IN
THE HIGH COURT OF LESOTHO

HELD
AT MASERU CRI/A/24/2007

In
the matter between:

TEBOHO
MOLAPO Appellant

And

REX
Respondent

JUDGEMENT

Delivered
by the Honourable Mr. Justice T. E. Monapathi

On
the 18^th
day of February, 2009

1.
This is an appeal from the Magistrate’s Court of Leribe. The
Accused was charged with three (3) counts. They were as
follows:

1. 
   Having
   contravened section 17 (1) of Road
   Traffic Act 8 of 1981.

   
   

2. 
   Having
   contravened section 113 (1) of Road
   Traffic Act No. 8 of 1981,
   and

   
   

3. 
   Having
   contravened section 58 (f) Police
   Service Act No. 8 of 1981.

   
   

2. What
could have come out to cause confusion during argument was resolved
by reference to the Applicant’s grounds of appeal
themselves
which focused on the last count with which the Appellant was charged.

2.1 The
record showed that the Appellant pleaded guilty to count I and was
accordingly sentenced to M500.00 or five (5) months imprisonment,

which was wholly suspended for three (3) months on condition that
Accused should not commit any similar offence. In addition Accused

was convicted and sentenced to pay a fine of M3000.00 or 4 months
imprisonment with respect to count II after having not pleaded

guilty. It cannot therefore be that the Accused pleaded not guilty
and was acquitted.

2.3 Accused
pleaded not guilty to count III. It is to this count and count II
that evidence had to be led which resulted in those
convictions. Any
other impression given which contradicted these positions was
unfortunate and had no basis. There was however
a real source of
confusion and misunderstanding. It will be found in the inability to
reconcile the evidence proved and the relevant
charge as will be
shown later.

3. We
remain with the grounds of appeal, inelegant as they are, which say
that:

1

“The
Learned Magistrate erred in convicting the Appellant on Count III in
that the Appellant resisted a lawful arrest whereas Appellant

resisted being hand-cuffed but submitted to be detained by his own
word.”

2

The
Learned Magistrate erred in interpreting resisting to be handcuffed
as resisting arrest.

3

The
Learned Magistrate erred in convicting the Appellant with resisting
arrest even though Appellant was not charged with resisting
arrest.”

4. Before
dealing with the aspects of the evidence of Trooper Koneshe (PW1) and
that of Sergeant Mphatsoane (PW2), where it is necessary,
it is
useful to record the provision of section 58 (e) and 58 (f) of Police
Service Act No. 7 of 1998
which are as follows:

“58
Any person who:-

a)……

b)……

c)…….

d)…….

e) Resists
or obstructs a police officer in the execution of his duty;

f) Assaults
a police officer in the execution of his duty;

g)…..

h)…..

i)……

Shall
be guilty of an offence and shall be eligible to support for a term
not exceeding two (2) years or to a fine not exceeding
M1000.00 or to
both.”

4.2 The
evidence of the two, Crown witness shall be pertinent in considering
the findings of the learned magistrate.

4.3 There
was no doubt that the Accused was charged with contravening section 5
(1) not section 58 (e) of the above Act. For this
I refer to the
following:

a) Annexure
“A” to the charge sheet;

b) The
finding of the learned magistrate herself where she says:

“There
is no dispute that Accused’s head and that of Trooper Koneshe
clashed. Accused’s defence is that he did
not head but Trooper
Koneshe, but that their two heads clashed accidentally during the
course of the scuffle that took place in
that office.

Page
45,53 (s. 198) the story of the Accused is reasonably possibly true
that they clashed with Trooper Koneshe while the police
were
effecting arrest of which Accused was resisting. He is thus found
guilty of resisting arrest in terms of Section
198 of CP&E 1981.”

5. From
the learned magistrate’s conclusion above one would presume
that she believed the Crown’s version on the aspect
of the
Accused having resisted arrest.

6. Mr
Molapo for Accused however argued most vehemently that the court
would not have been entitled to find that, as a fact and
in law,
there had been resistance to arrest.

7. Having
referred to the four (4) essentials (pillars) of the basis for lawful
arrest which are that:

a) The
first is that arrest must have been properly authorized i.e. there
must be a statutory provision authorizing the arrest;

b) The
second is that the arrestor must exercise physical control over the
arrestee. He must hint the latter’s freedom of
movement.
Unless the arrestee submits to custody, an arrest is effected by
actually touching his person or, if the circumstances
so require, by
forcibly confusing his person;

c) The
third is informing the arrestee of the reason for his arrest;

d) The
fourth and last is that the arrestee must be taken to the appropriate
authority as soon as possible.

And
having referred to the work of Criminal
Procedure Hand- book,
5^th
edition, by J G Joubert at pages 95-96, the Appellant submitted as
follows:

7.1 The
arrest had been lawfully effected inasmuch as the arrestor had
prerequisite capacity and had informed the Accused the reason
for his
arrest and that the Accused was lawfully in custody.

7.2 What
is disputed is whether by refusing to be handcuffed the Appellant was
resisting arrest. For this Accused contended that
on the facts it was
clear and undisputed that he had already submitted to the custody
(control) by word and action but the arrestor
had insisted on
handcuffing which the Accused believed would lead to an assault which
in fact later took place.

7.3 Finally
as submitted, that the court a
quo
had erred in interpreting the refusal to be handcuffed to mean or to
indicate resisting arrest inasmuch as Appellant had already
submitted
to custody or control.

8. The
brief story of Trooper Koneshe was that following an arrangement
earlier in the day, in which it transpired that the Accused’s

driving license had been taken the Accused asked him if there was
anyone at the office who could assist Accused to get back his

license. Koneshe agreed.

9. Accused
was found by Koneshe. Later at 17:00 hrs Sergeant Mphatsoane called
Koneshe with Accused. Koneshe was to mediate.
Apparently there was
some understanding about certain issues. The Accused had wanted to
leave without being authorized by anyone.

9.1 What
is on the record is as follows:

“Sergeant
Mphatsoane fired to stop him from leaving. The Accused “o ile
a itseka a ithutlolla” shrugged himself off.
I got up from
the chair to try and help Sergeant Mphatsoane. The Accused bumped me
with his head. I fell to the floor.

The
Accused had bumped me under the left eye, if I remember correctly, I
got up and helped Sergeant Mphatsoane to handcuff the
Accused. I
completed a detention form and the Accused was detained.

On
the 1^st
January 2007 I had told the Accused to park the car by the roadside.
This is when I had arrested him and was about to impound
his vehicle.
I did not permit him to leave that place.

When
he was already detained, I cautioned him and gave him a charge of
“not obeying police instruction.” Sergeant Mphatsoane

and I were the only two to arrest the Accused.”

The
impression that I got quite distinctly is that only on the following
day at 14:00 hrs is when the Accused on his own volition
went to ask
for his license. On the 1^st
January 2007 he could have been arrested. See the particulars to the
charge.

10. The
version of PW3 Sergeant Mphatsoane is consistent with that of PW1 and
PW2 Sergeant Morakabi particularly that it was Accused
who reported
looking for his license. The witness said:

“Sergeant
Mphatsoane tried to mediate by asking what had happened on the road.
We explained to him. I instructed Trooper Koneshe
to arrest the
Accused and take him to cell. I felt someone pulling at my clothes.
When I turned around, I found that it was the
Accused who was pulling
at my clothes. It was when Trooper Koneshe was attempting to
handcuffed him.

Sergeant
Mphatsoane stood up in order to assist Trooper Koneshe. They removed
him from me and the Accused bumped into PW1 with
his head. They
constrained the Accused and then handcuffed him and the I left. “

9.3 Again
quite distinctly while Accused may initially have refused to be
handcuffed he was ultimately overcome and locked up.
How did he
resist arrest? Supposing he had had he been cautioned and had he
been charged? Where do we see this on the record?
That is, most
specifically, the court a
quo
does not make any finding on this aspect except to conclude that
Accused was overcome and brought under control and arrested.
And
that all Accused did by refusing to be handcuffed was either
assaulting police officer failing which he resisted arrest as
the
court ultimately concluded. In my opinion it did not necessary mean
that the arrest was lawful merely because the Accused
was subjugated
or agreed to be arrested or succumbed and nothing more. That is the
last question on the facts. On principle is
the conclusion by the
presiding officer valid?

10. How
competent is the verdict? The question for consideration here is
whether the offence of resisting or obstructing a police
officer in
the execution of his duty is a competent verdict to the charge of
assaulting a police officer while executing his duty.
Both offences
are provided for in section 58 (g) and 58 (f) respectively, of the
Police
Service Act No. 8 of 1998
(hereinafter the statute). The learned Magistrate found it to be a
competent verdict and accordingly convicted the accused relying
on
section 198 of the Criminal
Procedure and Evidence Act
(the CP&E). The question for consideration then is how competent
is the verdict? The Accused is challenging his conviction
on that
score.

11. In
convicting the Accused the Learned Magistrate had this to say (at
page 31 of the record):

“There
is no dispute that Accused’s head and that of Trooper Koneshe
clashed, but that there two heads clashed accidentally
during the
course of the scuffle that took place in the office. The story of he
Accused is reasonably possibly true that they
clashed with Trooper
Koneshe while the police were effecting arrest of which Accused was
resisting. He is thus found guilty of
resisting arrest in terms of
section 198 of CP&E of 1981.”

It
is quite fitting first to examine section 198 f the CP&E. It
provides thus:

“If
the evidence on a charge for any offence does not prove the
commission of the offence so charged but proves the commission an

offence which by reason of the essential elements of that offence is
included in the offence so charged, the Accused may be found
guilty
of the offence so proved.”

It
is trite that the spirit of the above section is to prevent
prosecutions from ending in futility.

12. The
effect of section 198 is therefore that if the main charge is proved,
an accused person should be convicted thereof and
no resort may be
taken to the provisions of this section. All these are introduced by
the word; “if the evidence …”
See S
v Mmolawa 1979
(2)
SA 644.
It is common cause that in the case at hand the main charge (that of
assaulting a police officer while executing his duty) was
not proved
beyond reasonable doubt hence reliance on section 198 of the CP&E
by the learned Magistrate in convicting the Accused
on what he felt
was a competent verdict, namely that of resisting or obstructing the
police officer in execution of his duty.

13. It
should be noted that conviction made on the basis of section 198,
should leave no doubt that all the essential elements of
the lesser
offence of which it is sought to convict the Accused, were included
in the offence actually charged. What this means
is that the
competent verdict must be a ‘species’ of the main charge.
In the instant case I do not believe that the
offence of resisting
or obstructing the police officer in execution of his duty can be
described as a ‘species’ or
competent verdict to the
offence of assaulting a police officer while executing his duty.
Both offences, in my view, are independent
in their own right and
require independent defences, all the essential elements of another
are not necessarily included in that
of other. For instance, it is
not unlawful to resist every arrest, unlawful arrest could be
resisted and the evidence would be
needed to show whether the alleged
resisted arrest was lawful, if we were to take that. The Legislature
in its own wisdom even
put those two offences separately in the
statute. It therefore follows that the Accused might have wished to
conduct his defence
to this offence had he been independently charged
with it.

14. I
accordingly find that the Accused was erroneously convicted by the
learned Magistrate and the Accused is therefore acquitted
on count 3.
Once this finding is made that the offence that the Accused was
convicted of did not constitute a competent verdict,
it would
therefore be moot to consider whether the principles governing
competent verdicts were correctly applied in this matter.
The matter
ends here.

The
appeal therefore succeeds.

------------------------------

T.
E. Monapathi

Judge

For
Crown : Miss Mokitimi

For
Accused : Mr. L. Molapo