CRI\T\44\91

IN THE
HIGH COURT OF LESOTHO

In matter
between:

REX

and

KHALIPHILE
GOGO Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 26th day of August.
1992

The
accused is charged with the murder of Tsautse Chaka upon or about the
11th day of January, 1991 and at or near Qacha's Nek,
He pleaded not
guilty to the charge.

P.W.I
Warrant Officer Maluke testified that on the 11th January, 1991 he
was on duty in the C.I.D. office in Qacha's Nek. On the
day in
question the accused, who is a Transkeian policeman, arrived in his
office accompanied by other Transkeian police officers
amongst whom
was Captain Dlanjwa. The latter explained the reason why they had
come to Lesotho. They were looking for some Lesotho
citizens who were
suspected of having committed some robberies in Transkei. One of such
robberies had been committed on the 9th
January, 1991 at Imgcobo and
an amount of R2.6 million was involved. They gave him the name of the
deceased as one of the suspects.
P.W.1 detailed a patrol consisting
of both Lesotho

2

police
and Transkeian police to go and look for the deceased. They did not
find him. He suggested that they should look for him
in the bars
within Qacha's Nek township. In the afternoon the deceased was
spotted in one of the hotels. P.W.1 instructed P.W.2
Trooper Lepheane
and P.W.3 Trooper Mabasele to go and arrest him. They travelled in
the Transkeian police van put at their disposal
by the Transkeian
police.

P.W.I had
opened a skeleton docket, he stated in no uncertain terms that he had
instructed P.W.2 and P.W.3 to go to Central Hotel
and arrest the
deceased and bring him to the charge office. They brought him after a
very short time. P.W.1 was in his office when
they arrived. he
noticed that at that time the accused and his colleagues were under a
tree infront of the charge office.. P.W.3
ordered the deceased to go
into the charge office. He refused to do so and was looking at the
accused and his colleagues and appeared
to be afraid of them. He
walked away but P.W.3 caught hold of him. P.W.1 says that the
deceased struggled in order to free himself
until they got out of his
sight going towards the gate. After a short while he heard some gun
reports and quickly came out of his
office. He saw some people at the
corner of the police yard near the offices of Co-Op Lesotho. They
were surrounding a person who
was lying down. He met P.W.3 at the
gate and instructed him to take that person to the hospital.

P.W.1
eventually arrived at the corner of the yard and found

3

that the
person who was lying on the ground was the deceased. He was unable to
speak and there was blood on his buttocks. He could
not stand and he
appeared to be paralysed and unconscious. The vehicle arrived and the
deceased was taken to the hospital. P.W.1
says that he made his own
investigations and found out that the deceased had been shot by the
accused. He disarmed him and took
his pistol 9MM No 205672 together
with twelve rounds of ammunition. He later sent Trooper Fako to the
scene of the crime to look
for empty shells. He brought three empty
shells. All the exhibits were sent to the ballistic experts. I do not
regard the ballistic
experts evidence to be very important in this
case because the accused admits that he shot the deceased with the
same pistol exhibited
in Court.

P.W.1
testified that there is very good cooperation between the Lesotho
police and Transkeian police. When stolen animals from Transkei
are
found in Lesotho the Transkeian police and complainants come to
Lesotho and identify such animals. If a Lesotho citizen is
arrested
in Lesotho the trial usually takes place in this country because
theft is a continuing offence. No immigration laws are
observed when
Transkeian police come into Lesotho for such joint ventures in the
investigation of crime. No formalities are observed
at the border
post. They bring their arms without observing any formalities. The
same procedure is followed when the Lesotho police
go to Transkei for
such joint ventures. In the present joint venture between the Lesotho
police and Transkeian

4

police
the vehicles of the latter force were used in the morning when a
search for the deceased was made and in the afternoon when
the
deceased was arrested. P.W.1 says that the deceased was resisting
arrest when he refused to go into the charge office. The
Transkeian
police could help when he resisted arrest.

As far as
the time of shooting is concerned P.W.1 says it was between 4.30p.m.
and 5.00p.m. The deceased was rushed to the hospital
immediately
after the shooting. At 6.00p.m. they received a message that he had
passed away.

P.W.2
Detective Trooper Lepheane testified that on the 11th January, 1991
he and Trooper Mahasele (P.W.3) were instructed by P.W.1
to go and to
bring the deceased to the charge office. They left in a Transkei
police van which was driven by P.W.3. When they came
to Central
Hotel, they found him drinking beer with his companions. He called
him aside and told him that he was wanted at the
charge office. The
deceased asked for the reason why he was wanted. P.W.2 said that he
would be told the reason at the charge office.
He got into the
vehicle without any resistance. P.W.2 says that he did not consider
the deceased to be under arrest. As far as
the time is concerned he
says that it was between 4.30p.m. and 5.00p.m. When they arrived at
the charge office P.W.2 alighted and
went into the office leaving
P.W.3 and the deceased outside. His intention was to report to P.W.1
that they had brought the deceased.
Up to that stage the deceased
willingly came with them

5

and was
in a jolly mood.

When he
entered into the office he heard some noise outside as if there was a
struggle. He went out and heard a gun report near
the office and saw
that the deceased was running away. The accused and the deceased were
running side by side and were already
outside the gate. He followed
them and heard a gun report. He continued to follow them until they
were at the corner of the police
yard when he heard another gun
report. The deceased fell down besides the road. Later he was ordered
to take the deceased to the
hospital which is about half a kilometre
away. He estimates that it took them about two minutes to reach the
hospital. They handed
the deceased over to a nurse who was on duty.
It was at about 5.00p.m. After putting the deceased in a ward they
immediately left
even before they gave the particulars of the
deceased to the nurse on duty. As they went out they met a doctor
entering into the
hospital. At 6.00p.m. P.W.2 went to the hospital
with the father of the deceased but found that he had already died
and was lying
in the mortuary.

On the
12th January, 1991 P.W.2 went to the mortuary and examined the body
of the deceased in order to establish the number of wounds.
There was
an open wound on the buttock; there was another wound above the left
groin. He formed the opinion that the wound on the
buttock was the
entry wound and that the one on the thigh was the exit wound. The
wound above the left groin was the

6

entry
wound.

I must
point out at this stage that P.W.2's evidence contradicts the
doctor's evidence. The latter says that the wound below the
knee was
an abrasion caused by a bullet. He says that the wound on the buttock
was the entry wound and the one about the groin
was the exit wound.

Under
cross-examination P.W.2 says that he was instructed to bring the
deceased to the charge office and not to arrest him. If the
deceased
refused to come he would have left him there. If he ran away he would
not have chased him. He says that the accused shot
the deceased while
they were running side by side. He was shot on the left groin from
the front.

P.W.3
Detective Trooper Mahasele confirms that he and P.W.2 were instructed
by P.W.1 to bring the deceased to the charge office.
He denies that
they were ordered to go and arrest him. As far as the time is
concerned he says it was between 4.00p.m. and 5.00p.m.
They found the
deceased at the hotel and told him that he was wanted at the charge
office. They made no indication that he was
being arrested and did
not tell him why he was being asked to go to the charge office.

The
deceased was his cousin. When they arrived at the charge office,
P.W.3 says that he ordered the deceased to go into the

7

office.
He refused and remarked that he had been called for "these
people". He did not indicate clearly which people he
was
referring to. The Transkeian police and Lesotho police were outside
the charge office. There was a whiteman as well. He walked
away. When
he passed near the N.S.S office he started running. The Transkeian
police chased him followed by P.W.2. He then heard
three gun reports.
P.W.1 came to him and ordered him to take the deceased to the
hospital. He says that after he heard the gun
reports he became
confused. He does not remember or know what happened at the hospital
because he was then fainting.

P.W.3
says that if the deceased had refused to come to the charge office
with him, he would have gone back to P.W.1 and reported
to him. He
did not do anything when the deceased refused to go into the charge
office and walked away.

This
witness is not telling the truth that he did not do anything when the
deceased refused to go into the charge office. P.W.1
saw that P.W.3
grabbed the deceased and forced him to enter into the charge office.
He did not succeed in his attempt and the deceased
managed to pull
him until they got out of the sight of P.W.1. This story is confirmed
by P.W.2 who says that when he got into his
office, he heard the
sound of a struggle outside. There is also abundant and credible
evidence by the defence witnesses that the
struggle was between the
deceased and P.W.3 when the former resisted arrest. P.W.3 is
obviously telling a lie that he

8

did not
do anything when the deceased walked away and refused to go into the
charge office. He is telling this lie in an attempt
to convince the
Court that the deceased was not under arrest and that he never
resisted any lawful arrest.

P.W.3
goes further to say that if the deceased was under lawful arrest he
would have forced him to go into the charge office. He
did attempt to
force him to do so and the Court can reasonably infer that he did so
because he knew that the deceased was under
lawful arrest. The person
who instructed him (P.W.1) says that he ordered the two police
officers to go and arrest the deceased.
It is inconceivable that the
two police officers to whom the order was given did not understand
it.

P.M.4
'Malethabile Mahlaba is a nurse assistant stationed at Machabeng
Hospital. She was on duty on the 11th January, 1991 when
the deceased
was brought into the hospital by the C.I.D. people. She had started
work at 4.00p.m. The deceased came not long after
4.00p.m. or he come
towards 5.00p.m. She found him near the door and was already on the
stretcher accompanied by the police. The
deceased was taken to the
ward and put on a bed. P.W.4 says that she noticed that he was
already dead because there were no signs
of life - she checked the
heart beat and breathing. A doctor, whose name she cannot remember,
came immediately after she had put
the deceased on the bed. He
certified that he was dead and that he should be taken to the
mortuary.

9

P.W.5
Detective Trooper Fako is one of the police officers who accompanied
the deceased to the hospital. He and P.W.3 sat with the
deceased in
the back of a van and tried to make him as comfortable as possible.
It took them about one to two minutes to reach
the hospital. The
nurses came and the deceased was taken to the ward. They left for the
charge office as quickly as they could
even before they told the
nurse who admitted him his particulars. When they arrived at the
charge office he was ordered to go to
the scene of the shooting and
look for shells. He found three of them. Two were about fifteen paces
from where the deceased had
fallen down. The third shell was about
five to ten paces from where the deceased had fallen down. P.W.5 says
that the nurse to
whom they handed over the deceased worked in all
the wards.

P.W.6
Trooper Moiloa testified that on the day in question he was on street
patrol from 8.00a.m. to 4.30p.m. When he returned from
the beat he
found the accused and other people in the police yard. He also saw
P.W.2 and P.W.3 leave in a vehicle going to Central
Hotel. They came
back with the deceased. The latter refused to go into the charge
office asking what he was going to do. He walked
away. The accused
and his colleagues approached. That was then that the deceased
started running. The accused and his colleagues
chased him. He
subsequently heard three gunreports. The deceased staggered and fell
down.

P.W.7
'Mateboho Theron was an employee of Lesotho - Co-Op

10

stationed
at Qacha's Nek. On the day in question she was on duty. At 4.00p.m.
she and her staff started balancing or checking their
books of
account. She testified that it is a practice at her depot that at
4.00p.m. every day they close their doors and stop serving
the public
and start balancing their books. On the day in question they had
already stopped serving the public and she was counting
money with
one Thamae when they heard three gun reports. They thought the shots
were directed at them and hid themselves in the
office. After a while
they came out and found a group of people near their office. She
denied that the shooting took place between
2.30p.m. and 3.00p.m.

P.W.8
Marikhoi Matete is a Senior Technical Officer stationed at Qacha's
Nek. On the day in question he knocked off at 4.30 p.m.
He was on his
way to the church when he saw a person coming out of the charge
office yard's gate. That person was running and four
people were
chasing him. He estimates that the time was 4.35p.m. or 4.40p.m. He
then heard three gun reports. When he passed near
where that person
had fallen he heard three men asking the other why he shot that man.

P.W.10
Trooper Lesoma testified that on the day in question he came to work
at 4.30p.m. and signed the occurrence book. On his arrival
at the
charge office there were some Transkeian police and their vehicles.
The deceased arrived being in the company of two Lesotho
police
officers. He refused to go into the charge office

11

when he
was ordered Co do so. He walked away. The Transkeian policemen tried
to intercept him but they did not succeed. He ran away
and the
Transkeian police chased him. The accused took out a pistol and fired
three times. The third shot was fired when the deceased
was at the
corner of the security fence of the police yard.

P.W. 11
Dr. J. Deirrider is a medical officer stationed at Machabeng Hospital
in Qacha's Nek. On the 15th January, 1991 he performed
a post mortem
examination on the body of Tsautse Chaka, Death was due to shock
caused by bleeding from a gunshot wound on the abdomen.
The iliac
artery was ruptured by a bullet. The entry wound was on the left
buttock and the exit wound was about two centimetres
above the groin.
The bullet passed through the muscles and ruptured the iliac artery
causing severe internal bleeding. There was
more than a litre of
blood in the abdominal cavity. There was an abrasion on the innerside
of the right leg about ten centimetres
below the knee.

Dr.
Deirrider says that he had seen the body in the ward. The deceased
had just been put on the bed and was still warm. He certified
him
dead.

In
cross-examination he said that although he had not received any
formal training in post mortem examination he had already performed

about fifty post mortem examinations since he came to

12

Lesotho
in 1990. On the day in question he had already knocked off when he
heard gun reports. He was called to the hospital and
arrived there
between five and ten minutes. He found the deceased on the bed. He
was already dead and that was the reason why no
admission papers were
filled. It was after 4.00p.m. because they never leave the hospital
before 4.00p.m. It takes about thirty
minutes to prepare the theatre
and there was no way they would have saved the life of the deceased.

The
accused testified that he is a Transkeian police attached to Murder
and Robbery Section. He has been in the police force for
eleven
years. Just before he came to Lesotho on the 11th January, 1991 some
robberies had been committed in his country. He had
information that
the deceased was one of the robbers in one of the robberies. He and
some of his colleagues came to Lesotho in
order to seek the
assistance of the Lesotho police to have the deceased arrested. They
came to Lesotho in two motor vehicles -
a 4x4 Toyota van and a Ford
Granada motor car. They were armed with various types of guns. He was
armed with a 9MM pistol. At the
border post no formalities were
observed - passports were not checked and they did not declare the
guns they were carrying. This
is an indication of the extent of the
cooperation between the Royal Lesotho Mounted Police and the
Transkeian Police Force in combating
crime. The same border post
non-compliance with the formalities is given to Lesotho police when
they go into Transkei to investigate
or to assist in the
investigations of cases which originate in

13

Lesotho
and in which suspects have crossed the border.

When they
arrived at Qacha's Nek charge office they went to P.W.1's office and
made a report to him about the two robberies in their
country and the
fact that the deceased was a suspect. P.W.1 opened a skeleton docket.
The search for the deceased started and later
in the afternoon he was
seen at a hotel in Qacha's Nek. P/W Shata suggested that they should
return to charge office and report
to P.W.1 that the deceased was at
that particular hotel. On arrival at the charge office P.W.1
instructed Trooper Lepheane and
Trooper Mahasele to go and arrest the
deceased. The two troopers deny that they were instructed to go and
arrest the deceased.
They say they were ordered to bring him to the
charge office. P.W.1 confirms the evidence of the accused, who was
present when
the order was made, that he ordered them to go and
arrest the deceased. So that when P.W.2 and P.M.3 arrived with the
deceased,
the accused believed that he was under arrest.

The
accused says that when the deceased and the two troopers arrived at
the charge office, the deceased put his tin of beer on the
wall; he
looked at them and said something in Sesotho to P.W.2. He became wild
when P.W.2 and P.W.3 spoke to him. When he started
moving backwards,
P.W.3 pounced upon him. He managed to free himself from the grip of
P.W.3 and ran away towards the gate. All
the Transkeian police and
Lesotho police who were standing outside the charge office chased the
deceased. Accused outran them and

14

caught
hold of him but he slipped off his hands. As they ran along the
security fence of the police yard the deceased outpaced him.
He fired
a warning shot but the deceased did not heed it and continued running
as fast as he could. Accused says that he noticed
that the gap
between him and the deceased was increasing. He fired two shots at
the lower part of his body. At the time he fired
the third shot the
deceased was changing direction and running down towards the river
where there are trees. The deceased fell
down. He was immediately
after shooting taken to the hospital in a police van.

The
accused says that he crossed the border after lunch. He estimates
that the shooting took place between 2.30p.m. and 3.00p.m.
He says
that when he shot the deceased he was assisting Lesotho police to
arrest a person who was escaping from lawful arrest.
He believed that
the arrest was lawful because P.W.2 and P.W.3 had been instructed by
Warrant Officer Maluke to go and arrest him.

D.W.2
Major Novuka was the Head of Murder and Robbery Squad in January,
1991. Before the 11th January, 1991 he became away of a
series of
robberies in Umtata, Mt. Fletcher and Bitsane. On the 11th January,
1991 he instructed Captain Dlanjwa to go to Qacha's
Nek where a
vehicle allegedly used in one of the robberies was found abandoned at
the border. The vehicle had been robbed from
the owner, one Mr.
Marrais. Major Novuka also came to Qacha's Nek

15

and when
he was at Cedarville he intercepted a radio message from Captain
Dlanjwa to Umtata reporting the killing of the deceased.
He spoke to
Captain Dlanjwa and told him that he would be with them within an
hour. It was at 3.15p.m. He recorded the time in
his notebook. See
Exhibits "F1" and "F2". He proceeded to Qacha's
Nek and crossed the border at about 4.15p.m.
He found the abandoned
motor car. After crossing the border he met Captain Dlanjwa who gave
him a brief account of what had happened.
They proceeded to Qacha's
Nek and he asked for permission to go further into Lesotho but he was
told that all police stations had
been informed.

D.W.3 L.
Marrais told the Court that on the 9th January, 1991 he was driving
towards Umtata when he was forced to stop and was robbed
of his car,
money and jewellery. On the following day the police informed him
that his car was found abandoned at the border between
Lesotho and
Transkei. On the 11th January, 1991 he came to Qacha's Nek. He
identified his car. On the journey to Qacha's Nek he
was accompanied
by D.W.4 Joseph Gumede. Their evidence is the same that the shooting
of the deceased took place between 2.30p.m.
and 3.00p.m. As regards
how the shooting took place their evidence is the same as that of
some Crown witnesses and the Defence
witnesses.

The
evidence of D.W.5 Captain Dlanjwa confirms the search made for the
deceased at various places within Qacha's Nek township. The
deceased
was at last found at Central Hotel. P.W.1 instructed

16

two of
his men to go and arrest him. They brought him. His evidence
concerning the escape of the deceased, the chase by both Lesotho

police and the shooting is the same with that of some Crown witnesses
and the Defence witnesses. He says that at 3,05p.m. he was
in the
office of Captain Fonane. He was asking for permission to go to the
border and report the incident to his Head Office. It
was 3,30p.m.
when he made the report to P.W.6 Major General Kupe who says that the
report reached him at 3.15p.m.

There is
a dispute as to when the shooting took place. The Crown contends that
it took place between 4.00p.m. and 5.00p.m. The defence
says it was
between 2.30 p.m. and 3.00p.m. Lesotho police officers who gave
evidence in this case say that it was at or about 4.30p.m.
because
some of them were knocking off while others were coming on duty. They
recorded in the occurrence book the times of their
departure and
arrival. Mr. Penzhorn blames the Crown for failing to produce the
occurrence book as proof of what they allege. He
submitted that the
occurrence book would not support their allegation and that is the
reason why they failed to produce it. I do
not agree with this
submission inasmuch as the occurrence book would only show the times
when the police officer reported for duty
or the times when they
knocked off without any reference to the time when the shooting took
place. There was no evidence that the
shooting was recorded in the
occurrence book immediately after it happened. It seems to me that
the occurrence book would be of
no help to the Court.

17

The crown
called four independent witnesses. Mrs. Theron (P.W.7) says that on
the day in question the shooting took place after
4.00p.m. At
4.00p.m. they stop serving the public and balance their books. She
was already balancing her book when she heard three
gun reports near
their depot. Mr. Matete (P.W.8) knocked off at 4.30p.m. and decided
to attend a church service. He observed the
shooting on his way to
the church.

Dr.
Derrider left the hospital at 4.00 p.m. He was already at his home
when he heard gun reports. Immediately after that he was
called to
the hospital. He found the deceased on the bed and he was already
dead.

Mrs.
Mahlaba (P.M.4) is a nursing assistant at Machabeng Hospital. On the
11th January, 1991 she commenced her duty at 4.00p.m.
She admitted
the deceased and put him on the bed. He was already dead because he
was not breathing and there was no heart beat.
She says that the
deceased came to the hospital long after 4.00p.m. and that it was
towards 5.00p.m.

The
defence witnesses are all police officers except the complainant and
his employee. The police witnesses have a lot of interest
in this
case because their colleague is facing a murder charge which has a
capital sentence. The complainant and his employee,
Mr. Gumede, have
a lot of interest in the case and want to see to it that the robber
is punished. I am not suggesting that

18

the
Transkeian police officers are liers. I am merely saying that
compared to the four independent Crown witnesses their evidence
is
less reliable.

It is
common cause that the deceased was taken to the hospital immediately
after he was shot by the accused. There was no suggestion
that he was
not taken there and that the three police officers who took him there
went elsewhere before they finally went to the
hospital. There is
evidence that they reached the hospital within two minutes and that
he was dead on arrival. To suggest that
a nurse assistant who has had
some formal training cannot tell when a person is dead, is wrong
because most ordinary people in
the villages, who have not had any
training, can tell when a person is dead.

I have
not said anything about the evidence of D.W.1 Professor Nel because
he made it quite clear that if the deceased was already
dead when he
arrived at the hospital, his evidence will not be of any relevance to
this case. However, in his evidence he said
shock sets in when a
person loses 20% of his blood. In the present case the deceased had
lost one and half litres of blood which
was found in the abdominal
cavity.

I have
come to the conclusion that the deceased was dead on arrival at the
hospital and that it was after 4.30p.m. The Crown has
established
that there was no novus actus interveniens.

19

The next
question is whether the arrest of the deceased by Troopers Mahasele
and Lepheane was lawful or not. Mr. Mdhluli, the Director
of Public
Prosecutions submitted that the arrest was unlawful because the
deceased was not informed of the reason for his arrest.

Section
32 (4) of the Criminal Procedure and Evidence Act 1981 provides that
whenever a person effects an arrest without warrant,
"he shall
forthwith inform the arrested person of the cause of the arrest".

In
Christie v. Leachinsky (1947) 1 All E.R. 567 (H.L.) (which was quoted
with approval by Ackermann, J.A. in Johnny Wa Ka Maseko
v.
Attorney-General and another C. of A. (CIV) No.29 of 1988
(unreported) at p. 573 C-E Viscount Simon, with whose opinion the

other Law Lords expressed agreement, pointed out that:

The requirement that he (the arrestee) should be so informed does not
mean that technical or precise language need be used. The
matter is a
matter of substance, and turns on the elementary proposition that in
this country a person is prima facie, entitled
to his freedom and is
only required to submit to restraint on his freedom if he knows in
substance the reason why it is claimed
that this restraint should be
imposed."

20

"If a policeman who entertained a reasonable suspicion that X
had committed a felony were at liberty to arrest him and march
him
off to a police station without giving any explanation of why he was
doing this, the prima facie right of personal liberty
would be
gravely infringed. No one, I think, would approve a situation in
which, when the person arrested asked for the reason,
the policeman
replied: "That has nothing to do with you. Come along with me."
Such a situation may be tolerated under
other systems of law, as, for
instance, in the time of lettres de cachet in the eighteenth century
in France, or in more recent
days when the Gestapo swept people off
to confinement under an overriding authority which the executive in
this country happily
does not in ordinary times possess. This would
be quite contrary to our conceptions of individual liberty. If I may
introduce a
reference to the well known book, Dalton's Country
Justice that author, dealing with arrest and imprisonment, says: "The
liberty
of a man is a thing specially favoured by the common law".
There are practical considerations, as well as theory, to support
the
view I take. If the charge on suspicion of which the man is arrested
is then and there made known to him, he has the opportunity
of giving
an explanation of any misunderstanding or of calling attention to
other persons for whom he may have been mistaken, with
the result
that

21

further enquiries may save him from the consequences of false
accusation."

In the
instant case the two police officers who were instructed by W/O
Maluke to go and arrest the deceased, say that they did not
arrest
the deceased but merely told him that he was wanted at the charge
office. When he asked why he was wanted, Trooper Lepheane
said he
would be told at the charge office. If Trooper Lepheane is telling
the truth the arrest was unlawful in terms of section
32 (4) of the
Criminal Procedure and Evidence Act 1981 (The Act). Section 41 (1) of
the Act provides that in making an arrest a
peace officer or other
person authorised to arrest shall actually touch or confine the body
of the person to be arrested "unless
there be a submission to
the custody by word or action." In the instant case the deceased
submitted to the custody by action
because he agreed to go to the
vehicle after he was told that he is wanted at the charge office.

On their
arrival at the charge office the deceased realised why he had been
arrested and brought to the charge office. He looked
towards the
Transkeian police and the whiteman, Mr. Marrais and said "I
cannot get into the charge office, you have called
me for these
people." He uttered these words when he was asked to go into the
charge office by Trooper Mahasele. He turned
and tried to walk away.
Trooper Mahasele now says that he made no attempt to stop him because
he was not under arrest. This is
not true. There

22

is
overwhelming evidence by the defence and confirmed by W/O Maluke that
Trooper Mahasele caught hold of him and a struggle followed
until the
deceased got free and ran away.

I am of
the view that the attempt by Trooper Mahasele to arrest the deceased
after he had realised why he was brought to the charge
office was
lawful. At that time the deceased knew why he was being arrested. If
he was not under arrest from the time he

was taken
from the Central Hotel to the time when he arrived at the charge
office, the attempt to arrest him when he refused to
get into the
charge office must be considered separately. Mr. Peazhorn submitted
that this second situation arises from Trooper
Mahasele's physical
attempt to force the deceased into the charge office. The deceased
resisted such attempt and attempted to escape
therefrom. He submitted
that such attempt constituted an offence referred to in Part II of
the First Schedule to the Act; that
such offence was committed in the
accused's presence, conferring upon him as a private person the
powers provided for in Section
27 (1) of the Act; that the accused
was accordingly a private person authorised to arrest as provided in
Section 42 (1) of the
Act.

Section
42 (1) reads as follows:

"When any peace officer or private person authorised or required
under this Act to arrest or assist in arresting any person
who has
committed or is on reasonable grounds suspected to having committed
any of the offences mentioned in Part II of the First
Schedule,
attempts to make the arrest, and the person whose arrest is so
attempted flees or resists and cannot be apprehended and
prevented
from escaping, by other

23

means than by the peace officer or private person killing the person
so fleeing or resisting such killing shall be deemed justifiable

homicide."

Section
27 (1) of the Act reads as follows:

"Every private person, in whose presence anyone commits or
attempts to commit an offence mentioned in Part II of the First

Schedule or who has knowledge that any such offence has been recently
committed, may arrest without warrant or pursue the offender

forthwith and every other private person to whom the purpose of the
pursuit is made known may join and assist therein."

Although
the accused is a police officer in Transkei as soon as he enters
Lesotho he is deemed to be a private person and he cannot
exercise
his police powers. The cooperation between Lesotho police and the
Transkeian police in combating crime does not make police
of one
country police officers in another country. They merely give
assistance and information. They cannot act on their own. In
the
present case the Transkeian police acted as private person in the
search and the arrest of the deceased.

It is
clear from the nature of the injuries that the accused never intended
to kill the deceased. The deceased was warned and called
to stop, a
warning shot was fired, despite this he kept on running and was
changing direction towards the valley where there are
some trees.
Another factor which must be taken into account is that the gap
between the accused and the deceased was increasing.
It is probable
that he would have escaped if the two shots fired by the accused were
never fired. He aimed at the lower part of
his body but because they
were both running it was impossible to aim

24

accurately.
The second shot grazed the innerside of the right leg, 10 centimetres
below the knee. The second bullet entered the
left buttock.

The Crown
conceded that the accused had no intention to kill but argued that
the killing was unlawful because the police officers
who arrested the
deceased at Central Hotel did not have reasonable grounds for
believing that he had committed any of the offences
mentioned in Part
II of the First Schedule of the Act. I agree with that submission
because they were ordered by W/O Maluke who
had formed the opinion
that the deceased was involved in a robbery in Transkei. He was under
the impression that robbery is a continuing
offence. Robbery consists
of the application of force-assault-and the taking of the thing from
the victim - theft. I think it is
the second element of robbery which
is a continuing offence if the accused is from in possessing of the
thing he took from his
victim. In the instant case if the deceased
was found in possession of the money stolen in Transkei here in
Lesotho he could be
arrested and be charged with theft. There was
evidence that one of the robbers who was arrested in Transkei had
told the police
that the deceased was one of them. There was the
motor car used as a getaway car which was found at the border between
Lesotho
and Transkei. That was an indication that one or some of the
robbers came to Lesotho. W/O Maluke's belief was based on reasonable

grounds. I am of the view that he had a right to order any of this
men to go and arrest the deceased.

25

I agree
with the submission by Mr. Penzhorn that the accused believed his
actions to be lawful. He believed that the deceased had
been properly
arrested and that he was authorised to stop him from fleeing. This
belief was reasonable. This being so the accused
is also entitled to
be acquitted of culpable homicide. He made reference to the leading
South African decision in S. v. Blom, 1977
(3) S.A. 513 (A.D). The
following quotation is taken from the headnote in the judgment;

"If the accused wishes to rely on a defence that she did not
know that her act was unlawful, her defence can succeed if it
can be
inferred from the evidence as a whole that there is a reasonable
possibility that she did not know that her act was unlawful,
and
further, when culpa only, and not dolus alone, is required as mens
rea, there is also a reasonable possibility that juridically
she
could not be blamed, i.e. that, having regard to all the
circumstances, it is reasonably possible that she acted with the
necessary circumspection in order to inform herself of what was
required of her in connection of whether or not permission was
required to take money out (of the country). Should there be, on the
evidence as a whole, i.e. including the evidence that the act
was
committed, a reasonable doubt whether the accused did in fact have
mens rea, in the sense described above, the Crown would
not have
proved its case beyond a reasonable doubt."

26

Mr.
Peazhorn referred to the English case of Sleep (1861) quoted in
Criminal Law by clanville Williams, The General Part, 2nd Ed.,
at p.
171 in which a man was acquitted of being in possession of naval
stores marked with a broad arrow, where there was no proof
that he
knew them to be so marked; reasonable means of knowing were not
enough. Cockburn C.J. said: "It is a principle of
our law that
to constitute an offence there must be a guilty mind; and that
principle must be imported into the statute."
This was not a
case of simple ignorance, for the defendant, not knowing that the
stores were marked, was evidently under the impression
that they were
not marked. It was, therefore, a case of mistake, which negatived
mens rea."

In the
present case the accused had a belief based on reasonable grounds
that the deceased was under lawful arrest and that he was
escaping
from lawful custody or that he was resisting arrest. His belief was
based on the fact that before the shooting of the
deceased and for a
greater part of the day, he and his colleagues had been assisting the
Lesotho police in the search of the deceased.
The two Lesotho police
officers who were instructed by W/O Maluke failed to tell the
deceased the cause of his arrest. This is
a fact which the accused
could not have known because he was not present when the arrest took
place. What strengthened the accused's
belief is that when the two
police officers returned they had the deceased under their control
and their custody inasmuch as he
was in their car. I am of the view
that the accused was

27

mistaken
and had no guilty mind.

For the
reasons stated above I have come to the conclusion that the Crown has
failed to prove that the accused had the necessary
intention for
culpable homicide.

The
accused is found not guilty and is discharged.

My
Assessors agree.

The
pistol (Exhibit 1) and the twelve rounds of ammunition must be
returned to the accused.

J.L.
KHEOLA

JUDGE

26th
August, 1992.

For the
Crown - Mr. Mdhluli

For the
Accused - Mr. Penzhorn.