CRI/T/20/80
IN THE HIGH COURT OF LESOTHO
REX
v
TUMELO SISINYI & OTHERS
^RULING
Delivered by the Hon. Justice F.X. Rooney
on the 22nd day of May, 1981.
The accused persons are charged with high treason
and in the alternative with sedition and in the further
alternative with contravening Section 13 of the Internal
Security (General) Act 1967. One Crown has closed its
case and Mr. Poswa for the accused has applied for their
discharge in terms of Section 172(3) of the Criminal
Procedure and Evidence Proclamation on the grounds that
there is no evidence before this Court that the accused
committed these offences.
The correct approach of this Court to an application
of this nature has been set out by Mapetla CJ. in
Matsobane Putsoa & Others v. Rex 1974/75 L.L.R. 201. In
that case it was held that in deciding an application
under this section, the test to be applied by the court
was whether there was evidence on the record on which
a reasonable man might convict the accused. Although
the court retained a discretion to refuse the application
in the absence of such evidence, the exercise of that
discretion must be founded on proper and relevant conside-
rations and unless such considerations existed the accused
should ordinarily be discharged. Mapetla C.J. reached this
conclusion having first considered the cases of
R. v. Kritzinger & Others 1952(2) S.A. 401, R. v. Herholdt &
Others (3) 1956(2) S.A. 722 and S. v. Heller & Another (2)
2/1964 (1)      

2
1964 (1) S.A. 524. I have not been referred to any cases
arising in the Republic of South Africa or elsewhere in
which the discretion has been exercised to refuse the
application even in the absence of evidence against an
accused. The reason for this lack of authority may well
lie in the proposition that the exercise by a judicial
officer of his discretion not to return a verdict of
not guilty at the close of the case for the prosecution
cannot be taken on appeal. R. v. Lakatula & Others 1919
AD 362 and R. v. Eiman 1947 (2) S.A. 1031. I therefore
propose to proceed on the basis that no special circumstances
exist in the present case which would justify my departing
from the principle that the discretion vested in me
should ordinarily be exercised in favour of an accused
person, where there is no evidence against him.
In the course of his argument Mr. Poswa submitted
that he should be permitted to address me on the general
credibility of the Crown witnesses. In support he cited a
remark of James J. in R. v. Dladla & Others (2) 1961 (3)
S.A. 921 and 923 which reads :
"it may be that when a Judge sits alone and is
himself the sole trier of fact, the rule
against taking into consideration questions of
credibility may, from a practical point of
view, be subject to modification but when a
Judge is not the sole trier of fact then in
my judgment he should scrupulously observe it."
I find that I have already considered this proposition
in the case of R. v. Daniel Lehloenya & Others CRI/T/35/79
unreported) and I held
"At this stage of the proceedings I am not
required to evaluate the testmony received,
that task does not arise until all the
evidence has been heard. If, however, all
or any of the evidence presented up to this
point is demonstrably unreliable, then as a
trier of fact I am entitled to discount it
and treat it as amounting to no evidence
for the purposes of this application."
I was not prepared therefore to allow Mr. Poswa to
make general submission on the credibility of the Crown
witnesses. It is only where the unreliability of the
evidence is obvious to all without further argument that
the Court is entitled to treat it as being of no value.
3/ I am fortified       

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I am fortified in this view by a Practice Note delivered
by Lord Parker C.J. to which I have been referred by
Mr. Kamalanathan for the Crown and which is to be found at
1962(1) All ER 448 and which reads as follows:
"LORD PARKER, C.J. : Those of us who sit in the
Divisional Court have the distinct impression
that justices today are being persueded all too
often to uphold a submission of no case. In the
result, this court has had on many occasions to
send the case back to the justices for the
hearing to be continued with inevitable delay
and increased expenditure. Without attempting
to lay down any principle of law, we think that as
a matter of practice justices should be guided
by the following considerations.
A submission that there is no case to answer
may properly be made and upheld (a) when there
has been no evidence to prove an essential
element in the alleged offence; (b) when the
evidence adduced by the prosecution has been so
discredited as a result of cross-examination or
is so manifestly unreliable that no reasonable
tribunal could safely convict on it.
Apart from these two situations a tribunal
should not in general be called on to reach a
decision as to conviction or acquittal until the
whole of the evidence which either side wishes to
tender has been placed before it. If, however, a
submission is made that there is no case to
answer, the decision should depend not so much
on whether the adjudicating tribunal (if
compelled to do so) would at that stage convict
or acquit but on whether the evidence is such that
a reasonable tribunal might convict. If a reasonable
tribunal might convict on the evidence so far laid
before it, there is a case to answer."
The Crown evidence discloses that on the evening of
the 18th May, 1980 a meeting was held at a donga near the
village of Kolo at which a man called Ralinaleli spoke of
plans to overthrow the Government of Lesotho by force of
arms. Some of those present were scarified in preparation
for war by Ralinaleli. Instructions were given as to the
immediate seizure of arms and ammunition for the furtherance
of the proposed revolt. There followed a series of violent
incidents including the breaking into stores, the
destruction of equipment, the abduction of innocent people,
the seizure of a large bus, the discharge of firearms and
the foul murder of a helpless captive. These were acts
of terror and intimidation perpetrated at the command of
Ralinaleli and one Tseko Makena who appeared to act as his
lieutenant. Explosives, and detonators and various types
of home made bombs were removed from a scrap yard and
taken by bus and van to Mafeteng. Persons who had not
4/ attended     

-4-
attended the meeting at the donga joined this warlike
expedition at various places en route. In the course of
the journey to Mafeteng instructions were given as to the
method by which the bombs were to be used in a projected
attack on the police station at Mafeteng which was stated
to be the immediate objective of the expedition.
When the party reached Mafeteng about dawn on the
19th May the enterprise was abandoned by its several
participants and no hostile act was ever committed against
the police.
There is evidence before the Court that Ralinaleli
was armed with a rifle which ho did not hesitate to use and
that in the course of the night's events he threatened to
bomb houses and stores if people did not surrender to his
demands. One of the Crown witnesses Joseph Semethe (PW 7)
the driver of the bus which conveyed the expedition to
Mafeteng said that he acted throughout in fear of his
life. He admitted that he performed illegal acts such
as the theft of petrol and the carriage of bombs and
explosives because of his fear of the consequences to
himself of any failure to comply with the orders of
Ralinaleli and his companions. Two of the accomplices
who gave evidence for the Crown also claimed that their
participation in this venture was procured by means of
threats and intimidation and the third accomplice had
much the same to say although he also indicated that he had
been persuaded that the attack on the police station would
be beneficial to his cause
Mr. Poswa submitted that in order to establish a
prima facie case against the accused it is not sufficient
to bring evidence of the commission of certain acts.
It is also necessary for the prosecution to lay before
the Court some evidence that the accused performed these
acts with a criminal intention. That issue has been
raised in the course of cross-examination and it arises
from the Crown case itself. Joseph Semethe was obliged
to go along with this criminal undertaking in fear for his
own safety. There is also evidence that one Sello
Mpakanyane was obliged to assist in persuading Joseph
Semethe to open his door and join with the others. If
that be the case, Mr. Poswa contended, it is incumbent
upon the Crown to lead some evidence to show that the
accused persons were not similarily compelled by force
5/and   

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and violence to take part in this criminal adventure.
In reply, Mr, Kamalanathan submitted that at this
stage of the case it is unnecessary for the Court to
concern itself with the mental element of the crime and
that the intentions of the accused can only become a factor
for determination when all the evidence has been laid before
the Court.
It is not at this stage necessary to consider in
any depth the nature and extent of the defence of necessity.
The views expressed herein are founded in greet measure
upon the discussion of the subject in "South African
Criminal Law and Procedure" Vol.1 Burchell & Hunt 284 to
293. I am persuaded that the onus of proof on this
issue rests upon the Crown and that the question of
necessity has been introduced by the Crown evidence.
I accept as a general proposition that for an act to be
justified on the grounds of necessity a legal interest of
the accused must have been endangered by a threat which
was not caused by the accused's fault. It must have
been necessary for the accused to avert the danger
threatened and the means used for this purpose must be
reasonable in the circumstances. Furthermore I accept
that such a defence will not avail an accused if the
threat is not imminent and continuous. The accused must
endeavour to avert the threatned harm and do everything
possible to free himself from the compelling force.
There is also an obligation upon him to flee if the harm
can be avoided by such flight.
Undoubtedly such a defence raises difficulties as
Mr. Kamalanathan suggested. However, I am not convinced
that at this stage of the proceedings I am entitled to
disregard altogether the mental element of the offence.
In S. v. Heller & Another (Supra) Trollip J. at page
541 in considering the similar provision of section 157(3)
of the Criminal Procedure Code of South Africa said :
"The test that is usually applied is whether
or not there is any evidence of the commission
of the offence upon which a reasonable nan
might convict the accused. It seems to me
that that section, and the test, apply even
when the onus is cast upon the accused of
6/ proving......

—6—
proving some special defence. If, therefore,
that by the end of the State's case, evidence
has emerged which in the Court's view has
proved the special defence on a balance of a
probabilities it would then in my view be
entitled to find in terms of Section 157(3)
that there is no evidence upon which a
reasonable man might convict the accused."
This observation has added force because in Heller's
case the special defence rested upon the mental element.
I have considered the evidence against each of the
accused. Where the circumstances disclosed by that
evidence suggests that an accused acted independently
of any threat of force or failed to take advantage of a
possible opportunity to escape or was found by the
police in suspicious circumstances or went into hiding
after the event, then the onus upon the prosecution to
establish a prima facie case of the existence of mens rea
must be regarded as having been discharged.
The case against accused No.3 rests upon the evidence
of Ts'ehla Thakeli (PW 3) and Molaoli Molaoli (PW 8) both
of who are accomplices. They both told the Court that
accused No.3 joined the hi-jecked bus at the village of
Solo Lenonyane. Molaoli Molaoli states that he was in the
company of accused No.9 end accused No.10. Thakeli said
that he assisted in the movement of the explosives from
the bus to a captured van while Molaoli Molaoli said that he
was of those who entered a scrap yard at the back of
Ralinaleli's house where explosives and other material were
hidden. There is no evidence whatever that this accused was
not obliged to participate in these activities in the same
way as Joseph Semethe and I therefore hold that no case has
been made out against him and I direct that he be discharged
from this proceedings.
Accused No.4 also features in the evidence of the
accomplices Thakeli and Molaoli. They both say that he
entered the bus at the village of Solo Lenonyane and Molaoli
says that he was then in the company of Ts'eko (one of the
leaders of this adventure) and accused No.2 and accused No.8.
Thakeli said that accused No.4 was one of those who later
moved war materials from the bus to the van which was captured
on the main road to Mafeteng.
7/ This accused         

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This eccused was in the company of accused No.2
during the afternoon of the 19th May when both men were
stopped by a police patrol near the village of Mphaloll
somewhere between Kolo and the main road to Mafeteng.
The police found nothing incriminating on the person
of this accused although there was evidence that accused
No.2 was carrying a bomb. In the absence of any evidence
that accused No.4 was aware that accused No.2 had any such
article in his possession, I em satisfied that the case
against accused No.4 does not stand on any better foundation
than that against accused No.3 and he too is entitled to be
discharged at this stage.
Accused No.8 according to the evidence of Thakeli
joined the bus at Solo Lenonyane's village end he was
present at He Ranko when Sello Mpakanyane was killed.
The accomplice Molaoli said that this accused was at
Ralinaleli's scrap yard from which the explosives and
detenators were removed. He also refers to accused No.8
getting off the bus at Ha Ranko's in the company of
Relinaleli, evidence which if true suggests that Thakeli
is mistaken when he says that the accused No.8 was present
at the killing of Sello. Thakeli also says that this accused
was one of those who reached the N.R.C. building not far
from the police station at Mafeteng.
The only other evidence concerning Accused No.8
is that of the accomplice Samuel Leloka (PW 11) who said
that he was one of the persons present at a meeting held at
the same donga about a week before the 18th May.
According to Leloka, Ralinaleli addressed those assembled.
He said that he had come over on a mission to meet people
of the Congress Party end to give them a message. The
message was that he had certain companions who were coming
to meet them who were not present on that day. Ralinaleli
appealed for funds to support a plan to demand the
government. The funds would be used to obtain firearms
and other weapons. Relinaleli referred to the need for
a big bomb. Leloka says that this request was refused
by those present who said that they had no money.
8/Ralinaleli    

Ralinaleli went on to explain that scarification was
necessary as there would be a fight throuout the country.
A person who was carified would be fortified and protected
from injury. Accused No.8 was not among those said to have
been at the second meeting at the donga on the 18th May.
Even if accused No.8 had listened to Relinaleli, there
is no evidence that he ever agreed to participate in the
countrywide fight which Ralinaleli announced. There is
nothing in the evidence to show that he was any more willing
to take part in the nights proceedings as was Joseph Semethe.
He too is therefore entitled to a discharge.
In regard to all other accused I am satisfied that the
Crown had made out a case against them sufficient to put them
on their defence with two modifications as follows :
Talk of the overthrow of the government was said to have
taken place at the meeting held at the donga on the 18th May.
There is no evidence that either accused No.2 or accused No.10
were present at that meeting. The only other evidence against
them is that they were present when a lecture was given on the
bus by Ralinaleli as to the use of certain bombs distributed
to some of those present. In the course of this lecture
mention was made of an impending attack upon the police
station at Mafeteng. I take the view that whatever was said
at that time did not amount to an element in the crime of
high treason. It has not been shown that accused No.2 and
accused No. 10 were personally made aware that the alleged
purpose of the expedition to Mafeteng was the overthrow of
the government. I am unable to find that they have any case
to answer on a charge of high treason, but, a case has been
made out against them on the alternative charge of sedition.
In the result therefore accused No.3, 4 end 8 are found
not guilty of high treason or of any other offence.
Accused No.2 and accused No. 10 are found not guilty of
high treason.
9/ The case .   

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The case will proceed against accused Nos 1,5,6,
7,9 and 11 on the charge of high treason and against accused Nos
2 and 10 on the charge of sedition.
F.X. ROONEY
JUDGE
22nd May, 1981.
For The Crown : Mr. Kanalanathan
For Defendants: Mr. Poswa