. Accused certainly struggled to convince that he had any good reason for such magnanimity. It was not convincing. I agreed with Crown Counsel that the suggestion by Accused was too remote. That is why he when asked to whom he gave the two phones to this answer is "1 gave two cell phones to Piyela (Phaila) but Sekoati was present. One answer from the Accused was that ho did not even know to whom the other telephone would be given. Such kind of evasiveness was always in large quantities from the Accused even on the simplest of the issues.


It became strange that Accused would confess to have given a cellphone to an unknown person. If it was to be given to someone with whom he had had to communicate why would he anticipate a strange


45


situation whereby he would have to communicate with someone he did not know. See this line of exchange:


"With a person that you don't know who is going to have that cell phone? At the time you gave it you don't know where it is going. but you are going to communicate with that person? But ultimately I knew that".


Indeed if it was about the need to facilitate negotiations, to make junior soldiers talk to senior officers what is the reason for the evasiveness, reticence and at some places nonsense from the Accused? The reason is that Accused did not want to be candid or was being economical with the truth.


The genuineness of the so-called negotiations became extremely questionable in my opinion just by reason of the way Accused went about building a mystery about them. One could suspect that it could have had something to do with the need for secrecy about the goings on in the military. It however begs the question as to why the Accused, as a civilian, would have to meddle in the affairs of the military and sometimes became a custodian of their secrets. The attitude of the senior officers Brigadier Sebajoe and Colonel Lesitsi. as was to be expected from people who exuded integrity, clearly showed their distaste about the Accused having had to make military affairs his business.


46


Accused justified his attitude in dealing with matters of the military because soldiers had come to him with the problems and he was consequently going to assist them by facilitating discussion between junior and senior army officers. That is why he phoned Brigadier Sebajoe and Colonel Lesitsi. But still, why should Accused make the business of the army his business?


Regarding PW 3 Sako. Accused did agree that a relationship developed between them over several meeting. Respecting the first meeting, he said that PW 3 fabricated in his evidence that a discussion took place about the arresting of certain members of the army and also suggested the evidence the Accused suggested the next meeting to be held at the Church. In addition that again PW 3 fabricated that the similar meeting took place where Chief Khoabane and W/O Lerotholi were present at the church and that transport and communication were discussed.


Accused further denied that third meeting took place in Room 412 of the Victoria Hotel where cellular phones were issued. Taking alone the evidence of PW 3 Sako. who was impressive witness in every detail it becomes clear how steep it becomes to Accused to even seek to isolate


47

certain events by denying others when the chain became so interlinked. To make one simple illustration it begs the question of why, incidentally. does PW 3 speak about Chief Khoabane Theko, a colossus in the whole drama, from almost the beginning until the end and finally at the Chief's residence.


It became difficult for the Accused to distance himself from any event which I need not emphasize the evidence about which seemed to be overwhelming. One incident for example is this one of a third meeting in Room 412 of Victoria Hotel where cell phones were allocated. Accused sought to deny this. He was not convincing.


Coming to the visit at Chief Khoabane Theko's place Accused agreed that he went there with Tsukulu (PW 5). Sako (PW 3) and Ndaba (PW 4). He entered into the house together with his companions. They became seated. Accused said instead he left to go to the vehicle to listen the news broadcast from a radio. He came back into the room where others were after about 10 to 15 minutes. The others seemed to be in a meeting. As he suggested he did not participate. He waited for a while and left with those persons he had arrived with. The suggestion being that he did not participate or comment. Indeed no one said he commented except that the evidence suggested that he was in the room and amongst


48


those in the group which discussed the invitation to overthrow government. I have earlier in the judgment stated what transpired, on the evidence of Tsukulu (PW 5) amongst others and what the attitude of the latter witnesses was and over which they corroborated each other. It was that they did not want to associate themselves with overthrowing of government.


Accused was cross-examined about how it came about that the three soldiers, PW 3, PW 4 and PW 5. accompanied him, he said they happened to be present at the church and they went along with him. He denied the versions of the soldiers that he fetched each of them from their homes. The Accused wanted to call it a coincidence. I struggled in my mind about the strangeness of the coincidence when evidently it was not the only event at which these witnesses featured in the company of the Accused. The other question is obviously as to what special interest could the soldiers have had that caused them to be so accident-prone supposing these various meetings were accidents. My impression was that they got involved because they were either malleable or they were dealing with a very pervasive character of Rasputinian proportions in the person of the Accused.


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It was not convincing on the part of the Accused to have denied that all what the witnesses said transpired or what witnesses said was said during the meeting inside Chief Khoabane's house.


It was equally not very convincing for the Accused to have insisted that people including himself left during the discussion when no cross examination had been put on his behalf in that regard. Accused said Sako, Ndaba and all the witnesses for the Crown fabricated these allegations implicating him. I thought a motive should have been put forward for these military officers to have singled out Accused for such serious implications. I have to remind that the Crown witnesses gave their evidence in a straightforward and coherent manner with respect. Indeed all made a good impression on my Court.


On the other hand Accused was evasive, contradicting and patently untruthful. In some instance I observed as if he did not take the proceeding seriously. That he had fabricated a large part of his evidence, especially with regard to the sequence of events at the meeting at Chief Khoabane's home, said a lot about a witness who either made his evidence as he went along considering that a large portion of Crown's evidence went largely unchallenged and then became an impressive edifice.


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That a large part of Crown evidence went unchallenged is supported by absence of cross examination of witnesses such as PW 3 Sako about the number of meetings, about seven he alleged were held. What transpired in these meetings went largely unchallenged, Ndaba (PW 4) and Tsukulu (PW 5) testified about the meeting at Chief Khoabane's home, where the issue of overthrowing the government was raised in the presence of the Accused. No cross examination followed on these witnesses' testimony.


The Accused proved to be an unreliable witness. His evidence was fraught with improbabilities. One obvious issue is this one as to why various persons who belong to his church or congregation and with whom he had or even how should a warm relationship all seek to incriminate him for no reason whatsoever. The respect which the senior officers who were witnesses for example Brigadier Sebajoe. although bordering on effusive, showed to the Accused was such that the same question had to be asked.


In the circumstances of the respect and to a greatly extent the influence that Accused had on his congregation, it is difficult to understand why were so many serious and scandalous rumours circulated


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about Lieutenant General Mosakeng, the Accused did not phone General Mosakeng who was a member of his congregation and discuss the problem with him. On his own evidence Accused knew the General very well and was on speaking terms with him. For reasons only known to the Accused he surprisingly chose to speak only to officers who were subordinate to the General.


If the Accused's attitude of facilitating dialogue or calming the hot waters or avoiding looming bloodshed is to be believed Accused should have warned General Mosakeng and others. If he had done this there is surely no reason why all the witnesses should speak of Accused having advocated arrest of senior officers something that had the effect of precipitating the very grievous situation that he proposes to have wanted to avoid. It can therefore not be sufficient from him to say that there was no opportunity for him to do so. when he was able to talk to the senior officers Sebajoe and Lesitsi. Why should the two similarly tell the story of intended arrest of officers to which they were invited?. As for the opportunity for the Accused to have done the right things he was in command of church vehicles and telephone equipment although his explanation as to why he gave the two cellular phones to the soldiers did not make sense. And he had a strong will, as i observed. How much can one wish for.


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In concluding the aspect it has to be repeated that the Accused was clearly untruthful in his fabricated version about leaving Chief Khoabane Theko's home to go to the vehicle to listen to the radio, consequently missing the discussion in the house. The version was not put to the Crown witnesses, nor did Accused testify to it in his evidence- in-chief.


Except that Accused was untruthful there was no version from him to have denied that he had contacted one of the three soldiers. As the uncontroverted evidence of Sako (PW 3) showed the witness was assisted to hide from authorities. He was also assisted with money, transport and accommodation until he handed himself over to the police.

There was finally no good reason for Accused to have denied that on a number of times he conveyed Sako (PW 3) and other soldiers in church vehicle in his possession. Accused was an unreliable witness whose story ought not to be believed. 1 found him untruthful.


The position remains that as a result of the evidence led by both parties, it becomes clear that a number of meetings were held by some of the witnesses at which Accused was pan. At one of them if not more than two meetings Accused was not present. The issue that now remains


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to be determined is whether the evidence adduced established the offences charged.

The onus is on the Crown to satisfy the Court on the Accused's guilt beyond a reasonable doubt there must be no reasonable doubt of the guilt of the Accused. See DPP v Khoanyane 1997-1998, LLR-LB (C of

A 25 at page 33"


"The law does not and cannot require proof beyond all doubt. merely that there be no reasonable doubt of the guilt of the accused. (See S v Clegg 1973 (1) SA LR 34(A)). To upset the conviction on the strength of a "lingering suspicion:, or doubt based on mere speculation, was to err in law".


Thus as a general rule, in a criminal case, it is always the duty of the prosecution to prove the guilt of the accused beyond a reasonable doubt, subject to statutory experience and the defence of insanity, the Crown must prove every ingredient in the crime. In the words of Lord Sankey LC in Woolmington v Director of Public Prosecutions [1935| AC 462:


"Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove his innocence and it is sufficient for him to raise a doubt as to his guilt: he is not bound to satisfy the jury of his innocence.


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This is the real result of the perplexing case of R. v Schama (1914) 84 L.J.K.B. 396 (CCA.)' which lays down the same proposition, although perhaps in somewhat involved language. Juries are always told that if conviction there is to be prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must "satisfy" the jury. This is the law as laid down in the Court of Criminal Appeal in R. v. Davies (1913) 29 T.L.R. 350. the headnote of which correctly states that where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental".


As said before PW 3, PW 4 and PW5 were considered by the Crown to have been involved in the same acts of the Accused and of the same intent and what would be mutinous conduct and which would amount to treasonable acts. The Crown would contend that that the said witnesses arc accomplices by reason of the fact that they were involved in and convicted by mutiny which the Crown contends constitutes treason in civil courts (as against Court-martial).


The defence has already taken the point that one cannot validly contend that a person convicted of mutiny my also be convicted of an offence constituted by the same set of facts. These witnesses are accomplices, in my view, only to the extent of the crimes for which the Accused may be convicted and which the witnesses would be convicted.


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These should be the crimes with which the Accused is presently charged. And on the facts are the same upon which the present crimes are founded. It is correct that in some instances the facts may be those with which the accomplices were charged. The Crown contends however that the crime with which the witnesses would be convicted is e.g. on mutiny. See my ruling in R v Monyau CRI/T/111/2002. dated 24th September 2003 The similarly or confluence of the facts I have found to be of no value. So that the witnesses would remain and ought to remain as accomplices. The law on accomplice witnesses is well illustrated as provided in section 239 of Criminal Procedure and Evidence Act 1981 which is:


"239. Any court may convict any person of any offence alleged against him in the charge on the single evidence of any accomplice-provided the offence has. by competent evidence other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of the court to have been actually committed." (My emphasis)


To the extern that I have be!ie\ed Brigadier Sebajoe and Colonel Lesitsi's evidence there is other evidence than that of the accomplices. In addition the Courts have developed a cautioning rule which is set out in the South African Appellate Division case of R v Ncanana 1948(4) 399 at 405-6:

"The cautious court or jury will often properly acquit in the absence of other evidence connecting the accused with a crime, but no rule of law or practice requires it to do so. What is required is that the trier of facts should warn himself, or. if the trier is a jury, that it should be


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warned, of the special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about innocent accused but is such a witness peculiarly equipped by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth. This special danger is not met by corroboration of the accomplice in material respects not implicating the accused, or by proof aliunde that the crime charged was committed by someone; so that satisfaction of the requirements of section 285 [section 239 in Lesotho], does not sufficiently protect the accused against the risk of false incrimination by an accomplice. The risk that he may be convicted wrongly although section 285 has been satisfied, will be reduced, and in the most satisfactory way. if there is corroboration implicating the accused. But it will also be reduced if the accused shows himself to be a lying witness or if he does not give evidence to contradict or explain that of the accomplice. And it will also be reduced even in the absence of these features, if the trier of fact understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is. in such circumstances, only permissible where the merits of the former as a witness and the demerits of the latter are beyond question." (My emphasis)


I endorse that I have on occasions which I have singled out stated the Accused to have been a liar. In this connection see also the Lesotho High Court case of R v Mabea LLR 1991-1996. page 1192 CHC at 1195:


"What the effect of the lies an accused person tells will be. depends on the circumstances of each case. Although a court should go by evidence not just by possibilities, courts have over the years understood an accused person might give false evidence because he believes the truth is not likely to be convincing. See Maharajah v Parandaya 1939 NPD 239 and S v Piphuti. 1985 (1) SA 9. Even so. in an appropriate case, the court may draw adverse inferences from the lies of the accused if the circumstances of the case call for such a course." (My emphasis)


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As has been repeatedly shown in this judgment in some instance the Accused was evasive, on the crucial aspects. He lied because he was hiding his involvement in certain events. This Court concluded in those circumstances that the Crown witnesses were telling the truth. To the bargain there were instance where the Crown evidence on those issues had been unchallenged. It was safe to conclude not only that the Accused was a liar but that the Crown evidence became proved and truthful.


In some instance the accuracy of accomplice witness became vexing the test would ordinarily be to what extent the evidence is corroborated. In addition to the trier of fact has to appreciate (as 1 do) the inherent danger of such evidence and the accused having given false evidence. The Court was again referred to was again referred to Mamoleka v R LAC (1980-1984) 202 at 206 where the Court of Appeal confirmed what was stated in Tsiu Lethola and Seven Others v Regina 1963-1966 HCTLR 12(CA)at 15-1. that:


"The passage in Mpompotshe's ease only says that the warning that much be given is that, when the accused has given exculpatory evidence which is not demonstrably false, and when the accomplice evidence is not so clearly superior to that of the defence as to


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warrant conviction without corroboration, there must be corroboration, and if corroboration is required, it must implicate the accused. Otherwise the risk of a wrong conviction against which a cautionary rule provides some protection, remains.


Neither Ncanana's nor Mpompotshe's case attempts to circumscribe the various factors that may lead the triers of fact to conclude that the superiority of the accomplice evidence over that of the accused is beyond question. It is not a mere matter of demeanour. A plurality of the accomplices does not in itself constitute corroboration for the purposes of the cautionary rule, since several accomplices are just as likely as one to implicate innocent persons falsely. But such a plurality provides material for checking truthfulness and may in some cases be important. Possible motives to implicate the Accused falsely - additional to those normally associated with accomplice evidence - may lessen the weight to be given to the accomplice evidence, while the weight may be increased if there is blood relationship or friendship between the accomplice or accomplices and the Accused. Circumstances of various kinds may justifiably lead to the conclusion that the risk ordinarily inherent in the acceptance of accomplice evidence does not exist because of the clearly established superiority of the accomplice over the defence evidence."


Mr Semenya was correct in latching on to the remarks of the learned judge in the last mentioned ease on the principles regarding the cautionary rule at page 207 thus:

A convenient summary of the principles governing the cautionary rule is contained in the judgment of Leon J in S v Van Vreden 1969(2) SA 524 (N) at 531F-532H. I find it necessary to quote only the following propositions there stated:


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[2] An accomplice is a person with a possible motive to tell lies about an innocent Accused, for example, to shield some other person to obtain immunity for himself.


[3] Corroboration not implicating the Accused but merely in regard to the details of the crime is no guarantee of the truthfulness of the accomplice. The very fact of him being an accomplice enables him to furnish the court with details of the crime which is apt to give the court, if unwary, the impression that he is in all respects a satisfactory witness........


[10] When it is said that the merits of an accomplice as a witness must be "beyond question" in order to be accepted as sufficient for a conviction, this does not mean that his evidence must be free from any defect."


Where the evidence of an accomplice is confirmed by the evidence of another accomplice, the provisions of section 239 no longer apply. See R v Letsie & Another (6) LLR 1991 - 1996 at p.1041 at p 1073/4 and the cases there quoted.


But as I have concluded the evidence was overwhelming as to the occurrences at the meetings and what was discussed vis-a-vis the Accused. I excluded the evidence as at the meeting at Chief Khoabane's place on the aspect of alleged plot to overthrow government. Incidentally none of the civilians was called in evidence which makes the situation not strong enough to the extent that it was intended to connect the Accused with what was intended or conspired by the civilians led by Chief Selala.


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Objection was raised to the evidence of PW 3 as to what was said by various persons at Chief Khoabane's home as being hearsay. The Crown argued that these statements were made in the presence of the Accused who was entitled to and in a position to dispute the evidence. In any event the evidence was tended by the Crown to prove the truth of the statements.


Those statements would accordingly fall into that category of statements described as executive statements. This is being said however bearing in mind that the role of the Accused has already been fully described concerning the events at Chief Khoabane's place. That it was not different from that of PW 3 and others as concern the intention conveyed by Chief Selala and others.


Even if the statements were thought to be of any value, as a matter of proof it still amounts to suspicion nor would if found any irresistible inference that Accused was co-conspirator and nothing more. Much as a discussion can be made of the Hearsay rule on the apt of liability of the


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Accused it is not very useful. The value of those statements made can only be that they were made and only that..


The first principle is that : Oral or written statements made by persons who are not parties and are not called as witnesses are inadmissible to prove the truth of the matter stated: See Phipson on Evidence (12th Edition) LH Hoffman and DT Zeffert South African Law of Evidence (4th edition) at page 623. This is the formulation of the rule that has been accepted largely by South African and Lesotho Courts. See R v Faku and Ors(l) 1976(2) LLR 214 at 224-226; R v Holhausen 1948 (4) SA 852(A) at 575-859, R v Samuel Monontsi Maliehe 1993 LLR 1238 (H.G). The learned authors of Phipson on Evidence (12th edition) at 629 continued:


"Evidence of a statement made by a witness who is himself not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is not proposed to establish by the evidence, not the truth of the statement but the fact that it was made."


See also R v Faku and Others (supra) at 224-26A treatise on Anglo-American System of Evidence in Trial at Common Law Vol (iv) 3rd Edition: .JH Wigmore. Little. Brown and Co at paragraph 1776.


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The Crown submitted that the evidence by Sako, Ndaba, Tsukulu as to what was said at the meeting at Chief Khoabane's home is not hearsay evidence and ought to be admitted in any event misses that the value for which it was brought was to prove not only that there was intent to overthrow or coerce the government but it was brought to prove that there was an overt act committed and other essential, while constituted the charges subject of the indictment. But did the evidence prove all the charges?


There arc four essential elements of the crime of Treason. Those being (about treason) on the understanding that it is distinguishable from sedition and other crimes. (1) There must be an overt act committed (2) with hostile relent to overthrow or coerce the Government by (3) a person owing allegiance to the State in which (4) must possess majestas. See R v Mofelehetsi Moerane and Others 1974-1975 LLR 212 at 218-219. R v Makalo Moetsana and Others 1974-1975 LLR 317 at 323-324.


Perhaps there is a need to define what sedition (first alternative count) is at this stage. Sedition consists in unlawful gathering together


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with a number of people with intention of impairing the majestas of the state by defying or subverting the authority of its Government but without the intention of overthrowing or coercing the Government. S v Twala 1979(3) SA 854 (T) at 866 H, S v Zwane (1) 1987(4) SA 369(W) at 374 D. See also South African Law and Procedure, Vol.2 (Common Law Crimes) 3rd Edition page 50.


Then there is a need to define what an overt act is. As has been defined in R v Thistlewood (33 SE TV 684) it is "...... any act manifesting the criminal intention and tending towards the accomplishment of the criminal object". See also R v Leibradt and Another 1944 AD 253 - at 284 R v Mofelehetsi Moerane and Others 1974-1975 LLR 212 at 219 BC and R v Makalo Moletsane and Others 1974-1975 LLR 319 and 325. Overt also means "done or shown openly" Concise Oxford Dictionary.


The key definitive element of high treason that distinguished it from lesser forms such as sedition is the element of hostile intent. The courts have frequently stated what hostile intent does not mean than to define it in positive terms. It is however useful to look at various guides


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that point to hostile intent. In R v Viljoen 1923 AD 90, at 94, Innes CJ defined "hostile intent" as "intent to treat the [government] as an enemy]" and in R v Strauss 1948(1) SA 934 (A), at 940, Watermeyer CJ said that a person acts with "hostile intent" if he is "intentionally antagonistic towards" the State; Schreiner J (as he then was) defined hostile intent as "intent to overthrow the government or coerce it by force."


As the Crown submitted further an act may appear to be perfectly innocent, but if it can be proved that such an act was committed with the necessary "hostile intent'", it will amount to an "overt act of treason" and this Court would be entitled to find that such an act was proved. And then the Court was referred to a passage quoted from Hardies case as quoted by Rambottom Hon J in R v Wentzel 1940 WLD 269 at 275.


"Now gentlemen, overt act and deed, man firstly an intention to commit any of the species of treason need not necessarily be an act of treason itself for example suppose there is an undoubted scheme proved or admitted to raise insurrection or to levy was against the thing for a general purpose, there can be nothing more innocent in itself in the world than the ringing of a bell on the firing of a sky rocket, the breaking of a drum, or anything of that sort, but if it be proved at the time that any of these were signals to the insurrection, then these acts perfectly innocent in themselves, if done by a person who was aware of the object of them is an overt act of treason, that is to say. it is an overt act. intimating treasonable purpose the man has in view....." (My emphasis)


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See also R v Mofelehetsi Moerane and Others (supra) R v Makalo Moletsane and Others (supra) mention is made of "insurrection'' in doing certain overt acts in that regard. Insurrection meaning: "a violent uprising against authority''. See Concise Oxford Dictionary.


The Crown emphasised that as in Mofelehetsi Moerane's case (supra) and Makalo Moletsane's case "a mere act of preparation" as well as conspiracy to commit treason are themselves overt acts of treason. Secondly, a person who knows that an act of treason is being committed or is to be committed and who fails to communicate his knowledge to the authorities himself commits an act of treason. And lastly anyone who renders assistance in or engage in any kind of preparation cither before or alter an act of treason would be said to have committed an act of treason. I have already commented about whether the communication between Chief Selala his cohorts and the Accused and the soldiers would constitute preparation conspiracy, assistance nor conspiracy on the part of the Accused. See Mofelehetsi Moerane case (supra) at page 325D and also R v Leibrandt and Another (supra) at page 275.


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As regard proof of a conspiracy, this Court has both in Mofelehetsi Moerane's case and in Makalo Moletsane's case (supra) accepted the dictum in R v S 1959(1) SA 680 at 683 to say:


"Conspiracy to commit a crime require the agreement on the part of two or more accused to commit the criminal act (see R v Solomon. 15 SC 107 and R v Dlhamini 1941 OPD 154) mere intention is not sufficient, there must be an actual concurrence of minds in an agreement to do the action in question such occurrence need not necessarily be by way of explicit spoken words for agreement to constitute a crime, as any other agreement can be arrived at tacitly and by conduct (see for example R v B 1956(3) SA (E) at 365) Where, however, the agreement is sought to be inferred solely from the conduct of alleged conspirators such inference must on the conduct unless of logic enunciated in R v Bloon 1939 AD 188 at pp 202 and 3 be consistent with all proved facts and the proved facts must in turn be such that they exclude every reasonable inference from them save the one sought to be drawn." (My emphasis)


That is a perfect reference to the principle about the requirement that there must be proof beyond a reasonable doubt. In this case it ought to be whether that "hostile intent" was proved. The Crown referred in regard to conspiracy to R v S 1959(1) SA 6S0(c) Mofelehetsi Moerane's case


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(supra) at 326 B-E and Phalatsi v Rex 1971-1973 LLR 9 1971-1973 LLR 92.


The Court would have found it wise to investigate further the question of sufficiency of evidence on a charge of Treason as provided in section 238(2) (b) of the Criminal Procedure and Evidence Act 1981 (CP&E). But the remarks which follow make it unnecessary.


The Crown submitted that there was more than two witnesses who testified about Accused involvement in the conspiracy and his overt acts were testified to by those witnesses. Consequently as submitted the provision of section 238 of the CP&E were fulfilled. It would still bring the question whether "hostile intent" was proved.


I agreed that for proof of facts evidence need not have been any "direct evidence". Proof could be established by circumstantial evidence, oral admissions and documents as well as direct evidence. I was again referred to Makalo Moletsane's case (supra) at 326 B-E and R v Leibrandt (supra).


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On the basis or within the premise that the Crown could not have been able to prove beyond a reasonable doubt that the charge of treason was committed nor that there was a furtherance of common purpose in that I thought [ could not develop the discussion any further in respect of that charge. I would however endorse the principle that it is trite that the executive statement of a co-conspirator made in furtherance of a common purpose is admissible against other co-conspirators.


The question would still however be whether it was towards a furtherance of a common purpose. See R v Miller, 1938 AD 106 at page 115 also at 117 and 118 where the principle about the acts and declaration of one conspirator being admissible against the others. This is illustrated by cases one hired against a gent in murderous activity in R v Mayet 1987(1) SA 492(A). In this case it is endorsed and explained that the evidence someone who may have been approached and failed to provide murderous assistance is admissible against the mandator. As Sehreiner J pronounced at page 498 it is immaterial whether or not the conspirators are charged together. But still there has to be proved that there was a concerted action. See R v Mathews 1960(1) SA 752 (A) per Sehreiner J. This principle is developed further in S v Banda 1990(3) SA (A) on a charge of treason. See 507 B-C. See also Makalo Moletsane's case


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(supra) at 372 D-E. Such statements must contribute to the formation or execution of a conspiracy in order to be included and the accused must have been proved to have "joined the combination."


I have already earlier in my judgment remarked at the failure of the defence to have cross-examined on certain issues by way of disputing them. The principles in this regard have been broadly enunciated. This is to be found in Cross Examination in South African Law, D J's Pretoria at pages 148-149. See also Small v Smith 1954(3) SA 434 (supra) at 438 C-F and, R v M 1946 AD 1023 at 1027-1028.


Generally on the issue of absent cross examination it can be concluded that the witness account is acceptable. Such evidence cannot later be doubted". See also R v Innes Grant 1949(1) SA 753(A) at 763-764. While a cross examiner is under no burden or onus there is no doubt that there is a clear responsibility on the cross-examiner to reveal his defence or at least highlight relevant aspects of an accused's case. This is achieved quite easily by putting to the witness issues of fact which arc challenged disputed or would form a basis of accused's defence. See also Holland v Ciccione 1937 NDP 58.


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The effect of absence of cross examination at the right time and challenging of Crown's evidence in accused evidence-in-defence may create a serious doubt in some situations. This may in proper cases suggest that the version is fabricated adapted and improvised to reflect an afterthought. See Cross Examination in South Africa (supra) at page 151-152 and R v Innes Crint (supra) at 763-764. A failure in doing the right thing on this aspect "will have the result that the defence will be immediately be weakened" See South African Criminal Law and Procedure (formerly Gardner and Lawrdsdown) Vol II At page 5 where the legal position is aptly summarized.


I have already commented earlier in my judgment as to the specific areas on which the defence nor the Accused in his defence stood to be blamed on this score. It is only convenient now therefore to make concluding remarks as follows. The defence is duly bound to put its case to the prosecution witnesses. See McDonald J in S v P 1974(1) SA 581 (RAC) at 582-583A. That the need to state one's case to the opposite side is a cornerstone of administration of justice has also been shared and understood in a number of cases including S v As 1991(2) SA CR 74


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(W). The statement in Phipson on Evidence distinctly encapsulates the principle rather admirably that:


"As a rule a party should put to each of his opponents witnesses in turn so much of its own case as concern that particular witnesses, or in which he had a share, eg if the witness has deposed to a conversation, the opposing counsel should indicate how much he accepts of such version or suggest to the witness a different one. If he asks no questions he walks in England - generally be taken to accept the witness account. Moreover, where it is intended to suggest that the witness is not speaking the truth upon a particular point his attention must first be directed to the fact by cross examination so that he may have an opportunity of explanation, and this applies to all cases in which it is proposed to impeach the witness credit."


My opinion was finally invited to a suggestion that the alleged shortcomings in putting the Accused's case could not fall on the shoulders of Adv Semenya an eminent Counsel. I agreed however and would conclude that the Accused was a dishonest witness who invented his evidence as he went along.


It became readily apparent that Accused was in any event involved in the preparation for the 1 1th September 1998 when the senior officers were arrested. Accused had known about what was being planned. He failed to report or communicate his knowledge to the authorities and


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rendered assistance before, during and after the events of the 11th September 1998 I differed however, with respect, that the inference is irresistible that he committed an act of treason.


That the Accused had known of the events of the 11th September 1998 cannot be an act of coincidence judging by the response of PW 3 Sako. Sako while in hiding, after the event, contacted Accused who provided assistance as more specified earlier in the judgment.


That the Court had to decide by inference went further as submitted by the Crown. It was that had the operation of the 1 Ith September 1998 been successful, it would undoubtedly have deprived the Lesotho Government of the means of maintaining law and order and the overthrowing of the Government would have inevitably followed. Consequently as it was argued the Crown had established the necessary hostile intent "as required by Moerane's case". A departure from Moerane's case is to be found from the present in that (at page 222)


"the declared object of the attacks was the overthrow of the Government and too from the fact that according to the statements made by some of the people who took a leading part in the events


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that followed, similar attacks were expected to be made on police stations throughout the country in the inference is irresistible and in escapable that these attacks were a result of a pre-arranged and co-ordinated plan by some person or persons. This to my mind, prove beyond a reasonable doubt that the existence of a conspiracy which object was to overthrow or at least the coercing of government."


That there was hostile intent is even difficult to say in this case on the principle of R v Blom's case. Indeed if logic was to be the guide one would say that since the arrest of officers had a relationship with the events of the statement at the Royal Palace where protestors had sojourned and if the effect was to bring disorder and chaos then the case for overthrow or coercing of government would necessarily have been proved as treasonable act on the part of the Accused and his gang of military rogues. From their definition which have been recorded already it will also be clear that Treason and Sedition arc not the same. This has to be imphasized. The Lesotho Court of Appeal in Lepoqo Seoehla Molapo v Rex 1999-2000 LLR-LB 316 at 320 Steyn P had occasion to distinguish between Treason and Sedition in the following words:


"Sedition consists in unlawful gathering, together with a number of people with intention of impairing the majestes of the state by defying or subverting the authority of its government but without intention of overthrowing or coercing that government.”


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(See South African Criminal Law and Procedure, 3rd Ed. JRL Milton Vol II page 42. In Rex v Phakiso Molise and 32 Others ................ Molai J had the following to say:


"I turn, now to the first alternative charge of Sedition. In R v Moletsane and Others 1974-75 LLR at page 328, it was said:


"Sedition consists in unlawful gathering together with number of people with intention of impairing the majestas of the state by defying or subverting the authority of its Government, but without the intention of overthrowing or coercing the Government. "


See also R v Sesinyi and Others 1981(2) LLR 580 at 589 at et seq. In my view it is clear, from the above cited definition of sedition that its essential ingredients are the same as those of high treason except that the former "hostile intent" is not a requirement. I am fortified in this view, by JRL Milton in his work South African Criminal law and Procedure Vol.11 (1996 3rd Ed.) where at page 54 the learned author has this to say. on this issue:


"The critical factor which distinguishes treason from sedition is that for the found "hostile intent'' to overthrow or coerce the government is required. For the latter it is not."


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I accepted that it was correctly submitted by the defence that in the present case, as distinguished from the above case there does not appear, or the facts to have executed an unlawful gathering which was carried with common intent of defying or subverting the authority of Government.


Again it was clear from the evidence of the Crown witnesses themselves that their own presence at various meetings where they attended had nothing to do with undermining the authority of the state.


It was against correctly submitted with respect that the arresting of officers pure and simple would not amount to subverting this authority of the Government. As Molai J said and correctly pointed out in Molise's case (supra)" "in assailing police management/department, as they did. the suspects and the other junior police officers, were not assailing the state in its Government of Lesotho." So would the charge for treason not succeed on the above test.


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I disregarded the point made by the defence that the Accused was never present when the senior military officers were arrested. This was insignificant because on the evidence of PW 3 the Accused was suddenly made aware of PW3's whereabouts and they communicated and PW 3 was indeed assisted. Indeed there is no evidence that the Accused gathered together with other people who actually were arresting the senior officers. On the evidence Accused could not have been aware of the timing and other details. He must however even remotely anticipated the event. But he had been the prime mover of this what eventually resulted.


I disagreed however that judging on the totality of the evidence. just because the Accused could not have been at the actual operation he did not have the requisite intent. Accused is guilty of sedition. This is beyond a reasonable doubt.

The simplicity of the second count is to be found in the way the section 183(2) of the CPE is couched. It reads:


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"183(2) Any person who -


  1. conspires with any other person to aid or procure the commission of or to commit or


  1. Incite. Instigates, commands or procures any other persons 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." (My emphasis)


The Crown submitted that regard being had to the actions and conduct of Accused as earlier detailed, he is guilty of the count 2. This charge largely depend on the evidence of PW 7 Tsolo John Makhele. His testimony can only be summarised where relevant even if it is repeated.


According to PW 7 that they were in a plot to eliminate the Prime Minister. Hon. P B Mosisili. Hon. Thomas Thabane. Colonel Lefosa His Deputy Hon K A Maope. Lt Matobakele. thereby (in their intended


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action) doing a lesser evil which can only have the effect of "rescuing" the nation. PW 7 testified that Accused informed him that he had been referred to the witness by Colonel Lesitsi. He however pointed out that Colonel Lesitsi was the one who prosecuted him in the army. PW 7 said these thing he was talking about he was told by the Accused.


I have said already that PW 7 was a witness to the truth. Furthermore no motive was disclosed as to why PW 7 would pick on the Accused for fabrication. I believed that Accused at the least incited, investigated and sought to procure PW 7 for the wicked criminal activities which would have had one consequences..


The defence did have some criticism against PW 7. It is that he was aggrieved and vindictive. He considered that he had been prosecuted in the army. He also seemed to consider that people hated him. PW 7 testified to what Accused said and reported to him things that may have had no foundation. But what is relevant is that he was inciting and instigating him to be involved in unlawful activity which distinctly is in the preview of with the provision of section 183(2) of the CPE which has created the offence.


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Accused disputed without credence that he had had any association of any kind with the plot to arrest and kill officers and Ministers of Government. I disbelieved him. I believed PW 7.


The Accused is guilty of Count 2. I have already found him guilty of the alternative count of sedition.


My Assessor agrees.


T Monapathi

Judge

27th September 2004