R v Mokhantso and Others (CRI/T/95/02)

Case No: 
CRI/T/95/02
Media Neutral Citation: 
[2003] LSHC 80
Judgment Date: 
28 July, 2003

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CRI/T/95/02

IN THE HIGH COURT OF LESOTHO


In the matter between:

REX

vs

NO.2911 CAPT. RAMABELE MOKHANTSO 1st RESPONDENT

NO.4903 SGT. LENKOANE MOLELLE 2nd RESPONDENT

NO.4883 CPL. LIJANE M. KALOKO 3rd RESPONDENT

NO.5785 CPL. NKOPANE MOTENTE 4th RESPONDENT

NO.3867 CPL. THATO KHAU 5th RESPONDENT

NO.5717CPL. TANKISO MAJORO 6th RESPONDENT

NO.5144 PTE FISONE S. NTHAKO 7th RESPONDENT

NO.6019 PTE LEBATLANG JANE 8th RESPONDENT

NO.6870 PTE KEKELETSO V. LEBESA 9th RESPONDENT

NO.6006 PTE SETSUMI M. LETSIE 10th RESPONDENT

NO.6619 PTE TSEBO LIJANE 11th RESPONDENT

NO.6586 EX-PTE. MOLEFI MOKHELE 12th RESPONDENT

NO.6595 PTE TANKISO P. MOLETOA 13th RESPONDENT

NO.6898 PTE MOJAKI MOSOLLO 14th RESPONDENT

NO.8571 PTE MOHANOE L. BULANE 15th RESPONDENT

NO.5818 PTE LECHESA J. MOHAPI 16th RESPONDENT

NO.6924 PTE KORI M. MOHLALISI 17th RESPONDENT

NO.8486 PTE TSEPANG E. AKHENTE 18th RESPONDENT

NO.7372 PTE LIBAKISO J. MOTHAE 19th RESPONDENT

NO.6094 PTE THABO B. LEROTHOLI 20th RESPONDENT

NO.6624 PTE THUMO I. MAPALE 21st RESPONDENT

NO.6591 PTE FELLENG KAPHE 22nd RESPONDENT

NO.6602 PTE MOROENG MAHANETSA 23rd RESPONDENT

NO.4905 PTE E. MOTLOMELO 24th RESPONDENT

NO.5143 PTE T. KHAULI 25th RESPONDENT


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JUDGMENT


CORAM : HON. MR JUSTICE S.N. PEETE

DATE : 28th JULY, 2003.


At the last sitting of this Court formal application was been made for the discharge of some of the accused at the end of the crown case in terms of section 175 (3) of the Criminal Procedure and Evidence Act 1981. It reads as follows :-


"775 (3) If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the charge, or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty. "


A panoply of decided cases in Lesotho and in South Africa abounds on this aspect of our criminal procedure. I can only state that its rationale derives from the presumption of innocence which is guaranteed by section 12 of our Constitution; and conversely, upon the principle that if the prosecution is unable to adduce prima facie sufficient evidence to establish the guilt of the person charged, the person so charged must be discharged without being asked to defend himself.


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It is therefore a trite principle of our law that after the crown closes its case, the accused has a right to apply to the court that he be discharged on the ground that there is no sufficient evidence implicating him in the commission of the offence charged.


In other words, the accused will only be called to answer if there is prima facie case made by the crown upon which a reasonable court - acting carefully - might convict. See R. v Herholdt - 1956 (2) SA 722; Matsobane Putsoa - 1974-75 LLR 201; R v Ramokatsane 1978 LLR 70 at 78; R. v Matobo - 1991-96 LLR 1258; Mahanye v Rex - 1999-2001 24 (CA); R v Mabollane - 1999-2001 LLR 305.


It should also be noted that at this stage of the proceedings the court is exercising a judicial discretion in determining whether upon the evidence adduced by the crown and without concerning itself with the credibility of witnesses (unless such are palpably lying), the accused should be made to answer the charge.


It would further be noted that even if the court decides that the accused should not be discharged, the latter has a constitutional "right to silence". Section 12 (7) of our Constitution reads:-


"12. (7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.


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After closing his case, Mr Suhr gallantly conceded that having perused all the evidence hitherto adduced, he had no sufficient evidence implicating the following accused, namely Accused Nos 8, 11, 15, 20, 21, 23, 24 and 25. These were accordingly acquitted.


This application therefore only concerns the following fifteen accused;-


Accused No.l Capt Ramabele Mokhantso

Accused No. 2 Sgt Lenkoane Molelle

Accused No.3 Cpl. Lijane Kaloko

Accused No.4 Cpl Nkopane Motente

Accused No. 5 Cpl Thato Khau

Accused No. 6 Cpl Tankiso Majoro

Accused No. 7 Pte Fisone S. Nthako

Accused No. 10 Pte Setsumi M. Letsie

Accused No. 12 Ex-pte Molefi Mokhele

Accused No. 13 Pte Tankiso P. Moletoa

Accused No. 14 Pte Mojaki Mosollo

A ccused No. 16 Pte Lechesa J. Mohapi

Accused No. 18 Pte TsepangE. Akhente

Accused No. 19 Pte Libakiso J. Mothae

Accused No. 22 Pte Felleng Kaphe


In considering this application, the court must of necessity bear in mind throughout that the indictment alleges that in committing the acts alleged in the five counts, all the accused acted "in concert" or under "a common purpose"', it must also be borne in mind that each of the accused's criminal


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responsibility must be treated individually - i.e. having associated himself with the unlawful activity, did the accused subjectively know or foresee that lethal weapons would be used in the execution of the plan? In this case important issues of "identification", "obedience to orders", being on "stand­by" have been raised;


The accused are not being charged with the crime of high treason where -


"even a bare knowledge of an attempt at or the commencement of an act of treason, non-disclosure of the same to the authorities may render a person under common law liable even though he has in no way taken part in the plans or execution by the principal offender(s)"


S v Banda and Others - 1990 (3) SA 466; see also R v Mofeheletsi Moerane and Others - 1974-75 LLR 212 at 222 where per Mapetla C.J.

held that in the absence of direct evidence of conspiracy, common purpose could be proved by circumstantial evidence.


Arrest of Ministers in this case has not been described by the Crown as constituting overt acts of high treason - hence the charges of murder and kidnapping. The offence of kidnapping, in my view, however violates Section 6 of the Constitution (right of personal liberty) and Section 7 (freedom of movement). Kidnapping in certain circumstances may be an overt act of high treason if committed with the hostile intent to overthrow the majestas of state. The South African case of S. v Banda (supra) discusses the law of high treason in great detail and the law relating to defence of "obedience to superior orders". More importantly, the court held


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that even when the doctrine of common purpose is applied in any given case, this does not relieve the court of the duty to evaluate the evidence against each other separately and to ascertain whether the principle of common purpose can be applied to each and every accused on an individual basis. It was also held as trite law that evidence of "executive statements" made in furtherance of a common purpose are admissible against co-accused. (R. v Mayet - 1957 (1) SA 492 where Schreiner J.A. held at page 49 that "words that are said as part of the carrying a purpose stand on the same footing as acts done; they differ from a mere narrative" - R. v. Miller - 1939 AD 106 at 115.

In this case it must be borne in mind that the applicant accused are facing five counts: four of kidnapping the then Minister of Education Mr Pakalitha Mosisili (presently The Honourable Prime Minister), Mr Kelebone Maope then Minister of Justice, Mr Shakhane Mokhehle - Minister of Trade and Industry; Mr Monyane Moleleki - Minister of Natural Resources, and one count of murder of the then Deputy Prime Minister Mr Selometsi Baholo; all these incidents took place on the morning of the 14th April 1994. Common purpose is being alleged in the commission of these crimes. Naturally, some accused who committed kidnappings in Maseru West and in the city were not at Matala's where death of the Deputy Prime Minister resulted. If, however, the kidnapping of the Deputy Prime Minister was also part of the common plan, in a similar modus operandi, the other accused will be liable for the death if they foresaw the possible use of firearms in case of resistance. Absence at the scene at Matala does not exonerate them because under the doctrine if two or more person decided to embark on a joint unlawful activity, the acts of one are imputed to the others which fall within


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their common purpose. For example, under this doctrine a person may be found guilty of murder even if he did not inflict the fatal injury if he is a socius criminis1 (i.e. himself by word or deed associated with the mob) and foresaw the possibility of fatal injury in the execution of the common design. (S v Sefatsa - 1988 (1) SA 868). The South African Appellant Division in S. v. Mgedezi -1989(1) SA 689 (A.D.) held that-


"In the absence of a prior agreement, an accused who was not shown to have causally contributed to the killing or wounding of the victim can be held liable for those events on the basis the decision in S. v Sefatsa only if certain prerequisites are satisfied. In the first place, he must present at the scene where the violence was being committed. Secondly, he must have been aware of the assault of the victims. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensure.


Inherent in the concept of imputing to an accused the act of another on the basis of common purpose is the indispensable notion of an acting in concert. From the point of view of the accused, the common purpose must be one that he shares consciously with the other person. A 'common' purpose which is merely coincidentally and independently the same in the case of the perpetrator of the deed and the accused is not sufficient to render the latter liable for the act of the former."


1 In R v. Botso Mashaile and others - 1971-73 LLR 148 Jacobs C.J. held that presence of the accused at the scene of crime is not conclusive that he participated in the commission of the crime but that presence may be a prima facie evidence of participation (at page 163 C-D).

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It is not in dispute that the four Ministers of Government were indeed kidnapped on the same day and at about the same time, taken to the same place (i.e. Makoanyane Barracks) and were asked some ridiculing questions while being physically abused, and that the house of the Deputy Prime Minister at Matala's was invaded by armed and uniformed soldiers almost at the same time of the morning of 14th April 1994. All these point to a common plot to kidnap these selected Ministers. I dare posthumously say if the Deputy Prime Minister had submissively surrendered like his other four colleagues, perhaps he could have also been taken by his captors to Makoanyane Barracks and would still be alive today - God willing!


It is Mr Suhr's submission that, being unable to prove a prior agreement, the crown case rests on "common purpose" which must be inferred from the contemporaneity and modus operandi and common motive for the incidents of that day; this however should not detract from the requisite that this court - as a trial court - should not adopt "a global approach" to the criminal liability of each accused and that the evidence implicating each accused must be treated individually or separately and his liability for acts committed by others should arise only if he associated himself in the common plot and its execution and should have foreseen the possibility of such offences being committed by his partners in the execution of the common plan.


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At this stage, however, this court is not in any way determining the guilt of the accused - that task will certainly come at the end of the day if and when they are called upon to answer and (a) they close their case without giving evidence as is their constitutional right to do or (b) they give evidence on oath motivating their defence of either alibi, "obedience to superior orders" and the like.


As if to render the arduous task of this court lighter and more bearable and demonstrating good advocacy, Mr Maieane, for some the accused, conceded that in respect of the kidnapping charges, the following accused had cases to answer - namely Accused Nos 2, 3, 12, 13, 14 and 19 while submitting that Accused Nos 1,4, 5, 16, 19 and 22 ought to be discharged. Mr Nteso also deftly motivated his application in respect of his clients.


I proceed here and now to deal with each accused.


Accused No.l - This accused is faced with 5 counts - one of murder and four of kidnapping. The criminal liability of this accused, regard being had to the nature of the adduced evidence against him, is a matter of some concern. To say the least, though he is listed as Accused No.l among the originally 25 accused, the evidence against him has been quite scanty. Only P.W.29 and P.W.31 speak of this accused. P.W.29 says that he had been resting because he had a tooth-ache on the evening of the 13 April 1994 when he was awaken by a loud conversation outside his dormitory and that he then approached this group of soldiers and saw Accused No.2 and


2Section 12 (7) of the Lesotho Constitution. RvTheron 1968 (4) SA 61 discussed the legal consequences where an accused fails to give evidence in the face of strong prima facie case.


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Accused No.l (then a Sergeant) amongst them; he told the court that he heard Accused 2 say "we should go and arrest these Ministers who seem to be causing the split in the army ..." All present then laughed loudly and he took this to be only a social gathering. He says "I did not hear Accused No. 1 say anything". But present he was.


P.W.31 only says that during the morning of the 14th April 1994 he saw Accused No.l walking amongst the soldiers who were then milling exitedly around at Makoanyane Barracks after the Ministers had been kidnapped and made to sit on the floor in the stand-by room.


Though there is no evidence that he was seen boarding any of the military vans or at Maseru West or at Ha Abia, there is this evidence that he was in the group in which the arrest of Ministers was being discussed. After much consideration and careful thought I am of the view that there is prima facie case3 and it is for him to explain because (a) his presence in the group was not denied in cross examination it being argued and maintained that Accused No.l had however said nothing in response to what Accused 2 was then advocating and contends that his presence at Makoanyane in the mid-morning of the 14th April 1994 was neutral because a Ratjomose soldier could go to Makoanyane Barracks and vice versa depending upon duty call. I refuse the application for discharge. His rights will be explained to him by his counsel.


3. See Rex v Botso Mashaile (supra) footnote 1


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Accused No.2 - All that needs to be said, and without any adverse comment and premature comment of witnesses' credibility, is that Accused 2 had a case to answer. There are many witnesses who say on the 14 April 1994 they saw him commandeering troops and vehicles at Makoanyane and was seen at Ha Abia at Baholo's residence and that on the 13th April 1994 he had spoken words to the effect that some Ministers had to be arrested for causing the split in the army. Application for discharge is refused and his counsel will explain to him his rights under our law and procedure.


Accused No.3 - Also facing five counts as noted above, there are nine witnesses who implicate Accused No.3 and their evidence, as Mr Maieane correctly conceded, place him at Ha Abia. These are P.W.ll, 23, 24, 25, 26, 27, 35, 40 and 50. Without any comment upon the credibility of these witnesses, I hold that there is prima facie case against the accused and application for discharge is refused. His counsel shall explain to him his rights.


Accused No.4 - This accused is in the like manner facing five counts as already noted and there are only two witnesses who seem to implicate him, namely P.W.25 and P.W.59. Before this court P.W.25 says he saw Accused No.4 in the group which was discussing the arrest or kidnapping of Ministers - while P.W.59 only says Accused No.4, being under his platoon on the 14th April 1994, had to be on guard duty at Moshoeshoe I International Airport and not elsewhere. There is that lone testimony of P.W.25 which constitutes a single prima facie case that the accused No.4 was seen being in a group that discussed the kidnapping of Ministers. His application - as like of


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Accused No.l is refused - Counsel will explain his rights under law and procedure.


Accused No5 - This accused is also facing five counts. There are five witnesses who implicate him, namely P.W.22, 37, 39 and 41. The evidence of P.W.22 is to the effect that he heard when Accused No.5 was narrating how they had arrested or kidnapped Minister Maope at Maseru West on that very morning of the 14th April 1994. The evidence of P.W.37 and 39 however place Accused No.5 on the Lesotho Sun Mountain. The court takes serious note that identification in court of this accused was unduly prompted by counsel for the Crown, Mr Suhr, but also takes cognizance of proximity between Maseru West suburb, Lesotho Sun mountain and free availability of transport for the troops on that morning. His case falls to be treated like Accused No.l and No.4 and his application is likewise refused. His rights at this stage will be explained to him by his counsel.


Accused No.6 - The case of Accused No.6 is rather unique. He was at the material time a full time driver in the LDF and a private. There are 12 witnesses who testified in his regard. They are P.Ws.4, 7, 11, 13, 21, 22, 23, 24, 26, 33, 35 and 36. Many as they are, these witnesses say they saw him at Maseru West - in fact P.W.4 Mr Maope says he recognized Accused 6 as the driver of the van that ferried him to Makoanyane after he had been kidnapped near his residence in Maseru West and P.W.21 says accused No.6 was still driving the van that went to requisition for tear-gas at Makoanyane Barracks Training Wing - because "one Minister was refusing to surrender". While there may be special circumstances indicating duress and genuine reluctance in his case and indeed strong mitigation, I am of the view


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that there is objectively a prima facie case and the application for discharge is refused. His rights will be fully explained him by counsel.


Accused No.7 - This accused is also facing five counts as already noted. There are nine witnesses P.W.13, 14, 16, 18, 19, 23, 25, 26 and 43 who implicate him in the kidnapping operation at Maseru West on the 14.4.94. He was recognised by people who knew him well. In my view there is prima facie case to answer. There-application for discharge is refused. Counsel will explain to him his rights.


Accused No. 10 - This accused is also facing five counts. There are three witnesses who implicate him. P.W.20 and P.W.21 told this court that on the morning of 14.4.94 Accused No.10 arrived at Makoanyane Training Wing requesting for tear gas to "flush out Deputy Prime Minister Baholo who was refusing to come out.'"

P.W.24 told the court he saw Accused No. 10 at the scene at Ha Matala on the morning of the 14.4.94 - but that shooting had stopped.


The application for discharge is refused and counsel will explain his rights.


Accused No. 12 - This accused is facing five counts as already noted. He is implicated by two witnesses - P.W.24 and P.W.26. Before this court P.W.24 says he saw him at Baholo's residence with Accused No.9 Lesesa (now deceased) - but the shooting had by then stopped.


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Application for his discharge is refused. His counsel will explain to him his rights.


Accused No. 13 - This accused is also facing five counts like others. He is implicated by two witnesses - P.W.24 and P.W.28. Before this court P.W.24 Seabata Letele says when he arrived at Baholo's house, he saw Accused 13 kick in the door. His friend P.W.28 Kotsoane Motsie says Accused 13 later confided in him and told him that he was present when Ministers were being arrested.


Application for discharge is refused. Rights of the accused will be explained to him by his counsel.


Accused No. 14 - This accused is also facing five counts like other accused. He is implicated by just one witness - P.W.23 Thabang Mzoleza who says he saw Accused No. 14 armed with a GPMG at Baholo's residence on the 14th April 1994 and asked him "why are you firing?" but was vouschafed no reply.


The application for discharge is refused. Counsel will explain the rights to the accused.


Accused No. 16 - The accused is also like others facing five counts. He is implicated by P.W.30 who says on the morning of the 14th April 1994 he saw Accused 16 in the company of Accused No. 15 (acquitted) in a tropical camouflage in a 4x4 military van. P.W.56 Tahleho Setefane only says that


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on the morning of the 14 April 1994 Accused No. 16 had angrily told him to go and dress up.


I am not satisfied that there is a sufficient prima facie case for this accused to answer - the evidence is equivocal and does not implicate him as being part of the group of soldiers bent on kidnapping Ministers. His application is granted and the verdict of "not guilty" is hereby entered.


Accused No. 18 - This accused is likewise facing five counts. P.W.26 (an accomplice) Albert Tlelase just says he saw Accused No. 18 near the dormitories as he, Tlelase and other soldiers boarded vehicles. P.W.41 just says Accused 18 was part of his platoon which had no operation duty on the 14 April 1994. Again this evidence is equivocal and does not constitute any prima facie case against this accused. The application is granted and the verdict of "not guilty" is hereby entered.


Accused No. 19 - This accused is facing five counts like other accused. He is only implicated by P.W.50 - Brigadier Lekanyane who told this court that after he had returned from Ha Abia on the morning of the 14.4.94 to attend to the scene where the Deputy Prime Minister had lost his life during the attack by the soldiers, he had upon arrival at Makoanyane Barracks, he ordered his company to be assembled; he says that while other soldiers refused to assemble, somehow Accused No.2, Accused No.3, Accused No.7 and Accused No. 19 came to him. The Brigadier says he inquired from them why the Ministers had been arrested. He says Accused No.2 then went to narrate a list of grievances such as that the Deputy Prime Minister had been alleged to be preparing with SADF to assist the Ratjomose Support


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Company to disarm the Makoanyane soldiers and have them summarily dismissed from the Army; and also that the Lesotho Government was being rumoured to have sought help from Zimbabwe to accomplish the disarmament operation in Lesotho.


The Brigadier went on to state that when he inquired about the reason for the Matala operation, Accused No.2 explained that the Deputy Prime Minister had refused to come out when being ordered to do so and they had then decided to break in the door in order to gain entry and take the Deputy Prime Minister to Makoanyane Barracks.


The Brigadier says Accused No.2 said these things in the presence of Accused No. 19 and others.


There is prima facie against this accused in that he could have - if not a socius - disassociated himself from the statements of Accused No.2


Application for discharge is refused. His rights shall be explained to him by his counsel.


Accused No.22 - This accused like others is facing five counts. He is implicated by P.W.25 (accomplice) who told the court that on the late afternoon of the 13th April 1994 - he overheard a group of soldiers discussing the kidnapping of Ministers. In this group he could identify Accused No.2, Accused No.3 and Accused No.22.


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P.W.36 (accomplice Khobotle) told the court that late evening on the 13th April 1994 a loud "fall in" was called, it being said the Support Company was on a warpath. They were ordered to dress up battle-ready. He says he got posted above Lesotho Sun. He did not say much because somehow I have noted in my record that Accused No.22 is reported sick and Mr Maieane hands in a medical sick leave dated 18/3/03)


Mr Suhr: "I apply that this witness be impeached of terms of section 274 of the Criminal Procedure and Evidence."

Having however carefully considered the evidence that Accused No.22 was seen in a group discussing the kidnapping of Ministers on the evening of the 13th April, 1994 at Makoanyane Barracks, I hold that there is a prima facie case to answer.


His application for discharge is refused


S.N. PEETE

JUDGE


For the Applicants/Accused : Mr Maieane

Mr Nteso


For the Crown : Mr Suhr assisted by

Ms Lesupi & Mr Molokoane