A(CRI) No. 12/2004
COURT OF APPEAL OF LESOTHO
(formerly Accused 2)
KALOKO FIRST RESPONDENT
(formerly Accused 3)
MAJORO SECOND RESPONDENT
(formerly Accused 6)
LETSIE THIRD RESPONDENT
(formerly Accused 10)
MOLETOA FOURTH RESPONDENT
(formerly Accused 13)
18 April 2006
events that underpin the indictment, convictions and sentences of the
appellants (referred to below as accused Nos. 2,3,
6,10, and 13 or
cumulatively as the accused), concern an insurrection by certain
members of the Lesotho Defence Force (LDF) as
long ago as the 13th
and 14th of April 1994.
violent uprising against authority resulted in the murder of the
Deputy Prime Minister - one Selometsi Baholo - when he
attempt by the dissident soldiers to kidnap him. It also brought
about the kidnapping of four members of the Cabinet
democratically elected government at that time.
reasons I will refer to below, it was not until the 7th of August
2002 that 25 accused appeared in the High Court on an
which charged them with four counts of kidnapping and a charge of
murder. All these offences were physically committed
on the 14th of
April 1994. It is evident, however, that the actions of these
soldiers had been preceded by careful planning and
what Crown Counsel correctly
as "a well co-ordinated action plan carried out with all the
panoply of a military operation".
stated above, the murder count related to the assassination of the
Minister of Finance who also was the Deputy Prime Minister.
kidnapping counts related to the abduction of:
"(a) Monyane Moleleki (PW13), at the time Minister of Natural
Maope (PW4), at the time Minister of Justice;
Mosisili (PW19), at the time Minister of Education and subsequently
Shakhane Mokhehle (PW6), at the time Minister of Trade and
history of the proceedings from the 7th of August 2002 has been well
summarized by Crown Counsel as follows:
August 2002 all the accused pleaded not guilty to each of the five
counts in the indictment. A protracted trial ensued in which
witnesses and 11 defence witnesses testified.
the course of the trial four of the accused died. A9 and A17 died
before the close of the Crown case. A7 and A12 died after
of the Crown case, neither of them having testified.
August 2002 an inspection-in-loco was held at the former dwelling of
the deceased in Ha Abia.
close of the Crown case on 25 June 2003 ten of the remaining accused!
viz A8, A11, A15, A16, A18, A20, A21 A23, A24 and
A25 were discharged
as it was found that they had no case to meet and they were duly
found not guilty.
Of the 13
accused that were put on their defence, ten viz, A1 (DW2), A2 (DW9),
A3 (DW8), A4 (DW3), A5 (DW5), A10 (DW11), A13 (DW6),
A14 (DW7), A19
(DW1) and A22 (DW4) testified in their own defence.
not testify in his own defence and DW10 was called as a defence
Of the 11
accused placed on their defence, only the five who feature in this
appeal (A2, A3, A6, A10 and A13) were convicted on
11 June 2004. A2
and A3 were convicted on all counts, A6 on counts 1, 2 and 5 and A10
and A13 on count 5 only. For the sake of
convenience they are
collectively referred to as "the present accused".
18 August 2004 the present accused were sentenced as follows:
kidnapping (counts 1 - 4), ten years' imprisonment, of which
one-half was conditionally suspended, murder (count 5) 12 years'
imprisonment, the sentences to run concurrently;
kidnapping (counts 1 - 4) eight years' imprisonment, of which
one-half was conditionally suspended, murder (count 5) ten
imprisonment, the sentences to run concurrently;
kidnapping (counts 1 and 2) fined M4000.00 or four years'
imprisonment, one-half conditionally suspended, murder (count
detained until the rising of the court;
and A13: murder (count 5) four years' imprisonment.
was also common cause that, subject to what I have to say regarding
the procedure adopted by the Crown in respect of its
against A13, this Court was seized with the following:
appeal by A2 against his conviction and sentence on four counts of
kidnapping and one count of murder;
appeal by A6 against his conviction on two counts of kidnapping and
one count of murder;
appeal by A10 against his conviction on one count of murder;
appeal by the Crown against the leniency of the sentences imposed on
A2, A3, A6, A10 and A13 on the murder count, the Crown
that the sentences of imprisonment imposed on A2, A3, A10 and A13
should be substantially increased and that the sentence
that he be
detained until the rising of the court imposed on A6 be replaced
appeal by the Crown against the leniency of the sentence imposed on
accused A6 on two counts of kidnapping, the Crown contending
the sentence of a fine should be replaced with imprisonment.
the close of argument by both the Crown and counsel for the accused,
the Court ordered that the appeal by the Crown against
imposed on A13 be struck from the roll for the following reasons. A2
was the only appellant who initially noted an
appeal. He did so out
of time. The Crown then sought to note a cross-appeal also out of
time, as set out in paragraphs (d) and
(e) above and sought
condonation for the late noting of the appeal. In each case the
notice of appeal was served only on the attorneys
who had acted for
the accused at the trial. In the case of A6 and A10 this prompted a
"cross-appeal" noted on their behalf
by the attorney who
acted for them at the trial. A2 and A3 were also duly represented by
their legal adviser who acted for them
both before us and before the
court a quo. These accused were therefore in no way prejudiced by the
late noting of the appeal by
the Crown and also sought condonation of
the late noting of their cross appeal.
 It is
common cause that A13:
(i) was never served personally with the notice of the Crown's
(ii) the mandate of his attorney had terminated after his conviction
and sentence and had never been renewed, and that -
(iii) no other legal representative had been appointed to act for
(iv) there was no evidence that A13 had any knowledge of the
"cross-appeal" initiated by the Crown.
fair hearing of the cross-appeal was in his case therefore not
possible. It was clearly not in the interest of either the
the accused to postpone this long-delayed matter for the purpose of
regularizing the procedure in the case of A13. Indeed
application was made. We accordingly declined to grant the Crown
condonation of its
and in our view irregular - noting of the appeal in case of A13 and
ordered that it be removed from the roll.
should add that Crown Counsel had some justification for his
contention that counsel who had acted for A13 in the High Court
should have advised him that he (counsel) had no mandate to continue
to act for him in the appeal. However, it would seem to us
would be a salutary practice in all cases where the Crown appeals or
cross-appeals that it takes all reasonable steps to
ensure that a
respondent is duly served with the relevant notice either personally
or via an attorney authorized by him to act
in such an appeal on his
behalf. I should add that it would appear that as a matter of
practice the Crown has adopted a procedure
of service of all appeal
process on the respondent in one other appeal in which it has
prosecuted in this Court. See in this regard
DPP. v Ntsoele C of A
(Cri) 16/2005 which served before this Court at the current session.
This should however be the rule and
consistent practice in the
(i) In its judgment the court a quo gave a brief outline of political
developments in the Kingdom of Lesotho over the past decade.
regard it said the following:
"When she attained her national independence on the 4th October
1966, the new and democratic Kingdom of Lesotho had a rather
population which had experienced stoically a century of acute
economic depression and other social ills as a British Protectorate.
Since 1966, the history of Lesotho was chequered with unfortunate
political crises which deprived the country of the necessary
and stability. In 1970 the nation's constitution was suspended
indefinitely; it was only in 1993 that democratic constitutionality
was restored. The recently elected Government of Lesotho however
continued to face sporadic manifestations of discontent mostly
the ranks of the military, the police and the prison services.
The Crown also contended without contradiction that "notwithstanding
the new democratic dispensation, the crimes with which
are charged took place against a background of dissent,
ill-discipline and near-mutiny in the LDP.
(ii) This Court can testify to the fact that both the police services
and the army were subjected to sporadic incidents of insurrection
criminal violence. Convictions of both police and army officers, were
the subject of appeals before us in respect of mutinous
as well as
murderous acts of insurrection. It is clear that the restoration of a
constitutional democracy in 1993 did not immediately
stable governance based on democratic values. The events that took
place in casu as well as subsequent acts of insurrection
decade of the nineties seriously jeopardized the vesting of a stable
constitutional democracy. Indeed it was only with
the advent of the
new millennium that stability, law and order, and
a disciplined loyal army and police force came to be established.
(iii) The court a quo then proceeds to summarize the relevant
provisions of Constitution and comments thereon as follows:
"Under the 1993 Constitution of Lesotho, section 146 establishes
the Lesotho Defence Force. It reads:-
"146(1) There shall be a Defence Force for the Maintenance of
Internal security and Defence of Lesotho."
of the 1996 Lesotho Defence Force Act reads:-"The Defence Force
shall be employed-
the defence of Lesotho;
the prevention or suppression of
(ii) internal disorder;
the maintenance of essential services including maintenance of law
and order and prevention or crime, and such other duties
from time to time, be determined by the Minister.
It should be noted that the primary duty and role of an army under a
democratic dispensation therefore is to protect the national
sovereignty of Lesotho, and to protect lives and property of the
citizenry. Ipso facto anything done which is antithetical to this
primary duty is both unconstitutional and illegal. Under the rule of
law, the Lesotho Defence Force can only operate rightfully
accordance of the Constitution of Lesotho and the 1966 Lesotho
Defence Force Act, Regulations, Rules and Orders lawfully given.
must therefore be understood by all and sundry that the members of
the Lesotho Defence Force can only act and operate as soldiers
Force only if they act within the parameters of the Constitution of
Lesotho and other laws. Arbitrary covert operations
are illegal per
conduct of the accused must therefore be assessed and the gravity of
their conduct determined in the light of this historical
I proceed to set out the facts as they are related by the 59 crown
again I am indebted to the Crown for an accurate and succinct summary
of the evidence adduced on its behalf.
During the evening of 13 April 1994 certain of the accused gathered
at the Makoanyane Barracks and the arrest of ministers was
Also discussed was the abduction of two senior officers of the
Support Company then stationed at the Ha Ratjomose Barracks.
Agreement was reached at such discussions and a well-co-ordinated
action plan commenced in the early hours of the following morning,
April 1994, with the five ministers as the initial targets.
The action plan was carried out with all the panoply of a military
operation. The participants donned camouflage uniforms, wore
order and were armed with automatic weapons such as Galil rifles and
general purpose machine guns (GPMGs). LDF motor vehicles
were used to
transport the participants.
In order to prevent counter-measures to the action plan being taken
by members of the Support Company, who were stationed at Ha
Barracks, certain soldiers were stationed in the mountains around
It must, however, be noted that none of the accused whom the Crown
averred participated in this manner, were convicted.
At the residence of PW13 in Maseru West, a hole was cut in the fence
using the wire cutter forming part of a Galil rifle's bipod
access was gained to the premises.
PW13, who was about to take his morning bath, was apprehended at
gunpoint and, bare-foot and wearing only his pyjamas, taken to
military vehicle parked outside the premises.
PW13 thereafter pointed out the residence of PW4, also in Maseru
West, to his captors.
There, PW4, who was returning from a morning walk and dressed in a
track suit, was also apprehended at gun point. He made an
attempt to escape from his captors, during which he was
struck about the eye with a hard object, causing laceration and
PW13 and PW4 were then transported, in the back of an open vehicle,
to Makoanyane Barracks, where they were kept under armed guard
standby room until their eventual release later on that day."
present Prime Minister, who gave evidence as PW19, and PW6 (Minister
Mokhehle) were also captured at gunpoint. These "arrests"
were effected at their Ministries the same morning and they were also
transported to be detained at the Makoanyane Barracks. On
military vehicles. A soldier in one of these reported that the
Deputy-Prime Minister had been killed. The words used were
devil Baholo we killed ... these ones will know us". When they
arrived at the barracks one of the soldiers threatened
them by saying
- "this is not your mothers' place." They joined their
colleagues where they were seated on the floor.
The one (Moleleki)
was bare-footed and in his pyjamas and the other (Maope) in a track
suit. The learned Judge a quo records the
evidence of the present
Prime Minister as to what occurred as follows:
"He continues to say that as soon (sic) they had been ordered to
sit on the bare floor, some soldiers came into the hall and
sneering, jeering and shaking their heads in disgust - one even
grabbed his neck-tie and tugged at it roughly. He says he
removed it himself - fearing that it could be used to strangle him.
One soldier approached him gleefully and said "Nx..
this one is
my homeboy.. pointing to him."
this passage from the judgment because it reflects the gravity of the
situation and the threat which the conduct of those
involved posed to
the safety of the political leadership of the Kingdom, leave alone
the serious impairment of their dignity inflicted
to the intervention of the military at high level and the actions of
prominent members of civil society, the Ministers
of the Crown were
released from captivity on the late afternoon April 14. As indicated
in para  above the uprising resulted
in the murder of the Deputy
Prime Minister. I summarize these events as follows: (Once again I
have placed considerable reliance
on the heads of argument of the
Crown Counsel and what follows is an edited version of his heads, the
correctness of which was
not challenged by counsel for the accused.)
In the early hours of April 1994, PW5, a gardener/watchman employed
by the deceased was asleep in his room, which formed
part of the
deceased's house, when he was awakened by armed soldiers who enquired
after the whereabouts of the deceased and were
told by PW5 that they
were at the deceased's house.
(ii) The deceased was called by PW5 but, after looking out the
kitchen window, refused to come out.
(iii) The deceased had in his possession a 6,35 Star automatic pistol
(exhibit 1), sometimes referred to in the evidence as a "Baby
Brown[ing]", which was however faulty in that it could only be
operated in an awkward and impractical fashion by loading each
individually and pulling back and releasing the slide - as was
revealed by subsequent examination by a firearm expert, PW58.
seems beyond doubt that he fired three shots with this pistol, see
para (xi) below.
(iv) Thereafter the deceased's house was subjected to a barrage of
automatic gunfire, including that of a GPMG, the results of
were still visible at the inspection-in-loco and are reflected in
some of the photographs in exhibit B.'
(v) The deceased made telephone calls and called out for help, but
none was forthcoming. Thereafter the telephone line was cut.
(vi) At some stage the use of a "bazooka" (a rocket
propelled grenade launcher) and the use of teargas was contemplated
to force the deceased out of his house. Attempts were even made to
fetch teargas from the Makoanyane Barracks.
(vii) Access was eventually gained to the deceased's house through
the bedroom door after the lock on it had been shot at.
(viii) The body of the deceased was found in the kitchen of the house
with severe gunshot injuries, as are reflected in the two
reports, exhibits A and B.
(ix) PW3 was subjected to insulting and threatening behaviour by some
of the soldiers who entered the deceased's house.
(x) The soldiers retained control of the deceased's house for some
time and denied access to the family of the deceased, viz
even attempted to gain access by way of a Red Cross vehicle) and
PW48, then a member of the National Security Service (NSS), gained
access to the scene and recovered certain spent cartridges,
which he handed to PW9 and the others to his superior, now deceased,
at the NSS. The spent shells handed to PW9 were one
of calibre 7,62mm
(such as is fired from a GPMG) and three of 6,35mm calibre, such as
are fired from exhibit 1.
(xii) After the event, PW50, the company commander of E Company,
questioned certain of the accused regarding the motive for the
of the morning and was given certain explanations, regarding the
kidnapping of the ministers and the death of the deceased.
(xiii) It should be noted that, although no objection as to the
admissibility of such statements was made, the court did not rely
convicting the present accused. I will deal with this aspect of the
Commander of the L.D.F. and its Director of Operations both testified
that the actions of those involved were in no way
authorized and that
their conduct was both unlawful and in conflict with their duties to
maintain law and order.
para  above I said that I would deal with the delay in
investigation and subsequent prosecution of the accused. The former
Commissioner of Police (PW46) testified that their capacity to act in
any meaningful manner against those involved in regard to
events was inhibited by the prevailing existence of "dissent,
ill-discipline and near mutiny". (See para. 
(ii) above.) It
was only after the intervention of armed forces from the R.S.A. and
the involvement of SADC and the International
Community, from October
1998 onwards that stability and orderly military governance was
restored. Only then could any meaningful
investigation and law
enforcement take place.
Before dealing with the evidence against each accused and their
evidence in their defence, it is necessary to record the facts
consequent legal basis upon which the Crown relied for its contention
that the appellants were correctly convicted.
Court has to ask itself the following questions -
(i) What was the common intent or objective of those who participated
in the insurrection?
(ii) Was that common intent the pursuit of a lawful goal?
(iii) Did the participants comprehend the use of violence in pursuit
of the attainment of their objective?
(iv) Did they foresee the possibility of resistance and were they
prepared to use such force as necessary to quell such resistance?
(v) For the purposes of determining their guilt on the charge of the
murder of the deputy Prime Minister, did they foresee the
of death resulting from their concerted actions?
(vi) Did they nevertheless, heedless of such consequences, persist in
the pursuit of their objectives with the knowledge that death
result from their actions?
was not in serious dispute that the common goal of those who
participated actively in the insurrection was the kidnapping
ministers of the Crown. It was not contended in the court below nor
was it before us, that their enterprise was a lawful
one, or that
they believed that they were carrying out orders which were lawful.
None of them contended that they committed their
unlawful acts under
compulsion or under "superior orders". (I will deal with
the position of Accused No.6 specifically
in this regard, because,
whilst he did not testify, the learned Judge a quo, in reliance upon
a statement made by No.6 to one of
the witnesses, hinted that he may
have been a reluctant participant).
first two questions must therefore be answered in the affirmative.
Indeed these matters could hardly have been said to
have been in
dispute. It will be seen later that each of the appellants who
testified sought to avoid liability only by denying
they comprehend the use of violence? About this also there can be no
doubt. Their dress, the arms they carried, their conduct,
actions left no doubt in anyone's mind that these were soldiers on a
mission which they would accomplish by means of
violence should they
encounter any resistance. And when they did meet with resistance they
countered it with a resort to massive,
concerted violence. In this
regard one need only have regard to the photographs depicting the
state of the deceased's house, the
largely unchallenged evidence of
the four ministers - particularly Minister Maope - and of those who
witnessed the murder of the
Deputy Prime Minister. Questions (iii)
and (iv) are therefore also to be answered in the affirmative.
they foresee the possibility that death may result from their
actions? About this too there can be no doubt. If one sets
kidnap five people armed to the teeth with firearms and machine guns
one must inevitably appreciate that their use may result
being killed. The response to the resistance offered by the deceased
is the best evidence that demonstrates the lengths
to which the
insurrection were prepared to go to achieve their objective of
apprehending and detaining the five ministers of the Crown.
I am of
the view that the Crown established beyond doubt that those who
participated actively and meaningfully in the uprising
kidnapping of the ministers, foresaw that death may result from their
actions and pursued their goal, heedless of this
in the court below and before us counsel for the accused submitted
that for the doctrine of common purpose to apply there
must be a
perpetrator who can be identified as such. The argument is premised
on a misleading citation of comments by Burchell
in Principles of
Criminal Law (Thids Ed. p. 574 where the author says:
"B COMMON PURPOSE 1 Definition
Where two or more people agree to commit a crime or actively
associate in a joint unlawful enterprise, each will be responsible
for the specific criminal conduct committed by one of their number
which falls within their common design. Liability arises from
'common purpose' to commit the crime.
If the participants are charged with having committed a 'consequence
crime1, it is not necessary for the prosecution to prove beyond
reasonable doubt that each participant committed conduct
which contributed causally to the ultimate unlawful consequence. It
is sufficient to establish that they all agreed to commit a
particular crime or actively associated themselves with the
composition commission of the crime by one of their number with the
requisite fault element (mens rea). If this is established, then the
conduct of the participant who actually causes the consequence
imputed or attributed to the other participants."
submission was: where there is no perpetrator identified there could
by no imputation of stability. A reading of the next passage
above cited work demonstrates the unsustainability of the argument.
It reads as follows:
"Furthermore, it is not necessary to establish precisely which
member of the common purpose caused the consequence, provided
is established that one of the group brought about this result".
Matsoso and Ano v Rex LAC 1980 -1984 256 where the dictum in S v.
Madlala 1969 (2) SA 637 (A) at 640 was cited with approval.
citation at par. F-H reads as follows:
"It is sometimes difficult to decide, when two accused are tried
jointly on a charge of murder, whether the crime was committed
or the other or both of them, or by neither. Generally, and leaving
aside the position of an accessory after the fact, an
accused may be
convicted or murder if the killing was unlawful and there is proof -
he individually killed the deceased, with the required dolus, e.g.
by shooting him; or
he was a party to a common purpose of murder, and one or both of
them did the deed; or
he was a party to a common purpose to commit some other crime, and
he foresaw the possibility of one or both of them causing
someone in the execution of the plan, yet he persisted, reckless of
such fatal consequence, and it occurred;
See S v
Malinga and Others, 1963 (1) SA 692 (A.D.) at p.694F-H and p. 695; or
the accused must fall within (a) or (b) or (c) - it does not matter
which, for in each event he would be guilty of murder."
submission advanced by counsel is flawed can perhaps best be
demonstrated by an example. Two persons enter a shop armed
pistol with an intention to rob. The shopkeeper resists, shots are
fired by one of the robbers and the shopkeeper is killed.
cannot prove which one of the two fired the shot. Must they then both
be found not guilty? The failure to cite the passage
from Burchell in
full is both misleading and improper. This also is the case in regard
to the contention that the deceased committed
suicide. One look at
the post-mortem report would have demonstrated the absurdity of this
Having laid a factual base of this matter by overview, having
determined the mindset of those involved and having dealt with
common purpose had been established, I now proceed to analyse the
evidence to determine whether the court was correct
in finding that
each of the appellants who appealed against his conviction was indeed
guilty of the offences of which he was convicted.
Accused No.2 (No.2) was convicted on 4 counts of kidnapping and on
the charge of murder. He was identified by numerous witnesses
only as a participant, but in a leadership role. This applied not
only to his actions on the 14th of April, but in the pre-planning
mastering of men on the 13th and 14th of April. His defence was a
denial of any participation and an allegation that he was
stand-by on the day in question. His counsel argued in the court
below and before us that his evidence that there was
a conspiracy to
implicate him to which the witnesses who testified against him were
parties, appears to be most unlikely. For a
variety of good reasons
the High Court rejected this evidence and it made sustainable
credibility findings in support of such rejection.
It would have
required a massive and intricate manipulation of the evidence to have
produced 10 witnesses each one of whom ascribes
a pro-active role in
to this accused. In this regard it should be noted that only some of
the witnesses who implicated this accused were accomplices
have had a motive to fabricate, but there were several witnesses who
identified the accused as a leading figure in the
fracas and no
suggestion could be made why and how they would have been prepared to
lend themselves to accord a leading role to
summary. There is overwhelming evidence that A2 was, put at its
lowest a prominent participant in the kidnapping of the
in the murder of the deceased. Moreover, Brigadier Lekanyane (PW50),
after learning of the death of the deceased
and after visiting the
scene of the murder, sought to investigate why soldiers had become
involved in the apprehension of ministers
and the shoot-out at the
deceased house. He subsequently succeeding in meeting with a small
group of the dissidents from whom he
sought an explanation of their
conduct and the reasons for the insurrection. Amongst these group who
purported to speak on behalf
of the soldiers was No.2. He, No.3 and
two others (A7 and A19) reported on the events in question and gave
an explanation for their
doubt that the statements he and No.3 made to PW50 were made
court a quo said the following when convicting No.2:
"I am convinced by the credible evidence adduced by the Crown
that the Accused participated actively at Ha Abia on the morning
the 14th April 1994 and that in an operation which was manifestly
illegal, himself or his colleagues opened a heavy calibre
at Baholo's hose, knowing fully well that death would likely result.
That Baholo apparently shot first does not legalise
what was a
manifestly an illegal operation. I do not believe that Baholo
committed suicide either; the same applies to the grand
the then Prime Minister Ntsu Mokhehle had machinated or engineered
his elimination. I do not believe that the accomplice
any ulterior motive to implicate him falsely. They spoke about what
they saw and heard and each gave his own account
which did not
demonstrate any conspiracy to implicate him falsely in the charges
before this court. It is the cumulative evidence
against Accused No.2
that proves beyond all doubt he participated in the attack at
Baholo's residence on the 14th April 1994. I
reject the version that
he only went to Matala on standby after the death of the Deputy Prime
then concludes as follows:
"I find him guilty of murder under count 5 and under the other
four counts upon the basis that he knew when he went to Matalas
these other four Ministers were also going to be kidnapped. It was
indeed fortunate that Ministers Mosisili, Shakhane Mokhehle,
and Moleleki offered no resistance to attract much violence from
These findings are fully supported by the evidence. Not only was No.2
a participant in the events in question. He played a
both in its planning and in its execution. His appeal against his
conviction must therefore be dismissed.
Accused No.3 (A3). The evidence against him has correctly been
summarized as follows:
described A3 as being in a group with A2, A4, and A22 who were
discussing the kidnapping of ministers at the E Company dormitory
13 April 1994.
identified A3 in the lights of his motor vehicle as part of armed
group of soldiers at the Makoanyane Barracks in the early
hours of 14
described A3 being in the cab and in charge of the motor vehicle
driven by A6 that carried soldiers to effect the abductions
and PW13 in Maseru.
had been in charge of the gate guard at Makoanyane Barracks described
how A3 had instructed him, PW35, not to let any
other soldiers and
especially Lt Col Tsoele, through the gate on 14 April 1994.
described A3 arriving at the standby room in the company of A2 and A7
together with the complainants.
stated that A3 was at the deceased's house in the company of A2, A6,
A9 (deceased during the trial), A10 and A13. A3 ordered
PW24 to fire
two shots at the door of the deceased's house in order to open it.
PW27 placed A3 at the deceased's house in the company of A2. PW11
actually spoke to A3 and received the same disrespectful
dismissive reply to his enquiry as were given by A2.
described A3 as being part of a group, including A2, A7 and A19 whose
spokesman, A2, described the events at the deceased's
house to A50
later on 14 April 1994.
Court found that
"I find that the Accused No.3 was in the military van carrying
soldiers who later kidnapped Ministers Moleleki and Maope on
morning of the 14th April 1994 and that also along with Accused No.7
they also participated at the bombardment of Baholo's
caused his death which result was foreseeable.
After depositing the Ministers in the standby hall and ordering the
Ministers to be guarded by PW.25 Tjamela saying "Remain
these Ministers .. we are coming," soon the Accused No.3 and
No.7 are seen at Ha Abia besieging Baholo's house. From
Malata's is not a great distance ... a speeding van can take less
than twenty minutes.
the version of Accused No.3 not worthy of credit as it denies even
something admitted by his counsel when cross examining
witness. His evidence is rejected as false.
He is found guilty on all five counts."
 I am
of the view that the findings are fully supported by the evidence and
no argument was advanced to us which in any way
reliability or the fact that No.3 played a prominent role in the
fracas - both in so far as the kidnapping charges
and the murder
charge is concerned. That his role was marginally less significant
than that of the No.2 as reflected in the sentences
appears to us to be justified on the evidence.
Accused No. 6 (A6). The court a quo says the following concerning A6
in its judgment:
being repetitive, I should point out that there was credible and
sufficient evidence that:-
No.6 was the driver of the military van which transported soldiers
first to Maseru West to kidnap Ministers Moleleki and
No.6 drove the said military van to Makoanyane Barracks where the
two Ministers were later joined by the then Minister
then Minister Shakhane Mokhehle.
No.6 was seen still dutifully driving the van at Matalas where the
bombardment took place.
No.6 did nothing else to perpetrate the commission of offences of
kidnapping or shooting.
voiced his genuine dismay or disapproval of kidnappings of Ministers
and his statements are admissible in this trial,
(see Snyman (supra)
164 in deciding the issue of his state of mind at the particular
time (Estate De Wet v De Wet 1924 CPD 341
per Watermeyer JA)
deliberate election not to controvert what was direct and credible
evidence, renders conclusive the strong prima facie case
(R v Theron - 1968 (4) SA 61 A.D)."
should be noted in regard to his failure to testify, is the fact that
when two Crown witnesses PW4 (Maope) and PW13 (Moleleki)
evidence it was put to them that No.6 emphatically denied that he was
the driver of the vehicle in which they were abducted
and that his
version would be that he wasn't even in the vehicle. When PW23
testified that A6 was the driver of a vehicle in Maseru
West on the
14th of April, this also was challenged and it was put by his counsel
that he was not there on that day. As the evidence
participation mounted, his vigorous denials declined and his
participation became undisputed. He then sought to hitch his
the star of PW26's evidence concerning the statement he allegedly
made at the time (see (e) above).
question that has to be answered at this stage of the enquiry is
whether or not A6 participated in the insurrection in
such a manner
and to such an extent that the court was entitled to find that he was
a socius criminis. See Rex v Mlooi and Others
1925 AD 131 at 134
where Innes CJ says the following:
"Whoever instigates, procures or assists the commission of the
deed is a socius criminis, and may be indicted, convicted and
punished as if he were the principal offender. (Rex v Peerkhan and
Lalloo 1906 T.S. p. 802; Rex v. Jackelson 1920 A.D. p. 490).
his liability depend upon the liability of the latter; as pointed out
in Rex v. Parry (1924, A.D. 401) it flows from his
own part in the
transaction, coupled with the existence of mens rea in relation to
the crime itself."
a quo correctly found that his failure to testify was a significant
factor that had to be placed in the scale in finding
that the Crown
had proved that he intentionally (in his case - also willingly) acted
in pursuit of achieving the objective of kidnapping
Ministers and whether he foresaw that death may result from the
implementation of the plot
It is my
view that having regard to the totality of the evidence as set out in
par  above the court a quo was correct in finding
him guilty on
the two charges of kidnapping and charge of murder. Whether the court
was entitled to attach the weight it did to
his extra curial comments
will be debated below when I deal with the cross-appeal by the Crown
against the sentence imposed on
him. His appeal against conviction
falls to be dismissed.
Accused No. 10. He was identified as having been at the home of the
deceased in battledress and armed in the company of No.6.
witnesses also related how this accused arrived at the barracks and
requested that he be provided with teargas. They
confirmed that he
was in battledress and armed with a Galil. It is clear from their
(i) It was intended to use the teargas for the "arrest" of
the deceased; and
(ii) the Minister had barricaded himself in the house and was
resisting his 'arrest'
(iii) he was informed that teargas could kill and he confirmed that
he was aware of that fact
(iv) He was in an army 4x4 driven by No.6 and there were other
soldiers also in battledress and armed in the vehicle
(v) His request for teargas was refused and he left empty-handed.
evidence of these witnesses was confirmed by D24 who testified that
he too saw A10 at the house of the deceased. He had
because he had heard the sound of a heavy gun fire coming from that
direction. The accused's version that his request
for teargas was in
respect of an unrelated incident in the mountains was with every
justification rejected as untrue by the trial
judge. He clearly
associated himself with the attempt to force the deceased out of the
house; he knew that violence was used to
achieve this object; he
knew, that the deceased was resisting and appreciated, or at least
must have appreciated, that the use
of force could lead to the
deceased's death. He was correctly convicted of murder but why he was
also not convicted on the kidnapping
charges is difficult to
follows from what has been set out above that all the accused were
correctly convicted and that their appeals against their
hardly needs to be emphasized that the offences were of the utmost
gravity. They were carefully planned and were executed
brutality, particularly where the victims put up any resistance.
Moreover the crimes must be seen as part of an insurrection
the democratic order in the Kingdom. That the insurrection came to a
relatively speedy end with the death of only one person
was not due
to the accuseds' change of heart. In fact no genuine remorse was
shown in the trial court, although in favour of A2
and A3 were the
reasonably candid admissions of their involvement made to PW50 but
which, as I have pointed out, they denied having
Before considering the sentences imposed by the trial court it is
necessary to emphasise that this Court may interfere with
punishment imposed by the trial judge only where he has failed to
exercise a proper
either because of the substantial disparity between the sentence
imposed and what the proper sentence should be or because
court has misdirected itself or has committed an irregularity. (See
DPP v Ntsoele C of A (CRI) 16 of 2005).
Viewed against the background of an attempt to strike at the
integrity of the government with the use of violence, the sentences
in general, and, in particular, the punishments imposed on the murder
count, can only be described as lenient. I now deal with
sentences given to the individual accused.
Counsel for the Crown challenged the sentence of 12 years'
imprisonment imposed on A2 for the murder of Selometsi Baholo (Count
5). He submitted that there was a striking disparity between the
sentence that this Court would have imposed on him and the sentence
that the trial court imposed.
as I have pointed out earlier, played a leading role, both in the
planning and in the execution of the crimes. It may well
be, as the
judge a quo found, that there was a degree of turmoil within the LDF
and that some members of the military were discontented
dissatisfied with what they perceived as unfair or discriminatory
treatment. This perception, even if well-founded, can never
the resort to blatant illegality of the kind that occurred on 14
April 1994. No matter what circumstances prevailed, all
accused, especially those who played a leading part in the offences,
cannot expect leniency from a court merely because
they believed that
conditions were ripe for an insurrection. They should have realized
that grievances, even if genuine, cannot
be addressed by unlawful
may be, as the trial judge indicated, that there were other persons
or elements, involved in the events of 14 April 1994.
fact remains that it was A2, assisted by A3, who controlled and
apparently commanded the operation, and who encouraged
of the LDF to join in.
Under the circumstances outlined, I have come to the conclusion that
a sentence of 12 years' imprisonment imposed on A2 for
the murder of
the deceased (which sentence was to run concurrently with the
sentence imposed on him on counts 1 to 4) was far too
therefore agree with counsel for the Crown that there is a
substantial disparity between the sentence actually imposed
sentence which the learned judge a quo ought to have imposed.
sentence which it is my duty to impose must reflect the gravity of
the crime and it must also take into account the degree
participation of the accused and the interest of society. Against
this must be weighed the factors personal to the accused and
other mitigating features.
take into account that A2 was a first offender, that he had many
years of unblemished service in the military and that he
many defendants. Important as these considerations are, they are
overshadowed by the gravity of the offences and the
society. It is unnecessary to say anything further in this regard.
While I have no doubt that the sentence on A2 in respect of count 5
does not reflect the gravity of the crime, the sentence
that ought to
be imposed has caused me a great deal of concern. In the
circumstances of the case, and having regard to all the
facts, I am
of the view that an appropriate sentence on count 5 would be one of
17 years' imprisonment to run concurrently with
the sentence imposed
on counts 1 - 4.
too, played a leading role in the execution of the kidnapping of the
Ministers and the murder of the deceased. He was not
prominent as A2 but Crown counsel correctly submitted that after A2,
A3 played the most important leadership role.
Having regard to the nature of the offence and its consequences,
there is no doubt in my mind that the sentence of 10 years'
imprisonment on count 5, to run concurrently with the sentence on
counts 1 - 4 was far too lenient and substantially less than
trial court should have imposed.
his case, too, the sentence should be increased on count 5 so that it
more properly reflects the seriousness of the crime
and the role
played by the accused. In my opinion an appropriate sentence is one
of 14 years' imprisonment, to run concurrently
with the sentence
imposed on counts 1 to 4.
as the trial court held, drove the vehicle that transported the
Ministers to the Makoanyane Barracks. In addition, however,
conveyed soldiers in a military van to the deceased's house and from
there to Makoanyane to fetch tearsmoke. The sentence
imposed on this
accused on count 5 - to be detained until the rising of the court -
was patently inadequate.
Moreover the trial judge misdirected himself in two important
respects. First, he was under the impression that A6 raised the
defence of obedience to superior orders and second that he expressed
his misgivings about his involvement to PW26. In considering
sentence to be imposed on A6, I cannot overlook the pivotal role that
he played in driving the soldiers with the kidnapped Ministers
Makoanyane Barracks, then taking troops to the deceased's house and
later driving A10 to the Barracks in an attempt to obtain
A6 did not give evidence and there is no room for assuming that he
was an unwilling participant acting under superior
statement to A26, which was also relied on by the court a quo, is of
little significance. There is considerable doubt
as to whether an
extra curial statement which is self-serving or is consistent with
innocence is admissible (see Hoffmann and Zeffert:
The South African
Law of Evidence, 4th Ed at 167-168). The authorities relied upon by
the trial court do not indicate the contrary.
apart, there is little weight that should be attached to A6's
statement to PW26 as it is inconsistent with his
in the offences and was not confirmed by his own evidence.
Counsel for the Crown contended that the sentences on counts 1,2 and
4 were all substantially less than the sentences which
been imposed. I agree with this submission. There are, however,
weigh in favour of A6 and I take them into consideration in imposing
an appropriate sentence. He was a first offender, he was
unarmed and he did not wear battle-dress. Clearly it was not his
intention to personally commit acts of violence. Furthermore,
seems to me to be desirable that the punishment on those of the
accused who played a lesser role than A2 and A3 should be reflected
in their sentences.
Although the sentence of four years' imprisonment imposed on A10 and
A13 are more lenient than the sentence which I would have
am not convinced that their punishments are such that would justify
alteration. Moreover, and as the sentence imposed
on A13 stands, it
would be improper, in the circumstances of this case, if there is a
differentiation between A13's sentence and
that imposed on A6 for the
murder count and, incidentally, the sentence on A10 on the same
1 am not
convinced that A6's moral blameworthiness however serious, was more
reprehensible than that of A13 or A10. However, counts
1 and 2 were,
in my opinion far too serious to have warranted the imposition of a
A6. For this reason, therefore, a sentence of imprisonment on counts
1 and 2 is justified.
Having regard to all of the facts stated above, accused No.6's
sentence should be increased to two years' imprisonment on counts
and 2 and four years' imprisonment on count 5, The sentences should
run concurrently and any portion of the fine which he has
be refunded to him.
reasons which I have given, the appeal by the Crown against the
sentence imposed on A10 should be dismissed.
order which I make is the following:
appeals by all of the accused against their convictions are
dismissed and the convictions are confirmed.
sentences imposed by the court a quo are confirmed only insofar as
they relate to the following:
No.2 in the court a quo on counts 1-4;
No.3 in the court a quo on counts 1-4;
No.10 in the court a quo on count 5.
appeal by the Crown against the sentence imposed on accused No.13
in the court a quo is dismissed.
sentence imposed by the court a quo on accused No.2 in respect of
count 5 is set aside and is replaced with the following:
"Count 5 : 17 years' imprisonment to run concurrently with the
sentence imposed on counts 1 to 4".
sentence imposed by the court a quo on accused No.3 in respect of
count 5 is set aside and is replaced with the following:
"Count 5 : 14 years' imprisonment to run concurrently with the
sentence imposed on counts 1 - 4".
sentences imposed on accused No,6 by the court a quo is set aside
and is replaced with the following: "Counts 1 and 2:
four years' imprisonment". The sentences are to run
fine or any portion thereof paid by accused No.6 is to be refunded
OF THE COURT OF APPEAL OF LESOTHO
Crown : Mr R. Suhr
Appellant & 1st Respondent: Mr. T. Maieane
and 3rd Respondents : Mr. T.Nteso
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