CRI/T/21/86 IN THE HIGH COURT OF
In the matter of:
vs SEOEHLA JONATHAN MOLAPO
J U D G M E N T
Delivered by the Honourable Acting Chief Justice Mr.
Justice J.L. Kheola on the 17th day of December, 1986.
The accused is charged that on the 7th day of December,
1985 and at or near Litlhatsaneng in the district of Leribe the said
acting in concert with Colonel Sehlabo, Private Lebese
Jonathan, Sergeant Tjane and Private Thaabe Letsie, murdered one
The accused pleaded not guilty to the charge. The
following formal admissions were made by the defence:
"1. At the relevant time, the accused aged 28 was
in the then Lesotho Paramilitary Force.
He was under the direct command of the late ex-colonel
The deceased met his death at Litlhatsaneng -Leribe
on the night of the 7th December, 1985.
The cause of death was due to multiple stab
woundsleading to haematopleurothorax and heart injury.
5. The body of the deceased was discovered on the
8th December, 1985 by one Mphuthi Maqala, a herd-boy, on
the mountainside of Litlhatsaneng and a report subsequently was made
6. The body was inspected by police on the 10th
December1985 and photographs thereof taken - the album of
will be handed in as exhibit.
That Dr. Speich of Leribe Government Hospital
conductedthe post-mortem Examination of the body - which
wasthen unidentified. A report of which to be handed.
That about 16 stab wounds were found on the body.
That the body was subsequently identified as beingthat
of David Makhubo (Alias Macooa) by one JaphetNdlovu - who has
now left the country."
It is common cause that in 1985 terrorism was rife in
Lesotho. The members of the so called Lesotho Liberation Army crossed
from the Republic of South Africa and attacked the
military forces and murdered civilians who were suspected of
supporting the then
Government of Lesotho. During some encounters
between the Lesotho armed forces and the Lesotho Liberation Army some
captured or killed. The deceased, David Macooa, was
described as an insurgent who had been captured by the armed forces.
It is however,
not clear when and by whom he was captured.
Private Lebese Jonathan (P.W.1) was declared as an
accomplice. He testified that in December, 1985 he was a member of
the then Lesotho
Paramilitary Force and was under the command of the
late Colonel Sehlabo. He knew the deceased to be a captured insurgent
kept at the private home of the late Colonel Sehlabo. On some
occasions he was instructed to keep guard on the deceased and to
On one occasion he (witness), the accused and other
members of the Lesotho Paramilitary Force went to Khubetsoana on a
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operation following the information given to them by the
deceased that there were insurgents in certain houses in that
that operation the deceased accompanied them because he
was the one who was going to point out the relevant houses. When they
there certain houses were fired at with guns and a
hand-grenade was thrown into one of the houses. No
From there they went to Upper Thamae and finally to
Tsosane's but still found no insurgents. Colonel Sehlabo was present
the operation and when they failed to get insurgents at
all the places pointed out by the deceased he (Colonel Sehlabo) said
he had not realized in time that the deceased was a liar. They
returned to their barracks at Makoanyane and the deceased was taken
to Colonel Sehlabo's house.
The accomplice testified that on the 7th December, 1985
he met the deceased at about 2.30 p.m. He was in the company of
Sergeant Tjane, the accused and Private Thaabe
Letsie. They were travelling in landrover station wagon. He joined
them and from Makoanyane
barracks they went to a restaurant at Maseru
East where they met Colonel Sehlabo. Sergeant Liphoto was driving.
When they arrived
at the restaurant Sergeant Tjane alighted and met
Colonel Sehlobo outside the vehicle. He (the witness) also alighted
and stood on
the side of the vehicle. He overheard Colonel Sehlabo
instructing Sergeant Tjane that the deceased must be killed or that
(Sergeant) left the place where the deceased was being taken
to he must make sure that ho is dead.
From there they proceeded to Leribe. Colonel Sehlabo
remained behind. On their way to Leribe Sergeant Tjane explained to
purpose of their journey. It was that the deceased was being
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Leribe to be killed. Sergeant Tjane neither shouted nor
whispered but spoke in a normal voice when he explained to thorn the
of their journey.
When they arrived at Levi's Nek they alighted and
Sergeant Tjane led them to the spot where the deceased was to be
Liphoto remained with the vehicle. They marched for
a distance of about four kilometres led by Sergeant Tjane, followed
by the deceased,
then the accused, the witness (Jonathan) and then .
Private Thaabe Letsie at the end of the line . When they came to the
Tjane instructed the accused to stab the deceased. The
accused stabbed him and the deceased stumbled and got into the case.
cross-examination P.W.I admitted that it was dark and that he
did not see whether the accused stabbed or merely poked the deceased.
After the deceased had stumbled into the cave Sergeant
Tjane instructed the accused and P.W.I to get to the top of the rock
the deceased from escaping. He (Sergeant Tjane) then stabbed
the deceased with his bayonet. Because of darkness the witness could
not see how many times he stabbed him. The late Private Letsie also
took part in the stabbing of the deceased. Whan it became clear
the deceased was dead Sergeant Tjane instructed him P.W.I and the
accused to cover the body of the deceased with stones and
covering the body the party returned to Maseru and on the following
day Sergeant Tjane made a report to Colonel Sehlabo
that the deceased
The accused gave evidence and denied that when Sergeant
Tjane explained the purpose of their journey to Leribe he heard. His
is that he sat on the front seat next to the driver while the
others sat on the back seat. He could not hear what was being said
Sergeant Tjane while the vehicle was still moving. He admits that
Sergeant Tjane I
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instructed him to poke the deceased. He complied and
poked him on the feet with his gun; the deceased entered into the
he poked him. The rest of the stabbing of the deceased was
carried out by Sergeant Tjane.
The evidence of the single accomplice who gave evidence
in this case is not disputed on any material aspects. The only issue
has to be resolved by the Court is whether or not the accused
heard when Sergeant Tjane explained that they were going to Leribe
order to kill the deceased. In his evidence the accomplice said:
"Sergeant Tjane told us the purpose of our mission
to Leribe. (My underlining)
I understood the accomplice's evidence to be that the
Sergeant told them who were in the vehicle that the deceased was
going to be
killed., Since the vehicle they were travelling in was a
station wagon and the sergeant spoke in a normal tone of voice, the
must have heard what was being said by the sergeant and by
all the occupants of the vehicle. In a recent case I had before me
I conducted an inspection in loco and travelled to
the scene of the crime in a station wagon landrover. I sat on the
front seat next to the driver but I was able to
hear the conversation
being made by all the people in the vehicle including my interpreter
who sat on the back seat. I am aware that
ability to hear may be
affected by a number of the prevailing circumstances, such as whether
or not the windows were open and the
speed at which the vehicle was
travelling as well as the hearing capabilities of the person
I am convinced that the accused heard the explanation
made by the late Sergeant Tjane and knew the purpose of their
it was never put to the accomplice in
cross-examination that the accused would say that he did not hear the
explanation. In Small
v. Smith, 1954 (3) S.A. 434 (S.W.A) at
p. 438 Claassen, J. said:
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"It is, in my opinion, elementary and standard
practice for a party to put to each opposing witness so much his own
case or defence
as concerns that witness and if need be to inform
him, if he has not been given notice thereof, that other witnesses
him, so as to give him fair warning and an
opportunity to explaining the contradiction and defending his
own character. It is
grossly unfair and improper to let a witness's
evidence go unchallenged in cross-examination and afterwards argue
that he must be
Although this is not an absolute rule the defence of the
accused is greatly weakened and the Court may not believe his story.
present case the accused was represented by an experienced
practitioner who was well aware that he must put his story to the
witnesses. He submitted that the evidence of the accomplice in
no way contradicts that of the accused that he did not hear Sergeant
Tjane make the explanation. I think it does contradict it. The
accomplice said that the explanation was given to them and that
It is also most improbable that Sergeant Tjane could
exclude the accused when he was telling his men the most important
part of the
operation in Leribe. He expected them to assist him in
case of resistance II by the deceased or escape. If they did not know
was going to happen to the deceased they would probably not be
on full alert.
I came to the conclusion that the accused knew that the
deceased was going to be eliminated because he was an insurgent who
on several occasions and put the soldiers on a wild
It seems to me that the evidence of the accomplice has
been corroborated by the accused himself on all material aspects. The
point on which the evidence of the accomplice seems to stand
alone is whether or nor the accused heard when the late Sergeant
explained the purpose of the Leribe mission.
The accomplice gave his evidence in the most
satisfactory way and as I
stated earlier in this case it is improbable that the
accused could not
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If I am correct that the accused heard when the
explanation was made, then the doctrine of common purpose must apply
i.e. where X,
Y and Z associate in a joint unlawful enterprise X and
Y are responsible for any crime committed by Z which falls within
design. In Rex v, Shezi and others. 1948
(2) S.A. 119 at p. 128 Greenberg, J.A. said:
"In my view, the true doctrine is that suggested
during the argument, viz., that the liability of the parties to a
depends on whether the result produced by the
perpetrator of the act falls within the mandate and is not concerned
with the means
by which the result is produced."
Even if the accused merely poked the deceased with his
gun on the foot causing him to stumble before Sergeant Tjane stabbed
his bayonet, the accused is still liable for the death of
the deceased under the doctrine of common purpose. The murder of the
fell within the common design. It may be argued that as a
soldier the accused had no choice but to obey orders emanating from
superior officer. It is quite correct that within certain limits,
the fact that a member of the armed forces acted on the orders
superior is accepted as a defence in our law. The accused has raised
this defence in the alternative. His main defence is that
he did not
know that the deceased was going to be killed and took no part in the
inflicting of the injuries which caused his death.
It was submitted
that at the worst the accused could be found guilty of common assault
only. For the reasons stated above I disagree
with this submission
because the accused had every chance to dissociate himself with the
plan by escaping during the march from the
road where they left the
vehicle to the cave where the deceased was killed. It was so dark
that the escape was very easy. He not
only poked or stabbed the
deceased but he stood on the rock in order to stop the deceased
from escaping while the late sergeant Tjane stabbed him
The requirements of the defence of obedience to order of
a superior are clearly set out by Burchel and Hunt in their book. The
African Criminal Law and Procedure, Vol. I at page 297. They
are (a) the Order must emanate from a person lawfully placed in
over the accused; (b) The accused must have been under a
duty to obey the order, and (c) He must have done no more harm than
necessary to carry out the order. There is no doubt in my mind
that Sergeant Tjane was a lawful authority from whom the order
In the leading case of R.v. Smith, (1900) 17 S.C.
501 Solomon J.P. laid down the rule that "if a soldier honestly
believes he is doing his duty in obeying the
commands of his
superior, and if the orders are not so manifestly illegal that he
must or ought to have known that they were unlawful,
soldier would be protected by the orders of his superior officer".
In R. v. Van Vuuren, 1944 O.P.D. 35 De Beer,
A.J.P. declined to follow Smith's case and preferred the rule
that a person is only
under a duty to obey a lawful command, namely, "one
not contrary to the ordinary civil law and justified by military
In R. v. Werner, 1947 (2) S.A. 828 Watermeyer,
C.J. expressed the view that the judgment in Smith's case
would have to be qualified in so far as it suggested that ignorance
of law is an excuse.
The decision in Van Vuuren's case totally throws
overboard the defence of obedience of orders because it does not seem
to excuse any unlawful order. I prefer the
decision in Smith's
case which qualifies the unlawful order by saying that it should
not be manifestly illegal.
I also agree with the suggestion that in deciding this
matter the standard to be applied is that of a reasonable man in the
of a soldier. In other words the accused may be judged by
the standard of a reasonable soldier.
In Smith's case the accused had, in obedience to
an order from his superior officer, shot and killed a black man who
refused to produce a bridle.
It was during war time. The accused was
acquitted on the ground that the order was not manifestly illegal. In
the present case the
accused knew the deceased to be a captured
insurgent and that he was already in the custody of the army. The
deceased was not killed
in combat or in an attempt to escape from
lawful custody. He was taken to a remote cave about 100 kilometres
from Maseru and executed
there and secretly buried. The accused as a
reasonable soldier knew that the order was unlawful. He unlawfully
participated in the unlawful killing of the
deceased. He and his associates had actual intention to kill the
I find the accused guilty of murder. My assessors agree.
J.L. KHEOLA ACTING CHIEF JUSTICE.
17th December, 1986.
For Crown - Mr. Peete For Defence - Mr.
In determining whether there are extenuating
circumstances or not. I took into account the following factors and
The accused did what he did because he wasobeying
orders of a superior officer whichwere manifestly illegal. He
did not planthe murder himself but obeyed orders of asuperior
Minimal participation by the accused in thekilling
of the deceased - He did no more harmthan he was ordered to do.
He poked thedeceased with his gun and guarded the deceasedwhen
Sergeant Tjane stabbed him.
He was in danger of being killed if he triedto
The accused was a very junior officer in thearmy
who was expected to obey orders emanatingfrom his superiors.
Taking all these factors into account I came to the
conclusion that the accused is guilty of murder with extenuating
SENTENCE:- Three (3) years' imprisonment.
For Crown - Mr. Peete For Defence - Mr.
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