R v Molapo (CRI/T/1/1997 ) (CRI/T/1/1997) [1988] LSCA 57 (12 June 1998);

Group

Full judgment

CRI/T/1/1997

IN THE
HIGH COURT OF LESOTHO

In the
matter between

REX

and

LEPOQO
SEOEHLA MOLAPO Accused

JUDGMENT

Delivered
by the Honourable Mr, Justice MM. Ramodibedi On the 12th day of June
1998

The
accused and three (3) others namely Matsoso John Bolofo, Lelingoana
David Jonathan and Makara Sekautu have appeared before me
charged
with high treason, alternatively sedition and further in the
alternative with contravention of Section 7 of the Internal
Security
(General) Act No. 24 of 1984 (Internal Security Act), The whole
charge which is quite formidable indeed reads as follows:

"Count I - High Treason

That the said accused are guilty of High Treason in that:

WHEREAS
during the whole period covered by this indictment all the said
accused owed allegiance to the Kingdom of Lesotho (hereinafter

referred to as the State) upon or about the dates and at or the
places hereinafter set out, the said accused, each or the other
or
all of them, despite such allegiance, did unlawfully and with hostile
intent and with the intention of coercing by force or
overthrowing
the government of the State commit one or more or all of the
following hostile acts:-

A. On or about the 9th day of January, 1996, at Old Europa, in the
Maseru Reserve, district of Maseru, the second, third and fourth

accused did unlawfully combine and conspire with one another and with
other persons to make preparations for the overthrow of the

government of the State and did at the meeting they held on or about
the 9th January, 1996 aforesaid decide that they were going
to
announce the overthrow of the government over Radio Lesotho on the
10th January, 1996 and thereafter take control of the government.

B. Pursuant to and in furtherance of such conspiracy -

(i) Accused No.2 and accused No.4 were assigned to meet an army offer
known to them who would facilitate the accused's contemplated

objective of

overthrowing the government

(ii) Having failed to get assurance that they (accused No.2, No.3 and
No.4) would be provided with secure transport and access
to Radio
Lesotho premises on the 10th January, 1996, the said 3 accused and
their co-conspirators decided to abandon proceeding
with their
intention to overthrow government on the 10th January,1996. They
decided ton defer carrying out their intended objective
of
overthrowing government to some other day.

(iii) Accused No.1, No.2 No.3 and No.4 subsequently met at
Lithabaneng on or about the 3rd February, 1996 to decide on how to
approach the commander of the Lesotho Defence (LDF) with a view to
soliciting his support for the accused's intended objective of

overthrowing the government. Accused No.1 agreed to approach the
commander of LDF with a view to asking him to support them in
their
intended objective.

(iv) Accused No.1 some time in February, 1996 (the exact date to the
prosecutor unknown) approached the commander of LDF and the
director
of the

National Security Service (NSS) to ask for their assistance and
cooperation so as to ensure that their conspiracy succeeded.

(v) Accused No.1, No.2, No.3, No.4 and other co-conspirators met at
Maseru on the 29th February, 1996 to make final preparations

concerning the making of the announcement of the overthrow of the
government over Radio Lesotho.

C. Pursuant to and in furtherance of the conspiracy, accused No. 1
and No.2 together with another conspirator proceeded to the
Radio
Lesotho premises on the 29th February, 1996, where they gained entry
to the studio rooms; held the workers at Radio Lesotho
captive by
force so as to enable accused No.1 to announce, without hindrance or
interference the overthrow of the government.

D. Pursuant to and in furtherance the conspiracy, (sic) while
accused No.2 held the workers of Radio Lesotho confined in a room,

accused No. 1 broadcast over Radio Lesotho that int he name of
leaders of political parties, traditional leaders and the Basotho

nation he had dissolved government and parliament; that he had
suspended the 1993 Constitution of Lesotho; that he was asking for

good

cooperation from government departments; and that government
departments should await further announcements from time to time.

Alternatively
Count 2 - Sedition

That the accused are guilty of the crime of Sedition.

In that, upon or about the 28th day of February, 1996, and at or near
Maseru, in the district of Maseru, the said accused, each
or the
other or all of them, did unlawfully and with seditious intent
participate in a gathering of a number of people which gathering
had
intent unlawfully to defy and subvert the authority of the Government
of the Kingdom of Lesotho and making an unauthorised
broadcast over
Radio Lesotho that His Majesty's Government, the Government of the
Kingdom , had been destabilising the country
and undermining peace
since the 1993 general elections:-

By
causing disunity and dissention in the army, the police and prison
warders, resulting in deaths of Basotho children, and also

humiliating these forces in the National Assembly.

By
illegally bringing into the country dangerous weapons of was through
some of the parliamentarians.

By
parliamentarians misusing public funds for the benefits of the
Basotoland Congress Party (BOP)

By
inviting foreign armies to come and attack and dissolve the lawfully
constituted army of the Kingdom of Lesotho and therefore
(the
Goverment thereby subverting the Constitution (1993 Constitution of
Lesotho).

By
causing disaffection among teachers' organizations and causing
disunity among churches and also by not resolving the impasse

concerning teachers salaries whereas Government continued to pay
parliamentarians who had run away from the country.

By
embarking on registration of voters for the 1998 general elections
without any consultations with political parties.

By
deliberately and maliciously ignoring constituting a commission of
enquiry into the death of His Majesty King Moshoeshoe II.

Pursuant
to and in furtherance of a conspiracy to defy and subvert

the
authority of the Government of the Kingdom accused further announced
that as a consequence of of (sic) the aforesaid accusations
which
they had levelled against the Government of the Kingdom of the
Kingdom, (sic) they had dissolved the Government and the Parliament

of the Kingdom; they announced further they had suspended the 1993
Constitution of Lesotho; they further asked for cooperation
from the
armed (security) forces so that their takeover of the Government
could proceed smoothly and peacefully, and lastly they
announced that
they sought cooperation from all Government departments and that such
Government departments should await further
announcements from time
to time.

Alternatively

Count 3 -
Contravention of Section 7 of the Internal Security (General) Act,
No.24 of 1984 (Internal Security Act).

That the
accused are guilty of contravening section 7 of the Internal Security
Act

In that,
upon or about the 28th or the 29th of February, 1996, and at or near
Maseru, the accused, did unlawfully and with subversive
intent make
an announcement over Radio Lesotho that

was
intended:

to
prejudice public order and/or the security of Lesotho; and/or

counselling
defiance to the law or lawful authority; and/or

Undermine
or overthrow or cause the downfall of the Government,

by
announcing that they had dissolved the Government and the Parliament
of Lesotho; announcing that they had suspended the 1993
Constitution
of Lesotho; calling upon the security (armed) forces to cooperate
with them and support them in their purported takeover
of Government
other than by constitutional means; and seeking cooperation from all
government departments in order to ensure that
their proclaimed
unlawful and constitional (sic) takeover of government succeeded.

Alternatively

Court 4 -
Kidnapping

That the
accused are guilty of Kidnapping

In that,
upon or about the 28th or 29th February, 1996, and at or near Maseru
in the district of Maseru, the said accused, did unlawfully
and
intentionally deprive a number of Radio Lesotho employees, all of
them adults, of their liberty by holding them

captive
by force in a room at Radio Lesotho premises where they remained
until they were subsequently freed by the security forces."

I should
mention that after the charge had been read to them the present
accused pleaded not guilty while his co-accused pleaded
guilty to the
crime of sedition. The latter plea was accepted by the Learned
Director of Public Prosecutions Mr. Mdhluli hence
a separation of
trials was ordered.

I turn
then to the facts of the case as they relate to the accused in the
aforesaid charge of high treason alternatively sedition
and further
alternatively Contravention of Section 7 of the Internal Security Act
1984.

The Crown
called 9 witnesses namely PW1 Masupha Molapo, PW2 Lennox Ntente
Sesioaoa, PW3 Francis Ramatona Maseela, PW4 'Maliketso
Nathaha
Masupha, PW5 'Mamosili Ntene, PW6 Tefo 'Musi, PW7 Basia Maraisane,
PW8 Thabiso Sephelane and PW9 Private No. 7680 Rasupu.

PW1
Masupha Molapo gave evidence as an accomplice. It was his evidence
that he knows the accused. They worked together at Fahhida
Cash and
Carry in Maseru. The witness was both supervisor and security
officer. The accused was also engaged in security work as
well as
other jobs. He has known the accused for more than twenty (20 years.
In fact they are related to one another by birth.
Indeed this is
common cause. They have been on good terms adding "we never
fight." Once more there is no dispute about
this.

PW1
confirmed that he knows the co-accused in the matter adding "I
had an association with these men." He admits that
he was
involved in politics sometime in 1996 up to February of the same
year. He belongs to a political party called the Basotho
National
Party (BNP). As a member of the BNP he came to know one Makara
Sekautu (one of the co-accused). The latter once arrived
at the
witness's work place at Fahhida Cash and Carry in 1996. The witness
received a report from the accused that Makara Sekautu
would like to
see them both concerning some "serious news" which he
wanted to tell them. He is indeed unchallenged on
this version.

According
to PW1 this Makara Sekautu belonged to and was a leader of a certain
small political party "although he used to attend
our BNP
rallies."

It is the
evidence of PW1 that he and the accused ultimately met Makara Sekautu
at Old Europa at the home of one Khethisa per arrangement.
The
accused was present and in fact he walked in the company of PW1 to
this place.

PW1 and
the accused waited at Khethisa's home until Makara Sekautu arrived
alone. He was on foot.

Makara
Sekautu then left both PW1 and the accused saying he was going to
fetch other people. On his return he was accompanied by
PW2 Lennox
Ntente Sesioana.

It is
PW1's evidence that "Lelingoa (one of the co-accused) arrived at
long last." He already knew Lelingoana because
they had worked
together as soldiers at RLDF (Royal Lesotho Defence Force). Under
cross examination PW1 told the Court that he
rose to the rank of
corporal in the army.

According
to PW1 those present at the meeting in question including the accused
were all participating in the discussions although
he can't recall
the exact words expressed by each of them. They however showed that
they had problems concerning transport and
so they failed to go to
Radio Lesotho adding "our desire in going to Radio Lesotho was
to go and topple the Government."
He was learning about the
objective to topple the Government for the first time at this
meeting.

PW1
testifies that the whole scheme aborted that day because there was no
transport and the person who was to be a crucial link
in the scheme
had not yet turned up.

PW1
continues that after a couple of days Makara Sekautu came back to the
place where the witness and the accused worked.

He wanted
to meet them again. They all agreed that they would go and meet at
the accused's place at Lithabaneng. The accused was
present when this
agreement was made. Indeed when the date of the meeting arrived the
following people met at the accused's place
namely;

the
accused

Matsoso
Bolofo

Makara
Sekautu

Lelingoana
and

Sesioana
(PW2).

PW1 was
meeting Matsoso Bolofo for the first time at this meeting. He was
introduced to the latter by Makara Sekautu. As he had
arrived late at
the meeting he was then shows a draft or plan showing that" we
should proceed with our mission of toppling
the Government." It
also showed the portfolios each would occupy. There would be
Councillors who would be above ministers
of Government. Other
political leaders would be ministers.

According
to PW1 the next meeting was scheduled for February 1996. He however,
did not attend because "they (the conspirators)
had fooled us
for quite a long time by not fulfilling their mission."
Nevertheless the accused informed him while they were
on duty that
the meeting in question was duly conducted "and that they had
chosen the 29th February 1996 being the date on
which the BNP members
would be holding a rally (pitso)." The witness did attend this
rally on that day. It is his evidence
that they (the conspirators)
had agreed that they would start at the rally and from there they
would proceed to Radio Lesotho.
According to him these people (the
conspirators) included the accused and PW2.

PW1
further testifies that he knows PW3 Francis Ramatona Maseela

who was
his co-worker. The latter once arrived at a meeting held at
Lithabaneng in 1996. Present were the witness himself the accused,

Makara Sekautu, Matsoso Bolofo and Lelingoana. As PW3 heard the
discussions going on he warned the participants to stop that
"business
of toppling the Government."

As
earlier stated PW1 attended the BMP rally on the 29th February 1996.
He went to where Matsoso Bolofo's vehicle was parked. He
found the
latter with the accused. Makara Sekautu was also present. PW1
inquired why they were not proceeding to the rally itself
to which
Matsoso Bolofo replied that they were still writing down their
discussions. PW1 then proceeded to the rally.

After the
rally had dispersed there was a procession leading to the National
Assembly. It was here that PW1 found Matsoso Bolofo,
PW2, Lelingoana
and the accused. They were outside the gate "opposite Radio
Lesotho gate." A certain lady approached
them from Radio Lesotho
premises. She was met by Matsoso Bolofo and Lelingoana. After a short
discussion the two gentlemen went
together with the lady inside Radio
Lesotho followed by the rest of the party. It is PW1's evidence that
"the accused was
present also." PW1, however remained at
the gate where there was a radio playing.

Whilst
listening to the radio PW1 realised that "the person reading 1
o'clock news stopped. The national anthem was then sung."

Thereafter Matsoso Bolofo "announced what was written on that
document concerning

the
toppling of the Government." After the reading of the "news"
PW1 left

PW1 is
adamant that their intention was to go and announce that they had
toppled the Government. This was per agreement of the conspirators

including the accused. In fact the latter had told him "the
decision was that at midday at 1 o'clock our announcement was
going
to be read over Radio Lesotho - the news over the toppling of the
Government and that members from the defence force and
the police
would arrive to protect us" adding "this is what I got from
the accused "

It is
PW1's evidence that after Matsoso Bolofo had read the announcement
over Radio Lesotho he (PW1) remarked saying "yes they
have
succeeded!"

Asked
what the attitude of the accused was during the discussions to topple
the Government PW1 told the Court that all the people
who were there
were happy about "the discussion that we were going to topple
the Government."

PW1 was
"amazed" by the "simple way of toppling the Government
unarmed." Although they had not decided on who
would assume the
chairmanship of the Councillors between Matsoso Bolofo and Makara
Sekautu he thought that anyone of the two would
well be one since he
had seen the soldiers do the same job which is not difficult.
According to PW1 the accused was going to be
one of the Councillors.

It is
further the evidence of PW1 that he had been informed by the accused
that approaches had been made to the armed forces.

Under
cross examination PW1 told the Court that he left the army in 1984.
He insisted that Makara Sekautu met the accused first
and the latter
told him that he (Makara Sekautu) was present outside.

He denied
that he and the accused had already planned to go to Khethisa's place
whether or not Makara Sekautu came adding "the
accused went
there because we told Sekautu the nearest place he would find us was
at that place." He told the latter how to
get there. He agrees
it was "a common thing to visit Khethisa's place."

PW1 had
not asked Makara Sekautu what the meeting at Khethisa's place was
about because he knew that he was a politician. He thought
his
mission was based on politics. They used to be with him in BNP
rallies and he (Makara Sekautu) used to be given a chance to
speak.

According
to PW1 they did meet at Khethisa's place in the evening. Makara
Sekautu arrived with Sesioana (PW2) and Lelingoana. He
adds "their
statement was that at dawn we are going to Radio Lesotho and announce
we had toppled the Government." It
is Makara Sekautu who made
the statement.

PW1
remembers asking Makara Sekautu how they would get to Radio Lesotho
since there was no transport and further how was it he couldn't
come

with "one
of those who would support us." Makara Sekautu then left with
Lelingoana to go and look for transport "and
to come with one of
those people who would assist us."

It is the
evidence of PW1 that for the first time he wanted Makara Sekautu to
come with one member of the armed forces. His agreement
to become
part of the conspiracy would have been conditional on such a person
being available as well as transport.

Asked
whether the accused agreed to the conspiracy PW1 told the Court that
he cannot be sure whether he agreed or not because he
(PW1) left due
to the fact that transport was not available.

Mr.
Phoofolo for the accused then put the following questions to PW1:

"Q: Would you agree you didn't agree (with the conspiracy)
because you saw this as a childish plan?

A: I didn't regard it "as childish" as you say.

Q: Did you regard it as safe?

A: I regarded it as something that can be done if there is transport.
We had been told that there would be transport.It was safe
if there
was transport."

It was
then put to PW1:

"Q: The accused says he disagreed to be a party to that because
amongst other things it was childish.

A: I didn't know how he regarded it."

PW1
agreed with Mr. Phoofolo for the accused that Sekautu, Lelingoana and
Sesioana (PW2) arrived at Khethisa's place finding both
PW1 and the
accused already there. He denies the suggestion that the accused did
not expect those other people at Khethisa's place.
The accused was
expecting Makara Sekautu there since they were going to meet at that
place He admits that the accused was seeing
Sesioana (PW2) for the
first time there.

PW1
further agreed with Mr. Phoofolo for the accused that the latter knew
Makara Sekautu and Lelingoana. PW1 was then asked the
following
revealing questions by Mr. Phoofolo:

"Q: And Sekautu opened (the meeting) by saying they had met some
political leaders.

A: I can't recall all what was discussed that day. I have remembered
all that I have said today. Perhaps it is what was said at
the
discussion.

Q: He went further to say he was here in their name - in the name of
the leaders of the political parties?

A: I don't remember him saying that on that day.

Q: The political leaders and himself had decided that this Government
be overthrown.

A: In my imagination he never spoke of political leaders except
himself concerning the matter of toppling theGovernment.

Q: And that he was in this regard asking you to play the part of
going to the Radio Lesotho with them to make the announcement.

A: Yes he said so. Q: He (the accused) will tell his Lordship that he
formed an impression that there had already been a conspiracy
andyou
were just being coopted.

A: Yes that is so. Q: He (Makara Sekautu) said he wanted the
announcement to be made that night or at dawn. A: I know at dawn."

It was
then suggested that both PW1 and the accused immediately refused to
be part of the conspiracy to which PW1 replied "I
remember quite
well I refused." He cannot remember exactly what the accused
said because each and everyone was speaking.

The
following questions were then put to PW1 by Mr. Phoofolo :

"Q: He (the accused) says he refused to be a party to this thing
that he thought was foolish. A: But he did not tell me.

Q: He says he refused for other reasons that he was, fully aware that
in the light of democratic dispensation and support of neighbouring

countries to Lesotho against overthrowing of governments that will
never work.

A: But we ended up going to Radio Lesotho.

Q: He will say he believes in democracy - democratically elected
government.

A: But we did go with him to the Radio. I didn't hear him say he
believed in democracy."

PW1
testified further under cross examination that he himself believes in
democracy. He was then asked the inevitable question:

"Q: If you believe in democracy what was pushing you to attempt
overthrowing of the Government?

A: It's because this democratically elected Government belongs to BCP
so I belong to BNP. As a member of BNP I did not like BCP

Government."

He
elaborated further that because he is a member of the BNP party it
was easy for him to agree when it was said they must go and
topple
the BCP Government.

Asked
what the accused's reason for toppling the government was PW1 replied
that the accused and himself belong to the same party.
He however

cannot
recall the latter's exact words, adding "but we agreed to those
people when they mentioned their mission of toppling
the BCP
Government." By "we" he meant himself and the accused.
One of the reasons mentioned by the accused for toppling
the
Government "was that he said there was no justice in the ruling
Government."

Pressed
further to say in what way was there no justice PW1 replied that he
did not ask many questions "because I was not against
this
mission." He didn't regard the mission of toppling the
Government as dangerous according to the explanation by Makara

Sekautu to the effect that he had assistance from both the armed
forces and the police adding "that made me to believe or
agree."

At the
meeting at accused's place PW1 was shown a written document "that
showed our positions when we had succeeded overthrowing
the
Government." It is Matsoso Bolofo who gave him the paper.

Mr.
Phoofolo then significantly put the following question to PW1:

"Q: The accused will say that at the very first meeting at
Khethisa's place Makara Sekautu mentioned a Government of National

Unity by all parties.

A: I said because this happened a long time ago I cannot recall
exactly what was said by Sekautu in this regard.

Q: He will say there was no question of a thing called

Councillors. A: It was discussed in the second meeting:"

PW1
further testified under cross examination that the accused accepted
the position of a Councillor even encouraging the witness
himself to
accept that position as well.

The
accused did not raise any query. Significantly PW1 was not challenged
on this damning evidence.

After the
meeting at Old Europa PW1 and the accused met Makara Sekautu at the
former's work at Fahhida Cash and Carry. The three
of them agreed to
go and meet at the accused's home at Lithabaneng on the following
Sunday. Indeed it is not seriously disputed
that the parties did meet
on the day in question at the accused's home at Lithabaneng.

PW1
categorically denied that at any meetings that were held there was
any discussion to approach the Major General for his support
in the
proposed overthrowing of the Government. The witness recalls about
three (3) such meetings. He certainly did not attend
the last meeting
which according to the defence was the fifth meeting.

PW1 is
adamant that the day on which they went to announce the overthrow of
the Government over Radio Lesotho had been chosen at
the meetings
adding "that day was fulfilment day. The plans were already made
when we proceeded to Radio Lesotho." The
issue of the overthrow
of the Government was discussed in all the meetings. Indeed he is
unchallenged on

his
version that the agenda at all the meetings held was to go to Radio
Lesotho and announce the overthrow of the Government.

It was
put to PW1 by Mr. Phoofolo whether he got to know what was discussed
at the last meeting which the witness did not attend.
This question
elicited the following answer:

"Although not all I was informed by accused it was when he told
me about the chosen date on which to proceed to Radio Lesotho
to
announce that we had overthrown the Government." The date in
question was the 29th February 1996.

It is PW1's evidence that he met the accused with Makara Sekautu, PW2
and Matsoso Bolofo at the BNP rally at 'Manthabiseng on the
29th
February 1996. PW1 found them in the latter's motor vehicle. He left
them there and went to the rally. They told PW1 he would
find them at
Radio Lesotho after the rally and the subsequent procession to the
National Assembly adding "I would leave the
procession and go to
Radio Lesotho."

Mr.
Phoofolo then put the following questions to PW1 which clearly
suggest that it is not seriously disputed that the accused did
get to
Radio Lesotho although he alleges it was after the announcement to
topple the Government:

"Q: The accused will say he didn't go to Radio Lesotho with

Lelingoana, Bolofo and yourself. A: I found them in Radio Lesotho. Q:
He will say that he only got to Radio Lesotho after the reading
of
the announcement by Bolofo over the radio. A: I found accused at
Radio Lesotho before the announcement could be made."

The
meeting at Old Europa was finally conceded by Mr. Phoofolo in the
following question he put to PW1:

"Q: Finally the accused will inform his Lordship that he was
present at the meeting held at Old Europa. A: He will be telling
the
truth."

The
meeting at the accused's home at Lithabaneng was also conceded by the
defence under cross examination.

I pause
here to examine the legal principles involved in the evidence of an
accomplice. In R v Ncanana 1948 S.A. 399 AD at 405-6
Schreiner JA
stated the principle in the following words:

"The
cautious Court or jury will often properly acquit in the absence of
other evidence connecting the accused with the crime,
but no rule of
law or practice requires it to do so. What is required is that the
trier of fact should warn himself or, if the
trier

is a jury, that it should be warned, of the special danger of
convicting on the evidence of an accomplice; for an accomplice is
not
merely a witness with a possible motive to tell lies about an
innocent accused but is such a witness peculiarly equipped, by
reason
of his inside knowledge of the crime, to convince the unwary that his
lies are the truth. This special danger is not met
by corroborate on
of the accomplice in material respects not implicating the accused,
or by proof aliunde that the crime charged
was committed by someone;
so that satisfaction of the requirements of sec. 285 does not
sufficiently protect the accused against
the risk of false
incrimination by an accomplice. The risk that he may be convicted
wrongly although sec. 285 has been satisfied
will be reduced, and in
the most satisfactory way, if there is corroboration implicating the
accused. But it will also be reduced
if the accused shows himself to
be a lying witness or if he does not give evidence to contradict or
explain that of the accomplice.
And it will also be reduced, even in
the absence of these features, if the trier of fact understands the
peculiar danger inherent
in accomplice evidence and appreciates that
acceptance of the accomplice and rejection of the accused is, in such
circumstances,
only permissible where the merits of the former as a
witness and the demerits of the latter are beyond question."

Indeed
Holmes JA expressed himself in the same vein in S v Hlapezula and
others 1965 (4) S.A. 439 at 440 when he stated as follows:

"It is well settled that the testimony of an accomplice requires
particular scrutiny because of the cumulative efect of the
following
factors. First, he is a self-confessed criminal. Second, various
considerations may lead him falsely to implicate the
accused, for
example, a desire to shield a culprit or, particularly where he has
not been sentenced, the hope of clemency. Third,
by reason of his
inside knowledge, he has a deceptive facility for convincing
description - his only fiction being the substitution
of the accused
for the culprit. Accordingly, even where sec. 257 of the Code has
been satisfied, there has grown up a cautionary
rule of practice
requiring (a) recognition by the trial Court of the foregoing
dangers, and (b) the safeguard of some factor reducing
the risk of a
wrong conviction, such as corroboration implicating the accused in
the commission of the offence, or the absence
of gainsaying evidence
from him, or his mendacity as a witness, or the implication by the
accomplice of someone near and dear to
him; see in particular R. V.
Ncanana, 1948 (4) S.A. 399 (AD.) At pp. 405-6; R.v. Gumede, 1949 (3)
S.A. 749 (A.D.) at p. 758; R.
V. Nqamtweni and Another, 1959 (1) S.A.
894 (A.D.) At pp. 897G-898D. Satisfaction of the cautionary rule does
not necessarily warrant
a conviction, for the ultimate requirement is
proof beyond reasonable doubt, and this depends upon an appraisal of
all the evidence
and the degree of the safeguard aforementioned."

I am in
respectful agreement with the principles as stated by the Learned
judges of appeal. I have borne them in mind in dealing
with this
matter. In particular I consider that the fact that PW1 is related to
the accused by birth and that they are obviously
on good terms as
well as the fact that he was not seriously challenged in material
respects go a long way towards reducing the
dangers inherent in the
evidence of accomplice witness PW1.

The Crown
relies upon the evidence of PW2 Lennox Ntente Sesioana as providing
corroboration to the evidence of PWL Since PW2 is
himself also an
accomplice I shall bear the above mentioned cautionary rule as
enunciated by the learned Judges of appeal in approaching
his
evidence as well.

Mr.
Phoofolo relies heavily on the following passage by Schriner JA in
Lethola and others v R 1963-66 HCTLR 12 at 16:

"A plurality of accomplices does not in itself constitute
corroboration for the purpose of the cautionary rule, since several

accomplices are just as likely as one to implicate innocent persons
falsely. But such a plurality provides material for checking

truthfulness and may in some cases be important"

While I
agree with the principle stated in this passage I do not however
understand the passage to mean that there can be no corroborative

evidence of an accomplice from another accomplice. The law as I have
always perceived it to be is that there is no rule of law
that
prevents a Court from

finding
corroboration in the evidence of another accomplice. In this regard I
respectfully agree with the following remarks of Botha
JA in S v Avon
Bottele Store (Pty) Ltd. And others 1963 (2) S.A. 389 at 393:

"The independent testimony of an accomplice is competent
evidence, and I can see no reason why corroboration of one accomplice

by another implicating the accused cannot, if the latter is reliable,
reduce the risk of false incrimination. Whether or not that
risk has
been satisfactorily reduced will obviously depend on the
circumstances."

This view
was adopted with approval by Holmes JA in S v Hlapezula and others
(supra) at 440 in the following words:

"Where corroborative evidence implicating the accused in the
commission of the crime is given by another accomplice, the latter's

evidence, if regarded as reliable, may, depending on the
circumstances, satisfactorily reduce the risk of a wrong conviction.
This was the view of Botha JA giving the judgment of this Court in S
v Avon Bottle Store (Pty) Ltd. and others 1963 (2) S.A. 389
A.D. at
p. 393 H and I agree with it."

1 should
add for completeness that in terms of Section 239 of the Criminal
Procedure and Evidence Act 1981 it is perfectly competent
for any
Court to convict on the single evidence of any accomplice provided
the

commission
of the offence has been proved by evidence aliunde. The Section
reads:

"239 Any Court may convict any person of any offence alleged
against him in the charge on the single evidence of any accomplice,

provided the offence has, by competent evidence other than the single
and unconfirmed evidence of the accomplice, been proved to
the
satisfaction of the court to have been actually committed."

To the
extent that the charge in the instant case relates to high treason it
is necessary also to bear in mind the provisions of
Section 238 (2)
(b) which provides as follows:

"238 (2) No Court shall -

convict
any person of treason except upon the evidence of two witnesses
where one overt act is charged, upon the evidence of one
witness to
each such overt act."

I proceed
then to examine the evidence of the other accomplice PW2 Lennox
Ntente Sesioana. He is a farmer aged 74 years. He went
as far as
Matric at Witwatersrand Technical College in 1946. He worked in the
CID in the Republic of South Africa for 9 years 9
months leaving the
force in 1955.

He then
became a businessman from 1956 to 1974 when he took to farming.

I should
mention at the outset that this witness gave his evidence in
impeccable English. It was a pleasure to listen to him. He
maintained
his composure even under extreme pressure from cross examination. He
always wore a smile. Of course, as earlier stated,
I shall bear in
mind that he is an accomplice and that the dangers as fully set out
above are inherent in the evidence of an accomplice
witness. Indeed
the composure and smile that PW2 exhibited throughout his evidence do
not necessarily lessen the dangers in question.

It is
PW2's evidence that he met the accused for the first time on the 9th
January 1996 at Old Europa. The accused was introduced
to him by
Makara Sekautu. He met Matsoso John Bolofo for the first time on the
4th February 1996 at Lithabaneng at the accused's
place adding "we
were in a meeting." It was on a Sunday. Indeed I observe from
the 1996 calender that the 4th February
in 1996 was a Sunday.

He (PW2)
knew David Lelingoana from the 9th January 1996 at Old Europa and
again on the 4th February 1996 at Lithabaneng at the
home of the
accused. Makara Sekautu was also present. He has known the latter for
a long time. In fact they are from the same village
as well as from
the same political party.

It is
PW2's evidence that on the 29th February 1996 Matsoso Bolofo,

Lelingoana
Jonathan, the accused and the witness himself were at Radio Lesotho
adding "we were going to claim that we had overthrown
the
Government." It is his evidence that he did not like the BCP
Government.

According
to PW2 they had already met on the 9th January 1996 at a certain
place at Old Europa. Those present at the meeting were
the witness
himself, PW1, Makara Sekautu, Lelingoana Jonathan and the accused. He
thus corroborates PW1 in this respect. They met
in a flat but he does
not know the owner thereof He was there from 8 p.m. until 6 am. They
were discussing "serious news."
The witness came to this
house in the company of Makara Sekautu. They found the others already
in the house.

PW2 then
first introduced himself to the others and each stood up and greeted
him. Then Makara Sekautu made the following statement:

"My country men, I have brought you Ntate Sesioana the man I
talked about often to you. He is to advise us in our mission.
I hope
you will welcome him."

Then the
meeting started with a prayer adding "Makara led us in prayer."

It is
PW2's evidence that he was chosen because Makara Sekautu knew him
very well. After the prayer Makara Sekautu spoke and said
the
following morning at 4 am. "It was the time we were to overthrow
the Government." PW2 testifies that those present
all "demanded
to know how we are going to

leave Old
Europa" adding "they welcomed the suggestion but wanted to
know the means of transport. Asked whether the accused
welcomed this
mission PW2 testified that "it was unanimously welcomed."
He thus corroborated PW1.

PW2 was
not armed because according to him they had been assured assistance
from members of the armed forces. They had also been
promised
security from Radio Lesotho to the Government Complex to "get
hold of Government offices" after proclaiming
the overthrow of
Government. But in order to be certain of this the meeting sent
Makara Sekautu to meet the soldiers and "make
a better
arrangement." Makara Sekautu left at 2 a.m. and returned at 4.30
a.m. on the 10th January 1996. He found his co-conspirators

"slumbering." Makara Sekautu's report did not satisfy his
co-conspirators in as much as it merely said it was "all

arranged and we could go to Radio Lesotho on foot safely." That
was unacceptable to PW2 and they all agreed that they must
postpone
the matter until better arrangements had been made. They dispersed at
6 a.m.

PW2
corroborates PW1 that "the accused was present all this time"
adding "he was still normal."

PW2 left
the meeting at Old Europa in the company of Makara Sekautu. On the
way the latter told him that there was a certain man
by the name of
Matsoso Bolofo who could connect them directly with the Major General
adding "not this circuitous way of going
through the
'Bashanyana'" meaning

the
soldiers.

According
to PW2, on or about the 27th January 1996 Makara Sekautu came to him
at his home at Mokema and told him that he had met
Matsoso Bolofo and
that the latter was interested to help and could connect them
directly to the Major General. He also informed
PW2 that there would
be a meeting on Sunday the 4th February 1996 at a place near Lefikeng
at Lithabaneng adding "he mentioned
that it was at accused's
place."

Indeed on
the 4th February 1996 PW2 and Makara Sekautu left together from
Mokema to Lithabaneng in the morning at 7 a.m. At Lithabaneng
they
met Matsoso Bolofo along the road. After the latter had introduced
himself to PW2 he "apologised that he was going to
deliver his
wife at home and would come back,"

It is
PW2's evidence that they saw the accused standing next to the road
adding "we went to him. We all waited for Bolofo to
come. As he
arrived on the road side the accused took us to his home." There
were four (4) of them namely PW2 himself, the
accused, Matsoso Bolofo
and Makara Sekautu. They waited for Lelingoana and PW1 at the
accused's place. It was at 11 a.m. They waited
"until about 12
o'clock midday when Lelingoana and PW1 arrived." Makara Sekautu
introduced Matsoso Bolofo to Lelingoana
and PW1 after which he
"presented Bolofo to us all as the man who would assist us and
would be able to meet the Major General
directly."

It is
PW2's evidence that Matsoso Bolofo reported to those at the meeting
that he had already seen the Major General and that the
latter wanted
to see the grievances for toppling the Government adding "then
we arranged to compile our reasons in a written
form and send them to
the LDF General." Those grievances were similar to the ones
actually read by Matsoso Bolofo over Radio
Lesotho on the 29th
February 1996. PW2 is adamant they discussed the reasons together
adding "the accused was involved in
the discussions."

The
grievances were handed to Matsoso Bolofo to present to the Major
General. PW2 testifies that "during all this time the
accused
was present." Details concerning the background of Matsoso
Bolofo and Lelingoana had been given to PW2. The former
was working
as a security officer somewhere in the bank. He had previously been a
police officer. The latter (Lelingoana) was formerly
a defence force
man.

PW2
testifies that they proceeded with their discussion "about the
approach to overthrow the Government." They were going
to do it
by peaceful means adding "we decided to march peacefully
accompanying political party rally and when we reached Parliament
the
whole of us, six of us, would go and proceed to Radio Lesotho. We did
not care for the constitutional principles of the ballot
box. We
observed that BCP was not doing democracy anymore."

Asked
what they would do if there was resistance PW2 testified that they

would be
"helped by the armed forces to rebut that." He admits that
this would entail force and that they actually discussed
this.

The
discussions were closed "late in the afternoon" when
Matsoso Bolofo was instructed by the meeting to go and meet the
Major
General "and report back during the week." It is PW2's
evidence that he had much confidence in Matsoso Bolofo.

On the
8th February 1996 PW2 was informed by Makara Sekautu that there would
be another meeting at the accused's place on the 10th
February 1996
at about 2 p.m. Then at about 2 p.m. on the date in question PW2 and
Makara Sekautu left Mokema for the meeting at
Lithabaneng. They
arrived at the accused's place at about 2 p.m. Asked to clarify what
time they left Mokema PW2 corrected himself
to say it was between 9
a.m. and 10 a.m. They were travelling by bus. It was on Saturday.
Once more I observe from the 1996 calender
that the 10th February
thereof was indeed a Saturday.

It is the
evidence of PW2 that Matsoso Bolofo came late while the meeting was
already in progress. Lelingoana also arrived. "PW1
was also
there" as well as the accused. According to PW2 they had "some
discussion before Bolofo arrived" as those
present wanted to
know what would be their future when they later handed over the
Government to political party members. The meeting
agreed that after
overthrowing the Government they would hand it over to political
party leaders.

PW2
testifies that the meeting had "a mind that we must have a
chairman." He was asked by the co-conspirators to help
them
appoint a cabinet and he agreed to assist them. At the top would be a
Council of Rulers comprising of the co-conspirators.
Then below this
would be a Council of Ministers. It is PW2's evidence that he advised
the co-conspirators to have two (2) divisions
"so that they
could have a role in the Government." He is adamant that the
Council of Rulers would include Matsoso Bolofo,
Makara Sekautu, the
witness himself (PW2) the accused, PW1 and Lelingoana.

According
to PW2 the Council of Ministers would be appointed on the 29th
February 1996 "when we had the power."

Meanwhile
Matsoso Bolofo made another report to the effect that the Major
General was satisfied with the reasons for toppling the
Government.
This was on the 10th February 1996. The Major General would however
want to meet Matsoso Bolofo and Makara Sekautu.
Those at the meeting
then instructed the two gentlemen in question to go and see the Major
General. It is the evidence of PW2 that
"in contributing these
advices and hints we all took part - that is all of us." Asked
whether this included the accused
PW2 categorically testified that
"the accused was there and he contributed."

According
to PW2 the conspirators wanted to "convince the Major General
that our course was right." The meeting was closed
at about 7
p.m. having agreed that Matsoso Bolofo and Makara Sekautu must report
"immediately" about the meeting with
Major General.

On the
24th or 27th February 1996 Makara Sekautu came to PW2 at his place
and told him that there would be another meeting on the
28th February
1996 near the Speedy Complex in Maseru near the Traffic Circle not
far from the Cathedral. Then on the date in question
(the 28th
February) PW2 left Mokema in the company of Makara Sekautu. They were
travelling by bus. The latter told him that they
had appointed a
Secretary by the name of Morena Ranthomeng Matete whom PW2 knew as a
BMP member. Morena Ranthomeng Matete would
be Secretary "for our
Council of Rulers."

PW2 and
Makara Sekautu arrived at the Speedy Complex where they found Matsoso
Bolofo. Later Lelingoana also arrived. The latter
told them he had to
collect papers to be typed from a certain lady a Miss Masupha (no
doubt PW4) at the Speedy Complex. Lelingoana
then left but came back
later saying the lady had not yet finished typing the papers. At this
stage Lelingoana made another report
that the typing to some of the
papers had not yet been finished by Morena Ranthomeng Matete because
he was too busy with chieftainship
matters. Those present left the
Speedy Complex and went to wait at the Cathedral. They waited there
for the papers in question
until 4 p.m. when PW2 left for his home at
Mokema. The papers were still not ready. It was agreed that the next
meeting would be
on the 29th February 1996 at about 8 a.m. at
'Manthabiseng Area. It is PW2's evidence that "we would meet
there and finalise
our plot." Asked what plot he testified that
it was the plot of overthrowing the Government

On the
29th February 1996 PW2 arrived at 'Manthabiseng at about 8

a.m.
There he first met the accused who reported to him "that they
had a meeting last night where Bolofo was appointed Chairman
of
Rulers" adding "and he further told me that Makara disputed
vehemently about the appointment of Bolofo as Chairman."

It is
further PW2's evidence that the accused told him that Makara said he
would spoil everything if Bolofo became Chairman and
that the matter
of the appointment in question was postponed until the arrival of
PW2. PW2 further testifies that the accused told
him the appointment
in question "would wait for votes." The accused then left
saying he was going to see someone somewhere.

At this
stage Matsoso Bolofo arrived and made a report too that the previous
night they held a meeting where he was appointed Chairman
of the
Council of Rulers and that Makara disputed it saying he would spoil
everything. Matsoso Bolofo then left saying he was in
a hurry to meet
the Major General.

According
to PW2 Makara Sekautu also reported to him that he disputed the
appointment of Matsoso Bolofo as Chairman claiming he
was appointed
in his absence. PW2 then gave Makara Sekautu "a stem warning"
that there was no way back" and that
if he was to be followed he
must also follow others. Although Makara Sekautu was "very
gross" he promised to follow PW2's
advice. After sometime all
the conspirators came one by one at 'Manthabiseng Bus Stop namely
Matsoso Bolofo, the accused, PW1,

Lelingoana,
PW2 himself and Makara Sekautu. It was still on the 29th February
1996. It is the evidence of PW2 that at that time
Matsoso Bolofo and
the accused had to "shorten the written statement that Bolofo
had to announce over the radio." That
is to abbreviate it.
According to the evidence of PW2 Matsoso Bolofo was dictating while
the accused was writing.

Meanwhile
a distance further up the political rally was starting to get ready
for a march to Parliament House. PW2 describes the
march as a "toyi
According to PW2 all the conspirators later met except Lelingoana who
had already proceeded to the radio
station "to examine the
position, surveying whether we would be alright."

The
conspirators then joined the rally or "demonstration" down
to Parliament House. PW2 reiterates that their "plan"
was
that when they reached parliament they would break away from the
"toyi toyi" and go to the Radio Station where they
would
gain entry and "announce our takeover of Government." This
indeed is not disputed.

When the
procession reached the Traffic Circle PW2 felt he could not cope with
the "toyi toyi" as they were jumping. He
broke off and
followed Kingsway Road heading for the Radio Station. Those who
continued with the procession were PW1, Makara Sekautu
and the
accused. Matsoso Bolofo drove in his car. PW2 found the latter
outside the radio yard in the street

standing
with Lelingoana. He joined them. Later the accused arrived followed
by PW1. Sekautu didn't appear. It was between 12 o'clock
midday and 1
p.m. and the conspirators waited there until a certain lady passed.
She was called by Lelingoana and they talked aside
after which
Lelingoana called the co-conspirators and they all moved inside the
yard. According to the evidence of PW2 "we
had in mind that now
we are ready to proceed with our mission." A statement had by
then been prepared and handed over to Matsoso
Bolofo to read in the
studio.

A few
yards from the gate PW2 turned back to go and close the door of
Matsoso Bolofo's car as he had left his belongings in there.
There
were soldiers at the gate but they did not intercept the
conspirators. It is PW2's evidence that he was "excited"
at
this stage adding "the others looked also excited."

As PW2
was delayed while returning to Matsoso Bolofo's car he found the
others already inside the studio when he came back. He heard
music -
the National Anthem playing over the radio and asked a certain lady
he met where the room was where the music was playing.
The lady
pointed the door for him and he entered the studio room where he
found Lelingoana and Matsoso Bolofo. The latter was seated
next to a
microphone. Lelingoana was walking down "near people lying down
on the floor." PW2 did not see PW1 and the
accused "that
time". He was instructed by Lelingoana to watch over those
people lying down on the floor. Lelingoana was
armed with a small gun
- "it was like a pistol." He was holding it in his hand
"walking around in there."

He
disappeared in the other comer and came back with three more people
whom he ordered to he down. PW2 subsequently heard Lelingoana
say
"please Seoehla close that door." It is PW2's evidence that
it was then that Seoehla (the accused) emerged from the
comer and
closed the door.

There
were many people lying down - men and women. They were quiet. Asked
whether the accused was armed PW2 testified that he was
not armed as
he saw him. According to PW2 the accused then "went passed
towards the door. He never came back."

At this
stage Lelingoana instructed all those people lying down on the floor
to "press the knobs." One man stood up and
did as ordered.
PW2 then heard Matsoso Bolofo speak on the microphone "and he
read the memorandum - the statement adding "he
was announcing to
the radio station that the Government is being overthrown and people
must comply." The statement had six
(6) points why the
Government was being toppled.

PW2 then
heard footsteps and as he peeped from where he stood he saw two (2)
soldiers coming. They were armed. In his own words
PW2 testifies "I
thought they were our security who would convey us to the
(Government) Complex" adding "I later
realised that we were
arrested when they said "what do you want here hold up your
arms." They complied. In PW2's own
words "it was a shock."
They were ordered to he down against the wall and face the wall and
they were searched adding
"the accused had vanished."

The three
men namely Matsoso Bolofo, Lelingqana and PW2 himself were then
arrested and escorted to a certain room at the gate where
they were
"interviewed" by many people and photographs taken of them.
The paper that Matsoso Bolofo had been reading
over the radio was
also taken away. PW2 testifies that "we were now ashamed"
adding "I was not afraid but embarrassed."
They were locked
up in the police cells nearby. Meanwhile "the accused had
vanished into thin air."

It is the
evidence of PW2 that he was never taken to prison. They were
interrogated adding "I talked the truth." He told
the
police all that he knew.

Asked in
retrospect about how he feels about the conspiracy PW2 told the Court
that he is not ashamed because they were fighting
for the right
course. They wanted a short cut and they felt it was not necessary to
go through elections adding "we intended
to ride rough shod over
the constitution."

Under
cross examination by Mr. Phoofolo PW2 was taken to task for having
earlier said that they were ashamed when they were arrested
but his
reply was that they were ashamed because "the promises were not
fulfilled." He is not ashamed of "the attitude
we took."

Asked if
it occurred to him he could go to prison PW2 replied that "I
felt it was rightful if I went to prison. I still feel
so even now."
The following question was then put to PW2:

"Q: You are sitting there as a witness because you are hoping
for clemency?

A: No.

Q: You would obtain clemency if you can assist the Crown to obtain
conviction against the accused.

A: No. I am just telling the Court the truth of what happened not to
convince the Court I need clemency."

He was
then asked:

"Q: You wouldn't think you were not remanded in custody because
there was no case against you?

A: No. I had already been warned that I would be accused of high
treason when I appeared before a Magistrate. When I was released
I
realised that my truthfulness had helped me not to be accused.

Q: Your truthfulness got you out? A: My truthfulness had made me what
I am.

Q: What are you? A: An accomplice."

For my
part I should mention at this stage that as I watched the witness
(PW2) giving evidence I had no doubt that he was not daunted
by the
thought of imprisonment. I got the impression that he was spilling
the bins and making a clean breast of the true facts
of the case
regardless of the

consequences.

PW2
further testified under cross examination that he was bom on the 15th
April, 1923. He joined the South African Police in 1946.
He
reiterated that he left the police force 9 years 9 months later that
is to say in 1955. He left on his own to start a business
of a
general dealer. He denied Counsel's suggestion that being a
conspirator is an achievement. If they had succeeded he would
call it
a devotion to fight for his rights.

PW2
agreed that the decision to topple the Government was made on the 9th
January 1996 at a certain house at Old Europa. This was
said by
Makara Sekautu when the meeting started. Mr.
Phoofo...........................lo then put the following
significant questions
to PW2:

"Q: And what did he say?

A: He said early in the morning of that date it's the day for the
overthrowing of the Government. Q: By whom? A: By the men I found
in
the house that night being with the help of the armed forces. Court:
Who were these men? A: Accused, Lelingoana, PW1, Makara."

PW2
further testified that he was told by Makara Sekautu that "altogether
they had a plan to overthrow the Government."
Asked what he

was to do
since the plan had already been hatched PW2's reply was the following
and I quote:

"To advise them in certain instances; how they should go on and
after. He elaborated that the co-conspirators had a plan to
overthrow
the Government so they needed advice on how to go about with the plan
and after."

PW2 was
then asked to reveal what Makara Sekautu said the plan was. The
witness replied as follows and I quote:

"He said they would walk to the Radio Station and announce that
the Government had been overthrown. The armed forces would
help -
they would be escorted to (Government) Complex, he told me that was
the plan."

It was
PW2's impression that the conspiracy to overthrow the Government had
already been hatched before the 9th January 1996 because
at the
meeting at Old Europa Makara Sekautu introduced him to the
co-conspirators in the following words:

"You gentlemen you remember that in the morning we are going to
overthrow the Government. I have brought you an advisor."

Mr.
Phoofolo then put the following revealing question to PW2:

"Q: But according to my instructions I tend to agree with you
that this (conspiracy) was hatched a long time before the 9th
January
1996. A: I believe so.

Q: But that it was not hatched by accused and others.

A: I don't know.

Q: We will bring evidence before the Court which will show that
Matsoso Bolofo informed the accused that the decision, the plot
to
overthrow the Government had come from the Government itself. A: I
was not there when Bolofo told Seoehla (the accused) about
it. Court:
Mr. Phoofolo. which Government, the BCP Government?

A: Yes my Lord.

Q: He will inform his Lordship that Major General Mosakeng told him
the Prime Minister wanted the Government to be overthrown.

A: I don't know.

Q: Because the problem of working hand in hand with his Cabinet had
already started.

A: I can't remember that. Court: Do you know anything about it?

A: 1 know nothing."

Corroborating
the evidence of PW1 and PW2 Mr. Phoofolo then put to the latter
witness that the accused admitted attending the meeting
of the 9th
January 1996 at Old Europa. He significantly went further to put the
following question to PW2 in an attempt to disclose
what Makara
Sekautu said at the meeting in question:

"Q: And that he Sekautu had come to ask them (the conspirators)
to accompany him to Radio Lesotho to announce the overthrow
of the
Government.

A: 1 don't remember him saying that adding " I only heard him
saying 'gentlemen, you know that at 4 am. this morning we are
going
to the Radio Station and overthrow the Government.""

PW2 is
adamant that according to the introduction by Makara Sekautu at the
meeting of the 9th January 1996 the co-conspirators already
knew that
in the morning of the 10th January 1996 the Government would be
overthrown. Makara Sekautu was therefore merely reminding
them.

It was
then put to PW2 that the accused says he never appointed him his
advisor. PW2's reply was that the accused "concurred"
when
he was introduced to the co-conspirators as their advisor. They
accepted him.

According
to PW2 he advised that the plan to overthrow the Government was not
well planned and that it should be postponed "until
such

time as
when it was well planned." It had loopholes.

Asked
further about the meeting of the 9th January 1996 at Old Europa PW2
testified that the accused was sitting next to him and
that the
conspirators were "sitting around a table." He denied that
the accused left long before 2 a.m. To the suggestion
that the
accused did not associate himself with the conspiracy PW2's reply was
the following and I quote:

"I don't know how he was not associated yet he was there and
discussed together."

He denies
that the accused is the only person who raised the question of
security necessary to overthrow the Government. All the

co-conspirators raised this issue. Nobody asked about whether the
arms were available because "we had people to support us.
We had
arms" namely the armed forces adding "we were told that
they would be behind us."

It is
PW2's evidence that they postponed the meeting of the 9th January
1996 because the arrangements were not satisfactory.

Asked
whether security was there on the 29th February 1996 when they went
to Radio Lesotho PW2 replied that they had been promised
"better
security." They proceeded thereto this time because it was
daytime while in January when they refused it was
night time. He was
then asked by the Court:

"Court:
So what difference did it make on he 29th February 1996?

A: We were convinced that security would come at that stage. Q: What
do you mean?

A: I mean when we were broadcasting we were assured security would
come.

Q: What convinced you? A: Because Bolofo told us he had made full
arrangements."

PW2
categorically denied the suggestion put to him under cross
examination that on the 9th January 1996 and at the meeting at Old

Europa he already knew about the conspiracy to overthrow the
Government.

Asked
what special qualities he had to warrant being appointed advisor of
the conspirators PW2 replied that Makara Sekautu could
know the
reason as he personally did not know adding however that he is "an
experienced man in politics." Indeed I observe
that he was not
seriously taken to task on this and I have no reason to doubt his
experience in politics - after all it is not
disputed that he was a
member of "political staff" when attached to the Special
Branch of the CID in Johannesburg. It
is his evidence that as such he
attended political meetings and also took minutes to send to the
office.

Explaining
his role PW2 further explained that he heard later that his advice
was needed for overthrowing the Government, that is
to say, how to
proceed with the exercise. He adds "they ( the co-conspirators)
asked me

what they
should do if they had overthrown the Government. I said they must
make a National Government."

PW2
further testifies that the co-conspirators asked him advice on what
their positions would be in the National Government and
he advised
that there would be a Senior Council above that of Cabinet Ministers.
This latter advice was discussed at the meeting
at Lithabaneng at the
accused's home.

Asked
about the date of the first meeting at the accused's place PW2 told
the Court that although he did not quite remember the
date it was
round about the 3rd or 4th February 1996.

Responding
to Mr. Phoofolo's invitation to divulge the contents of the report
made by Matsoso Bolofo PW2 told the Court that the
latter reported to
the conspirators including the accused that he had met the Major
General of the Defence Force and the Major
General said he wanted to
see the conspirators' complaints for overthrowing the Government
adding "we sat down all of us and
discussed the grievances which
were written by Bolofo."

PW2
reiterates that at 'Manthabiseng Bus Stop the accused and Matsoso
Bolofo were "shortening statement from the big report
regarding
the conspirators' grievances" adding "I saw them writing.
They read it after Bolofo read all the minutes that
were written by
the accused to us all." He reiterates that Bolofo was dictating
while the accused was writing.

Asked
further about the procession to Parliament. PW2 testified that the
conspirators including the accused decided to "mix"
with
the rally to Parliament house and from there they would all six of
them proceed to the Radio Station to do "the work"
of
overthrowing the Government. According to the evidence of PW2 the six
conspirators were Matsoso Bolofo, Makara Sekautu, the
accused himself
Lelingoana Jonathan, PW1 and the witness (PW2) himself.

Mr.
Phoofolo then put the following suggestion (or was it a protest) to
PW2:

"Q: I notice you never stop mixing the accused with meetings.

A: I never said he was there at Speedy Complex."

Indeed I
observe that PW2 is correct on this point. He never sought to place
the accused at the Speedy Complex.

Asked
further about the statement that was eventually read over Radio
Lesotho PW2 testified that "the statement was officially
handed
to Bolofo by all of us but that statement was written by the accused
while Bolofo dictated."

1 pause
here to mentioned that I was impressed with the witness's consistency
in reply to this question which was indeed raised
repeatedly. Indeed
the witness remained unshaken throughout a long taxing cross
examination. I believe that he was telling the
truth in the
circumstances.

PW2
further repeated his evidence under cross examination that he saw the
accused "emerging from a comer when asked by Lelingoana
to go
and close the door" at the time when the announcement to
overthrow the Government was being read by Matsoso Bolofo.
That was
the last time he saw him.

There is
then the evidence of PW3 Francis Ramatona Maseela to the effect that
he knows the accused as they worked together at Fahhida
Cash and
Carry. He has known him for about a year or so. The accused arrived
at Fahhida Cash and Carry in between 1994 and 1995
finding the
witness already working there. He confirms that the accused was
employed as security while the witness was Human Resources
Manager
and Assistant General Manager -He is a qualified teacher by
profession being in possession of PH Certificate.

PW3 also
knows PW1 and he confirms that the latter was also employed at
Fahhida Cash and Carry as a security officer. He further
knows
Lelingoana Jonathan, Makara Sekautu and PW2. He also knows Matsoso
Bolofo "for quite a short time."

It is the
evidence of PW3 that about a year before 1997 when he gave evidence
in this matter that is to say in 1996 he went to Lithabaneng
looking
for PW1. He got to the home of the accused and found the latter
outside his home feeding his dogs. The accused told him
PW1 was
inside the house. Indeed upon entering the house PW3 found PW1
"present with other people inside the house."
Amongst them
were Lelingoana Jonathan and Makara

Sekautu.

PW3
testifies that he then called PW1 outside and gave him an instruction
concerning work as he (PW3) would be attending a Workshop
at Lesotho
Sun the following day. Thereafter they departed.

It became
clear to the Court at this stage that the witness was reluctant to
come up with the story that the Crown expected him
to give. After he
was allowed to refresh his memory from the written statement he had
made to the police he was prepared to relate
"everything that I
remember" to the Court.

He then
told the Court that in January 1996 he heard that there was a
conspiracy and that there were people "attending secret

meetings." He heard that among these people were his co workers
PW1 and the accused. To determine the truth of this allegation
he
called upon both PW1 and the accused and confronted them with the
conspiracy allegation. He warned them "to stop forthwith"

even though they did not own up to the conspiracy. PW1 however
subsequently admitted the meetings in question.

It is the
evidence of PW3 that thereafter he got to the home of the accused at
Lithabaneng as earlier stated. He reiterates that
he found the
accused outside and upon entering the house PW3 found PW1, Lelingoana
Jonathan and Makara Sekautu inside.

He cannot
recall if Matsoso Bolofo was there. It is his evidence that the
people inside "were seated inside the house. They
looked like
people who were convening a meeting." Indeed the witness

was not
challenged on this version. Instead the question that was put to him
by Mr. Phoofolo appeared to concede the meeting in
question. This is
the question:

"Q: Accused will say that indeed you went to his house and
indeed you found him outside. Masupha (PW1) was in his house. Sekautu

was in his house. Sesioana and Lelingoana were also in his house, so
was Bolofo. They were not discussing the overthrow of Government.

A: I won't agree that Sesioana was in that house."

It was
clear to the Court however that PW3 was not quite sure whether the
person at the meeting was Matsoso Bolofo or PW2 because
in his own
words he said "there was one person sitting. I thought he was
Bolofo." It is common cause that PW2 was at
the meeting.

It is
PW3's evidence that he entered the house with the accused. He then
heard a discussion led by Makara Sekautu on what was to
be done
adding "they were discussing steps to be taken about
overthrowing the Government. He was talking to the people inside
the
house." He is adamant that "as Makara was talking to these
people accused was already there." Once more I observed
that the
witness was not challenged on this version.

PW3 goes
further to testify that before leaving the accused's place he warned
all those people in the latter's house including the
accused himself
that

"it's
better that they stop this conspiracy of thiers" Nobody
responded. Once more he is unchallenged on this version.

I pause
here to observe that this was an ideal opportunity for the accused to
dissociate himself from the conspiracy, yet the evidence
of PW3
points to the contrary. More about this later.

Under
cross examination PW3 was asked the following question by Mr.
Phoofolo"

"Q: Is it my understanding that there was a conspiracy to
overthrow the Government; is that what you heard?

A: That is so. Q: from whom?

A: By one Makara Sekautu. Court: Is he one of the co-conspirators?

A: Yes."

As a
parting shot PW3 testified that he had no reason to implicate the
accused. Indeed I observe that none was suggested by the
defence. On
the contrary the accused admitted under cross examination by the
Learned Director of Prosecutions Mr. Mdhluli that
PW3 was "quite
friendly" to him and PW1. In particular I attach due weight to
the following question put to the accused
and the latter's reply
which clearly says it all:

"Q: And he (PW3) is the type of man who would rather be
protective to you rather than expose you? A: I don't believe that
he
can implicate us."

As
earlier stated PW3 was initially a reluctant witness. The Court must
therefore approach his evidence with due caution. I observe
however
that this reluctance was aimed at protecting the accused. I was
however impressed by the witness's overall evidence. As
I watched him
give evidence I gained the impression that he was telling the truth.
He remained unchallenged in material respects
particularly in
corroborating the evidence of PW1 and PW2 on the existence of a
conspiracy to overthrow the Government and the
participation of the
accused therein as evidenced by the meeting of the conspirators at
the latter's home at Lithabaneng.

The
evidence of PW4 'Maliketso Nathalia Masupha is briefly to the effect
that she is a secretary whose job entails, amongst other
things,
making photocopies. She knows the co-accused Lelingoana Jonathan. She
has known him for about 2-3 years. She also knows
PW1 but does not
know PW2 and the accused.

It is the
evidence of PW4 that on the 29th February 1996 she heard over the
radio that the Government had been toppled. This reminded
her that
the previous day namely the 28th February 1996 Lelingoana Jonathan
came to her office alone and requested her to type
certain papers for
him. She agreed. Lelingoana Jonathan then left the manuscript with
her. Those papers "were

showing
that they were going to overthrow the Government" She handed in
the document that she typed as EX "A" which
comprises a
whole range of complaints against the Government.

It is
perhaps appropriate to quote some of the concluding remarks contained
in EX "A":

"........the Government and BCP Government with its iron hand on
the nation is being dissolved and the reconciliation Government
will
be put in operation. The reconciliation Government is being
implemented that comprises of groups of political parties and
others.

Other
steps besides this will be implemented that is Reconciliation Council
to watch over the reconciliation action as well as preparation
of
elections that will be held in 1998 under Independent Electoral
Commission.

Some of
the people who were in the ruling Government will be put before
courts of law because of the crime they have committed so
as to give
a chance to these changes to be implemented peacefully"

It is
PW4's evidence further that Lelingoana Jonathan also gave her another
document which she also typed. She handed in the typed
version as

EX "B".
It is headed "The Council of Reconciliation Officers" as
well as "Council of Ministers" and
"Ministers of
State." The document then spells out different portfolios under
each heading.

PW4
testified that Lelingoana Jonathan collected the typed documents the
same day namely the 28th February 1996 promising to pay
for them the
following day. He never did. She testifies that Lelingoana "didn't
look serious. He said he had brought a mixture
of 'triviality"

It is
significant that the evidence of this witness (PW4) went in
completely unchallenged. I have no hesitation therefore in accepting

that the evidence is the truth of what transpired on the 28th
February 1996 and that both EX "A" and EX "B"

emanated from the co-conspirator Lelingoana Jonathan.

The
evidence of PW5 'Mamosili Ntene, PW6 Tefo 'Musi, PW7 Basia Maraisane
and PW8 Thabiso Sephelane is briefly to the effect that
on the 29th
February 1996 while they were all at work at Radio Lesotho they and
their colleagues were rounded up at gun point by
some men who turned
out to be Lelingoana Jonathan, Matsoso Bolofo and PW2. PW7 also makes
mention of yet another man lurking at
the doorway - in corroboration
to PW2's evidence that the accused was also present.

Having
been rounded up the victims were herded into a certain room, made to
he down and held captive until they were released by
the soldiers on

guard at
the premises including PW9 Private Rasupu. Three of the attackers, or
shall we call them culprits were arrested namely
Matsoso Bolofo,
Lelingoana Jonathan and PW2.

Mr.
Phoofolo for the accused then made the following significant
admission namely that on the 29th February 1996 Matsoso Bolofo
read a
statement over Radio Lesotho being Exhibit "C1" (Sesotho
version) or Exhibit "C2" (the English version).
He also
made a formal admission that the workers of Radio Lesotho were indeed
herded into the studio control rooms and held captive
there.

It is no
doubt convenient and indeed appropriate to reproduce EX "C2"
which reads as follows:

"In the name of leaders of political parties, traditional
leaders and the Basotho nation, I hereby make the following
announcement:-

For the
following reasons:

The Government of Lesotho has been destablising the country and
undermining peace since the 1993 general elections-

By
causing disunity and dissention in the army, the police and prison
warders resulting in deaths of Basotho children; and also

humuliating these forces in the National

Assembly.

By
illegally bringing into the country dangerous weapons of war through
the (sic) some of the parliamentarians.

By
parliamentarians misusing public funds for the benefit of the BCP.

By
inviting foreign armies to come and attack and dissolve the lawfully
constituted army of Lesotho and therefore Government subverting
the
Constitution.

By
causing disaffection among teachers' organizations and causing
disunity among churches and also by not resolving the impasse

concerning teacher's salaries whereas Government continued to pay
parliamentarians who had run away from the country.

By
embarking on registration of voters for the 1998 general elections
without any consultations with political parties.

By
deliberately and maliciously ignoring constituting a commission of
inquiry into the death of His Majesty King Moshoeshoe II.

For the
aforegoing reasons and others I announce that I have dissolved the
Government and its parliament. 1 announce that the 1993
Constitution
is suspended.

All trips
outside the country taken by Government vehicles should cease until a
further announcement.

I ask for
good cooperation from the armed forces so that all these steps can be
achieved with peace. Cooperation is also sought
from all Government
departments and that they should await further announcements from
time to time.

PEACE -
RAIN - PROSPERITY."

I observe
that EX "C2" is indeed the shortened version of EX "A".
This in my view corroborates the evidence
of PW2 that it was decided
to shorten EX "A" as it was too long. That completed the
Crown case.

The
accused gave evidence as DW1. He is a former member of Royal Lesotho
Defence Force (RLDF). He confirms that at the material
time he was
working at Fahhida Cash & Carry with PW1 and PW3. He confirms
that the former is his relative referring to him
as his "brother."

I observe
at the outset that the accused was very evasive in his evidence as
will become apparent in the course of this judgment.
For an example
he

was asked
by his own attorney Mr. Phoofolo very early in his evidence in chief
the following question:

"Q: It is common cause that there was a meeting held at one
Khethisa Molapo at Old Europa; A: Yes I heard that one Sesioana
and
Sekautu arrived there."

Yet it
transpired that the accused did not dispute his presence at the
meeting in question. How then he should claim to have "heard"

and not seen the presence of Sesioana and Sekautu at the meeting can
only be attributed to evasiveness on his part no doubt initially

aimed at trying to dissociate himself from the meeting.

The
accused denies that he met Makara Sekautu at Fahhida Cash and Carry
prior to the meeting at Old Europa. This despite the fact
that PW1
was not challenged on that version.

He
confirmed that there was in fact a meeting held at Old Europa on the
9th January 1996 at the home of his "brother"
Khethisa
Molapo who was away in Leribe. He was in charge of the latter's house
at Old Europa in the latter's absence.

The
accused corroborates the evidence of PW1 and PW2 that the meeting at
Old Europa was attended by the accused himself, PW1, PW2,
Makara
Sekautu and Lelingoana Jonathan. Corroborating PW1 and PW2 it

is the
evidence of the accused that "Sekautu told us that he had come
to let us know that he and all political leaders in Lesotho
and
traditional leaders, Lesotho armed forces, Lesotho Police Officers
and NSS Security of Lesotho reached a conclusion that at
dawn of that
day he will be announcing at Radio Lesotho that Lesotho Government
had been overthrown and that thereafter the Government
of National
Unity will be in place. So he had come to invite us to accompany him
to Radio Lesotho."

According
to the accused all those at the meeting including himself, PW1 and
PW2 then participated in a discussion that followed
on issues such as
security and the mode of transport. He testifies that the decision
was that they were not accompanying Makara
Sekautu to Radio Lesotho
because he found it "unnecessary to involve myself in such
matters." He denies that he was part
of the conspiracy to go to
Radio Lesotho adding rather strangely "we saved the Government
that day." Perhaps this is
a reference to the fact that the
announcement to overthrow the Government was not made on he 10th
January 1996 as earlier planned
but was actually made on the 29th
February 1996.

The
accused conceded that the meeting at Old Europa took place for "a
long time." At first he says he left the meeting
at 11 p.m. but
later contradicts himself to say he left at 12 o'clock midnight. This
despite the fact that PW2 was not challenged
on his version that the
meeting broke off at 6 a.m. on the morning of the 10th January 1996.
In any event I find it hard to believe
that being in charge of
Khethisa's house as the accused admittedly was that he could leave
the house in the occupation of these
other conspirators in the

middle of
the night. Indeed even his own attorney Mr. Phoofolo was prompted to
ask in apparent disbelief:

"Q: 1 don't understand - these people you left them there
without the owner of the house?

A: That is so."

It is
further the accused's evidence that at the time of his departure from
the meeting at Old Europa he asked Makara Sekautu to
go and see him
at work "if he has time." Asked what for, the accused
replied that he wanted to persuade Makara Sekautu
to "leave that
conspiracy, it's dangerous." He was then asked the inevitable
question by the Court.

"Court: Why didn't you do so at the meeting? A: I realised that
he would not listen to me."

The
amazing thing is that there is no evidence that the accused ever even
tried to persuade Makara Sekautu or indeed anybody including
his own
relative PW1 at that meeting to drop the conspiracy. Be that as it
may the accused told the Court that Makara Sekautu came
to him alone
on a certain date in February 1996. They however failed to go on with
their discussion because the accused was busy
and they agreed that
Makara Sekautu would "visit" the accused at the latter's
house on Sunday the 4th February 1996.
On the Sunday in question the
accused met Makara Sekautu at the Bus Stop per agreement. The latter
was accompanied by PW2. He left
with the latter to his home while

Makara
Sekautu waited for Matsoso Bolofo who had just passed by and had
promised to come back.

According
to the accused Makara Sekautu and Matsoso Bolofo did arrive at his
place after a few minutes. Makara Sekautu then told
the accused that
he was not going to be able to go on with their discussions because
the Major General wanted to see them (Sekautu
and Bolofo).

PW1 then
arrived and it is the evidence of the accused that he was expecting
him because the latter had promised to visit him. For
my part I
should say that I find it extremely hard to believe that the accused
could have made an appointment with PW1 to visit
him on the same day
as Makara Sekautu was due to meet him bearing in mind the accused's
claim that he wanted to meet the latter
alone to persuade him to drop
the conspiracy to overthrow the Government. My impression is that the
accused is trying to run away
from the fact that there was a meeting
held at his place on the 4th February 1996. In this regard the Court
has not lost sight
of the following question put to PW1 by Mr.
Phoofolo:

"Q: He (the accused) will tell his Lordship that the only
meeting that he knows of held at his place was that of the 4th
February 1996.

A: Although I can't recall the date but I know there was one meeting
that I did not attend."

It is the
evidence of the accused that nothing happened until the 10th February
1996 when he reached home from work between 4.30
p.m. and 5 p.m. He
was with PW1. They found Makara Sekautu, PW2 and Lelingoana Jonathan
at the accused's home. He testifies that
Makara Sekautu told him
outside that he wanted a meeting to be held at the accused's place
and that the latter should excuse him
for not having informed him in
time. The accused refused to allow the meeting to be held at his
place. Makara Sekautu then went
inside the house to inform those who
were with him.

Asked to
explain the presence of PW1 there the accused looked very
uncomfortable indeed. He did however say that PW1 had just paid
him a
visit "as it was his habit" Then Matsoso Bolofo also
arrived. The accused has not offered any explanation why the
latter
would also get to his house unless there was a pre-arranged meeting
there.

The
accused corroborates PW3 that "as they (the conspirators) were
still meeting inside the house" the latter arrived
at his place
on the 10th February 1996 finding the accused "standing" at
his forecourt, PW3 was looking for PW1 who was
inside the house.
Matsoso Bolofo had also gone inside the house despite the fact that
the accused had not allowed the meeting.
The accused testifies that
he did not attend the meeting himself because he wanted those people
inside to leave. He corroborates
PW3 that the latter also entered the
house while the meeting was on.

The
accused was then asked the following question by his attorney Mr

Phoofolo:

"Q: This was now the second time you people converged at your
place.

A: Yes. Court: When was the first time?

A: 4th February 1996.

Q: The second time?

A: 10th February 1996.

Q: Each time you converged was it the same number of people and the
same place?

A: On 4th February 1996 Lelingoana was not present and Mr. Maseela.
On 10th February 1996 Sekautu was there, PW2, Lelingoana, PW1
and
later PW3."

The
accused testifies further that before entering the house he held a
discussion with Matsoso Bolofo in which the latter told him
he had a
meeting with the Major General who in turn told him the Prime
Minister Mr. Ntsu Mokhehle had requested him to assist him
in the
toppling of the Government because his ministers did not listen to
him and he was unable to govern properly. The accused
says that
according to Matsoso Bolofo the Major General had said he couldn't
overthrow the Government because they had signed an
agreement with
SADCC countries that they would never overthrow governments.

The
accused corroborates PW1 and PW2 that he did attend the BNP rally on
the 29th February 1996 and that he joined the procession
to the
parliament building afterwards. He denies being anywhere near Matsoso
Bolofo's car with Makara Sekautu. He denies shortening
or writing the
statement with Matsoso Bolofo. He admits that he saw Makara Sekautu
and PW2 at the rally. He was then asked:

"Q: Did you then meet the two you saw?

A: No we were just together. We didn't talk to each other."

This is
yet another glaring example of how evasive the accused was as a
witness. He clearly avoided answering the question whether
he did
meet Makara Sekautu and PW2.

The
accused denies that he got to Radio Lesotho on the 29th February
1996. The nearest he came to Radio Lesotho was about 30 metres
that
is to say from the Parliament building. He heard the announcement of
the overthrow of the Government over the radio while
he was already
at home.

Under
cross examination the accused conceded that he had "several
meetings" with the conspirators and that he met them
on the 29th
February 1996. Indeed he conceded that these people were
conspirators. He was then asked :-

"Q: Can we move from a common premise that the three people

(Matsoso
Bolofo, Lelingoana Jonathan and PW2) were conspirators bent on
toppling the Government?

A: Yes they agreed.

Q: On how many occasions did you meet these people either at your
place or somewhere else?

A: I met some of them three times and some went to my place twice."

In
typical evasive fashion the accused answered as follows to a question
put to him under cross examination:-

"Q: And you as BNP you were not well disposed towards the
Government of BCP.

A: No, that is not so - the Government was not BCP but Government of
the Basotho Nation. Q: Then the governing party? A: BCP."

Asked why
the conspirators should choose to hold such dangerous meetings at his
house the accused could not offer any reason except
to say it
"surprised" him. He finally conceded under the pressure of
cross examination that his house found favour with
the conspirators
because "it's a very quiet place." He conceded that Makara
Sekautu also "loved" him.

The
accused claims to be a democrat and as such he wouldn't agree with

the
conspiracy to overthrow the Government by unconstitutional means. As
a result he refused to go to Radio Lesotho and he even
discouraged
Makara Sekautu. Yet as I recall the evidence he never had an
opportunity to meet the latter alone in order to discourage
him as
alleged.

Amazingly
the accused later testified under cross examination that he wouldn't
be saving the country by "going away" from
Makara Sekautu.
He was then asked:

"Q: After the 9th January 1996 why didn't you keep your distance
from this man?

A: It's not wise when one has heard about the mission to topple the
Government to distance oneself because they are going to kill
you."

He
reiterates that he met the conspirators on the 4th February 1996 and
10th February 1996.

The
accused further testified under cross examination that he is a
soldier by profession having joined the Lesotho army in 1980.

Asked why
Makara Sekautu would keep coming back to him even after he had
discouraged him from the conspiracy to overthrow the Government
the
accused could offer no reply.

Confirming
that he did not discourage the conspirators from the idea of toppling
the Government the accused answered as follows
to a question put to
him in cross examination:

"Q: Even at that time you were not inclined to tell these people
you were going to the authorities if they did not desist
from the
unlawful acts.

A: Ntate you can't say that to people who want to topple the
Government. They can kill you."

The
accused conceded however that Matsoso Bolofo is "old" and
that he is not afraid of him. According to him Makara Sekautu
is
dangerous because "he is familiar with dangerous people in the
army." PW1 is also dangerous because he was once a
soldier. Yet
in the same breath he testifies that the relations between PW1 and
himself were friendly. In fact they were relatives.
I cannot then see
that a friendly warning to PW1 would have done any harm. My
impression is that the accused was not being candid
with the Court.

Regarding
EX "A" the accused does not dispute that it was prepared by
the conspirators and that a lot of work went into
the preparation of
this document which embodies similar sentiments to those which were
expressed at the BNP rally on the 29th February
1996. Almost in the
same breath the accused immediately contradicts himself to say that
the sentiments so expressed are not the
same at all. While the
accused admits writing EX "D"

which is
a document entitled "One day" he denies that the shortened
statement EX "C" which was read over Radio
Lesotho on the
29th February 1996 was written by him. He was then asked to compare
the handwritings on the two documents. His evidence
was that they
were different but he was unable to show any differences. Nor could
his own attorney Mr. Phoofolo point any to the
Court.

For my
part I should state that I observed that the handwriting on the two
documents in question is so similar or indeed so identical
to the
naked eye that I do not even need expert evidence in the matter. In
doing so I bear in mind of course the danger of relying
on one's own
observations in matters such as this. That having been said I should
state however that a Court of law is not precluded
from making its
own observations in the absence of expert evidence. It depends on the
circumstances of each case. EX "D"
and "C1" are
peculiarly similar and identical not only in every letter thereof but
also in the fact that all the letters
in both exhibits peculiarly
tilt towards the left. I have also attached due weight to the fact
that this was not a case of conflicting
evidence as such on the
handwritings on the two documents. As earlier stated the accused
could not point to any differences. I
have no doubt therefore that EX
"C1" was written by the accused as PW2 testified.

Finally
the accused admitted that the co-conspirators came to his own house
and invited him to join them in their mission of overthrowing
the
Government. He conceded that they would approach someone they had
confidence in. He corroborates PW1 and PW2 that the purpose
of going
to

Radio
Lesotho was to announce the overthrow of the Government over the
radio. He confirms that he knew about the conspiracy to overthrow
the
Government on the 9th January 1996.

Having
seen and heard the accused give evidence before me I can say with
confidence that he was not only evasive but he was clearly
a lying
witness.

In a
nutshell the accused's explanation is that he dissociated himself
from the conspiracy to overthrow the Government.

Now the
law as I have always perceived it to be is not whether the accused's
explanation is true but whether it may possibly reasonably
be true.
That is the real test. Conversely the test is not whether the Court
subjectively disbelieves the accused. Indeed the Court
does not even
have to reject the case for the Crown in order to acquit the accused.
That remains so even where the case for the
Crown is overwhelming
against the accused. The court must still determine whether the
defence case is so demonstrably false or
inherently so improbable as
to be rejected as false. It is also pertinent to bear in mind that in
embarking upon this exercise
it is a wrong approach to reject the
accused's explanation merely because the Court is satisfied as to the
reliability of the witnesses
for the Crown. It is only after the
merits and the demerits of the two sides have been analysed and
weighed together with the probabilities
of the case that a Court
would be justified in reaching a conclusion one way or the other
regarding the question whether the Crown
has proved its case beyond

reasonable
doubt. Authorities in this regard are indeed legion.

See for
example S v Singh 1975 (1) S.A. 227 AT 228 per Leon J (now Judge of
our Court of Appeal)

S v
Kubeka 1982 (1) S.A. 534 at 537

S v
Jaffer 1988 (2) S.A. 84

S v
Munyai 1986 (4) S.A. 712 at 714

Indeed in
R v Difford 1937 AD 370 at 373 Watermeyer AJA succinctly stated the
law in the following words:

"It is equally clear that no onus rests on the accused to
convince the Court of the truth of any explanation he gives. If
he
gives an explanation, even if that explanation be improbable, the
Court is not entitled to convict unless it is satisfied, not
only
that the explanation is improbable, but that beyond any reasonable
doubt it is false."

Davies
AJA reaffirmed the legal position in R v M 1946 AD 1023 at 1027 in
the following words:

"....the Court does not have to believe the defence story, still
less does it have to believe it in all its details; it is
sufficient
if it thinks that there is a reasonable possibility that it may be
substantially true."

It is on
the basis of the above mentioned principles that I approach the
accused's explanation in the matter. But before doing so
it is
necessary to examine the evidence of his witness DW2 Matsoso Bolofo
as it was tendered to bolster this explanation.

It will
be recalled that Matsoso Bolofo is one of the leading co-conspirators
in the matter. He is the very person who actually
made the
announcement over Radio Lesotho on the 29th February 1996 to the
effect that the Government of Lesotho had been overthrown.
As earlier
stated he subsequently pleaded guilty to the crime of sedition and
was sentenced to four (4) years imprisonment half
of which was
suspended conditionally. He is thus a convicted criminal and a
co-conspirator whose evidence must be approached with
due caution as
stated above. The danger is that DW2 may well be giving favourable
evidence to the accused simply in an attempt
to shield him from the
consequences of the case he is facing.

It is the
evidence of DW2 that he is aged 60 years old. He lives at Lower Seoli
in Maseru. In February 1996 he was employed as security
officer at
Lesotho Bank. Otherwise he is a retired police officer having retired
in 1987 as a Major. He had joined the police force
in 1961.

He
confirms that he is serving a term of imprisonment for sedition. He
is serving together with Makara Sekautu and Lelingoana Jonathan.

It is the
evidence of DW2 that he knows PW2 whom he first met on the

The 4th
February 1996 at Lithabaneng at the home of the accused. He does not
know PW1 but qualifies this by stating "I don't
know whether he
(PW1) was the very same person that I found there on the 10th
February 1996."

DW2
testifies further that he first saw the accused at the latter's place
at Lithabaneng on the The 4th February 1996. He says that
as he
passed at a place called Lefikeng Makara Sekautu stopped him. He told
the latter to wait for him as he was going to drop
his wife at home.
On his return he found Makara still waiting for him there at the bus
stop. He delivered a message to the latter
that the Major General
wanted to meet him. DW2 had promised Makara Sekautu that he would
assist the latter to meet the Major General
about the instability in
the country "caused by the Government."

DW2 and
the accused then proceeded to the latter's home after he (DW2) had
told the accused that he was travelling with someone
who was at
accused's home. Asked what he was going to do at accused's home DW2
testified that Makara Sekautu had asked a lift from
him.

At the
accused' house DW2 found the accused with PW2. He saw Makara Sekautu
discussing with the accused inside the house. Indeed
I observe that
he contradicts the accused who says that the discussion took place
outside.

After the
discussion in question Makara Sekautu approached DW2 and told him
they "may now leave."

Asked
whether Makara Sekautu talked with the accused in the witness's
presence DW2 immediately contradicted himself and testified
as
follows I did not see him discuss in my presence" He was then
asked:

"Court:
You said Makara Sekautu discussed with the accused; how long did that
take?

A: I didn't say he discussed with the accused I said with Ntente."

Well the
record will show that DW2 was plain lying on this aspect.

DW2
further testifies that on the 7th February 1996 Makara Sekautu and
himself met the Major General who after having been given
grievances
against the Government by the former told them that those grievances
do not involve the armed forces and that the permits
could be
obtained from the police. The Major General refused to have anything
to do with the matter even when Makara Sekautu reminded
him that he
was a member of the State Council and was also the custodian of the
Constitution. In fact the Major General chased
away the two gentlemen
the following day.

According
to DW2 he got to the accused's house again on the 10th February 1996
looking for Makara Sekautu. He found the accused
standing outside
holding a dog so that it should not attack him and told him Makara
Sekautu was inside the house. As he entered
the house he found the
latter with Lelingoana Jonathan "and one other gentleman whom I
saw for the first

time."
According to DW2 the accused did not enter the house until they left.

DW2
testifies that after entering the accused's house on the 10th
February 1996 he heard Makara Sekautu reporting to "those
other
men one Lelingoana and one gentleman I did not know" that the
owner of the house had not given them permission to hold
a meeting in
his house. DW2 had not gone there for a meeting. It is his evidence
that PW2 was not present at this meeting.

Asked by
Mr. Phoofolo for the accused to confirm or deny whether on his
arrival he reported that the Major General had agreed to
the toppling
of the Government DW2 once more became evasive and replied that "I
had not gone to that place to deliver that
statement my Lord."

On the
29th February 1996 DW2 went to the BNP rally at 'Manthabiseng Bus
Stop where he met Makara Sekautu. He confirms that he was
travelling
in his motor vehicle. He also met PW2. He did not see the accused at
all that day "up until we were arrested."
He denies that
the conspirators met at 'Manthabiseng. He further denies that he ever
dictated a statement to the accused to write.
According to DW2 "there
was no such thing. The statement that I was going to read at Radio
Lesotho was typed the previous
day. So nothing was written that day."

Well for
my part I should say that I am not impressed with this statement and
I think once more DW2 is plain lying because the statement

actually
read over Radio Lesotho was EX "Cl" which is clearly a
shortened Sesotho version of the typed statement EX "A".
EX
"C1" is handwritten for that matter which would seem to
corroborate PW2 that it was handwritten at the last moment
before the
conspirators joined the procession to Parliament building.

DW2
concedes that he went to Radio Lesotho with PW2 in his car. He did
not see the accused at that place. Whereas there is unchallenged

evidence which I accept that the conspirators followed a certain lady
into Radio Lesotho DW2 says they "followed nobody."
Once
more DW2 was being plain untruthful. In any event DW2 immediately
retracts from this stance and concedes that they followed
the lady in
question into the studio rooms.

Amazingly
DW2 denies the conspiracy to overthrow the Government at any time. He
does not explain the effect of the series of meetings
the
conspirators had and the fact that they ultimately went to Radio
Lesotho where he personally announced the overthrow of the

Government. My impression was that DW2 was a terrible liar.

Asked by
Mr. Phoofolo to comment on the allegation that he was detailed by the
accused, Makara Sekautu and Lelingoana Jonathan DW2
evaded the
question in the following words:

"I said we went to General Mosakeng twice only and not with the
others."

The
question was inevitably repeated and produced exactly the same
results - evasiveness:

"Q: The allegation is that they detailed you;

A: I have mentioned that I went to Major General Mosakeng following
Sekautu's request that he wanted to meet the Major General."

Nor was
that the end of DW2's bouts of evasiveness as he was then asked:

"Q: It is again alleged that you met on the 29th February 1996
to overthrow the Government. A: I have shown the person I met
at the
gathering at Lithabaneng."

Under
cross examination DW2 fared even worse. He was mercilessly exposed
for what he is - an unrepentant liar. For example he was
asked:

"Q: When you retired from the force you were then attached to
NSS (National Security Service). A: No.

Q: Were you at any stage a member attached to NSS? A: While still at
work. Q: When was that?

A: I started in 1964.

Q: Till when?

A: Until 1987.

Q: So why did you deny that when you retired you were in NSS? A: That
is correct I was still attached to NSS."

He evaded
this question because he had been exposed as a liar.

I should
also mention that I was not impressed by the demeanor of DW2 who at
times would simply refuse to answer questions put to
him despite the
Court's warning that he must answer them.

DW2
corroborates the evidence of PW1 and PW2 that he read over Radio
Lesotho on the 29th February 1996 that "I am taking over
the
government and hereby announce that the Government has been
discharged. And I have suspended the Constitution." Asked
under
what powers he did so DW2 arrogantly retorted "my own powers."

DW2 was
at pains to say whether he read from the long typed statement EX "A"
when announcing the overthrow of the Government.
He only admitted to
having read from EX "A" after a long hesitation and dilly
dallying - once more 1 have no doubt that
he was being untruthful on
this point. I accept that he read from EX "C1" being the
shortened statement. It was then
inevitably and correctly put to him:

"Q: This statement (EX "C1") was admitted in evidence
as the statement you read over Radio Lesotho on the 29th February

1996.

A: It's not true."

It is
incredibly the evidence of DW2 that "the intention was not to
overthrow the Government" but to mobilise the people
yet in his
own words as shown above he had announced that he was taking over the
Government and announced that the Government had
been dissolved. The
Constitution had also been suspended. I think the truth means nothing
to DW2.

DW2
subsequently testified under cross examination that it is Makara
Sekautu who dictated and EX "C1" was written by one
Matete.
Yet this was never put to the Crown witnesses particularly PW2.
Because this aspect of the evidence was given in hardly
audible voice
(in undertones as if DW2 was indeed ashamed of himself) the Court
warned the witness to speak aloud. DW2 assured
the Court " I
don't have any problem" but immediately contradicted himself to
say "I feel I am not in a position
to give evidence." Asked
whether this was due to the pressure of cross examination he replied
"No my Lord I am still
suffering from heart attack." That
indeed precipitated a long postponement until the witness was able to
continue with his
evidence.

At the
resumed hearing DW2 once more contradicted himself and now conceded
that they did not intend to read from the long statement
EX "A".
He now corroborated PW2 that the shorter statement EX "C1"
was read over

Radio
Lesotho on the 29th February 1996 He maintained that it was prepared
by him at 'Manthabiseng. He claimed the handwriting to
be his yet it
will be recalled that he had earlier attributed the handwriting to
one Matete. My impression was that DW2 never stopped
lying
unashamedly.

DW2
further testified that their intention of going to Radio Lesotho was
to "mobilise" the people to "oust the Government
if
they so wished." According to him the date on which to go to
Radio Lesotho was chosen by Makara Sekautu and the co-conspirators

including himself did not agree with it. He was then asked:

Q: And you just went along with that?

A: Yes.

Q: How comes you read the statement?

A: Because he (Makara Sekautu) said he was going to join the rally of
the National Party."

I do not
think that the conspirators including DW2 would "just go along"
with such a sensitive thing as toppling the Government.
My impression
is that DW2 was simply a lying witness who did not want to take the
Court into his own confidence.

As is
obvious from the evidence of DW2 he did not assist the accused on the
allegation of the events of the 9th January 1996 at
Old Europa.

I return
then to evaluate the accused's explanation that he dissociated
himself from the conspiracy to overthrow the Government.
At the
outset I observe that the following factors militate against this
explanation.

It
is common cause that the accused attended the meeting of the
co-conspirators at Old Europa at the home of Khethisa Molapo on
the
9th January 1996.

It
is further common cause that the accused was in charge of the house
in which the meeting was held in the absence of Khethisa
Molapo who
was conveniently away in Leribe.

It
is common cause further that at the said meeting of the 9th January
1996 the discussion centred around the toppling of the
Government
which would be effected by an announcement over Radio Lesotho at
"dawn" on the morning of the 10th January
1996.

The
evidence of PW1 and PW2 is not challenged to the effect that
ultimately the accused and the co-conspirators discussed the

question of security and transport to get to Radio Lesotho. That
being the case I find that the conspiracy was accepted in principle

by the participants at the meeting. In my view this is the only
reasonable inference to be thrown in the circumstances of the
case
(see

PW1
was not challenged in his evidence that all the participants of the
meeting in question including the accused were "happy"

over the discussion to topple the Government." This is
inconsistent with the conduct of someone who dissociated himself

from the conspiracy.

It
is common cause that the meeting at Old Europa took place for a very
long time starting from the evening of the 9th January
1996. While
the accused claims he left the meeting either at 11 p.m. or 12
o'clock midnight I accept the unchallenged evidence
of PW2 that the
meeting broke off at 6 a.m. on the morning of the 10th January 1996.
I further reject the accused's evidence
that he left the
co-conspirators still engaged in the meeting bearing in mind that he
was in charge of the house in the absence
of its owner and also
bearing in mind that there was admittedly no transport to take him
from Old Europa to his house at Lithabaneng
in the middle of the
night. On accused's own version they had walked on foot to the
meeting in question. I accept the evidence
that if he left he did so
after the meeting was closed at 6 a.m. when it was no longer
dangerous for that matter to leave the
house unguarded. That being
the case I consider that the accused had ample

time to walk out and dissociate himself from the meeting if he did
not associate himself with the conspiracy to overthrow the
Government. Yet the accused participated right through to the end.

There
is no credible evidence that the accused ever discouraged the
co-conspirators including his own relative PW1 from the conspiracy

to overthrow the Government at this meeting or indeed any other
meetings. This is incompatible with a man who allegedly dissociated

himself from the conspiracy.

It
is not disputed that the conspirators even went to the extent of
detailing Makara Sekautu and Lelingoana Jonathan during the
course
of the meeting at Old Europa to go and bring one of the security men
from the army. They admittedly left at 2 am. and
returned at about
4.30 a.m. (See the unchallenged evidence of PW2). Now the fact that
the accused would also await this exercise
for such a long time is
also glaringly incompatible with a man who dissociated himself from
the conspiracy.

It
is not seriously disputed that the conspirators failed to go to
Radio Lesotho on the 9th January 1996 merely because they had
not
secured transport as well as security and not

because there was no agreement on the conspiracy itself. Hence the
question of going to Radio Lesotho was deferred to another day.

Indeed I accept this version.

There
is no evidence that the accused reported to the authorities about
the conspiracy. Once more this is incompatible with the
conduct of a
man who has dissociated himself from the conspiracy.

The
accused concedes that he attended a "series of meetings."
In my view this is again incompatible with the actions
of someone
who had dissociated himself from the conspiracy.

The
evidence that some of these meetings were actually held at the
accused's home at Lithabaneng was not seriously disputed. As
earlier
stated I have attached due weight to the following questions put to
PW2 by Mr. Phoofolo:

"Q: He (the accused) will tell his Lordship that the only
meeting that he knows of held at his place was that of the 4th
February 1996

A: Although I can't recall the date but I know there was one meeting
that 1 did not attend."

I accept the evidence that some of the meetings were in fact held at
the home of the accused at Lithabaneng. I find it too much
of a
coincidence that the first meeting held at Old Europa on the 9th
January 1996 was actually held at a deserted house (under
the care of
the accused himself) whose owner was conveniently away in Leribe and
the fact that the meetings of the 4th February
1996 and 10th February
1996 were held at the accused's home which is admittedly secure and
convenient for sensitive meetings of
that nature. I think
probabilities are that the venues for the meetings were carefully
chosen. The point is why must these meetings
be held at houses over
which the accused is responsible unless he is part and parcel of the
conspiracy? At any rate I have no doubt
in my mind that the accused
would not have allowed the meetings to take place at these houses if
he had dissociated himself from
the conspiracy.

I
accept the unchallenged evidence of PW3 to the effect that he warned
the conspirators including the accused to stop the conspiracy
and
that "nobody responded" including the accused. I consider
that this was an ideal opportunity for the accused to
dissociate
himself from the conspiracy yet he did not. His conduct therefore is
inconsistent with that of a man who had dissociated
himself from the
conspiracy.

There
is undisputed evidence which I believe and accept (see the evidence
of PW1) that the accused agreed to be one of the Councillors
in the
proposed government that was to be set up by the conspirators after
the overthrow of the lawful Government. This again
is incompatible
with the conduct of a man who had dissociated himself from the
conspiracy.

In all
the circumstances of the case and taking the cumulative effect of the
above mentioned factors into account I have come to
the conclusion
that the accused's explanation cannot reasonably possibly be true and
I find that it is false beyond reasonable
doubt. Accordingly I reject
it.

Moreover
in my view the merits and demerits of PW1 and PW2 as corroborated by
PW3 are clearly far superior to the merits and demerits
of the
accused and his witness DW2.

I have
considered that the fact that PW1 is related to the accused and that
they are admittedly on good terms as well as being co-workers
reduces
the danger for false incrimination. In the circumstances of the case
I believe the evidence of the Crown witnesses PW1,
PW2 and PW3. These
witnesses were not shaken in cross examination. Moreover PW3 was not
interested in the case. He was a neutral
witness and no reason was
suggested why he should implicate the accused.

To the
extent that PW1,PW2 and PW3 may be single witnesses to some of the
issues involved in the case I have of course warned myself
of the
dangers of relying on single evidence. These witnesses have however
not been challenged or shaken in their evidence and
I find that their
evidence was so clear and satisfactory in material respects that I
accept it. I am satisfied that they have told
the truth.

This is
perhaps an appropriate stage then to refer to the law regarding the
offence of high treason. This crime has been defined
by P.M. A. Hunt
in South African Criminal Law and Procedure Vol. II (Revised Second
Edition by JRL Melton) in the following words:

"High treason consists in any overt act unlawfully committed by
a person owing allegiance to a State possessing majestas who
intends
to impair that majestas by overthrowing or coercing the Government of
that State."

The
essential elements of the crime of high treason are therefore the
following:

an
overt act;

unlawfully
committed;

by a
person owing allegiance to the State;

which
possesses majestas and

with
hostile intent otherwise known as animus hostilis.

I should
mention at the outset that the defence makes no challenge to
essentials (c) and (d) above. Mr. Phoofolo has confirmed this

position in his Heads of Argument. Accordingly the Court accepts that
the accused indeed owes allegiance to the State which in
turn
possesses majestas. It is essentials (a) (b) and (e) above which are
put in issue in this case.

The
definition of an overt act was reaffirmed by Watermeyer CJ in R v
Leibbrandt and Others 1944 AD 253 at 284 in the following
words:

"An overt act has been defined by Lord Tenterden in Rex v
Thistlewood (33 S.E. Tr 684) as "any act manifesting the
criminal
intention and tending towards the accomplishment of the
criminal object" and it must be clearly distinguished from the
state
of mind or intention which accompanies it."

It is
pertinent to note that this definition was adopted by this Court in R
v Mofelehetsi Moerane and Others 1974-75 LLR 212 where
Mapetla CJ
stated that "a conspiracy to commit an overt act of high treason
is itself an overt act of high treason."
I respectfully agree
with this principle which is indeed reaffirmed by Friedman J in S v
Banda and Others 1990 (3) S,A. 466 AT
474 to the effect that not only
an attempt, but also incitement and conspiracy to commit high treason
are acts of high treason
in themselves. Indeed I respectfully wish to
adopt the following remarks of the learned judge on page 473 J - 474
B of the judgment:

"Any act therefore, if viewed objectively, which is seemingly
and apparently to all appearances innocent, may establish treason
if
it is performed with a hostile intent. This aspect has received
judicial pronouncement in cases where it was stated - 'an act,

apparently innocent in itself, may clearly be an overt act of treason
if proved to have been done with hostile intent to the injury
of the
State or the supreme government'. R v Viljoen 1923 AD 90 AT 92; R v
Wenzel 1940 WLD 269 at 275; R v Adams and Others 1959
(1) SA 646
(Spec Crim Ct) at 666; S v Hogan 1983 (2) SA 46 (W) at 57C; R v
Christian 1924 AD 101; R v Mardon 1947 (2) SA 768 (Spec
Crim Ct); R v
Stauss 1948 (1) SA 834 (A)."

It was
precisely for this reason that Mapetla CJ in R v Mofelehets Moerane
and Others (supra) at p 219 correctly stated, in my respectful
view,
that "even what may in itself appear to be a perfectly innocent
act, if it can be proved that that act was done with
a hostile
intent, will amount to an overt act of high treason." The
learned Chief Justice arrived at this conclusion after
referring to
the following passage by Ramsbottom J in R v Weazel 1940 W.L.D.at.
275:

"Now, gentlemen, an overt act and deed, manifesting an intention
to commit any of these species of treason, need not necessarily
be an
act of treason in itself; for example, suppose that there is an
undoubted scheme proved or admitted to raise an insurrection
or

to levy war against the King for a general purpose, there can be
nothing more innocent in itself in the world than the ringing
of a
bell, or firing of a skyrocket, the beating of a drum, or anything of
that sort; but if it be proved at the same time that
any of these
were to be the signals of the insurrection, then these acts,
perfectly innocent in themselves, if done by a person
who was aware
of the object of them, is an overt act of treason; that is to say, it
is an overt act, intimating the treasonable
purpose the man has in
view....."

What then
is hostile intent? It is pertinent to bear in mind that this hostile
intent or animus hostilis is the definitive element
of high treason
itself The most authoritative and all embracing definition of hostile
intent is that given by Snyman: Criminal
Law (Second Edition) at page
314 which is to the following effect:

"Hostile intent may be defined as follows: and intention
unlawfully to overthrow the Government, coerce, impair or endanger

the existence, independence or security of the Government......".

As was
succinctly stated by Watermeyer CJ in R v Liebbrandt and others
(supra) at 284 intention is clearly something subjective
that is to
say a state of mind incapable of direct proof by witnesses. Proof of
hostile intent therefore can only be proved by
inference from the
acts and expressions of the

accused
and from those of their proved co-conspirators as well as from
surrounding circumstances bearing in mind the two cardinal
rules of
logic as set out by Watermeyer JA in R v Blom (supra) at 202-3 namely
that:-

"(1) the inference sought to be drawn must be consistent with
all the proved facts. If it is not, then the inference cannot
be
drawn;

the
proved facts should be such that they exclude every reasonable
inference from them save the one to be drawn. If they do not
exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct."

Now the
evidence adduced in this case has shown beyond reasonable doubt that
there was a conspiracy to overthrow the Government
as at the 9th
January 1996. I accept that the conspiracy was probably hatched
before that date. On accused's own version Makara
Sekautu announced
to the participants of the meeting at Old Europa on the 9th January
1996 that he had come to let them know that
he himself and "all
political leaders in Lesotho and traditional leaders and Lesotho
armed forces and Lesotho police officers
and NSS security of Lesotho
reached a conclusion that at dawn of that day he will be announcing
at Radio Lesotho that Lesotho Government
had been overthrown and that
therefore the Government of National Unity will be in place. So he
had come to invite us to accompany
him to Radio Lesotho."

The
question then is whether the accused associated himself with this
conspiracy. He does not dispute the fact that he participated
in the
meeting of the 9th January 1996 for a very long time. Nor does he
dispute that eventually the discussion centred on whether
transport
and security would be available for the carrying out of the
conspiracy early on the morning of the 10th January 1996.
To show
their determination and resolve in the matter the parties even went
to the extent of sending out two of the conspirators
Makara Sekautu
and Lelingoana Jonathan to go and fetch a security man from the armed
forces.

In my
view this is a clear indication that the conspiracy was accepted in
principle. Logic dictates that an agreement (expressly
or by conduct)
would indeed precede such niceties and modalities as security and
transport. For reasons fully stated above I reject
the accused's
explanation that he dissociated himself from the conspiracy and I
believe the evidence of PW1 and PW2 regarding the
accused's
association with the conspiracy to overthrow the Government on the
9th January 1996. That being the case I find that
the accused is
guilty of a treasonable act.

Again as
earlier stated the accused does not seriously dispute that he
attended "a series of meetings" after the 9th January
1996.
I accept the evidence of PW1, PW2 and PW3 that those meetings were in
furtherance of the conspiracy to overthrow the Government.
I have
already rejected the accused's explanation that he dissociated
himself from the conspiracy. By attending meetings in furtherance
of
a conspiracy to overthrow the Government I find that the accused is
guilty of high treason.

Mr.
Phoofolo has relied heavily on the case of R v Labuschagne and others
1941 TPD 271 for the proposition that even though the
accused took
part in the meetings in question he did not specifically agree to the
conspiracy. In that case however there was clearly
no decision taken
and there was no evidence disclosing a conspiracy. There was no
"incitement" by any person and more
importantly there was
evidence that the conduct of the accused was one of "discouragement."
Quite clearly therefore that
case is distinguishable from the instant
case where there is evidence which I believe that the accused
actually associated himself
with the conspiracy to the extent that he
even accepted a position as a Councillor in the proposed government
of National Unity
after the lawful Government had been overthrown. I
consider that this is a treasonable act in the circumstances of this
case.

Regarding
the element of hostile intent I am satisfied that the Crown has
proved this beyond reasonable doubt from the whole conduct
of the
conspirators culminating in some of them actually holding the staff
of Radio Lesotho hostage and announcing the overthrow
of Government
over the radio. Indeed PW2 is unchallenged in his evidence that "we
were serious; we were sober."

Mr.
Phoofolo has argued that since the Crown did not allege in the
indictment that the accused was one of the conspirators who went
to
Radio Lesotho then it cannot tender evidence that in fact he did get
there. He relies on section 256 of the Criminal Procedure
and
Evidence Act 1981 which is to the effect that in a treason trial
evidence shall not be admitted of any overt act

not
alleged int he charge "unless relevant to prove some other overt
act alleged therein." In my view this proviso is
decisive in the
instant case where Count I A makes it perfectly clear that the
conspiracy was to overthrow the Government by announcing
same over
Radio Lesotho on 9/1/96 and that in terms of Count 1 B, the objective
was then deferred to some other day. The main thing
here is that the
announcement of the overthrow of the Government was going to be made
over the Radio whatever the date.

I
consider therefore that the evidence that the accused was actually
seen at Radio Lesotho was necessary and relevant as being in

furtherance of the conspiracy to go and announce the overthrow of the
Government over the radio.

In any
event even if I am wrong in the view that I take of the matter I am
satisfied that in a matter such as this the executive
acts of the
co-conspirators at Radio Lesotho are the acts of the accused. That
these acts amounts to treason admits of no doubt.

Lastly,
as earlier stated there is no evidence that the accused reported the
conspiracy to overthrow the Government to the authorities.
Taxed as
to why he failed to report to the authorities the accused could offer
no explanation which could reasonably possibly be
true. He started
saying totally outrageous things such as that the police, the army
and members of the National Security Service
were all involved in the
conspiracy to overthrow the Government and that therefore he could
not report to them as they might kill
him. As I

understand
his evidence he never even tried. In any event I reject this
explanation as being unfounded and totally false. This is
so because
on his own version the accused was told by Matsoso Bolofo that "Major
General Mosakeng said he cannot overthrow
the Government because they
have signed an agreement with SADCC countries that they will never
overthrow Governments." It
must have been clear to the accused
therefore that Major General Mosakeng was opposed to the overthrow of
the Government. That
being the case I consider that the accused could
have reported to him if he was so minded and if he did not have
treasonable intentions.

Nor does
this Court believe the accused's explanation that he did not report
to his own chief because the latter was "likewise"
involved
in the conspiracy to overthrow the Government. There was absolutely
no evidence that the chief was so involved and this
was clearly said
as an afterthought. I have no doubt that the accused was plain lying
on this point. The truth of the matter is
that he never reported to
any authority. He did say however out of desperation that he reported
to one Lekhooana Jonathan who is
secretary of the BNP party. But then
three is no evidence that the said Lekhooana Jonathan is a man in
authority. In any event
he is admittedly not accused's own chief.

It is
appropriate at this stage then to refer to Snyman: Criminal Law
(supra) page 312 This is what the learned author states on
acts of
high treason:-

"Even an omission to act which is accompanied by the requisite
hostile intent constitutes high treason. Every person who owes

allegiance to the State and who hears or otherwise becomes aware of
the fact that high treason is being committed or that there
is a plan
to commit it has a duty to communicate this fact to the authorities
as soon as possible. Failure to do so constitutes
treason."

I
respectfully agree with the principle stated by the learned author.
Indeed Greenberg JP in R v Labushagne (supra) at275 acknowledged
this
principle in the following words: It can be assumed that failure to
report past conduct which is treasonable is also treason."

I am
satisfied, from the totality of the evidence before me, that the
accused's failure to report the conspiracy and the co-conspirators

themselves to the authorities was in furtherance of the conspiracy
and was accompanied by hostile intent. This omission is in itself
an
act of high treason in the circumstances of the case.

Taking
into account the totality of the evidence as a whole therefore I have
come to the conclusion that the Crown has proved its
case beyond
reasonable doubt on the charge of high treason.

Accordingly
the accused is found guilty of high treason as charged in Count 1. He
is discharged on the other Counts.

My
Assessors agree.

M.M.
Ramodibedi

JUDGE

12th June
1998

For the
Crown : Mr. Mdhluli (the DPP)

For the
Accused : Mr. Phoofolo

100

SENTENCE

It is now
the task of this Court to impose a sentence which is appropriate in
the circumstances of the case. In doing so the Court
must balance the
mitigating factors including personal circumstances of the accused as
against the requirements of reasonable punishment
designed to ensure
not only maintenance of law and order but also deterrence. It is on
the basis of this principle that I approach
the matter.

At the
outset I should like to say that I have received full submissions
from both counsel in the matter in so far as sentence is
concerned. I
have accordingly taken into account all that has been said including
personal circumstances of the accused in their
entirety. In
particular I have attached due weight to the fact that the accused is
a first offender who may well be a fallen angel.
He is married with
three minor children. He is the sole bread winner. I have also taken
into account the fact that the accused
has been in custody since his
arrest in March 1996. There is no doubt that he has suffered not only
from the long incarceration
and its attendant consequences but also
from the agony of having the case hanging over his head during all
this time.

As
against personal circumstances of the accused this Court considers
that the offence of high treason is very serious indeed. It
must be
punished accordingly in order to make a lasting impression on the
accused and other like minded persons and thus deter
them from
similar acts in future. Indeed the seriousness of the offence can be
gauged from the fact that in terms of

101

section
297 (1) (b) of the Criminal Procedure and Evidence Act 1981 the High
Court has a discretion whether or not to pass a sentence
of death
upon an accused convicted of high treason. To that extent therefore
the offence is literally a matter of life and death.
I have
accordingly had to consider seriously whether or not to spare the
accused's life for the treasonable act he has committed.
I have taken
into account in favour of the accused the fact that the amount of
violence involved was relatively minimal being confined
to the
rounding up of Radio Lesotho staff at gun point. That however must
have been a traumatic experience to the poor people.

As I had
occasion to observe in sentencing the accused's co-accused on the
12th March 1997 in these days of democracy in Lesotho
political
dissensions can easily be addressed through the ballot box. I said
then and wish to repeat now that there is absolutely
no need to
resort to the unlawful acts such as high treason.

What is
of particular concern to this Court is the fact that it is common
cause that it has now become fashionable in this country
for people
to resort to unconstitutional toppling of Government by force. It is
no wonder the accused and his co-conspirators were
so confident of
success in their traitorous and treasonable acts that they obviously
genuinely believed that the mere announcement
of the overthrow of the
Government over the radio would do the trick and the Government was
up for grabs! It is hoped that the
sentence that this Court is about
to pass will go a long way towards stamping out the culture of coups
that has besetted this country
for so long. Indeed the

102

Court is
determined that democracy as is enshrined in the Constitution shall
prevail. Such is the object of this sentence.

Yet on
the other hand this Court subscribes to the principle eloquently
enunciated by Mofokeng J, as he then was in Sekoyela and
ors. V Rex
1981 LLR41 to the effect that justice must be tampered with mercy.
This is what he said at page 45 of the judgment:-

"It is characteristic of courts of law to be merciful in their
dealings with individuals who appear before them despite horrible

crimes they have been found to have committed."

I shall
therefore extend a hand of mercy to the accused and give him an
opportunity to rehabilitate rather than be broken completely.
I
consider that at the age of 41 years he is not too old to reform.

In all
the circumstances of the case therefore 1 consider that justice will
be done if the sentence imposed upon the accused is
one of ten (10)
imprisonment three (3) of which is suspended for three (3) years on
condition that the accused is not found guilty
of an offence
involving high treason or sedition committed during the period of
such suspension and I so order.

My
Assessors agree.

103

M.M.
Ramodibedi

JUDGE

12th June
1998

For the
Crown : Mr. Mdhluli

For the
Accused : Mr. Phoofolo

ORDER: I
have considered the evidence of the accomplice witnesses PW1 Masupha
Molapo and PW2 Lennox Ntente Sesioana and I am satisfied
that they
fully answered to the satisfaction of the Court all such lawful
questions as were put to them. Accordingly they are both
discharged
from all liability to prosecution for the offence concerned in terms
of Section 236 (2) of the Criminal Procedure and
Evidence Act 1981.

M.M.
Ramodibedi

JUDGE

12th June
1998

R v Molapo (CRI/T/1/1997 ) (CRI/T/1/1997) [1988] LSCA 57 (12 June 1998);

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R v Molapo (CRI/T/1/1997 ) (CRI/T/1/1997) [1988] LSCA 57 (12 June 1998);

Group

Free African Law

Free Foreign Law

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