COURT MARTIAL APPEAL COURT OF LESOTHO
KOTELO 1st APPELLANT
MATHAKHOE 2nd APPELLANT
Held at :
K. J. Guni, President.
T. Nomngcongo, Judge.
Col. J.M.Jane, Member.
an appeal against the conviction and sentence of the appellants by
the court martial on the charge of CONTRAVENING SECTION
77 (2) OF THE
LESOTHO DEFENCE FORCE ACT 1996. The two appellants were members of
the Lesotho Defence Force [hereafter called LDF].
appellants while off duty, they put on their operational uniform and
went on an unauthorized operation of their own with
a friend or
assisting a friend. They conducted an unauthorized operation of
looking for dagga, illegal guns, and stolen livestock
in the area of
LEKHAHLANENG at the village of SETIBING. They were conducting this
unauthorized operation together with their friend
MPHULENYANE and three others who were too young to be either in the
Police Force or the LDF. The young boys were in
clothes. LEBOHANG MPHULENYANE was also wearing his civilian clothes
but covered himself with a military rain coat
lent to him by the
second appellant. The LDF charged only the members of the LDF.
relevant portion of the section under which the two appellants were
charged and convicted reads as follows:-
"77 (2) Any person subject to this act who (a) acts in a
disorderly manner or any manner prejudicial to the discipline or
likely to bring discrent on the reputation of the Defence Force
........................... commits an offence and shall, on
be liable to imprisonment for a term not exceeding:
grounds of appeal are set out in the notice of appeal as amended as
Court Martial erred and misdirected itself in convicting the
appellants when such a verdict was against the weight of
court Martial erred and misdirected itself in returning a verdict of
guilty when such verdict was unsupported by the evidence
Court Martial erred and misdirected Itself In not giving the
appellants the benefit of the doubt.
sentence of discharge with ignomity is too harsh and shocking in the
circumstances, as is not consistent with the provisions
of the Act.
the grounds of appeal are listed as numbering four in fact they are
only two because they all deal with or relate to competency
sufficiency of evidence led at the trial. The first ground questions
or challenges the weigh and or sufficiency of the evidence
establishing the elements of the offence charged. The second ground
is directed against the alleged severity of the sentence.
first set out facts that are in the common cause. It is in the common
cause that the two appellants were members of LDF
at the time the
alleged offence was committed. The second appellant was off duty but
due to resume his duties in the morning of
the 22nd November 2004
when he took a French leave. He was due to report for duty at
MAKOANYANE barracks switch board at 06.00
hours on that day. He was
at LIKHAHLANENG at 06.00 hours. He was aware that he should he
reporting for duty. But he remained thereat
and continued with his
frolics. He accepted that his colleagues would be obliged to perform
his duties while he was absent without
also in the common cause that the soldiers have three or four
different types of uniform. Each type of uniform is worn for
specific purpose and/or on orders.
It is in
the common cause that the soldier does not wear any type of uniform
as and when he feels like doing so. The specially indicated
is put on by soldiers on orders of relevant military authority.
appellants have previous experience of similar operations conducted
under the orders of the relevant authorities i.e. the military
police. Therefore the appellants knew the suitable type of uniform
which they were ordered to wear for the purpose of conducting
operation of this nature. Even on this occasion when the appellants
engaged themselves in an unauthorised operation, they wore
military uniform suitable for such operation. In this unauthorized
operation both appellants wore military uniform - tropical
they were engaged in their private business - helping their friend,
they presented themselves to those villagers where
this unauthorized operation, as soldiers - members of LDF. They
introduced themselves as such and produced their
appellant explained their mission to the villagers before they
entered in their houses to search. They said they have come
for illegal dealings such as dagga, illegal guns and stolen
livestock. They started with the chief 's house. Even though
were informed that the chief has just visited the neighbouring
village, they could not wait for him nor go to fetch him. In
absence they searched his house and found three bags of dagga and a
gun. They asked for the licence of the gun in question.
furnished with the licence. Second appellant took the licence.
scrutinized it and satisfied himself that it was a valid, proper and
current licence of the said gun. Therefore it was not an
He returned the licence but retained the gun in his possession. They
took possession of the dagga as well.
appellant demanded a bribe of an amount of one thousand maloti
(M1000.00) from Pwl,in order to release him from arrest for
possession of the said dagga. Pwl had no such kind of money.
the two appellants together with Pwl proceeded to another village
where the acting Headman was. There they ordered the
assemble the villagers. He obliged. The villagers gathered there. The
two appellants told the villagers that they have
come to search from
house to house. They did conduct a search of every house.
forced open or broke-into the house where the owner was absent. They
found fourteen and half (14 1/2 ) bags of dagga.
instructed the villagers to put all the bags of dagga on the donkeys
to convey them to HA CHALALISA. Pwl was taken
aside again by the
second appellant who asked him how much money he has in his
possession. Pwl indicated that he has five hundred
(M500.00) which he
produced and the soldier took it and handed back to him that gun.
also an agreed fact that when the soldiers are involved in an
authorized operations of the similar nature as the one conducted
these appellants, they are provided with army vehicles and rifles.
They do not use the private property. These appellants in
unauthorized operation used a private motor vehicle and they were not
armed. They confiscated licenced weapon in order to
use it for their
AND SUFFICIENCY OF EVIDENCE
question of competency and sufficiency of evidence can be determined
by examining and analyzing the facts in the common cause
with the unchallenged and established facts. There is sufficient
evidence to show the court that the two appellants were;
not on duty
and therefore had no cause to wear their uniform and pretend they are
on duty. The first appellant was on leave. The
although he was supposed to report for duty, he did not do so. He was
absent without leave. He knew and was aware
that he must be on duty
at the switchboard at MAKOANYANE barracks at 6.00 hours on the 22nd
November 2004. He freely and voluntarily
decided to go away from
MASERU. He lived and worked in MASERU. He went up into the mountains
in the early morning hours -03.00
hours. What was the purpose of
going up into the mountains?
to him, he was going to assist a friend of his to search for his
allegedly stolen animals. By any stretch of imagination
it was not
remotely possible that he could return from conducting the search for
the stolen animals and be able to report for duty
MAKOANYANE barracks in MASERU.
that he did not know nor could he roughly estimate the distance from
MASERU to ha CHALALISA, shows that he was reckless
absenting himself from duty by embarking on that mission instead of
reporting for duty. If he did not know how
far is the place where the
search for the animals was going to be conducted, how, what made him
conclude that the search was going
to take a short period that will
allow him to come back to MASERU and report for duty at MAKOANYANE
barracks switchboard on time?
answer to both questions shows that he had no grounds to believe he
was going to report for duty at all on that day, Or if he
to return it was in fact going to be very very late. According to the
second appellant at 06.00 hours on the 22nd November
when he and the
company arrived at ha CHALALISA he was aware that he was going to be
absent without leave and nevertheless he made
arrangements to rectify
that position as he remained thereat after concluding that his
colleagues will be obliged to perform his
duties in his absence.
Clearly he had no intention to report for duty on that day. Therefore
wearing, by his own deliberate choice,
tropical or camouflage
military uniform, was a clear indication he was under his own command
and that he was not preparing to report
for duty at any state on that
day. He admitted that he could not or did not choose to wear No.l
because he was not going for parade.
answer when asked why he did not wear No.l, it becomes very clear
that he considered No.l unsuitable for his purposes.
He was now
acting under his own orders - not those of his superiors. When he
went to report for duty subsequently, he was orderd
to wear light
weight, confirming that the soldier wears a particular type of
uniform as ordered - not by his own individual choice.
appellant was on leave. He received no orders to wear any type of
uniform while on leave. It was not proper to present
soldier when they went to help a friend. They were doing private
business. They should have been in their private
clothes. As and when
they received the call to help, there was no urgency. They claim the
animals were going to disappear but they
did not show the court
martial where those animals were. MPHULENYANE - the friend the
soldiers were allegedly going to help to
rescue his animals from
of the named suspected thief, was found by the police standing guard
at the motor vehicle the party was using to load
the bags of dagga
which they confiscated from the village. He spoke to police who asked
him why he was wearing military clothing
- meaning that raincoat
which he took off and threw into the motor vehicle when he noticed
the police approaching. He did not tell
the police that he is there
to search or rescue his livestock. Why? They searched inside the
houses and found dagga which in every
case they took possession of.
Not even in one single case did they also have a suspect taken
possession of in respect of the unlawful
possession of that dagga.
There is not a single place where they searched for those alleged
stolen animals. There were no questions
asked anyone in any village
about the allegedly stolen animals which these two soldiers rushed up
the mountains to rescue.
was asked by these soldiers about the stolen animals or the named
the facts which led the judge advocate in his summing up to comment,
justifiably if I may add, that "the credibility
of the evidence
given by the accused is highly questionable. They appellants claimed
that the message to go to help the friend
to look for his stolen
livestock came at night. They could not report to LDF nor to police.
They could not go via any police station
on their way to the
mountains. They did not trust the police, in MASERU or up at the
mountains where they went to conduct the search.
That is what makes
their story such a cock and bull story.
the law into their own hands because they do not trust the police.
The people of this kind of thinking should not be allowed
as part of law enforcement agencies.
members of LDF the public expected them to know law and act in
accordance with the law - not against the law.
Judge advocate further commented that "the accused failed to
convince this court that what they did could not be understood
act that discredited LDF", was not in anyway suggesting that
there was an onus on the accused to prove their innocence.
it what did not convince Honourable Judge Advocate was the
explanations given by them for being out of order. The Judge
Advocate's opening remarks when summing up quiet clearly demonstrate
that there is no onus on the accused. It is trite principle
that there is no onus resting on the accused to prove his or her
innocence. This is totally misunderstood to me that the
allege anything and that the court is obliged to accept it without
questioning the sense of it all.
flies in the face of yet another principle of law that he who alleges
must prove his allegation. When the soldiers claim that
with haste up the mountains to rescue the friend's animals from the
clatches of the thief there must be facts to support
For an example even that friend should have been called by them to
substantiate their story.
soldiers claim to have been engaged in the search for animals.
Suddenly they abandoned the search for animals and dwelt on
search for dagga. They are found in possession of dagga without
suspects for the unlawful possession of the same. The Judge
was justified and entitled to comment that these two soldiers
(appellants) had gone there for dagga because it appeared
conduct that their interest was only directed at looking for dagga
That is a disgraceful act on the part of the soldier. Therefore these
appellants were correctly convicted under SECTION 77
(2) (a) LESOTHO
DEFENCE FORCE ACT 1996.
military uniform while they were off duty and conducting a private
operation, these two appellants acted in a disorderly
.Demanding and accepting bribe from the suspect is clearly a
behaviour that is unbecoming of any official acting in an
capacity. Which they pretended to the public to be their position.
lawfully possessed gun for their own use and protection in carrying
out their own private operation, is unlawful. It
is likely to bring
into disrepute the reputation of LDF which they pretended to be
question of their right to legal representation both appellants were
afforded an opportunity to be legally represented. First
actually engaged a legal representative of his own choice. After the
crown had closed its case the accused were to present
their case. It
was at this juncture that the second appellant pretended not to know
why his legal representative was not present.
He sought an
adjournment in order to investigate. Why his legal representative has
not appeared. The prosecution produced the notice
of withdrawal to
appellant then conceded that he knew the contents of that notice and
he know that he should have paid his lawyer but he
argued by his counsel that he should have been granted adjournment to
go and look for money to pay his then legal representative
or to look
for a new one. The appellants were already without a job, though on
suspension. The adjournment in those circumstances
would be until he
finds money to properly and adequately brief the lawyer. This kind of
request for an adjournment for an indefinite
period is a delay
tactic. REX V MASUPHA SOLE CONSTITUTIONAL CASE NO.3/2002. In that
case, MASUPHA SOLE wanted an adjournment to
find money to pay
counsel. He had not indicated when and how he was going to come by
the some of money to pay his counsel.
cannot permit delays caused by the party who does not appear to have
a definite time limit within which to rectify his
the court martial put him to terms, that would only serve as an
unnecessary delay because he had not indicated where and
how he was
going to find money to pay his lawyer.
second appellant made a deliberate choice and put it down in writing
that he does not wish to engage a legal representative.
counsel argues that the second appellant's choice to represent
himself should not have been accepted or allowed. He
should have been
encouraged to go to look for a legal representative despite his
decision. Legal representation does not always
ensures an acquittal.
Again it is a misconception that justice is not done where an
unrepresented accused is convicted. Sometimes
people who were legally
represented have been convicted of crimes. People who were
unrepresented have been acquitted. Conviction
per se does not
indicate that an injustice was done.
per se does not show that justice was done. Lawyers are part and
parcel of the administration of justice. But in a country
kingdom of LESOTHO, where legal representation is not always
available, to suggest that an accused who feels he wants
with the services of lawyers, should not be allowed to represent
himself or herself will bring the process of trials
to a halt. The
courts are already battling with huge backlogs. It is the unwarranted
postponement which have contributed to the
built up of such backlogs.
Lawyers need jobs and must be employed. The legal aid has no
unlimited resources. That can be made out
from the very small size of
the number of lawyers engaged by legal aid. Legal aid lawyers are not
always available and ready to
act for an indigent accused.
court adjourns the matter in order to enable an indigent accused to
engage a legal practitioner in the prevailing circumstances
unavailability of free, read and prepared lawyers from legal aid to
carry on the job, that court will be delaying the end of
What happened to the famous maxim "Justice delayed is justice
now become fashionable to claim, without any Justification
whatsoever, that unrepresented accused has been denied justice
without indicating any manifestation of injustice. It is as if the
absence of a lawyer per se is an manifestation of an injustice
against the accused. Our courts in this country deal with hundreds of
unrepresented accused. It cannot be correct that therefore
no justice in this country. When the 1st appellant represented
himself the crown case was closed.
accused persons, defence had already been thoroughly canvassed during
the cross-examination of the crown witnesses. In short
had already been put before that court martial. Therefore there was
no likely prejudice in the conduct of their defence.
section under which the appellants were charged, provides for
sentence after conviction for the contravention of its terms.
Immediately it appears that the appellants should have been sentenced
to imprisonment for a period of two years. But then the soldier
has been convicted of a crime or who has been convicted of
CONTRAVENTION OF THE PROVISIONS OF SECTION 77 (2) is liable to a
appellants were convicted under SECTION 77(2)(a) they were liable for
discharge. The court martial dealt with them competently
SECTION 83 (2) which provides for punishments of soldiers. SECTION 83
specifically provides for punishments under this Act
even where this
act has made a specific punishment. The sentence meted out by the
court martial is an appropriate one. The appeal
and sentence is dismissed. The conviction and sentence of the court
martial are confirmed.
agree....................................T . NOMNGCONGO
agree......................... Col. J.M. Jane
Appellants : Mr. Mohau
Respondent : Capt. Mathatjane
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law