CRI/T/20/80
IN THE HIGH COURT OF LESOTHO
In the matter of:
REX
v
TUMELO SESINYI & 10 OTHERS
RULING DATED 5th MARCH, 1980
Mr. Kamalanathan and Mr. Muguluma for the Crown
Mr. Poswa for the accused
The main charge against the accused persons is one of high
treason. The indictment has been framed in a manner that has
caused me some concern as it may invite the admission of
irrelevant evidence prejudicial to the accused persons. No
objection or exception to the charge has been made by Defence
Counsel, but, that in itself does not lead me to conclude that
the indictment as drafted should be put to the accused without
further consideration.
Horwitz J. said in R vs September 1954 (1) S.A 574 at
575 .
"A change should be framed with reasonable clarity
and certainty before an accused person is called
on to plead thereto. Where, as here, the charge
is not only uncertain, but, meaningless, the
possibility and even the probability of prejudice
to an accused cannot be ruled out."
A judicial officer has a duty to ensure that a charge is
in a proper form before it is put to an accused (R v Mohapi
1954 (1) S.A 573 and R v Ken 1956 (4)S.A 265). Although these
cases were directed to charges presented in magistrates courts,
no lesser duty falls upon a superior court to satisfy itself
that indictments are fair and proper even in the absence of
defence objections or exceptions.
The indictment for high treason (reduced to essentials)
alleges that the accused, owing allegiance to this Kingdom,
did unlawfully and with hostile intent and with the intention
of coercing by force or overthrowing the government commit one
or more of the following acts, namely :
On the 18th May, 1980 at Kolo, Mafeteng the said accused
2/       or one or other

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or one or other or all of them did unlawfully and intentionally
conspire with each other to attack the Mafeteng police station
and with force and violence to capture certain arms and
ammunition there being "and in pursuant to and in furtherence
of such conspiracy did further commit the following acts."
The charge then goes on to list certain acts which include
allegations of murder, theft, rape, malicious damage to property
and the unlawful possession of dangerous weapons with intent
to use the same in attacking the Mafeteng police station.
In high treason, there must be an overt act end a
conspiracy to commit an overt act of high treason is itself
an overt act of high treason (R vs Leibbrandt and others
1944 A.D 253). It follows that a charge of high treason must
specify the overt act or acts relied upon to support the main
allegation. In the present indictment, the only overt act
alleged against the accused is the conspiracy itself. It is
stated that the other acts were committed in furtherence of that
conspiracy, but, only one of these acts, namely the allegation
relating to firearms, is specifically said to relate to the
planned attack on the Mafeteng police station.
I accept the proposition that an overt act manifesting an
intention to commit treason need not necessarily be an act of
treason in itself (C.R vs Lenzel 1940 W.L.D 275). But, if the
act alleged is in itself innocent, it must be proved in evidence
that it was in fact connected with the treason. It seems to
me logical to conclude from this that an indictment which
alleges overt acts must be so framed as to inform the accused
as to how and why it is alleged that the acts were treasonable.
In this case certain acts are alleged, not specifically as
overt acts of treason, but, which are in effect crimes against
the common law. But, the accused do not stand charged with these
crimes before this Court. It is a general rule that it is not
competent for the prosecution to adduce evidence tending to show
that an accused has been guilty of criminal acts other than those
covered in the indictment. There are exceptions to that general
statement which do not concern me at this stage. Evidence that
the accused committed crimes other than that with which they are
charged will ordinarily have to be excluded as inadmissible.
There can be no point in including allegations of other crimes
in this indictment unless it is specifically alleged that the
acts of an accused are overt acts of treason,
3/       in which case

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in which case, they must be framed in the manner that I
have mentioned above.
These objections also epply with equal force to the
criminal acts which appear in the second alternative charge
which is concerned with an offence under section 13 (1) of
the Internal Security Act 1967 Again the indictment must
reflect how it is alleged that the criminal acts complained of
committal in pursuance of the subversive intention which is an
essential element of this statutory offence.
In the result therefore, I decline to put the indictment
as framed on the main count of high treason or the charge as
framed under the second alternative count to the accused. In
effect I am quashing part of the indictment.
F. X. ROONEY
JUDGE
5th MARCH, 1981
(After the prosecution had tended an amended indictment
and the defence offered no objections, the amended indictment
was put to the accused and the trial proceeded.)