IN THE HIGH COURT OF LESOTHO In matter
KHALIPHILE GOGO Accused
Delivered by the Honourable Mr. Justice J.L. Kheola
on the 26th day of August. 1992
The accused is charged with the murder of Tsautse Chaka
upon or about the 11th day of January, 1991 and at or near Qacha's
He pleaded not guilty to the charge.
P.W.I Warrant Officer Maluke testified that on the 11th
January, 1991 he was on duty in the C.I.D. office in Qacha's Nek. On
in question the accused, who is a Transkeian policeman,
arrived in his office accompanied by other Transkeian police officers
whom was Captain Dlanjwa. The latter explained the reason why
they had come to Lesotho. They were looking for some Lesotho citizens
who were suspected of having committed some robberies in Transkei.
One of such robberies had been committed on
the 9th January, 1991 at Imgcobo and an amount of R2.6
million was involved. They gave him the name of the deceased as one
suspects. P.W.1 detailed a patrol consisting of both Lesotho
police and Transkeian police to go and look for the
deceased. They did not find him. He suggested that they should look
for him in
the bars within Qacha's Nek township. In the afternoon the
deceased was spotted in one of the hotels. P.W.1 instructed P.W.2
Lepheane and P.W.3 Trooper Mabasele to go and arrest him.
They travelled in the Transkeian police van put at their disposal by
P.W.I had opened a skeleton docket, he stated in no
uncertain terms that he had instructed P.W.2 and P.W.3 to go to
and arrest the deceased and bring him to the charge
office. They brought him after a very short time. P.W.1 was in his
they arrived. he noticed that at that time the accused
and his colleagues were under a tree infront of the charge office..
ordered the deceased to go into the charge office. He refused
to do so and was looking at the accused and his colleagues and
to be afraid of them. He walked away but P.W.3 caught hold
of him. P.W.1 says that the deceased struggled in order to free
until they got out of his sight going towards the gate.
After a short while he heard some gun reports and quickly
came out of his office. He saw some people at the
corner of the police yard near the offices of Co-Op Lesotho. They
surrounding a person who was lying down. He met P.W.3
at the gate and instructed him to take that person to the hospital.
P.W.1 eventually arrived at the corner of the yard and
that the person who was lying on the ground was the
deceased. He was unable to speak and there was blood on his buttocks.
not stand and he appeared to be paralysed and unconscious.
The vehicle arrived and the deceased was taken to the hospital. P.W.1
says that he made his own investigations and found out that the
deceased had been shot by the accused. He disarmed him and took his
pistol 9MM No 205672 together with twelve rounds of ammunition. He
later sent Trooper Fako to the scene of the crime to look for
shells. He brought three empty shells. All the exhibits were sent to
the ballistic experts. I do not regard the ballistic experts
to be very important in this case because the accused admits that he
shot the deceased with the same pistol exhibited in
P.W.1 testified that there is very good cooperation
between the Lesotho police and Transkeian police. When stolen animals
are found in Lesotho the Transkeian police and
complainants come to Lesotho and identify such animals. If a Lesotho
citizen is arrested
in Lesotho the trial usually takes place in this
country because theft is a continuing offence. No immigration laws
when Transkeian police come into Lesotho for such joint
ventures in the investigation of crime. No formalities are observed
border post. They bring their arms without observing any
formalities. The same procedure is followed when the Lesotho police
Transkei for such joint ventures. In the present joint venture
between the Lesotho police and Transkeian
police the vehicles of the latter force were used in the
morning when a search for the deceased was made and in the afternoon
the deceased was arrested. P.W.1 says that the deceased was
resisting arrest when he refused to go into the charge office. The
police could help when he resisted arrest.
As far as the time of shooting is concerned P.W.1 says
it was between 4.30p.m. and 5.00p.m. The deceased was rushed to the
immediately after the shooting. At 6.00p.m. they received a
message that he had passed away.
P.W.2 Detective Trooper Lepheane testified that on the
11th January, 1991 he and Trooper Mahasele (P.W.3) were instructed by
to go and to bring the deceased to the charge office. They left
in a Transkei police van which was driven by P.W.3. When they came
Central Hotel, they found him drinking beer with his companions. He
called him aside and told him that he was wanted at
the charge office. The deceased asked for the reason why
he was wanted. P.W.2 said that he would be told the reason at the
office. He got into the vehicle without any resistance. P.W.2
says that he did not consider the deceased to be under arrest. As far
as the time is concerned he says that it was between 4.30p.m. and
5.00p.m. When they arrived at the charge office P.W.2 alighted
and went into the office leaving P.W.3 and the deceased
outside. His intention was to report to P.W.1 that they had brought
Up to that stage the deceased willingly came with them
5 and was in a jolly mood.
When he entered into the office he heard some noise
outside as if there was a struggle. He went out and heard a gun
report near the
office and saw that the deceased was running away.
The accused and the deceased were running side by side and were
the gate. He followed them and heard a gun report. He
continued to follow them until they were at the corner of the police
when he heard another gun report. The deceased fell down
besides the road. Later he was ordered to take the deceased to the
hospital which is about half a kilometre away. He
estimates that it took them about two minutes to reach the hospital.
the deceased over to a nurse who was on duty. It was at
about 5.00p.m. After putting the deceased in a ward they immediately
left even before they gave the particulars of the
deceased to the nurse on duty. As they went out they met a doctor
the hospital. At 6.00p.m. P.W.2 went to the hospital
with the father of the deceased but found that he had already died
and was lying
in the mortuary.
On the 12th January, 1991 P.W.2 went to the mortuary and
examined the body of the deceased in order to establish the number
of wounds. There was an open wound on the buttock; there
was another wound above the left groin. He formed the opinion that
wound on the buttock was the entry wound and that the
one on the thigh was the exit wound. The wound above the left groin
6 entry wound.
I must point out at this stage that P.W.2's evidence
contradicts the doctor's evidence. The latter says that the wound
below the knee
was an abrasion caused by a bullet. He says that the
wound on the buttock was the entry wound and the one about the groin
Under cross-examination P.W.2 says that he was
instructed to bring the deceased to the charge office and not to
arrest him. If the
deceased refused to come he would have left him
there. If he ran away he would not have chased him. He says that the
the deceased while they were running side by side. He
was shot on the left groin from the front.
P.W.3 Detective Trooper Mahasele confirms that he and
P.W.2 were instructed by P.W.1 to bring the deceased to the charge
denies that they were ordered to go and arrest him. As far
as the time is concerned he says it was between 4.00p.m. and 5.00p.m.
They found the deceased at the hotel and told him that he was wanted
at the charge office. They made no indication that he was being
arrested and did not tell him why he was being asked to go to the
The deceased was his cousin. When they arrived at the
charge office, P.W.3 says that he ordered the deceased to go into the
office. He refused and remarked that he had been called
for "these people". He did not indicate clearly which
was referring to. The Transkeian police and Lesotho police
were outside the charge office. There was a whiteman as well. He
away. When he passed near the N.S.S office he started running.
Transkeian police chased him followed by P.W.2. He then
heard three gun reports. P.W.1 came to him and ordered him to take
to the hospital. He says that after he heard the gun
reports he became confused. He does not remember or know what
happened at the
hospital because he was then fainting.
P.W.3 says that if the deceased had refused to come to
the charge office with him, he would have gone back to P.W.1 and
him. He did not do anything when the deceased refused to
go into the charge office and walked away.
This witness is not telling the truth that he did not do
anything when the deceased refused to go into the charge office.
P.W.1 saw that P.W.3 grabbed the deceased and forced him
to enter into the charge office. He did not succeed in his attempt
deceased managed to pull him until they got out of the sight
P.W.1. This story is confirmed by P.W.2 who says that
when he got into his office, he heard the sound of a struggle
is also abundant and credible evidence by the defence
witnesses that the struggle was between the deceased and P.W.3 when
resisted arrest. P.W.3 is obviously telling a lie that he
did not do anything when the deceased walked away and
refused to go into the charge office. He is telling this lie in an
convince the Court that the deceased was not under arrest
and that he never resisted any lawful arrest.
P.W.3 goes further to say that if the deceased was under
lawful arrest he would have forced him to go into the charge office.
attempt to force him to do so and the Court can reasonably
infer that he did so because he knew that the deceased was under
arrest. The person who instructed him (P.W.1) says that he
ordered the two police officers to go and arrest the deceased. It is
that the two police officers to whom the order was
given did not understand it.
P.M.4 'Malethabile Mahlaba is a nurse assistant
stationed at Machabeng Hospital. She was on duty on the 11th January,
1991 when the
deceased was brought into the hospital by the C.I.D.
people. She had started work at 4.00p.m. The deceased came not long
or he come towards 5.00p.m. She found him near the
door and was already on the stretcher accompanied by the police. The
was taken to the ward and put on a bed. P.W.4 says that she
noticed that he was already dead because there were no signs of life
- she checked the heart beat and breathing. A doctor, whose name she
cannot remember, came immediately after she had put the deceased
the bed. He certified that he was dead and that he should be taken to
P.W.5 Detective Trooper Fako is one of the police
officers who accompanied the deceased to the hospital. He and P.W.3
sat with the
deceased in the back of a van and tried to make him as
comfortable as possible. It took them about one to two
minutes to reach the hospital. The nurses came and the deceased was
the ward. They left for the charge office as quickly as they
could even before they told the nurse who admitted him his
When they arrived at the charge office he was ordered to
go to the scene of the shooting and look for shells. He found three
Two were about fifteen paces from where the deceased had
fallen down. The third shell was about five to ten paces from where
had fallen down. P.W.5 says that the nurse to whom they
handed over the deceased worked in all the wards.
P.W.6 Trooper Moiloa testified that on the day in
question he was on street patrol from 8.00a.m. to 4.30p.m. When he
the beat he found the accused and other people in the
police yard. He also saw P.W.2 and P.W.3 leave in a vehicle going to
Hotel. They came back with the deceased. The latter
refused to go into the charge office asking what he was going to do.
walked away. The accused and his colleagues approached. That was
then that the deceased started running. The accused and his
chased him. He subsequently heard three gunreports. The
deceased staggered and fell down.
P.W.7 'Mateboho Theron was an employee of Lesotho -
stationed at Qacha's Nek. On the day in question she was
on duty. At 4.00p.m. she and her staff started balancing or checking
books of account. She testified that it is a practice at her
that at 4.00p.m. every day they close their doors and
stop serving the public and start balancing their books. On the day
they had already stopped serving the public and she was
counting money with one Thamae when they heard three gun reports.
the shots were directed at them and hid themselves in
the office. After a while they came out and found a group of people
office. She denied that the shooting took place between
2.30p.m. and 3.00p.m.
P.W.8 Marikhoi Matete is a Senior Technical Officer
stationed at Qacha's Nek. On the day in question he knocked off at
4.30 p.m. He
was on his way to the church when he saw a person coming
out of the charge office yard's gate. That person was running and
were chasing him. He estimates that the time was 4.35p.m.
or 4.40p.m. He then heard three gun reports. When he passed near
that person had fallen he heard three men asking the other why
he shot that man.
P.W.10 Trooper Lesoma testified that on the day in
question he came to work at 4.30p.m. and signed the occurrence book.
arrival at the charge office there were some Transkeian
police and their vehicles. The deceased arrived being in the company
Lesotho police officers. He refused to go into the charge
when he was ordered Co do so. He walked away. The
Transkeian policemen tried to intercept him but they did not succeed.
He ran away
and the Transkeian police chased him. The accused took
out a pistol and fired three times. The third shot was fired when the
was at the corner of the security fence of the police yard.
P.W. 11 Dr. J. Deirrider is a medical officer stationed
at Machabeng Hospital in Qacha's Nek. On the 15th January, 1991 he
a post mortem examination on the body of Tsautse Chaka,
Death was due to shock caused by bleeding from a gunshot wound on
the abdomen. The iliac artery was ruptured by a bullet.
The entry wound was on the left buttock and the exit wound was about
above the groin. The bullet passed through the
muscles and ruptured the iliac artery causing severe internal
bleeding. There was
more than a litre of blood in the abdominal
cavity. There was an abrasion on the innerside of the right leg about
below the knee.
Dr. Deirrider says that he had seen the body in the
deceased had just been put on the bed and was still
warm. He certified him dead.
In cross-examination he said that although he had not
received any formal training in post mortem examination he had
about fifty post mortem examinations since he came
Lesotho in 1990. On the day in question he had already
knocked off when he heard gun reports. He was called to the hospital
there between five and ten minutes. He found the deceased
on the bed. He was already dead and that was the reason why no
papers were filled. It was after 4.00p.m. because they
never leave the hospital before 4.00p.m. It takes about thirty
prepare the theatre and there was no way they would have
saved the life of the deceased.
The accused testified that he is a Transkeian police
attached to Murder and Robbery Section. He has been in the police
force for eleven
years. Just before he came to Lesotho on the 11th
January, 1991 some robberies had been committed in his country. He
that the deceased was one of the robbers in one of
the robberies. He and some of his colleagues came to Lesotho in order
the assistance of the Lesotho police to have the deceased
arrested. They came to Lesotho in two motor vehicles - a 4x4 Toyota
and a Ford Granada motor car. They were armed with various types
of guns. He was armed with a 9MM pistol. At the border post no
were observed - passports were not checked and they did
not declare the guns they were carrying. This is an indication of the
of the cooperation between the Royal
Lesotho Mounted Police and the Transkeian Police Force
in combating crime. The same border post non-compliance with the
is given to Lesotho police when they go into Transkei to
investigate or to assist in the investigations of cases which
Lesotho and in which suspects have crossed the border.
When they arrived at Qacha's Nek charge office they went
to P.W.1's office and made a report to him about the two robberies in
country and the fact that the deceased was a suspect. P.W.1
opened a skeleton docket. The search for the deceased started and
in the afternoon he was seen at a hotel in Qacha's Nek. P/W
Shata suggested that they should return to charge office and report
P.W.1 that the deceased was at that particular hotel. On arrival
at the charge office P.W.1 instructed Trooper Lepheane and Trooper
Mahasele to go and arrest the deceased. The two troopers deny that
they were instructed to go and arrest the deceased. They
say they were ordered to bring him to the charge office.
P.W.1 confirms the evidence of the accused, who was present when the
was made, that he ordered them to go and arrest the deceased.
So that when P.W.2 and P.M.3 arrived with the deceased, the accused
believed that he was under arrest.
The accused says that when the deceased and the two
arrived at the charge office, the deceased put his tin
of beer on the wall; he looked at them and said something in Sesotho
He became wild when P.W.2 and P.W.3 spoke to him. When
he started moving backwards, P.W.3 pounced upon him. He managed to
himself from the grip of P.W.3 and ran away towards the
gate. All the Transkeian police and Lesotho police who were standing
the charge office chased the deceased. Accused outran them
caught hold of him but he slipped off his hands. As they
ran along the security fence of the police yard the deceased outpaced
He fired a warning shot but the deceased did not heed it and
continued running as fast as he could. Accused says that he noticed
that the gap between him and the deceased was increasing. He fired
two shots at the lower part of his body. At the time he fired
third shot the deceased was changing direction and running down
towards the river where there are trees. The deceased fell down.
was immediately after shooting taken to the hospital in a police van.
The accused says that he crossed the border after lunch.
He estimates that the shooting took place between 2.30p.m. and
says that when he shot the deceased he was assisting
Lesotho police to arrest a person who was escaping from lawful
arrest. He believed
that the arrest was lawful because P.W.2 and
P.W.3 had been instructed by Warrant Officer Maluke to go and arrest
D.W.2 Major Novuka was the Head of Murder and Robbery
Squad in January, 1991. Before the 11th January, 1991 he became away
of a series
of robberies in Umtata, Mt. Fletcher and Bitsane. On the
11th January, 1991 he instructed Captain Dlanjwa to go to Qacha's Nek
a vehicle allegedly used in one of the robberies was found
abandoned at the border. The vehicle had been robbed from the owner,
Mr. Marrais. Major Novuka also came to Qacha's Nek
and when he was at Cedarville he intercepted a radio
message from Captain Dlanjwa to Umtata reporting the killing of the
He spoke to Captain Dlanjwa and told him that he would be
with them within an hour. It was at 3.15p.m. He recorded the time in
notebook. See Exhibits "F1" and "F2". He
proceeded to Qacha's Nek and crossed the border at about 4.15p.m. He
found the abandoned motor car. After crossing the border he met
Captain Dlanjwa who gave him a brief account of what had happened.
They proceeded to Qacha's Nek and he asked for permission to go
further into Lesotho
but he was told that all police stations had been
D.W.3 L. Marrais told the Court that on the 9th January,
1991 he was driving towards Umtata when he was forced to stop and was
of his car, money and jewellery. On the following day the
police informed him that his car was found abandoned at the border
Lesotho and Transkei. On the 11th January, 1991 he came to
Qacha's Nek. He identified his car. On the journey to
Qacha's Nek he was accompanied by D.W.4 Joseph Gumede. Their evidence
same that the shooting of the deceased took place between
2.30p.m. and 3.00p.m. As regards how the shooting took place their
is the same as that of some Crown witnesses and the Defence
The evidence of D.W.5 Captain Dlanjwa confirms the
search made for the deceased at various places within Qacha's Nek
deceased was at last found at Central Hotel. P.W.1
two of his men to go and arrest him. They brought him.
His evidence concerning the escape of the deceased, the chase by both
police and the shooting is the same with that of some Crown
witnesses and the Defence witnesses. He says that at 3,05p.m. he was
in the office of Captain Fonane. He was asking for permission to go
to the border and report the incident to his Head Office. It
3,30p.m. when he made the report to P.W.6 Major General Kupe who says
that the report reached him at 3.15p.m.
There is a dispute as to when the shooting took place.
The Crown contends that it took place between 4.00p.m. and 5.00p.m.
says it was between 2.30 p.m. and 3.00p.m. Lesotho police
officers who gave evidence in this case say that it was at or about
because some of them were knocking off while others were
coming on duty. They recorded in the occurrence book the times of
departure and arrival. Mr. Penzhorn blames the Crown for
failing to produce the occurrence book as proof of what they allege.
submitted that the occurrence book would not support their
allegation and that is the reason why they failed to produce it. I do
not agree with this submission inasmuch as the occurrence book would
only show the times when the police officer reported for duty
times when they knocked off without any
reference to the time when the shooting took place.
There was no evidence that the shooting was recorded in the
occurrence book immediately
after it happened. It seems to me that
the occurrence book would be of no help to the Court.
The crown called four independent witnesses. Mrs. Theron
(P.W.7) says that on the day in question the shooting took place
At 4.00p.m. they stop serving the public and balance
their books. She was already balancing her book when she heard three
near their depot. Mr. Matete (P.W.8) knocked off at
4.30p.m. and decided to attend a church service. He observed the
his way to the church.
Dr. Derrider left the hospital at 4.00 p.m. He was
already at his home when he heard gun reports. Immediately after that
he was called
to the hospital. He found the deceased on the bed and
he was already dead.
Mrs. Mahlaba (P.M.4) is a nursing assistant at Machabeng
Hospital. On the 11th January, 1991 she commenced her duty at
admitted the deceased and put him on the bed. He was
already dead because he was not breathing and there was no heart
beat. She says
that the deceased came to the hospital long after
4.00p.m. and that it was towards 5.00p.m.
The defence witnesses are all police officers except the
complainant and his employee. The police witnesses have a lot of
in this case because their colleague is facing a murder
charge which has a capital sentence. The complainant and his
employee, Mr. Gumede, have a lot of interest in the case
and want to see to it that the robber is punished. I am not
the Transkeian police officers are liers. I am merely
saying that compared to the four independent Crown witnesses their
is less reliable.
It is common cause that the deceased was taken to the
hospital immediately after he was shot by the accused. There was no
that he was not taken there and that the three police
officers who took him there went elsewhere before they finally went
hospital. There is evidence that they reached the hospital
within two minutes and that he was dead on arrival. To suggest that
a nurse assistant who has had some formal training cannot tell when a
person is dead, is wrong because most ordinary people in the
villages, who have not had any training, can tell when a person is
I have not said anything about the evidence of D.W.1
Professor Nel because he made it quite clear that if the deceased was
dead when he arrived at the hospital, his evidence will not
be of any relevance to this case. However, in his evidence he said
sets in when a person loses 20% of his blood. In the present
case the deceased had lost one and half litres of blood which was
in the abdominal cavity.
I have come to the conclusion that the deceased was dead
on arrival at the hospital and that it was after 4.30p.m. The Crown
that there was no novus actus interveniens.
The next question is whether the arrest of the deceased
by Troopers Mahasele and Lepheane was lawful or not. Mr. Mdhluli, the
of Public Prosecutions submitted that the arrest was
unlawful because the deceased was not informed of the reason for his
Section 32 (4) of the Criminal Procedure and Evidence
Act 1981 provides that whenever a person effects an arrest without
"he shall forthwith inform the arrested person of
the cause of the arrest".
In Christie v. Leachinsky (1947) 1 All E.R. 567 (H.L.)
(which was quoted with approval by Ackermann, J.A. in Johnny Wa Ka
Attorney-General and another C. of A. (CIV) No.29 of 1988
(unreported) at p. 573 C-E Viscount Simon, with whose opinion the
Law Lords expressed agreement, pointed out that:
The requirement that he (the arrestee) should be so
informed does not mean that technical or precise language need be
used. The matter
is a matter of substance, and turns on the
elementary proposition that in this country a person is prima facie,
entitled to his freedom
and is only required to submit to restraint
on his freedom if he knows in substance the reason why it is claimed
restraint should be imposed."
"If a policeman who entertained a reasonable
suspicion that X had committed a felony were at liberty to arrest him
him off to a police station without giving any explanation
of why he was doing this, the prima facie right of personal liberty
be gravely infringed. No one, I think, would approve a
situation in which, when the person arrested asked for the reason,
replied: "That has nothing to do with you. Come
along with me." Such a situation may be tolerated under other
law, as, for instance, in the time of lettres de cachet in
the eighteenth century in France, or in more
recent days when the Gestapo swept people off to
confinement under an overriding authority which the executive in this
does not in ordinary times possess. This would be
quite contrary to our conceptions of individual liberty. If I may
introduce a reference
to the well known book, Dalton's Country
Justice that author, dealing with arrest and imprisonment, says: "The
liberty of a
man is a thing specially favoured by the common law".
There are practical considerations, as well as theory, to support the
view I take. If the charge on suspicion of which the man is arrested
is then and there made known to him, he has the opportunity
an explanation of any misunderstanding or of calling attention to
other persons for whom he may have been mistaken, with
further enquiries may save him from the consequences of
In the instant case the two police officers who were
instructed by W/O Maluke to go and arrest the deceased, say that they
arrest the deceased but merely told him that he was wanted at
the charge office. When he asked why he was wanted, Trooper Lepheane
said he would be told at the charge office. If Trooper Lepheane is
telling the truth the arrest was unlawful in
terms of section 32 (4) of the Criminal Procedure and
Evidence Act 1981 (The Act). Section 41 (1) of the Act provides that
an arrest a peace officer or other person authorised to
arrest shall actually touch or confine the body of the person to be
"unless there be a submission to the custody by word or
action." In the instant case the deceased submitted to the
by action because he agreed to go to the vehicle after he was
told that he is wanted at the charge office.
On their arrival at the charge office the deceased
realised why he had been arrested and brought to the charge office.
He looked towards
the Transkeian police and the whiteman, Mr. Marrais
and said "I cannot get into the charge office, you have called
for these people." He uttered these words when he
was asked to go into the charge office by Trooper Mahasele. He turned
walk away. Trooper Mahasele now says that he made no
attempt to stop him because he was not under arrest. This is not
is overwhelming evidence by the defence and confirmed by
W/O Maluke that Trooper Mahasele caught hold of him and a struggle
until the deceased got free and ran away.
I am of the view that the attempt by Trooper Mahasele to
arrest the deceased after he had realised why he was brought to the
office was lawful. At that time the deceased knew why he was
being arrested. If he was not under arrest from the time he
was taken from the Central Hotel to the time when he
arrived at the charge office, the attempt to arrest him when he
refused to get
into the charge office must be considered separately.
Mr. Peazhorn submitted that this second situation arises from Trooper
physical attempt to force the deceased into the charge
office. The deceased resisted such attempt and attempted to escape
He submitted that such attempt constituted an offence
referred to in Part II of the First Schedule to the Act; that such
was committed in the accused's presence, conferring upon him
as a private person the powers provided for in Section 27 (1) of the
Act; that the accused was accordingly a private person authorised to
arrest as provided in Section 42 (1) of the Act.
Section 42 (1) reads as follows:
"When any peace officer or private person
authorised or required under this Act to arrest or assist in
arresting any person who
has committed or is on reasonable grounds
suspected to having committed any of the offences mentioned in Part
II of the First Schedule,
attempts to make the arrest, and the person
whose arrest is so attempted flees or resists and cannot be
apprehended and prevented
from escaping, by other
means than by the peace officer or private person
killing the person so fleeing or resisting such killing shall be
Section 27 (1) of the Act reads as follows:
"Every private person, in whose presence anyone
commits or attempts to commit an offence mentioned in Part II of the
or who has knowledge that any such offence has been
recently committed, may arrest without warrant or pursue the offender
and every other private person to whom the purpose of the
pursuit is made known may join and assist therein."
Although the accused is a police officer in Transkei as
soon as he enters Lesotho he is deemed to be a private person and he
exercise his police powers. The cooperation between Lesotho
police and the Transkeian police in combating crime does not make
of one country police officers in another country. They merely
give assistance and information. They cannot act on their own. In
present case the Transkeian police acted as private person in the
search and the arrest of the deceased.
It is clear from the nature of the injuries that the
accused never intended to kill the deceased. The deceased was warned
to stop, a warning shot was fired, despite this he kept on
running and was changing direction towards the valley where there are
some trees. Another factor which must be taken into account is that
the gap between the accused and the deceased was increasing.
probable that he would have escaped if the two shots fired by the
accused were never fired. He aimed at the lower part of his
because they were both running it was impossible to aim
accurately. The second shot grazed the innerside of the
right leg, 10 centimetres below the knee. The second bullet entered
The Crown conceded that the accused had no intention to
kill but argued that the killing was unlawful because the police
who arrested the deceased at Central Hotel did not have
reasonable grounds for believing that he had committed any of the
mentioned in Part II of the First Schedule of the Act. I
agree with that submission because they were ordered by W/O Maluke
formed the opinion that the deceased was involved in a
robbery in Transkei. He was under the impression that robbery is a
offence. Robbery consists of the application of
force-assault-and the taking of the thing from the victim - theft. I
think it is
the second element of robbery which is a continuing
offence if the accused is from in possessing of the thing he took
from his victim.
In the instant case if the deceased was found in
possession of the money stolen in Transkei here in Lesotho he could
and be charged with theft. There was evidence that one of
the robbers who was arrested in Transkei had told the police
that the deceased was one of them. There was the motor
car used as a getaway car which was found at the border between
Transkei. That was an indication that one or some of the
robbers came to Lesotho. W/O Maluke's belief was based on reasonable
I am of the view that he had a right to order any of this
men to go and arrest the deceased.
I agree with the submission by Mr. Penzhorn that the
accused believed his actions to be lawful. He believed that the
been properly arrested and that he was authorised to
stop him from fleeing. This belief was reasonable. This being so the
is also entitled to be acquitted of culpable homicide. He
made reference to the leading South African decision in S. v. Blom,
(3) S.A. 513 (A.D). The following quotation is taken from the
headnote in the judgment;
"If the accused wishes to rely on a defence that
she did not know that her act was unlawful, her defence can succeed
if it can
be inferred from the evidence as a whole that there is a
reasonable possibility that she did not know that her act was
and further, when culpa only, and not dolus alone, is
required as mens rea, there is also a reasonable possibility that
she could not be blamed, i.e. that, having regard to all
the circumstances, it is reasonably possible that she acted with the
circumspection in order to inform herself of what was
required of her in connection of whether or not permission was
take money out (of the country). Should there be, on the
evidence as a whole, i.e. including the evidence that the act was
a reasonable doubt whether the accused did in fact have
mens rea, in the sense described above, the Crown would not have
case beyond a reasonable doubt."
Mr. Peazhorn referred to the English case of Sleep
(1861) quoted in Criminal Law by clanville Williams, The General
Part, 2nd Ed.,
at p. 171 in which a man was acquitted of being in
possession of naval stores marked with a broad arrow, where there was
that he knew them to be so marked; reasonable means of
knowing were not enough. Cockburn C.J. said: "It is a principle
law that to constitute an offence there must be a guilty mind;
and that principle must be imported into the statute." This was
not a case of simple ignorance, for the defendant, not knowing that
the stores were marked, was evidently under the impression that
were not marked. It was, therefore, a case of mistake, which
negatived mens rea."
In the present case the accused had a belief based on
reasonable grounds that the deceased was under lawful arrest and that
escaping from lawful custody or that he was resisting arrest.
His belief was based on the fact that before the shooting of the
and for a greater part of the day, he and his colleagues had
been assisting the Lesotho police in the search of the deceased. The
two Lesotho police officers who were instructed by W/O Maluke failed
to tell the deceased the cause of his arrest. This is a fact
the accused could not have known because he was not present when the
arrest took place. What strengthened the accused's belief
when the two police officers returned they had the deceased under
their control and their custody inasmuch as he was in their
am of the view that the accused was
mistaken and had no guilty mind.
For the reasons stated above I have come to the
conclusion that the Crown has failed to prove that the accused had
the necessary intention
for culpable homicide.
The accused is found not guilty and is discharged.
My Assessors agree.
The pistol (Exhibit 1) and the twelve rounds of
ammunition must be returned to the accused.
For the Crown - Mr. Mdhluli For the Accused - Mr.
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