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 18th 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:
Having contravened section 17 (1) of Road Traffic Act 8 of 1981.
Having contravened section 113 (1) of Road Traffic Act No. 8 of 1981, and
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, 5th 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 1st 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 1st 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
