IN THE HIGH COURT OF LESOTHO In the matter
SEKHOBE LETSIE NGOANANTLOANA LEROTHOLI
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 13th day of July, 1990.
For the Crown : Mr. G.S. Mdhluli, Director of Public
Mr. V.N. Qhomane, Crown Counsel; Mr. S.P. Sakoane, Crown
For the First Accused : Mr. L. Pheko For the
Second Accused : Mr. M. Matsau
R v Becker (1929) AD 167;
Petlane v R (1971-73) LLR.85;
R v Qobacha (CRI/T/3/87) unreported;
S v Grove-Mitchell (1975)3 SA 417;
R v Blyth (1940) AD 355.
Both accused are jointly charged on four counts of
murder of four persons, that is, Mr. & Mrs. Montsi Makhele and
Desmond Sixishe There are four alternative counts in
which the second accused is charged with the same four murders and
accused is charged with being an accessory after the fact
respect of such murders. Both accused are further
charged with two counts of attempted murder, that is in respect of
Mr. & Mrs.
Tsolo Lelala. Again there are two alternative counts
under which the second accused is charged with such attempts and the
is charged with being an accessory after the fact of
During the course of the evidence for the Crown a
prosecution witness, a Private Soldier in the Royal Lesotho Defence
adduced evidence of a verbal statement made to him by
the second accused. The defence has objected to the admission of such
on the following two grounds:
(i) that the admission of the statement would conflict
with the provisions of section 228(2) of the Criminal Procedure and
Act, 1981; and
(ii) that the statement was involuntary.
In view of the latter objection, a trial within a trial
would be necessary for its determination. It seemed to me to be more
therefore to first resolve the issue under 'the first
The provisions of section 228(1) and (2) of the Criminal
Procedure & Evidence Act, 1981 read as follows:
"228. (1) Any confession of the commission of any
offence shall, if such confession is proved by competent evidence to
made by any person accused of such offence (whether before
or after his apprehension and whether on a judicial examination or
commitment and whether reduced into writing or not), be
admissible in evidence against such person provided the confession is
to have been freely and voluntarily made by such person in his
sound and sober senses and without having been unduly influenced
(2) If a confession is shown to have been made to a
policeman, it shall not be admissible in evidence under this section
is confirmed and reduced to writing in the presence of a
The learned Attorney for the second accused Mr. Matsau
submits that the word "policeman" in section 228(2)
includes a peace
officer, and that a Private Soldier in the R.L.D.F.
is a peace officer.
It will be seen that the relevant provisions in the
legislation of the Republic of South Africa, which dates back to the
Procedure and Evidence Act of 1917, and upon which our
legislation is based, refers to a "peace officer" rather
In any event,' section 2(4) of the Lesotho Paramilitary
Force Act, 1980 provides that.
"A member of the Force is a peace officer and may
exercise any power exercisable by a peace officer under any law."
Mr. Matsau submits that there is further support in the
provisions of section 5(b) of the latter Act. I need not determine
as it seems to me that the provisions of section 2(4)
are clear enough.
Section 3 of the Criminal Procedure and Evidence Act,
1981 provides a definition of "peace officer" which
" any officer, non-commissioned officer
or trooper ... of any body of persons carryingout
under any law the powers, duties andfunctions of a police force
in Lesotho ".
In the same section the word "policeman" is
defined as including,
" any officer, non-commissioned officer,
trooper of any body of persons carrying
out under any law the powers, duties and functions of a
police force in Lesotho;"
Those provisions then indicate that the word "policeman"
includes a peace officer. That being the case I hold, and the learned
Director of Public Prosecutions very properly/concedes, that
a,Private Soldier in the R.L.D.F. is a "policeman" for the
purposes of section 228(2).
The remaining issue therefore is whether the statement
made by the second accused constitutes a "confession". The
be applied, as the Director submits, is that laid down by De
Villiers A.C.J. in 1929 in the leading case of R v Becker (1) at
namely that a confession within the meaning of the 1917 Act
"an unequivocal acknowledgement of guilt, the
equivalent of a plea of guilty before a court of law".
The decision in Becker (1) was followed by the Court of
Appeal of Lesotho in the case of Petlane v R (2). I had occasion to
Becker (1) and Petlane (2) in the case of R v Qobacha (3)
and for the sake of convenience I adopt what I said in that case. In
I observed (at p.19) that the Court of Appeal, while
following Becker (1), nonetheless qualified the decision therein to
in the following passage in the judgment of Milne JA. at
p.90, in which Schreiner P. and Maisels J.A concurred:
" The learned Chief Justice in ruling that the
statement made by the appellant to the Sub-Inspector was admissible
"for a statement to be excluded as a confession, it
must in itself, or taken with the surrounding circumstances, amount
unequivocal admission of guilt which, if made in a court of
law, would amount to a plea of guilty]".Mr. Suttill argued that
this was not a correct approach because he contended, a statement
cannot be examined "semantically" "'and "contextually"
at one and the same time. Now "semantic" is defined in the
Dictionary as "relating to signification or
meaning", and it seems to me that whenever words are used in
order to signify
something, they should prima facie be given their
ordinary, natural meaning, and that the words themselves must
necessarily be the
prime guide to the meaning of the person uttering
them. Where the surrounding circumstances at the time the statement
is made are
neutral, then the ordinary, natural meaning of words will
provide a proper guide to the meaning of the person using them. But I
see any reason, if the statement made by an accused person is
ambiguous, why it should be improper to examine the surrounding
in order to resolve the ambiguity. Although Mr. Suttill
urged that this court should not follow R v Becker (1) and the many
which followed it, he has not, as I understood him, suggested
any alternative approach, beyond saying that the surrounding
must be considered in deciding what was meant by the
words used, i.e. that although the words used by themselves might not
equivalent of a plea of guilty, they could be equivalent to a
plea of guilty when the surrounding circumstances are taken into
He contended that the facts that on the night the deceased
was killed, a report about it was made to the charge office and that
search was made for the appellant in connection with the killing,
are part of surrounding circumstances to be considered in deciding
what the appellant meant by the statement he made to the
Sub-Inspector the next morning."
In Petlane (2), when producing a blood-stained knife to
a police officer, the appellant had said, "This is the knife. I
killed a person the previous night". Milne J.A in deciding
whether those words constituted a confession, did in fact take into
account the surrounding circumstances. He held nonetheless that those
words did not in such circumstances constitute a confession.
Qobacha (3) I observed that the surrounding circumstances were not
neutral, and therefore took them into account. Faced
with much the same statement as that in Petlane (2), I considered
that in the particular surrounding circumstances the
facts of Petlane (2) could be distinguished, and that the particular
constituted a confession.
Mr. Matsau urges me to do likewise in this case, and
also to distinguish the facts of S v Grove-Mitchell (4) and R v Blyth
which cases the Director refers. The facts of those cases are
in no way similar to those of the present case. In Blyth (5) in
the words "I murdered my husband by arsenical
poisoning" were held to constitute a confession, because the
is a technical term, importing the necessary
actus reus, and in particular the mens rea. As I see it everything
depends on the facts
of each case.
In the present case I do not see that the surrounding
circumstances were neutral and I propose to take them into account.
so I observe that the evidence before me at this stage of
the trial is but prima facie: I wish it to be understood that I am
called upon to make, nor do I make any finding of fact or
credibility at this stage. Indeed it is solely in the interests of
accuseds that I consider the evidence.
I am of the view that it is most undesirable however to
recount the evidence in any detail at this stage. Suffice it to
say that I have considered it carefully. It proves
necessary however to recount that part of the evidence immediately
alleged making of the statement.
The Private Soldier in the R.L.D.F., a bodyguard of the
first accused, testified that between midnight and 2 a.m. on 16th
1986 the second accused, a Sergeant in the R.L.D.F.,
accompanied by another Sergeant in the R.L.D.F., the latter also
a bodyguard of the first accused, arrived at the gate of
the residence in Maseru of the first accused, a Colonel in the
R.L.D.F., and a Military Councillor at the time.
The Private Soldier went outside the gate of the
residence and spoke to the second accused and his companion. They
requested to see
the first accused. The Private Soldier enquired as
to whether it could be left to the morning, particularly as one of
was also a bodyguard of the first accused: the latter
said the matter was urgent. The witness then testified as follows:
"Then the second accused said something to me. He
said they wanted to see the first accused. He said that they had come
the first accused that they are from Bushmen's Pass: they had
gone there to kill Mr. Makhele and his wife land Mr. Sixishe and his
wife and others."
The question is whether that amounts to "an
acknowledgment of guilt, the equivalent of a plea of
guilty before a court of law?" The prosecution has adduced
evidence of a
transaction sometime after 11 p.m., earlier that same
night, at Bushmen's Pass, in which it is alleged that the four
shot, by unidentified assailants, and in which
Mrs.Lelala was wounded and Mr. Lelala escaped. I have, as I have
said, carefully considered
all of such circumstances.
I observe that the statements in the relevant decided
cases invariably reveal a completed actus reus. In the present case
but a statement of intent. There is a statement of having
been present at Bushmen's Pass. Taking into account all of the
so far adduced in the trial I cannot see that such
statement, combined with the statement of intent, constitutes an
having participated in any offence. Again I do not see
that there is any admission of complicity in a lesser offence: the
does not reveal that the particular intent was ever
furthered in any way and that any attempt was made.
In all the circumstances I hold that the statement did
not amount to "an unequivocal acknowledgment of guilt, the
of a plea of guilty before a court of law" and did
not constitute a confession. It is not then affected by the
of section 228(2)
There remains however the issue of voluntariness. I
10 therefore to conduct a trial within a trial.
at Maseru This 13th day of July, 1990.
B.P. COLLINAN CHIEF JUSTICE
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