IN
THE COURT OF APPEAL OF LESOTHO

C
of A (CRI) 11/04

CRI/T/111/2002

In
the matter between:

THABO
MONYAU APPELLANT

and

REX RESPONDENT

6, 20 April 2005

CORAM:

Steyn, P.

Smalberger, JA

Gauntlett, JA

JUDGMENT

Sedition
– elements – whether gathering constituting actus
reus itself must be unruly, restive or
otherwise presage public violence –compliance of common law
offence with Constitution of
Lesotho may require consideration -
further count of conspiracy to commit murder constituting in
particular case a splitting of
charges or duplication of convictions
– interference on appeal with sentence of 15 years’
imprisonment for sedition.

GAUNTLETT, JA

[1] The
Appellant, a priest attached to the Roman Catholic Cathedral in
Maseru, was convicted by the trial court (Monapathi J and
assessors)
of sedition and conspiracy to commit murder. He was sentenced in
September 2004 to 15 years’ imprisonment on
the first count,
and to five years’ imprisonment on the second count, to run
concurrently. The conviction and sentence in
respect of both counts
are in issue on appeal.

[2] The
indictment comprises two counts, with two alternatives to the first
count. The first count is one of high treason: the
Appellant was
acquitted in this respect, and the State has lodged no cross-appeal.
The first alternative is sedition :

“IN THAT during or about
1998 and at Maseru, the said Accused did unlawfully and with
seditious intent participate in various gatherings
of a number of
people, which gatherings had intent unlawfully to defy and subvert
the authority of the Government of the Kingdom
of Lesotho by
detaining and or arresting and or killing senior officers in the
Lesotho Defence Force, and members of the Executive
of the Government
of Lesotho”.

The
second alternative to the first count entails an alleged
contravention of s.7, read with sections 1, 2, 3 and 12 of the
Internal
Security (General) Act, 24 of 1984, in relation to the same
events. For reasons set out later, this count does not require
elaboration.

The
second count relates to an alleged contravention of section 183 (2)
of the Criminal Procedure and Evidence Act, 1981 (as amended):

“In that upon or about
1998, and at or near Maseru, the Accused did wrongfully, unlawfully
and intentionally conspire with Private
Phaila, Second Lieutenant
Phaila, Private Hosanna Sako and other members of the Lesotho Defence
Force to the prosecution unknown,
to aid or procure the commission of
or to commit the crime of Murder, viz, to kill Prime Minister
Mosisili, Deputy Prime Minister
Maope, Foreign Minister Thomas
Thabane, Lieutenant General Mosakeng, Colonel Lefosa and Colonel
Matobakele”.

[3] In
a trial which, with unfortunate interruptions, stretched over a
period of nearly two years, seven witnesses testified for
the Crown.
The Appellant gave evidence in his defence (which was conducted by
senior and junior counsel). Before us his senior
counsel stated at
the outset of oral argument that their approach on appeal was
narrowly focused: as regards the conviction, it
was that the evidence
accepted and factual findings made by the trial court, whilst not
challenged, do not in law support the conviction
on either count. In
the alternative, it was submitted that this court was bound to
interfere with the sentence imposed (at least
in relation to the
first count) in view of material misdirections by the trial court,
and in any event, because it was strikingly
inappropriate.

[4] The
approach so adopted on behalf of the Appellant therefore requires the
factual findings of the trial court to be identified
before the legal
arguments are examined.

[5] On
11 September 1998 serious civil disturbances commenced in Lesotho.
Members of the Lesotho Defence Force (LDF) arrested certain
army
officers. They were tried in separate proceedings, and it was common
cause before us that their actions constituted a mutiny.
Army
leaders, on the facts not in material dispute before us, were seized
by certain junior officers and other ranks, stripped
of their
command, in some instances shot at, and held against their will. As
a matter of notoriety, lives were lost in what amounted
to an
uprising, property was pillaged and burnt, and troops from other SADC
countries entered Lesotho to restore order. Very shortly
before the
uprising the Appellant had approached separately two senior army
officers, a brigadier and a colonel. He knew them
as parishioners.
He indicated that his concern was rumours of corruption on the part
of the Commander of LDF, also a parishioner.
He spoke of a need to
arrest the Commander; that he (the Appellant) had support within the
army; and that for the operation
to succeed, cool heads were needed
as bloodshed could result. The Appellant’s overtures –
made on one occasion in
the cathedral sacristy after Mass - were
separately spurned by both officers (who in fact reported them to
their superiors). The
overtures were not renewed.

[6]
But the Appellant pursued the matter. Other members of the LDF –
some now sentenced for their part in the mutiny and
serving long
prison sentences – testified that they encountered the
Appellant and others in a series of meetings. The meetings
sought to
secure the support of the soldiers present for the arrest of senior
army officers. On occasion, Chief Selala Sekhonyana
(who with Chief
Khoabane Theko was prominent in discussion) is said to have stated
that as LDF officers were to be arrested, there
should be a concerted
endeavour to seize the power of government with the support of
disaffected LDF members.

[7] Some
seven such meetings took place. (I refer to them deliberately as
meetings at this stage so as not to beg the question
whether they or
any of them in law comprised unlawful gatherings for purposes of the
offence). In view of the approach adopted
on behalf of the Appellant,
accepting the factual findings of the trial court, it is unnecessary
to itemise them. What matters
is that, even if certain of those
present did not support the general purpose – working out a
plan to capture, quite unlawfully,
senior army officers and remove
them from effective command – the Appellant did. More, he
played an important role in securing
the presence of the army
attendees, driving them to and from the meetings, often over long
distances, while two of the meetings
took place, clandestinely, on
church property. Finally, it was agreed by those present that the
Appellant would continue to assist,
as he had already done, by
providing transport. In addition he would provide cellular
telephones (with funds for airtime), which
in the event he did.
Later, too, after the uprising had taken place and participants were
being pursued, the Appellant assisted
them in hiding and with funds.

[8] Do
these essential facts found sedition? In oral argument before us,
counsel for the Appellant contended that they did not,
for two main
reasons. The first is that the trial court had not clearly found, he
said, which meeting, of the many to which I
have referred,
constituted an unlawful gathering, within the purview of the offence.
The second – the main argument advanced
– was that
(counsel argued) such a gathering itself
had to have attributes of unruliness or restiveness (regard being had
to what was contended to be the rooting of sedition at common
law in
public violence) to give rise to the offence.

[9] This
court has previously dealt with the nature and ambit of sedition in
the law of Lesotho (Molapo v Rex [1999 – 2000] LLR - LLB
316 at 320). The court there applied the definition of sedition
advanced by a leading academic authority
(Milton South African
Criminal Law and Procedure: vol II Common Law Crimes (3rd ed
1996) 42) as reflecting the offence as it had evolved in South
Africa, namely:

“Sedition
consists in unlawfully gathering, together with a number of people,
with the intention of impairing the majestas
of the State by defying or subverting the authority of its
government, but without the intention of overthrowing or coercing
that
government”.

(This
definition, it is to be noted, draws on case-law antedating the 1993
and 1996 Constitutions in South Africa which introduced
justiciable
Bills of Rights).

[10] The
challenge in oral argument on appeal to the conviction of the
Appellant was directed, as I have indicated, to the actus
reus of the offence. The finding on the
facts by the trial court that the Appellant through his participation
in the meetings, and
his approaches to the brigadier and colonel,
manifested an intention to subvert the State is indeed in my view
unassailable. The
Appellant without doubt intended to subvert the
discipline and functioning of the LDF. Under the Constitution of
Lesotho the LDF
is one of the public service institutions established
by Chapter XIII; to intend to subvert its legitimate authority is to
intend
to subvert the State. Indeed, the evidence is such as to
raise a serious question whether the trial court was correct in
giving
the Appellant, as it put it, the benefit of the doubt as to
whether he harboured a “hostile intent” (that is, an
intent
to overthrow or coerce) against the Government of Lesotho,
founding high treason, but in the absence of a cross-appeal that
issue
is not justiciable by us.

[11] I
turn accordingly to the two arguments concerning the actus
reus for sedition. In relation to the first,
counsel for the Appellant drew attention to the fact that the
meetings with the brigadier
and colonel had involved on each occasion
only two persons. He invited us not to follow the approach in S
v Twala 1979 (3) SA 864 (T) at 869, where Van
Dyk J held that even two persons can constitute a gathering for the
purpose of the offence
of sedition, referring to criticism of that
approach by leading academic writers in the field (CR Snyman (1980)
97 SALJ 14 at 20
and Snyman Criminal Law
(4^th ed. 2002)
317; Milton op cit
51-52; to which may also now be added Burchell Principles
of Criminal Law (3^rd
ed. 2005) 936).

[12] Prof.
Milton argues that the principal Roman-Dutch common law authorities
do not in this respect support the conclusion in
S
v Twala supra
that two persons can constitute the requisite concourse or gathering
of persons (Milton op cit 51,
read with 45-47). Nor do the earlier leading decisions in R
v Endemann 1915 TPD 142 and R
v Viljoen 1923 AD 90 appear to do so. But
this point does not require determination in the present case because
of the plethora of meetings
at which a significant number of persons
were present, and at which the planned arrest of the commander and
certain other senior
army officers was a central theme. (Nor does the
further question raised in passing as to whether a gathering must be
inter praesentes or,
in the current age, may be achieved by telephone or audiovisual
conferencing or perhaps an internet chat-room).

[13] This
leaves the inquiry whether those meetings had the requisite features
of an unlawful gathering for the purposes of sedition
and more
particularly, the second argument advanced for the Appellant
(summarized in paragraph [8] above).

[14] That
argument is supported by the views of three academic authorities.
Each (thus see Snyman op cit
318; Burchell op cit
936; Milton op cit 51)
contend that the decision in S v Zwane
(1) 1987 (4) SA 369 (W) was wrongly decided in holding this (at
374G):

“Although sedition may take
the form of an armed uprising or violent resistance of a tumultuous
mob in defiance of established authority,
I am of the view that a
seditious gathering need not necessarily involve an uprising or riot,
or be coupled with clamour, uproar,
violence or threats of violence.
It seems to me that the weight of authority only requires a gathering
in defiance of the authorities
and for an unlawful purpose to
constitute the crime of sedition”.

(A
similar finding was made in S v Twala
supra at 869G).

[15] This
approach was presaged by that in R v Endemann
supra, where De
Villiers JP observed (at 147) that “to constitute the crime of
sedition it is not necessary that acts of violence
should have been
actually committed”. Snyman op cit
22 (n 13) contends that this observation is not fully supported by
the common law authorities cited. But reliance on this criticism

does not assist the Appellant in the present case. This is so for
three reasons. The first is that the old writers in fact dealt
with
what they knew as oproer,
meaning tumult or public disturbance. A requirement of violence in
some manifestation is to be seen in that context. Sedition
in the
modern law of Lesotho is an offence distinct from either high treason
or public violence. Burchell op cit
934 puts it well when he describes the modern offence of sedition as
“begotten upon the crime of public violence by the crime
of
treason”. It has its own requirements to which I shortly
return, which may in part be derived from and overlap with the
two
parent offences but are not for that reason to be equated with the
requirements of either.

[16] Significantly
Professor Milton (op cit
53) does not contend that to constitute sedition, the gathering in
question must itself necessarily be violent. (His approach
is thus
more muted than that advanced for the Appellant, and summarized in
paragraph [8] above.) He argues for a requirement of
“some
element of violence (albeit in the form of a threat or intent to
cause or to incite violence) before persons should
be punished for
exercising their constitutional right of coming together to protest
the actions or policies of government”.

[17] The
reliance by counsel for the Appellant on an attribute of violence as
a requirement for sedition – even in such an
attenuated form –
seems to me to be unsound for a second reason. It overlooks the
nature of present-day society in general
and the functioning today of
the State. A modern State may be subverted, indeed, brought to its
knees, by stratagems which involve
no violence. Hacking into
computer systems or interference with telecommunications are just two
examples. They may entail no
violence or threat of violence or
intention to use violence. But they may drive a stake through the
heart of the modern State.

[18] The
third reason why the argument for the Appellant cannot be sustained
relates to the factual findings made by the trial court
which, as
already noted, were not challenged before us in oral argument. At
the series of gatherings held in the weeks leading
up to the mutiny
the recruitment of dissident LDF members was under recurrent
discussion. The meetings were concerned with subversion
of the most
direct kind. Even if the approach urged by Professor Milton were to
have been adopted in this case, the appeal in
this regard must still
fail. The gatherings may themselves have been orderly, but they both
threatened and intended violence at
every turn.

[19] It
may in future be necessary for this court to reconsider the
definition of sedition in the terms quoted in paragraph [9]
above.
This is because the common law must comply with the Constitution of
Lesotho as its supreme law, and any other law (thus
including the
common law) inconsistent with it is invalid to the extent of the
inconsistency (s.2). Among the fundamental rights
entrenched in
Lesotho’s Bill of Rights (Chapter II of the Constitution) are
the rights to freedom of peaceful assembly, association,
equal
protection of the law, conscience and expression. Provisions that
entrench upon these rights have to be justified in the
various
respects and according to the various tests specified, and which do
not require recitation here. So assessed, the common
law actus
reus for sedition as it applies in Lesotho
since the adoption of the Constitution must be approached with care.
Certain dicta and
academic writings in South Africa may have to be reconsidered in this
country, to the extent that they suggest that acts falling
short of
subversion and defiance and which amount only to a challenge to
authority or protest against its exercise, constitute
sedition. One
example given in S v Twala
(supra at 870) is
workers’ strikes in opposition to the enactment of restrictive
legislation.

[20] It
seems to me that a concern is rightly raised regarding the almost
feudal sweep of the common law offence, in constitutional
democracies
in which the relations between subject and government are not
appropriately still to be described in terms of majestas.
As Curlewis JA already noted some 60 years ago in R
v Roux 1936 AD 271 at 281, in considering the
continued existence of the common law crime laesae
majestatis (scandalizing or dishonouring the
monarch):

‘Even
as the Roman-Dutch jurist expressed amazement at some of the acts
that were regarded in the time of the Romans as constituting
the
crimen laesae majestatis,
so too we under the conditions of our modern civilization and
development, and of our political liberty and freedom of thought
and
speech, cannot be expected to accept the narrow and restricted views
of the sixteenth to the eighteenth centuries as regards
criticism of
the Monarch, as applicable in the present state of our political
advancement. We have travelled a long way on the
road of freedom of
speech and of political criticism since the days when it was a crime
laesae majestatis to
enter a house of ill-fame or a latrine with money in one’s
possession or a ring on one’s finger, bearing the image
of the
Princeps . . . We must
interpret the language complained of by the light of modern thought
and freedom of speech and not by the light of
the restricted ideas of
the Middle Ages.’

The
concern may have to be addressed in a way which holds in balance the
existence of sedition as a separate modern-day offence
with its
compliance with the Constitution and the fundamental rights the
latter entrenches. This may be (no final view can now
be suggested)
to require that the actus reus
of sedition relate to a gathering of persons the unlawful purpose of
which is to subvert or defy the functioning of the State;
and to
require its mens rea
to relate to an intention on the part of a participant (to found his
or her individual culpability) so to subvert or defy the State.

[21] A
definition of the offence in these or similar terms would permit
gatherings taking place which may indeed challenge government
but
which will be legitimate forms of expression so long as they do not
seek to subvert or defy the State (or, of course, are otherwise
in
conflict with the law).

[22] This
issue was, however, not raised before us by either the Appellant or
the State. Its determination must accordingly be
left open in the
present matter.

[23] To
sum up. Counsel for the Appellant’s two contentions relating
to the actus reus for
sedition in the present case cannot be accepted. The Appellant
attended a number of gatherings, the purpose of which was to
subvert
the State of the Kingdom of Lesotho. The mechanism agreed at the
meetings between a number of participants, including
the Appellant,
was the recruitment of disaffected elements in the LDF. On the facts
found by the trial court, and not challenged
before us, the threat of
violence and intention to commit violence were not only inherent, but
were articulated. Even on the approach
for the actus
reus of sedition advanced for the Appellant,
he was guilty of the offence.

[24] Counsel
for the Appellant however argued that even if this were to be our
conclusion, we should nonetheless hold that the Appellant
was wrongly
convicted of sedition because ‘the same facts ….. would
qualify for conviction in respect of section 7
…. of Act 24
of 1984”. The trial court, it was said, had “not offered
a juridical justification for convicting
on the first alternative as
opposed to the second alternative”.

[25] No
authority was cited in support of this argument. It is unsound in
principle. The Crown is entitled, having framed its
case and
advanced its evidence as seems appropriate to it, to ask for a
conviction on the counts it chooses. The court’s
role is to
adjudicate the lis so
arising. It cannot direct the Crown in the choice as to which, if
any, charges should be pressed in a criminal matter, as little
as it
can properly direct a civil litigant in his or her decision as to
relief ultimately to be sought from a court. If the count
on which
the Crown seeks a conviction is proved, the court must convict.

[26] For
these reasons the conviction of sedition must stand.

[27] The
conviction on the second count however is another matter. This in my
view is based on substantially the same set of facts
as those alleged
in the indictment in relation to sedition, as the extracts quoted in
paragraph [2] above clearly indicate. Both
refer to the intended
object of (inter alia)
killing members of the Executive of the Government (a description
which encompasses the Cabinet Ministers specified by name in
the
second count). Charges cannot be split or convictions duplicated
where conduct could properly have been encompassed by one
offence, to
the prejudice of an accused (S v Grobler
1966 (1) SA 507 (A) at 523B). The conviction on count two
accordingly cannot stand.

[28] This
leaves the question of sentence. The trial court in my view
materially misdirected itself. It held that the Appellant
was “the
prime mover of …. what eventually resulted”, a
significant overstatement of what the evidence establishes.
At none
of the gatherings did the Appellant exert any authority; his
involvement was essentially supportive, in the respects already

described. Similarly there is no proper basis for the description of
the events culminating in the uprising on 11 September 1998
as “his
original scheme”.

[29] These
misdirections are related to a further aspect. This is that the
trial court asserted that its approach in sentencing
was “not
[to] depart from those other sentences meted [out] to soldiers
involved in the similar background events”.
This is a
reference to the court-martial, conducted under military law, the
legality of which was unsuccessfully challenged before
this court in
Sekoati v President of the Court-Martial
[1995-1999] LAC 812. The court could properly in my view have had
some regard to the sentences imposed on those found to have played

important roles in the mutiny, but it would have to do so with care.
It did not do that in this case. Those persons were charged
with
different and yet more serious offences under what this court has
previously described as “a particular and explicitly
different
legal regime for the military” (Sekoati
v President of the Court-Martial supra
at 823A). Their offences under the Military Code for instance
carried the death penalty as a possible sanction; sedition does
not.
Certainly it was wrong for the trial court to take as its departure
point the avowed intention “not [to] depart from
those
sentences”. Worse, in the event the court did
depart from the earlier sentences – by imposing a yet heavier
sentence on the Appellant. That is only explicable in the
light of
the conclusion that the “original scheme” for the
uprising was that of the Appellant, which is, as I have
said,
unsustainable.

[30] In
these circumstances, it is unnecessary to consider the argument that
this court should in any event interfere with the sentence
imposed by
the trial court for sedition because it is strikingly inappropriate,
or induces a sense of shock. The misdirections
in sentencing have
the effect of vitiating the trial court’s conclusion, and we
are at large to impose the sentence we think
appropriate.

[31] The
offence committed by the Appellant was a very serious one. “This
is the more so in a country where political stability
has proved to
be an elusive goal and coups d’ état
are not infrequent occurrences” (Molapo
supra at 320 ad fin.).
The efforts of the Appellant were directed at subverting the
disciplined force set up by the Constitution for
the defence of
Lesotho, and whose operational use is determined by the Prime
Minister (s.145 (1) and (2)). Nor was this, even
by his own lights,
a matter of last resort for the Appellant. He had access to the
commander himself, as was put to him in cross-examination,
to
challenge him on the rumours of personal corruption, and within his
own church to take his concerns further. Lesotho functions
as a
constitutional democracy, where freedom of expression and related
personal liberties exist and are protected by the courts.
His was
not the predicament of those in other times and places who have been
constricted by the law in expressing opposition to
those in power.

[32] What
makes matters worse is that the endeavours planned at the gatherings
were directed at, and on the evidence clearly contributed
to, the
uprising which took place on 9 September 1998. In seeking to subvert
the State through disaffected elements of the LDF,
the Appellant knew
– as his own words to the colonel already referred to, evince –
that bloodshed could well result.
The LDF, as a force of soldiers
trained in armed combat and with access to lethal firepower, vehicles
and other support equipment,
was both the most formidable and violent
means available to subvert the Executive. Disaffected elements
within it were likely
to use those means, as they did, with results
which (as a matter of notoriety) were devastating, and indeed for a
while imperilled
Lesotho’s continued existence as a
constitutional democracy.

[33] On
the other hand there are certain other features of the crime which
cannot be ignored. The Appellant was, on the evidence,
not moved by
any consideration of personal gain, political or otherwise. He did
not, as I have said, play a leading role at the
seditious gatherings.
He played no role at all in the events of the uprising, other than
afterwards to help certain participants
into hiding. These
considerations, together with the fact that at 40, he is a first
offender, must also be weighed in the scales.
They would however
have weighed more had he exhibited some remorse, or even candour in
the witness box. Regrettably the figure
in the witness box was an
unattractive one, adopting no stance of principle and frequently
untruthful. And as I have noted, he
came within a hairbreadth of
conviction for high treason. The sedition of which he is guilty is,
all in all, extremely serious.

[34] The
sentence to be imposed needs also to make it clear that sedition in
Lesotho with actual and potential consequences such
as those here
present will be treated with severity. For the reasons I have given,
the fact that Lesotho is a constitutional democracy
may mean that the
common law offence of sedition cannot be used as a blunt instrument
against socio-political challenges to government.
But that same fact
has as a consequence that those who do commit sedition strike at the
very basis of that legal order, and are
likely to receive significant
punishment for doing so.

[35] In
all the circumstances, in my view a sentence of ten years’
imprisonment is appropriate.

[36] The
order I propose is accordingly as follows:

(a) The Appellant’s
appeal against his conviction on the first alternative to count one
(sedition) is dismissed.

(b) The sentence
imposed in respect of that count (15 years’ imprisonment) is
set aside, and is substituted with a sentence
of 10 years’
imprisonment.

(c) The conviction
and sentence in respect of count two (conspiracy to commit murder)
are set aside.

____________________

J.J.
GAUNTLETT

JUDGE
OF APPEAL

I agree. It is so ordered.

____________________

J.H. STEYN

PRESIDENT

I agree: __________________

J.W. SMALBERGER

JUDGE OF APPEAL

Counsel for the Appellant: Adv.
I. Semenya SC

(with
him, Mr. K. Mosito)

Counsel
for the Crown: Adv. P. Hemraj SC

(with
her, Adv. K. Singh SC)

Maseru

20
April 2005