1

C OF A
(CRI) No 4 OF 96

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

SAMUEL
MONONTSI MALIEHE 1st Appellant

MICHAEL
TEBOHO CHAKA 2nd Appellant

REMAKETSE
SEHLABAKA 3rd Appellant

and

REX
Respondent

HELD AT :
MASERU

CORAM:

STEYN P

Browde JA

Van dap
Heever JA

JUDGMENT

BROWDE
JA:

The three
Appellants were charged in the High Court of Lesotho on the following
counts:

1. "In
   that upon or about the 10th day of September 1991 and at or near
   Sekamaneng in the district of Maseru, the said accused,
   one or the
   other or all of them did unlawfully and intentionally kill one
   Toloko Conetantinus Kimane".

   
   

2. "In
   contravention of section 183(2) of the Criminal Procedure and
   Evidence Act No.7 of

   
   

2

1981 'during the period August to September 1991 (the, exact date to
the Prosecutor unknown) , and at or near Maseru in the district
of
Maseru, the said accused, one or. the other or all of them did
unlawfully and intentionally conspire with Momake Mathibela.
and
others to aid or procure the Commission of or to commit the offence
of unlawfully and intentionally killing one Sam Rahlao,
an employee
of Standard Bank Chartered, Maseru'.

3. "In
   that upon or about the 10th day of September 1991 and at or near
   Sekamaneng in the,district of Maseru, the three accused,
   one or the
   other or all of them, did unlawfully and intentionally steal a motor
   vehicle being a Toyota 2.4 station wagon, the
   property or in the
   lawful possession of the deceased Toloko Constantinus Kimane."

   
   

The
Appellants all pleaded not guilty and after a lengthy trial they were
all found guilty on the first two counts but on the third
count
namely the theft charge the third appellant was acquitted but the
other two were convicted. All three appellants were sentenced
to
death as a result of the conviction on count 1 while on count 2 they
were each sentenced to six years imprisonment, In regard
to count 3
the first and second appellants were each sentenced to imprisonment
for three years and the sentences on this count
were ordered to run
concurrently with those on count 2. The appeal of all three
appellants has been brought against both the convictions
and the
sentences. (For the sake of convenience I will hereinafter refer to
the first, second and third appellants as accused No.1,
accused No,2
and accused No.3 respectively).

On 11
September 1991 the deceased who held a fairly senior management
position in Barclays Bank was found dead at Sekamaneng

3

some 10
or so kilometres from the Maseru city centre. His body which appeared
to have been dumped off the road where it was found
had 8 bullet
wounds in it. According to the witness Major Telukhunoana who is an
expert in the field of firearms, three of the
shots appeared to have
been fired from behind the accused, the bullets entering his back and
exiting from his chest, judging by
the wounds. A further bullet had
entered his chest in the vicinity of the right nipple and left near
the left.

The
record of the evidence in this case together with the judgment runs
into almost 2000 pages. While making due allowance for the
fact that
there were some 30 witnesses who were called to testify it seems to
me, with all due respect to the learned presiding
judge, that at
times the cross-examination was allowed, to become unduly extended.
There are many instances (for the purposes of
this judgment I do not
think it will be of any assistance to detail them) where
cross-examination was directed at completely irrelevant
matter and in
the circumstances of the case could have been of no assistance to the
Court. It is generally accepted that it is
undesirable for the trial
judge to interfere more than is absolutely necessary with counsel's
cross-examination since the disallowance
of proper questions sought
to be put to a witness by cross-examining counsel may amount to an
irregularity See S. v. Cele 1965
(1) SA 82 at 90 and the case there
cited. As Williamson JA said in that case:

"The difficulties which sometimes arise in a trial in regard to
a limitation of the right of cross-examination, relate more
usually
to attempts by counsel to cross-examine a witness on matters merely

4

collateral to the issues being tried, the purpose being to undermine
his credit as a witness. Particularly when the attack is directed
to
a witness's credibility can the ambit of such an examination tend to
become unduly extensive unless properly controlled."
(my
emphasis)

It is the
control which I am particularly referring to in this case. It seems
to me that much of the cross-examination was purposeless
and that the
learned judge would have been fully justified in suggesting to
counsel that the right of cross-examination was being
abused because
it was not productive of anything which could assist the Court in its
eventual decision on credibility relating
to relevant issues. As only
one out of a number of examples, I fail to see whether a witness was
right or wrong as to whether a
blazer was black or navy could have
the remotest bearing on the outcome of the case where the colour
itself was irrelevant and
no-one put it to the witness that his
powers of observation in regard to relevant matters were faulty. Nor
do I think it would
be out of place if I point out, with respect,
that counsel should not be permitted to bully a witness. It is not
proper to put
to a witness that he has contradicted previous evidence
unless it is a certain fact that he has done so. There are instances
in
the record before us in which this was done without justification
and it need hardly be said that this is unfair to the witness

concerned.

An
example of wrongly putting the evidence to a witness is to be found
at page 750 and 501. At the former page the following is
the record
of the passage between cross-examining counsel and the witness:

5

"You said A1 elbowed me and said that I should shoot the driver
of the vehicle?

I believe that I said indicating that I should shoot.

No you did not you believe wrongly, you said 'and said that I should
shoot the driver of the vehicle'?

That was made by a sign there was no talk made.

So now you are changing it, you are saying you didn't say with his
mouth but he made a sign? -

That is what I am saying.

So when you are cornered you version not so (meaning I assume, "you
change your version").

That is not so.

Well it is apparent from what you said to us.

I did not put it in that way."

The
Record at page 501 shows that the evidence of the witness originally
was "We went up to the place where there are shops.
After we had
gone past that A1 elbowed me and indicated to me that I should shoot
the driver of the vehicle the deceased."

The
attack on the witness was therefore completely without substance and
was unfair to him.

Nor is it
within counsel's province to say to a witness "you are a liar".
That is for the Court to decide. All that counsel
may properly do,
having established a foundation for it, is to point out that a
particular answer is vulnerable to criticism as
being either
self-contradictory or in conflict with other prima facie acceptable
evidence. While cross-examination may

6

legitimately
be firm and even aggressive, counsel should never stoop to being
insulting or trespassing on the terrain of the Bench.

Hearsay
Evidence

During
the course of the trial many objections were raised against evidence
alleged to be inadmissible as being hearsay. It appears
to me that
many of such objections arise from a misunderstanding of the law
relating to the inadmissibility of evidence as to what
a witness
heard another say. Not every statement made by a person not called as
a witness is necessarily inadmissible hearsay.
Speaking in general
terms a statement by a person not called as a witness is inadmissible
if it is tendered in order to prove the
truth of what was said. I can
do no better in this regard than to quote from the judgment: of
Watermeyer JA (as he then was) in
R v. Miller 1939 AD 106 at 119
where the learned Judge of Appeal said:

"Statements made by non-witnesses are not always hearsay.
Whether or not they are hearsay depends upon the purpose for which

they are tendered as evidence. If they are tendered for their
testimonial value (i.e. as evidence of the truth of what they
assert),
they are hearsay and are excluded because their truth
depends upon the credit of the asserter which can be tested only by
his appearance
in the witness box. If, on the other hand, they are
tendered for their circumstantial value to prove something other than
the truth
of what is asserted, then they are admissible if what they
intended to prove is relevant to the inquiry."

Often
that "something other" is to explain why an accused

7

might
have acted in a particular way.

The
evidence of accomplices

Because
the Crown relies so heavily on the evidence of the accomplice Mosia
(PW14) it is not surprising that Counsel for the first
and second
accused (Mosia's evidence did not affect seriously accused No.3)
submitted that the Court a quo was wrong in accepting
his evidence
and that it erred in not apply the so-called "cautionary rule"
relating to the evidence of accomplices.
Although there are many
reported cases dealing with the subject perhaps it would be helpful
if this Court looked again at the reasons
for the general proposition
that accomplice evidence should be treated with caution, in order to
consider which, if any, apply
in this case.

It
appears to be generally accepted that the following are such
reasons:-

1. The
   accomplice is a self-confessed criminal

   
   

2. He
   may have a motive to implicate the accused falsely because

   
   

1. he
   wishes to shield the real culprit or

   
   

2. he
   hopes for clemency from the. Crown if he assists in obtaining

   
   

8

the conviction it seeks or

3. he
   has some grudge against the accused. (this is not necessarily an
   exhaustive list)

   
   
   
   

   3. Inside
      knowledge of the crime and how it was committed makes him a witness
      peculiarly equipped to convince the unwary that his
      lies are the
      truth. He has a deceptive facility for convincing description - his
      only fiction being the substitution of the
      accused for the real
      culprit.

      
      
   
   

These
reasons were dealt with by van den Heever JA in her unreported
judgement in the case of Ntusi vs The State which was delivered
in
the Appellate Division of South Africa on 29 November 1993. It was
said there

"The first reason may or may not carry weight, depending on the
circumstances; but the weight should at least not be overestimated.

In 1844 already Chief Baron Joy, EVIDENCE OF ACCOMPLICES (quoted in
Wigmore 3rd ed Vol 7 para 2057 p 323) pointed out the illogicality
of
requiring the evidence of a witness with a long string of previous
convictions unbeknown, of course, to the court - to be dealt
with
differently from that of the co-perpetrator of some minor offence, on
this ground.

"Moral guilt, then, can never afford any rational foundation for
a rule which applies indiscriminately to the highest and
to the
lowest degrees of that guilt - but an accomplice, we are told, comes
forward to save himself, and his credit is affected
by the temptation
which this holds out to forswear himself. But who is it that
establishes his guilt? He himself - he is

9

his own accuser; and the proof, and often the only proof which can
be, had, of his guilt, comes from his own lips. He is generally

admitted as a witness from the necessity of the thing, and from the
impossibility without him of bringing any of the offenders
to
justice. If this be the foundation of the rule, it rests on a
shifting sand. The temptation to commit perjury which influences
his
credit must be proportionate to the punishment annexed to the crime
of which the witness confesses himself guilty."

The reasons listed under paragraph 2 must also vary in the weight
attached to them, depending upon the circumstances of each case;
save
that 2(c) should be discounted as being a valid reason for suspicion
in the case of an accomplice as such. It becomes a valid
ground for
suspicion against any witness once some foundation for such suspicion
is laid in the facts presented to the court.

The reason given in paragraph 3 is the important one, in my view, not
by itself but read with 2(a) and (b). Inside knowledge makes
an
accomplice a dangerous witness because it arms him too well with all
the accoutrements needed to sell a lie: that the detail
is so good
may lead to the false inference, that the identification of the
perpetrator must be good too. But this reason is hardly
appropriate
to a situation such as we have here, where the detail is to all
intents and purposes common cause, since the murder
and robbery were
committed in broad daylight and the complainant told the court almost
everything that happened before the two
accomplices testified."

The
similarity between that case and the present one is obvious. Mosia's
version of the events leading to the deceased's death are
largely
common cause and a danger of the substitution of the accused for the
real culprit being of no application on the facts
of this case. It is
not in dispute that Accused No.1, Mothobi and Mosia were in the
deceased's car and that the deceased, who was
sitting in front with
Accused No.1 while the latter was driving, was shot in the back and
also in the right

10

side of
his chest. Mosia admits firing the first and probably the lethal shot
and it cannot be seriously suggested that he is using
inside
knowledge to falsely transfer his own guilt to someone else. His
evidence that Accused No.1 fired the shot which was obviously
fired
from the deceased's right is hot tainted therefore by any need for
Mosia to try to escape culpability by passing it on to
the accused.
The only suggestion of a motive to misrepresent is that of Counsel
for Accused No.2 who submitted that Mosia might
have been cajoled by
the police into implicating the accused because they "were keen
to land a big fish". Quite apart
from the fact that there is no
evidence supporting such speculation there is, so it seems to me , no
justification for the suggestion
that Accused No.2 was a big fish.
The mere fact that Mosia re-wrote his statement several times before
the police were satisfied
does not mean that they were satisfied only
when Mosia implicated the accused. There does not appear to be any
valid reason for
disbelieving Mosia when he said that he told the
whole story only when he realised that the game was up because the
others (Mothobi
and Accused No.1) had already implicated him in the
murder.

In any
event the evidence was that Mosia and Accused No.1 were close
friends, the former having been the latter's commander when
they were
both in exile undergoing military training outside this country. The
evidence certainly does not support a suggestion
that Mosia bore
Accused No.1 a grudge. As far as he might, in giving his evidence,
have been hoping for clemency Mosia was well
aware that to be given
an indemnity from

11

prosecution
he had to satisfy the Court that he was telling the truth. That being
so he would have been particularly stupid had
he lied about the role
played by Accused No.1 and No.2 in the preparation for and commission
of the murder when either or both
of them may have been able to show
that his evidence was unreliable. He must have known that for him
that would have been a quick
route to the gallows, since his evidence
was a confession to having himself murdered the deceased.

I am
therefore of the opinion that there was and is no reason for
approaching Mosia's evidence with suspicion merely on the ground
that
he was an accomplice. My reading of his evidence has led me to the
conclusion that Mosia was as honest as a cold blooded killer
without
a conscience can be. In R v. Kristusamy 1945 AD 549 at 556 it was
said by the Court that "if one had to wait for an
accomplice who
turned out to be a witness of that kind" (i.e. one wholly
consistent or wholly reliable, or even wholly truthful
in all that he
says)" - or indeed anything like it - one would, I think, have
to wait for a very long time."

The
Evidence

I do not
propose to analyse the evidence in any great detail since this was
done at great length by Lehohla J. in the court a quo.
Suffice it to
say that the evidence points overwhelmingly to the guilt of Accused
No.1. According to Mosia and PW8 (Walk Tall)
Accused No.1 was
involved in talks with them as well as with Mothobi about what should
be done about those

12

people
who had not joined the strike. Several trips to Maseru preceded that
on the fateful night when Accused No.1, who was well-known
to the
deceased, persuaded the latter to give him, Mosia and Mothobi a lift.
It was after the deceased had handed over the wheel
to Accused No.1
that the fatal shots were fired. Accused No.1 would have us believe
that he had no prior knowledge of the plan
to kill the deceased and
that, as far as he was concerned, Mosia fired because of an
aberration or else for a motive known only
to himself. This
suggestion can only be described as fanciful since it is common cause
that Mosia had no interest in the strike
and, apart from the
mercenary aspect, no possible reason for killing the deceased. It is,
therefore, quite beyond belief that he
would have gone on a frolic of
his own and for no reason shot the deceased in the presence of two
witnesses who were in no way
associated with the shooting and who
could bear testimony against him.

As I have
said, according to accused No.1 the shooting of the deceased happened
without any prior warning as far as he was concerned
and came as a
complete surprise to him. He did not stop however but continued
driving. Credulity is strained beyond breaking point
at the thought
that the innocent driver whose passenger is shot in the confines of
his car, should not only placidly drive on,
but - as the admits - at
no time attempt to find out from the killer, who happens to be a good
friend of his, why the shooting
took place at all.

In my
judgment the Court a quo was completely justified in

13

finding
that accused No.1 was clearly not only an active participant in the
scheme to lure the deceased away from the hotel and
into the trap but
an active participant in the violence. He fired the shot which
ultimately lodged in the deceased's blazer unless
one is prepared to
believe, which I am not and which the Court a quo was perfectly
justified in also not doing, that someone on
the back seat was a
contortionist and shot the deceased from the side where appellant
No.1 was sitting after the fatal shots in
the back of the deceased
had already been fired.

Mr.
Seggie who appeared for Accused No.1 in this Court did so at the
court's request when virtually at the eleventh hour it was
discovered
that accused No.1 had no counsel. Mr. Seggie obviously put in many
hours of work since he mastered the formidable record
and argued the
case most ably, and the court is indebted to him for his assistance.
He submitted that the Crown's case was dependent
on proof of a
conspiracy and that the evidence of such conspiracy was very vague -
this both in relation to the existence of the
conspiracy and also its
terms. He asked the court to find that it was reasonably possibly
true that Accused No.1 accompanied Mosia
and Mothobi on his various
trips to Maseru merely for companionship and that he in no way
participated in any plan to assist the
strikers or to intimidate
those who wished to end the strike. This version is, on the evidence
before the Court, quite unacceptable.
It is common cause that Mosia,
Mothobi and PW8 (Walk Tall) were all well-known to Accused No.1, and
the latter, on his version
was a friend of

14

Accused
No.2. Mothobi was himself on strike and led discussions about the
strike with Accused No.2 while Accused No.1 was in the
car. The
further evidence regarding the pointing out of Rahlao's vehicles and
the house where Rahlao spent time was deposed to
by Mosia and was
corroborated by Rahlao himself to the extent that he admitted owning
the vehicle described and that he frequented.
the house pointed out.
If one then looks at all the evidence of the meetings in Maseru
together with what happened when the deceased
met his death while
giving a lift to the three friends in the car, the only conclusion
one can come to is that beyond reasonable
doubt Accused No.1 was not
only a party to the conspiracy to kill Rahlao and the deceased but
that he participated in the murder
of the deceased and indeed fired
one of the shots into his body. Accused No.1's appeal against his
conviction on counts 1 and 2
must therefore fail.

Having
killed the deceased, Mothobi, and accused No.1 appropriated, his car
for their own purposes: to leave the scene, dump the
corpse elsewhere
where it was ultimately found, and themselves get away from there;
abandoning it only after and because they had
caused it considerable
damage.

No valid
argument has been addressed to us why we should interfere with the
learned judge's finding that Accused No.1 participated
in the theft
of the vehicle. I would therefore dismiss also his appeal against
this conviction.

The
evidence implicating Accused No.2 is primarily that of

15

Mosia. I
have already pointed out: that he was a good witness and correctly
found to be so by the trial court, moreover who admitted
to being
himself a hired killer.

Mosia was
a bosom friend of Mothobi's. Mbthobi saw Mosia cleaning a firearm and
asked him to help deal with the management of the
Bank who were
thwarting the strikers; and was to introduce Mosia to the chairman of
the committee - presumably of the Lesotho Union
of Bank Employees
("LUBE"). Instead he was introduced to the vice-chairman,
accused No.2, initially under a nom-de-plume.
No. 2 was to take care
of the necessary infrastructure of the proposed venture. The precise
nature that it was to take was not
yet formulated

Mosia
testified to a further meeting set up by Mothobi with accused no.2.
During this, which took place in accused no.2's car, No.2
pointed out
the cars belonging to people opposing the strike; there was
discussion as to where people who were to be attacked lived;
and
accused no.2 took them to a particular building. There he pointed out
where a particular individual visited and described the
vehicle with
which he would arrive. That man had to be killed "so that Bank
Management would hear the request of the employees"

Then
Mosia gives details of what was discussed at the Lancer's Inn. It is
unnecessary to go into detail. According to him accused
No.2 was part
of those discussions,, which dealt i.a. with the fact that the
vehicle of accused no.2 was not fast

16

enough
for their venture and no.2 pointed out a potential victim about whom
Mosia had a reservation: he would not kill if he found
at closer
range that the prey was a relative of his.

This
direct evidence implicating no.2 is corroborated in a number of
respects.

"Walktall" was an accomplice who was found by the trial
court to have been an unreliable witness. He implicates himself
in
the conspiracy, and adds little to the testimony against accused
no.2, save the seemingly irrelevant titbit that when he met
no.2 at a
meeting set up by Mosia which took place in the car of no.2, "both
Mothobi and No.2 had come empty-handed. I expected
them to bring
firearms and money"

Rahlao
testified that he had vehicles which compllied with the description
given to Mosia by accused no.2, according to Mosia; and
that he
himself saw accused no.2 pointing out his, Rahlao's, girl friend's
house from where no.2 was standing on the back of a
vehicle. Counsel
who appeared for no. 2 did not challenge this evidence.

Accused
no.2 admitted that on two occasions he had meetings with the people,
when they came to Maseru, who were present when Kimane
died. He knew
they were "military people" who had no personal interest in
the strike. Mothobi nevertheless offered them
as people who could
make some contribution to putting an end to the strike. There were
discussions under circumstances that

17

can only
be described as clandestine, in strange places. He gives no
acceptable explanation, relies at one stage on a lapse of memory:
he
cannot remember what had been discussed with people who on his
version sought him out, not vice versa.

The very
improbability of both his versions, provides corroboration that Mosia
is correct as to the purpose and content of those
meetings: the
meeting with non-Union members were to tell him of matters in which
they had no interest and which he already knew:
that strikers were
suffering, unable to pay their rent, and so on; or that discussions
took place but he could not remember what
they were about.

I agree
with the submission of the Director of Public Prosecutions that if it
was properly accepted (which I firmly believe it was)
that Mothobi
came to Maseru to pursue the objectives of the conspiracy hatched at
Hlotse to either threaten, harass or kill those
who were perceived to
be obstructing the strike by refusing to participate or encouraging
workers to return to work it follows
as a necessary inference that
Mothobi would have discussed his intentions with accused No.2.

It
follows from what I have said - and I have by no means covered all
the evidence - that accused No.2 was a co-conspirator in the
plot to
kill the deceased and Rahlao and that being so he was, in my
judgment, correctly convicted by the Court a quo.

18

While it
is highly likely that Accused No.2 knew that it was intended to take
the deceased's car after he was killed I do not believe
that this has
been proved beyond reasonable doubt. It may have been a decision
taken by the other conspirators after Accused No.2
had left and
consequently his complicity in the theft of the car is open to some
degree of doubt. Therefore his conviction on the
theft charge should
be set aside.

With
regard to Accused No.3 the Crown case depends largely on inference.
Mabasia Phomane (PW7) was a Bank employee who stated in
evidence that
Accused No.3 was in favour of the continuance of the strike and was a
party to if not the author of a letter to two
Banks asking them to
tell the Banks' management not to tamper with the members on strike.
Then there is evidence that accused Nos.
2 and 3 were obviously very
close to one another and No.2 reported to No.3 after his meeting with
Mothobi et al. It is a fair inference
that he told No.3 what had gone
on in the conspiracy but I doubt whether the requirements sat out in
R v. Blom 1939 AD 188 were
met.

Though on
the evidence accused No.2 himself was aware that the use of firearms
was contemplated, the word killing expressly uttered,
finally the
first victim identified, the content of the conspiracy took shape as
time passed and opportunity presented itself or
could be created.
Originally deeds and words were limited to threats and intimidation.
The inference that when accused No.2 met
with and reported to No.3,
he told him that more than that had been decided upon: that the
deceased or Rahlao were

19

to be
killed, is not the only inference consonant with all the proven
facts. There is a gap in the chain.

The
learned Judge a quo found it very sinister that Accused No. 3 gave
PW7. the instructions to give Mothobi M15 without disclosing
to PW7
the reason for the payment. I cannot find this so significant as to
warrant the observation from the learned Judge that
this incident,
coupled with his not giving evidence in Court, were circumstances
from which an inference of guilt was inescapable.
The learned Judge
also found "astonishing" and apparently one of the facts
from which guilt could be inferred that Accused
No.3, after the
murder, did not publicly dissociate LUBE from the killing. I cannot
agree that that is a fact that is significant
in the assessment of
the case against Accused NO.3. There was no clear evidence that LUBE
was publicly perceived as having been
associated with the murder. In
any event the witness Mosohli testified that Accused No.3 was opposed
to violence and the fact that
he may not have publicly expressed
condemnation of the deed does not mean that approved of it. In my
judgment therefore there was
not sufficient cogent evidence to
justify the finding that Accused No.3's guilt was proved beyond
reasonable doubt. His appeal
should succeed and his conviction and
sentence should be set aside.

I have
already referred to the fact that the accused were sentenced to
death. The learned Judge imposed the sentence because he
found that
the accused had not discharged the onus of proving the existence of
extenuating circumstances. I doubt

20

whether
the learned judge was right in finding that there was an onus on the
accused but it is not necessary to decide that since
before us the
Director of Public Prosecutions "not without reluctance"
conceded that extenuating circumstances existed
in the case of
Accused Nos, 2 and 3. In my view the concession was a proper one. The
evidence concerning the strike given by the
witnesses Phomane (PW7)
and Mosohli (PW21) points to great frustration amongst the employees
of the Banks unaccustomed to the proper
utilisation of new
legislation dealing with labour relations - indeed the latter witness
relates how it was suggested that those
people who were against the
strike "should be taken out and whipped" and that it was
the intervention of Accused No.3
which helped prevent violence. I
need hardly point out that while this in no way excuses the brutal
killing of the deceased it
to some small extent diminishes the moral
blameworthiness of Accused No.2 . It would also in my view be
unconscionable were accused
No.2 to be sentenced to death where the
prime mover, Mothobi, is not before court and the actual killer,
already described as cold
blooded and without conscience, go scott
free. There is, in short, substance in the submission of Mr. Weasels
who appeared for
Accused No.2 that the fact that the latter was a
socius criminis and not the principal offender should be taken into
account in
his favour. In S v. X 1974 (1) SA 344 (R.AD) Beadle C.J.
said (p.348 DE):

"The fact that the accused is a socius and not a principal
offender is always an important factor to be taken into account
in
assessing his moral blameworthiness....."

21

The
learned Judge then went on to say that of course it depended on the
extent to which the socius participated in the commission
of the
crime. While Accused No2 was an important participant the leading
role in the crime was played by Mothobi. In my view extenuating

circumstances exist in the case of Accused No.2.

In regard
to Accused No.1 the Director of Public Prosecutions conceded that it
would be perpetrating an injustice if having found
extenuating
circumstances in the case of the other accused, Accused No.1 were to
be treated differently. We are told, and it appears
to be common
cause, that Accused No.1 gave the impression of being a person of low
intelligence who followed the others because
of his weakness and
pliability. In fact Mr Mdhluli went so far as to say that he believed
that Accused No.1 fired the shot from
the .38" revolver because
he wished to participate from a sense of bravado to impress Mosia who
we know had been an officer
in exile whereas No.1 had been a humble
trooper, a driver. This too appears to reduce his moral
blameworthiness. In his case too,
therefore, I find extenuating
circumstances to have been present.

I turn
now to consider what sentence would be appropriate in the place of
the death sentence imposed on Accused No's 1 and 2. It
cannot be too
strongly stressed that no court will treat with any semblance of
leniency the resort to violence in disputes arising
from the
relationship between management and employees. Throughout the
civilised world governments of late have attempted through

legislation to bring about the resolution of labour

22

disputes
by peaceful means. Violence in this field can lead only to
instability of society if not chaos and anarchy. The Kingdom
of
Lesotho is no exception and the courts must, therefore, treat cases
of the kind before us with sufficient severity to emphasize
its
abhorrence of the use of violence - here, extreme violence -to compel
surrender by the other party instead of attempting the
peaceful
settlement of disputes; the more so since the mechanisms for
negotiation and settlement have been put in place. In my
opinion an
appropriate sentence for both Accused No's 1 and 2 is 20 years
imprisonment. In view of the fact that the accused have
been in gaol
since their arrest in 1991, I think it would be just if that were
taken into account and I would therefore sentence
them each to 16
years imprisonment.

I am
aware that Accused No.2 was allowed out on bail for a period of some
months but in the overall picture I think that should
not affect his
sentence.

There is,
in my opinion, no reason to interfere with the sentences imposed by
the Court a quo in relation to Counts II and III save
to say that
they should run concurrently with the sentence of imprisonment now
imposed upon accused Nos 1 and 2.

In the
result I make the following order:

FIRST
APPELLANT

1. The
   appeal against his conviction on Counts I, II and III is dismissed
   save that in

   
   

23

respect of Count 1 the Appellant's conviction is altered to "guilty
of murder with extenuating circumstances."

2. The
   Appeal against the sentence on Count I is upheld. The sentence of
   the Court a quo is set aside and the following sentence
   is
   substituted therefor:-16 years imprisonment.

   
   

3. The
   Appeal against the sentences imposed by the Court a quo in respect
   of Counts II and III is dismissed save that such sentences
   are to
   run concurrently with the sentence on Count 1.

   
   

SECOND
APPELLANT

1. The
   Appeal against his convictions on Count I and II is dismissed save
   that in respect of Count I the Appellant's conviction is
   altered to
   read "guilty of murder with extenuating circumstances."

   
   

2. The
   Appeal against his conviction and sentence on Count III is upheld.
   The finding of the Court a quo in relation to this count
   is deleted
   and the following is substituted there for:-

   
   

Accused No.2 is found not guilty on Count III.

3. The
   Appeal against the sentence on Count I is upheld. The sentence of
   the Court a quo is set aside and the following substituted

   therefor:-16 years imprisonment.

   
   

3. The
   appeal against the sentence imposed by the Court a quo in respect of
   Count II is dismissed save that it will run concurrently
   with the
   sentence on Count 1.

   
   

THIRD
APPELLANT

The
appeal against his convictions and sentences on all counts is upheld
and his convictions and sentences are set aside.

J. BROWDE

JUDGE OF
APPEAL

25

VAN DEN
HEEVBR

JUDGE OF
APPEAL

Delivered
at Maseru on the ....3th..day February, 1997