Case NO.
C of A (CRI) 5/2006

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between

THABANG
SETENANE MAKATENG APPELLANT

and

REX
RESPONDENT

26th
March and 4 April 2007

CORAM:

RAMODIBEDI
JA

MELUNSKY
JA

PEETE JA

Summary

Criminal
Law - the appellant convicted in High Court on two Counts of murder,
three of attempted murder and one of kidnapping on
the basis of the
doctrine of common purpose. In a planned, and unlawful operation by a
number of members of the Police Force, two
police officers were shot
and killed, three

2

others
were wounded and one was unlawfully incarcerated in a police cell.
All of the aforementioned acts were unauthorised and illegal.
The
appellant was not the actual

perpetrator
of the crimes but he was convicted on the grounds that he acted in
concert with those who committed the offences.

The Crown
relied on the appellant's participation, more especially in that he
was the driver of a motor vehicle which conveyed members
of the
police to various places.

Held:

1. That
   a common purpose to accomplish unlawful acts of detaining two police
   officer was established;

   
   

2. That
   the common purpose arose, by prior agreement and not spontaneously;

   
   

3. T'hat
   the prior agreement was proved by inference from the facts;

   
   

4. That
   the participants in the plot must have foreseen the possibility that
   the inicuded victims might offer

   
   

3

resistance and that the firearms might be used resulting in death
and/or bodily injury;

5. That
   the appellant's evidence that he did not take part in the operation
   was rightly rejected by the trial Court;

   
   

5. That
   his participation was clearly proved on the facts
   

   
   

Appeal
accordingly dismissed.

JUDGMENT

MELUNSKY
JA:

[1] This
appeal arises out of an unlawful operation carried out by certain
members of the Royal Lesotho Mounted Police ("the
RLMP" or
"the Police Force") on or about 31 October 1995. During the
course of this operation, and at Maseru Central
Charge Office, ("the
MCCO"), two senior members of the RLMP were killed, and three
others injured, the deceased being
Lieutenant Colonel Penane
("Penane") and Major Chabeli ("Chabeli"), and the

4

injured
being Captains Mokolatsie ("Mokolatsie") and Mokeki
("Mokeki") and Major Raleaka ("Raleaka").
On the
same day warrant officer Ramoeletsi ("Ramoeletsi") was
forcefully put into a police cell at Ha Mabote Police Station

("HMPS") where he was detained.

[2] As a
result of the aforegoing the appellant was indicted in the High Court
on six counts – counts 1 and 2 for the murders
of Penane and
Chabeli respectively, counts 3, 4 and 5 for the attempted murders of
Mokolatsie and Raleaka respectively, and count
6 for the kidnapping
of Ramoeletsi. He pleaded not. guilty but was convicted on all counts
by Nomngeongo J sitting with assessores
and was sentenced to an
effective period of imprisonment for eight years. He appeals to this
Court against bis conviction.

[3] It is
important to note that in terms of the indictment the appellant was
alleged to have committed the aforesaid affences acting
in concert
with others, including certain named persons, all

5

of whom
will be referred to in this judgment as co­conspirators for the
sake of convenience only. It is also to be noted that
there is no
dispute that the said offences were committed and that the actual
perpetrators were one or more of the co­conspirators
and not the
appellant. The essential question that has to be answered in this
appeal is whether the Crown has proved beyond reasonable
doubt that
the appellant in fact acted in concert with the co-conspirators and
the actual perpetrator's - whether, indeed, he had.
a common purpose
with them to commit the offences of which he was convicted.

[4] There
was evidence before the trial court by various members of the Police
Force, including some of the complainants., that
the appellant was
observed at certain, relevant: times in the company of some of the
co-conspirators both at the MCCO and the HMPS.It
will be necessary to
recount his actions in some detail in due course. All that need to be
noted at. this stage is that in the
Court a quo the appellant
testified that: he was not at

6

the
scenes in question and that all the witnesses who implicated him had
fabricated their versions. The appellant's evidence was
rejected by
the trial court and rightly so and very little attempt has been made
on appeal to persuade us that this finding was
wrong. In fact: the
only ground raised in the notice of appeal is that the Crown did not
establish that the appellant was part
of the common purpose to commit
the offences of which he was convicted. It is to this aspect that
this judgment is largely devoted.

[5] In
order to determine the extent of the appellant's involvement, if any,
in the offences, it is necessary to set out, firstly
the background
and outline of the Crown, evidence; secondly, to detail the
appellant's conduct, as observed by the Prosecution,
witnesses;
thirdly, to refer to the material aspects of the law relating to
common purpose; and. finally, to apply the legal principles
to the
farts of the case.

7

[6] The
appellant joined the Police Force in 1993. At the time relevant to
the charges he was a sergeant attached to the Police
Community
Relations section ("the PCR").

The
appellant was a member of an organization known as CODESA which
consisted of certain junior members of the RLMP and which appeared
to
function as a sort of liaison committee between the junior officers
and the more senior members, including the Commissioner
of Police. It
may be noted that the appellant's counsel put to various Crown
witnesses that he (the appellant) was not a member
of CODESA and that
he had nothing to do with that committee. In his evidence, however,
the appellant conceded that he was indeed
a member of CODESA and his
attempt to explain away the version put by his counsel was
unconvincing and, in fact, patently untruthful.
It may be mentioned
here that the most prominent member of CODESA, in fact the leader of
the organization, was one of the persons
named in the

8

indictment
as a co-conspirator, second Lieutenant Molise.

[7]
Penane and Ramoeletsi (PW1 in the trial court), both members of the
RLMP, had been deputed then to deal with unlawful disturbances
and
processions arising out of a strike by teachers in Maseru during the
earlier part of October 1995. Certain members of the RLMP,
notably
Molise, objected to the methods employed by Ramoeletsi to quell the
disturbances and on 19 October shots were fired at
Ramoeletsi's
house. In an effort to defuse the situation, a meeting was held under
the chairmanship of Lieutenant Colonel Nalete
(PW 2) on 30 October.
Present were Penane, PW1, Molise and a certain Major Telukhunoana,
but the meeting failed to achieve a resolution
of the problem. The
events that followed are outlined in the heads of argument of Mr
Suhr, counsel for the Crown both in the court
a quo and before us,
and as these facts are not seriously in dispute 1 will rely fairly
extensively on his summary of the events.
The relevant facts are the
following:

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1. The
   Response Unit and the Band Unit of the RLMP were stationed at Police
   Training College ("the PTC") in Maseru. Both
   units had
   paramilitary functions with the Band Unit supporting the Response
   Unit;

   
   

2. In
   the early hours of 31 October 1995 a coordinated and clearly
   unlawful operation, involving a number of heavily armed members
   of
   the Police Force, dressed in operational uniform, was launched from,
   inter alia, the PTC;

   
   

3. Molise
   and other members of CODESA, all being the alleged co-conspirators,
   played a leading role in the operation;

   
   

4. PW1
   went to Penane's house after being summoned by Penane to do so.
   Although Penane's house was surrounded by armed police, Penane
   and
   Ramoeletsi managed to

   
   

5. leave
   the house separately;

   
   

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5. Thereafter
   Ramoeletsi was unlawfully apprehended and detained in a cell at the
   HMPS by members of the RLMP. After being detained
   for about six
   hours he broke out of the cell and escaped;

   
   

5. In
   the meantime Penane arrived at the MCCO where he attended a meeting
   with serving police officers in the office of Colonel Ngatane,
   the
   Commander: Central Region (PW5). Apart from Penane and Ngatane,
   other officers present included the deceased on count 2 and
   the
   complainants on counts 3, 4 and 5.

   
   

5. The
   MCCO and the nearby Police Headquarters ("the (PHQ") were
   invested by armed policemen who seized arms including
   a general
   purpose machine gun ("GPMG").

   
   

5. Lance
   Sergeant Lekhooe and two other armed policemen, all alleged
   co-conspirators, made their way into PW5's office. Lekhooe,
   who

   
   

11

was armed with an M16 automatic rifle, saluted in what was described
as a "mocking manner". He faced Penane, holding
his firearm
with both hands in a "ready" position and said that Penane
was wanted. Penane resisted, drew and fired a
9mm pistol and Lekhooe
fired a number of shots with his rifle;

9. As a
   result of the shots fired by Lekhooe, Penane and Chabeli were killed
   and the complainants on counts 3, 4 and 5 all sustained
   gunshot
   wounds;

   
   

9. Lekhooe
   was killed by shots fired by Penane;

   
   

9. The
   uprising collapsed and came to an end on the same day.

   
   

[8] It is
not disputed that the operation carried out by certain disaffected
members of the Police Force was obviously unlawful,
nor is it in
doubt that at least one of its purposes was to act against

12

Penane
and Ramoeletsi for the part they had played in dealing with the
teachers' strike. The Crown alleges that the appellant was
part of
the unlawful operation and that his role was that of driver of a
Combi motor vehicle which transported the conspirators,
including
Molise, to the HMPS, the MCCO and the PHQ. It is this aspect that I
now turn to consider.

[9] It
was in the early hours of the morning of 31 October, and while PW1
was on his way to Penane's house, that he saw a number
of armed
policemen in a PCR Combi vehicle parked next to the road. The
policemen were attired in brown operational uniform and
so were a
group of others who were leaning against a wall. PWl identified the
appellant as the driver of the stationary Combi.
According to the
witness the appellant was not in police uniform; he wore a woollen
hat and an overcoat which was unbuttoned. As
PWl drove past the
Combi, the appellant (who was close enough to PWl to recognise him)
gave a "thumbs up" gesture to
the other police officers.

13

The
occupants of the same Combi were soon thereafter deployed in an
attempt to surround Penane's home.

[10] On
his way from Penane's house, Ramoeletsi was apprehended by three
policemen and forced at gunpoint to drive to the HMPS where,
as
stated above, he was compelled to enter a cell, one of the main
perpetrators in this respect being Molise. Two further factors
are of
significance: the first is that before PW1 entered the HMPS building
and while in the parking area of that police station,
he observed the
Combi driven by the appellant enter a parking place at the HMPS. It
was, in PWl's words, "full of men".
One of them, an alleged
co­conspirator called Sergeant Leuta, alighted and told PW1 that
he was under arrest. The second factor
is that PW1 testified that
while he was being forced into the cell, the appellant was one of the
persons in the group who escorted
him although he, the appellant, was
"at the back".

14

[11] On
his arrival at PHQ at about 6 am, PW2 found that a number of armed
policemen from the PTC were present, one of whom directed
PW2 into a
hall with other senior officers. From the hall, PW2 observed the PCR
Combi come through the gates of the PHQ. Molise
and the appellant,
both in operational gear and armed with rifles, alighted from the
vehicle and spoke to other policemen near
the gate. They then
re-entered the Combi which drove off in the direction of MCCO after
which PW2 heard multiple gunshots coming
from that direction.

[12] PW3,
then a sergeant in the Band Unit also identified the appellant as the
driver of a Combi in which there were five or six
other members of
the RLMP including Molise, all armed and dressed in operational
uniform. It was the appellant, according to PW3,
who stopped the bus
in which PW3 was travelling to work and who persuaded PW3 to board
the Combi on the pretext that Lekhooe wanted
to meet him at the HMPS.
On his arrived at the HMPS, however, Lekhooe refused

15

to speak
to PW3 who went on his way to his work at PHQ and, after the
shooting, to the MCCO where he again saw Molise and the appellant.

[13] The
appellant's presence at MCCO, before the shooting commenced, was
confirmed by Colonel Ngatane, PW5, who testified that
the appellant
and a handful of other members of the Police Force, all in
operational dress, were close to the outside gate of the
MCCO on
PW5's arrival at the building. PW5 gave a detailed account of the
events in his office which led to the deaths of the two
deceased and
Lekhooe and the wounding of three other officers, which I have
recounted in brief in para [7] (f) to (j) above. After
the shooting,
and from the window of his office, PW5 saw Molise and a sergeant
Mosae, also a co-conspirator. The latter was armed
with a GPMG and,
according to PW5, was lying on the ground and "taking cover".

[14] PW6,
Colonel Monyeke, also noticed the appellant in operational uniform at
the MCCO when he, the witness, entered the gate
after the shooting.
It

16

should be
noted that earlier that day, and while PW5 was at Police Headquarters
("PHQ"), he was one of the officers who
was ordered to go
into a hall by a sergeant Senekane but he refused to do so.

[15] In
October 1995 PW7, then Brigadier Makoaba, was the Deputy Commissioner
of Police. He, too, saw the appellant at the MCCO
in the company of
others, as did PW8, Senior Inspector (then warrant Officer) Khuele
who testified that the appellant and others,
who were all dressed in
operational uniforms and carried rifles, were outside the MCCO
building when Lekhooe and others went into
the building and up the
stairs. Shortly thereafter she heard the sound of gunfire.

[16] Mr.
Hoeane, who appeared for the appellant at the trial and in this
Court, submitted before us that the Crown evidence fell
short of
establishing beyond reasonable doubt that the appellant was a
participant in the common purpose to commit any of the offences.
Save
to some extent in respect of

17

PW3,
counsel did not submit that the evidence of the Crown witnesses
should not have been accepted by the trial Court. He was correct
in
adopting this approach as the court a quo made positive and
justifiable findings of credibility in favour of the Crown witnesses,

including PW3, and rejected the evidence of the appellant for good
and sound reasons. I will refer to Mr Hoeane's submissions in
more
detail later in this judgment but it is appropriate to refer briefly
to some aspects of the appellant's evidence at this stage.

[17] The
appellant admitted driving the PCR Combi on the morning in question.
He said that, on the instructions of Molise, he had
conveyed members
of CODESA from their respective homes to attend a meeting with PW7 at
PHQ. For reasons which do not have to be
elaborated upon, however,
the appellant claimed that he did not attend the meeting but said
that he spent the day at work in his
office at the HMPS. He admitted
that the members of CODESA whom he had conveyed wore operational
uniforms and carried rifles and

18

eventually
conceded that Molise and the other members of Codesa were engaged in
a criminal enterprise on that day. For the rest
he persisted in his
contention that he played no other part in the unlawful operations
and that the Crown witnesses who had implicated
him had done so
falsely and for no apparent reason save, he said, in the case of PW7
who allegedly bore him ill-will. The alleged
reasons for the bias or
malice of PW7 are too improbable to warrant serious consideration.
However, in 1997 the appellant fled
Lesotho and was eventually
arrested in the Republic of South Africa and handed over to the
investigating officer, Senior Superintendent
Mofolo (PW9) at the
Caledonspoort Border Post.

[18] The
appellant's evidence was so improbable and contradictory that it is
not surprising that Mr. Hoeane did not challenge the
trial Court's
credibility findings on appeal. For this reason it is not necessary
to detail the respects in which his evidence
was obviously untruthful
but it is not without some significance that he corroborated

19

the Crown
version to the extent that he conceded that he did indeed drive armed
members of CODESA in the PCR Combi on 31 October
and that he knew
that Molise and others were involved in unlawful activities.

[19] On
appeal there was no dispute about the legal principles of common
purpose that are applicable in this matter. We are not
here concerned
with a common purpose that arose upon an impulse without prior
consultations or agreement but with a common purpose
arising out of
an agreement. As Corbett CJ pointed out in Magmoed v Janse Rensburg
and Other 1993 (1) SA 777 (A) at 810 H - I,
it is seldom that there
is direct evidence of such an agreement and that usually the Court is
asked to infer it from the proven
facts. The facts in this case show
that there were concentrations of armed members of the RLMP at key
and critical points - Penane's
home, the MCCO, PHQ and the HMPS; that
the persons concerned were dressed in operational uniform and that
their presence at the
aforesaid places as well as their attire and

20

weapons
were not only unauthorized but unlawful.

From
these facts it is not difficult to conclude that this was a
coordinated and pre-planned operation. It is also obvious from
the
evidence that the operation was under the leadership of Molise, who
was the most senior ranked police officer involved in the
unlawful
enterprise and there is no suggestion that the other policemen were
unwilling participants in the plot.

[20] What
were the aims and objectives of the participants in the operation? On
these matters, too, there is no direct evidence
but it is not
difficult to infer, from the proven facts, what the participants had
in mind. The obvious targets were Penane and
PW1. They were to be
apprehended and other senior members of the Police Force were to be
kept together in the hall at PHQ. It is
not known what would have
happened to PW1 had he not escaped, nor is it known what Penane's
fate would have been had he succumbed

21

to the
conspirators' demand. The intended victims, however, were to be
captured by means of force and by persons using loaded fire-arms.

That the use of force and possible shooting was contemplated is
obvious from the fact that all the participants were armed with

rifles and that threats were made to PW1. Moreover Penane was
confronted by Lekhooe who pointed an automatic firearm in his
direction
and PW1 was forced at gunpoint to drive to the HMPS. The
conspirators must have foreseen and by inference did foresee that
lire
arms would be used in the event of resistance, with fatal or
serious consequences. As Holmes JA stated in S v Malinga. and Others

1963 (1) SA 692 (A) at 695 "violence, firearms, and death are
ever an easy and sombre trinity".

[21] What
of the appellant's participation in the offences? Mr. Hoeane argued
that the Crown relied on the appellant's involvement
only to the
extent that he, the appellant, had driven armed policemen to the
places where the offences were committed; that there
was insufficient
evidence

22

that the
appellant was the driver as alleged by the Crown and that therefore
his participation in the conspiracy had not been proved.

[22]
Assuming from the moment that we are entitled to have regard only to
the accused as a driver, Mr. Hoeane's submissions are
not
sustainable. On PWl's evidence it is plain that he saw the appellant
as the driver of the stationary PCR Combi and that almost
immediately
thereafter men from the same Combi were deployed at Penane's house
and that at the HMPS PW1 again saw the PCR Combi
driven by the
appellant and noticed that it was occupied by armed men. In the
absence of an acceptable explanation by the appellant,
the inference
is irresistible that the appellant took his complement of policemen
to Penane's house and thereafter to the HMPS
where PW1 was held
captive.

[23]
Furthermore PW3's evidence, as reflected in par [12] above is quite
explicit. He identified the appellant not only as the driver
of the
Combi but

23

also as
the person who stopped the bus in which PW3 was a passenger and
conveyed him and others to the HMPS. Mr. Hoeane asked us
to disregard
PW3's evidence on the grounds that he was a single witness and that
his evidence was uncorroborated. This argument
is without merit. No
corroboration was required for PW3's evidence, despite the fact that
he was a single witness. His evidence
was accepted by the Court a quo
and that of the appellant rejected on this very aspect. It was not
submitted that the finding was
wrong or that it was based on a
misdirection or misconception of the evidence. To the contrary we are
quite satisfied that PW3's
evidence was acceptable and truthful in
all material respects. Counsel for the appellant was also incorrect
in submitting that
PW3's evidence was uncorroborated. To the extent
that the appellant was the driver of the Combi on the morning in
question was
confirmed by PW1 and PW2 and even, albeit to a lesser
extent, by the appellant himself.

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[24]
Finally Mr. Hoeane submitted that PW2's evidence to the effect that
the appellant drove Molise in the direction of the MCCO
before the
shooting at that place did not establish that the vehicle travelled
from PHQ directly to the MCCO. This argument is
also unacceptable. It
is clear from PW2's evidence that the shooting occurred at the MCCO
shortly after the Combi left PHQ; that
immediately after the shooting
Molise (the appellant's passenger) was seen at the MCCO by PW5, in
the company of Mosae who was
armed with the GPMG; that earlier that
morning PW5 & PW6 observed the appellant at the main gate of the
MCCO; that PW8 saw
the appellant at the gate of the MCCO shortly
before the shooting; and that PW7 saw him there after the violence
had erupted in
PW5's office. The combination of these facts, coupled
with the appellant's failure to furnish a credible explanation, lead
us to
the inevitable conclusion that the appellant did indeed drive
Molise to the MCCO before the shooting took place and that he must

have been in the vicinity of the gate when

25

the
violent encounter occurred inside the building.

[25] From
the aforegoing there is no doubt that the appellant performed an
important role in the operation, even if the evidence
against him is
confined to the fact that he drove the other conspirators to the
places referred to. But there is no need why we
should close our eyes
to other facts - that he was at the back of the group who directed
PW1 into the cell at the HMPS; that he
was clothed in operational
gear (save that when PW1 saw him, he was attired in civilian
clothes); that at least two witnesses -
PW2 and PW8 -testified that
he was armed with a rifle; and that he was part of the group of
conspirators at the material times
and the relevant places.

[26] When
all is said and done, it is abundantly clear that the appellant took
part in an unlawful operation which involved the
illegal and
unauthorized arrest and detention of two members of the RLMP. It is
equally obvious, given

26

the arms
carried by the conspirators, that he, as other participants in the
plot, foresaw the possibility that the intended victims
might resist
and that violence, in the form of shooting, would then result. The
appellant therefore foresaw the possibility of
death and injuries
during the course of the actions to achieve the unlawful objectives
of the operation. I have already alluded
to the fact that the
appellant played an active and significant role in furthering the
aforesaid aims and objectives of the operation
and, in the words of
the judgment in Mabaso and Another v Rex (1980 - 1984) LAC 256 at
258-9 following S v Madlala 1969 (2) SA
637 (A) at 640 he persisted
in his participation in the plan, reckless of the consequences. In
short, the appellant, with full
knowledge of the possible
consequences, played an important role in aiding the actual
perpetrators to achieve their unlawful objectives.
He was clearly
part of the common purpose to achieve the said objectives by
concerted action. The fact that he may not have been
one of the
active perpetrators is of no consequence.

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[26] In
the result, the appeal is dismissed and the conviction and sentence
confirmed.

L.S.
MELUNSKY

JUSTICE
OF APPEAL

I agree :

M.M.
RAMODIBEDI

JUSTICE/OF
APPEAL

I agree :

S.N.
PEETE

JUSTICE
OF APPEAL

Delivered
on the 4th day of April 2007

For the
Appellant : Mr. T. Hoeane

For the
Respondent: Mr R.A. Suhr