CRI/T/111/2002

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

V

THABO
ANTHONY MONYAU

JUDGMENT

Delivered
by the Honourable Mr Justice T Monapathi On the 27"' Day of
September 2004

The
Accused is Minister of Religion of the Roman Catholic Church. He was
stationed at Maseru at Our Lady of Victory (Mofumahali-oa-Tlholo)

mission church and cathedral at all material times. He had an office.
The mission has got a convent. He was not a member of Lesotho
Defence
Force (L.D.F.).

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Accused
is charged with one count of High Treason and two alternative
charges. The first alternative is that of Sedition and the
other one
of Contravening section 7 read with section 1, 2, 3 and 12 of THE
INTERNAL SECURITY (GENERAL) ACT NO.24 OF 1984. The
second count is
that of contravention of section 183(2) of the CRIMINAL PROCEDURE AND
EVIDENCE ACT 1981 (as amended). Accused pleaded
not guilty to all the
charges in the indictment. The counts were as follows:

The first
Count is that of High Treason. It is alleged that: "Whereas
during the whole period covered by this indictment the
said Accused
owed allegiance to the Kingdom of Lesotho (hereinafter referred to as
the kingdom) and whereas during the whole of
the said period, the
kingdom was ruled by a lawful and democratically elected government,
the said accused did unlawfully and with
hostile intent against the
kingdom to overthrow or coerce the government of the Kingdom, commit
certain hostile acts, the particulars
whereof arc as follows:

In that
during or about 1998 and at or near Maseru the said Accused did
conspire with Private Phaila. Second Lieutenant Phaila,
Private
Hosanna Sako. and other persons to. the Crown unknown, to arrest and
to detain and or to kill senior officers in the Lesotho
Defence
Force, and members of the Executive of Lesotho Government and thereby
overthrow the Government of the Kingdome of Lesotho.

The first
alternative charge was that of Sedition in which it was alleged:

"In that during or about 1998 and at or near Maseru, the said
Accused did unlawfully and with seditious intent participate
in
various gatherings of a number of people (at) which gatherings and
intent unlawfully to defy and subvert the authority of the
Government
of the Kingdom of Lesotho by detaining and or

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arresting and or killing senior officers in Lesotho Defence Force and
members of the Executive of the Government of Lesotho.

The
second alternative charge was that Accused contravened section 7 read
with section 1,2,3 and 12 of the INTERNAL SECURITY (GENERAL)
ACT NO
20 OF 1984:

"In that during or about 1998 and at or near Maseru the Accused
did together with Private Phaila, Second Lieutenant Phaila,
Private
Hosanna Sako wrongfully, unlawfully and with subversive intent,
thereat to have certain members of the Lesotho Defence
Force and
members of the Executive of Lesotho Government arrested and or
detained and or assaulted; spoke of a plan to bring about
such
arrest, detention and assassination and or supported certain persons
who intended to bring about such arrest, detention and
or
assassination."

The
Second Count was in terms 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 and 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
and or procure commission of or to commit the crime of murder viz.
kill Prime Minister. Thomas Thabane. General Mosakeng,
Colonel Lefosa
and Colonel Matobakele and Maope."

The case
for prosecution was supported by seven witnesses who testified and
thereafter closed its case. The Accused in turn testified
in his own
defence and closed his ease. The Crown witnesses were as follows:
Brigadier Sebajoe (PW 1). Colonel Lesitsi (PW 2).
Private Hosanna
Sako (P\V 3). Joseph Ndaba (PW 4). Lance Corporal Azael Tsoeu Tsukulu

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(PW 5),
Captain Gerard Matheolane Mafoea (PW 6), John Makhele (PW 7). PW 3,
PW 4 and PW 5 were accomplice witnesses.

As
respect the different meetings about which the above witnesses
testified to have attended with the Accused, the fact of the meetings

were not denied by Accused in his defence. Most if not all these
several meetings anchor the Crown's case. Indeed PW 3 spoke of
about
seven of such meetings. None of the witnesses were unknown to the
Accused. The witnesses will on most occasions in the judgment
be
referred to by the last names for convenience and without disrespect.

Sebajoe
testified that he knew Accused as the priest of the Roman Catholic
Church in Maseru for a long period of time. They often
would talk
about church affairs. This was not denied by the Accused.

On the
6th September 1998 which was a Friday Sebajoe received a message to
telephone Accused on a cellular phone whose numbers were
provided to
the witness by an officer who had recorded the message. Sebajoe met
the Accused at about 1.30 pm after inconsiderable
waiting.

Accused
then told Sebajoe that he should know that they were intending to
arrest his "boss" Lieutenant General Mosakeng'(Mosakeng)

5

and other
officers. He referred to Lesitsi (PW 2) and one Lefosa who are both
Colonels and others. Sebajoe was promised that he
would be spared of
the intended arrest, if he agreed to participate. Accused was asked
by the witness as to what Mosakeng had done.
The witness was asked by
the Accused as to why he did not know that Mosakeng did not like the
church and he fought against the
church. In addition he had failed to
take action against one or some senior officers of the army for
improper behaviour.

Sebajoe
also asked Accused how as a priest he was going to arrest members of
the army. His reply was that he had a hundred soldiers
under his
control. This allegation Sebajoe never investigated. The witness and
Accused became involved in a heated discussion during
which Sebajoe
said he indicated to Accused that he was not going to be part of the
plan. He was quite frightened by Accused's suggestion
as he
testified. The witness left. He said he later reported the matter to
General Mosakeng. About ten days later the witness and
other senior
officers were arrested at gun point. They were imprisoned at the
Central Prison from which they were released after
two days.

Sebajoe
was adamant under cross-examination that the above discussion took
place although he did not report it to the police. Accused

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denied
that he had ever invited the witness as testified. Accused's position
was to say that as the spiritual leader of both the
witness and
General Mosakeng he was not pleased with reports concerning corrupt
behaviour of the General and that was his sole
concern. These
included rumours that the General had a farm in South Africa, he
slaughtered a sheep to feast certain politicians,
and he was a member
of the ruling party. Accused said the butt of the discussion or what
he discussed were the issues and that
he advised the witness to speak
to General Mosakeng about them. This the witness denied. He conceded
however that there was never
any agreement between him and the
Accused to arrest officers or to assassinate any government
officials. He agreed that the Accused
was not seen by him to have
participated in the events of the 11th September 1998 which was the
date of the Senior Officers arrest.

As 1
concluded Sebajoe (PW 1) was an honest witness who seemed to testify
to the truth and did not deceive. I found no reason for
this witness
to have sought to deceive. It was not suggested that there was any
motive on his part to fabricate. He was impressive
and forthright in
his demeanour.

Lesitsi
it should be remembered was PW 2 and is a Colonel in the LDF. He
testified that he had known the Accused for a long time.
He

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attended
at Accused's church. He testified that he attended a 6.30 Sunday Mass
and even made church announcements. During July and
August, 1998
Accused had made a request for both of them to meet after Mass. He
did not know what was to be discussed or what the
meeting would be
about. The witness had himself made attempts to meet Accused on three
occasions but had failed.

At one
time Lesitsi found a telephone message from Accused in which he asked
him to meet at church. They subsequently met at Accused's
office.
Accused said quite hurriedly that he wanted to have General Mosakeng
arrested. The witness then asked Accused what Mosakeng
had done. His
response on the second occasion was to say quite dejectedly: "Men,
have we elected the wrong person" having
hesitated on the first
occasion. The Sesotho expression for men is "banna": It is
used as an exclamation for alarm or
surprise either to oneself or to
those persons being addressed. Here it underscored an element of
dejectment or being dispirited.
This statement, when it was made, it
was accompanied by movement of his hands and head as Lesitsi
demonstrated in Court.

Lesitsi
further testified that. Accused added that for the venture to succeed
"cool" heads were needed for the operation
could result in

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bloodshed.
The witness ended by informing the Accused that he was going to
report the matter to General Mosakeng which he did. This
information
was given further to Major-General Thibeli and Colonel Mofolisa of
the Military Intelligence. The witness had not agreed
to the
Accused's suggestion which he had found to be most unacceptable.

Under
cross-examination the witness agreed that Accused was never seen by
him at any of the army premises on the 11th September
1998 nor was he
seen in command of the soldiers.

The
witness was cross-examined at length about why in the church
building, particularly in the Sacristy, would the Accused propose
a
meeting as alleged. This was intended to dent the witness's veracity,
may be as to the truth of what he said or the specific
statements but
all in all it ended up not being clear as to what would be denied by
the Accused. As I said before the meeting itself
was not denied
although it was suggested that there had been previous discussions
about the worrisome aspects of the conduct of
General Mosakeng in his
running of the army.

It did
not seem that the Accused, although he denied meeting Accused on not
more than two occasions in July and August 1998. he
denied meeting
the witness on this specific occasion when a discussion

9

(although
a brief one) took place. I would conclude that on this specific
occasion they did meet I surely did not see any reason
why the
witness and the Accused who were well known to each other could
however not have met on several occasions. What was important
to me
was that it appeared to be beyond doubt that the witness came on as a
result of being called by the Accused.

It became
clear to me that what Accused and Lesitsi discussed could only have
been according to the version of the witness. Lesitsi
was not the
only witness who was called by the Accused about the matter of senior
officers who had to be arrested and the problem
of General Mosakeng's
management of the army. He was substantially corroborated by
Brigadier Sebajoe. I found no reason to doubt
that. In any event the
arrest of the army officers was discussed as a matter of a
proposition by the Accused himself

Again
with respect to Colonel Lesitsi it was not suggested why he would
have a reason or motive to fabricate. In the person of Lesitsi
I
found most impressive witness who told his story in a forthright
manner. Me was not shaken in cross-examination. Indeed he exuded
the
utmost air of one who enjoyed and liked the army career pure and
simple. His

10

demeanour
was impressive. I found him a truthful witness. Again similar to
Sebajoe he did not go along with what Accused suggested.

The third
witness Hosanna Sako came in as an accomplice witness and was
accordingly warned. He carried a baggage of having been
convicted in
charges or of crimes having a similar background to those under
inquiry in these proceedings. He has also testified
in the Leon
Commission that traversed almost the same events. Defence Counsel
were therefore sensitive to the fact that he could
have told his
story differently on the previous occasions and he would therefore be
unreliable. Not necessarily. The Court would
have to be strongly
persuaded that it was so and if so it had to be pointed out as to the
specified areas of his testimony and
as to what necessary inference
would have to be drawn.

The
witness testified that he was currently in prison at the Central
Prison. He had been found guilty by a Court-martial and sentenced
to
a long term of imprisonment. He knew the Accused very well.

At all
material times the witness Sako testified that he had been working at
the LDF base at Ha Ratjomose. On a certain day he met
one Warrant
Officer Lerotholi. who did not testify in this proceedings at one

11

of the
gates. It was about the beginning of the month of August 1998.
Lerotholi requested that they should discuss something. As
requested
by Warrant Officer Lerotholi the witness agreed that they meet at
Lerotholi's home at Mohalalitoe village in Maseru near
a restaurant
that evening.

The
witness and Lerotholi did eventually meet as arranged. When the
witness arrived there was already parked a maroon 4x4 vehicle
parked
near the house at which they were to meet. Inside that vehicle there
were two people. The witness was called by Lerotholi
who was inside
the vehicle. In the vehicle he found Chief Khoabane Theko, the
Principal Chief of Thaba-Bosiu in the company of
Warrant Officer
Lerotholi.

The
witness. Lerotholi and others agreed to remove from Mohalalitoe
village where they went to Our Lady of Victory Roman Catholic

Cathedral (the Accused's church) which is not very far from the
village. When they arrived at the church Chief Khoabane Theko phoned

someone through his cellular telephone. A man suddenly appeared. He
happened to be the Accused before Court. After introductions
were
made. Warrant Officer Lerotholi started off discussion by saying
things they had already discussed before meeting the Accused.
A
certain message was said to have been received by Warrant Officer
Lerotholi. It

12

was what
had previously been told to the witness and Chief Khoabane Theko as
having emanated from Colonel Leoatla. It was revealed
there and then
to have concerned the intended arrest of senior army officers. After
this Chief Khoabane Theko indicated the urgency
of the matter and
that there was "a job to be done".

The
message which allegedly come from Colonel Leoatla was supposed to
have emanated from the King through the Colonel down to Warrant

Officer Lerotholi. The defence made issue of the absence of testimony
of the King and Colonel Leoatla. that the evidence was not
admissible
on that account. I would agree with respect if the truth of the
message was sought to be proved. It was not relevant
nor was the
message in issue . The real lest in my view is whether the holders of
the meeting themselves had intention or resolved
to do certain things
which were unlawful regardless of their source or motivation. Was
there some agreement about something that
became common cause as it
resulted then? If the answer is yes what is real importance is not
where the original motivation, if
it was true, came from. Certainly
it is said by the Crown Accused was part of the conspiracy that came
out of these meetings.

13

It was
resolved by those present at the above meeting that another meeting
was to be held and more people were to be recruited to
join the
venture. The significance of all that transpired so far is that the
Accused, as testified, was not against the things
that were discussed
but became part of them as the prime mover.

A few
things are to be said for the above conclusion. Firstly as Sako
testified the meeting and others that followed were held at
the
church under Accused's auspices if he was not the prime mover. If he
did not agree he would have made it clear that he was
not part of
that discussions. Further and to my remembrance it was Accused who
suggested that the gentlemen were again to meet
at the upper place of
the hall. The upper room of the hall. At that meeting, as PW 3
testified, the arrest of senior officers of
the LDF was discussed.

As was
concluded at the last mentioned meeting and as all agreed many
soldiers were required to carry out the operation and the

responsibility to recruit such soldiers was left to W/O Lerotholi.
S/L Phaila. In addition the witness. Chief Khoabane Theko and
the
Accused would as agreed, be responsible for communication and
transport. The Accused would provide cellular telephones for

communication. Accused ultimately did provide as the witness
testified further.

14

Sako
testified further to say: "At the end of the meeting we were
shown that the place where the meeting was held, church premises,
we
don't consider the place ok." That is why in order to procure a
better place Chief Khoabane suggested Victoria Hotel where
the chief
had his own room. The number of the room was identified by its number
by this witness as room 412. A third meeting would
follow at Victoria
Hotel

It was
later in the said room 412 that a third meeting was held. The Accused
allocated cellular telephones (already activated) to
S/L Phaila and
PW 3 which were to be used for communication and bore numbers 581470
and 851471 respectively. Airtime was to be
provided by the Accused as
he had undertaken. It was then that "conclusions and follow ups"
of the previous meeting were
to be considered.

it was
suggested that leaders of "C" Company of the LDF whose
commander was Lieutenant Sekoati and the Band Company were
to be
approached by Lerotholi, the witness (Sako) and Phaila. One W/O
Mafoea was said to have been one of the band management who
knew
about the intended arrest. Lieutenant Sekoati was mentioned by name
because he was to be met in Mohale's Hock. He was the
person who
Chief Khoabane professed to know. That Sekoati was in fact ultimately

15

met by
the witness and Chief Khoabane Theko at a place called the Farmers
Training Centre (FTC) in Mohale's Hoek. This was to constitute

another meeting in line with the intention to arrest senior army
officers.

The next
meeting which was to be near a dam in Mafeteng followed. Accused
drove there in a white Corolla salon in which he conveyed
Warrant
Officer Lerotholi. Second Lieutenant Phaila and the witness. Others
arrived including Second Lieutenant Sekoati, Corporal
Seoka and Lance
Corporal Tseko. The latter drove on a grey Mercedes-Benz Saloon in
which the meeting took place. Tseko and the
Accused did not take part
in the meeting but after its conclusion Accused drove back to Maseru
with those who had accompanied him
in his car. Then followed in the
beginning of the month of September 1998 which was held at Chief
Khoabane Theko's place.

At Chief
Khoabane Theko's place there were people who were not soldiers, and
soldiers (including the witness) and the Accused. The
Accused's
participation was debated so as to disqualify him from the motive to
topple government as Accused's Counsel argued. In
addition it was
submitted that the soldiers through Tsukulu distanced themselves from
what appeared to be a scheme plotted by civilians
as will be
discussed below in this judgment.

16

On
arrival, PW3 found Chief Khoabane Theko. Mrs Mamello Morrison, Chief
Selala Sekhonyana, Mr Moeketse Malebo. Father Hlalele and
one Mr
Mokotoko (a lawyer) present. Chief Selala stated that as LDF officers
were to be arrested, he and the others should be in
partnership with
them and should snatch the power of government and he said they (the
soldiers) should support them. Apart from
Chief Khoabane Theko with
whom they had had the meetings and working relations about arrest of
soldiers, the witness had not previously
known any of the others
present.

It had
appeared to the witness that all those who had been in the room
agreed with the various remarks that they made. These remarks
the
witness could not recently recall. The response from Tsukulu who
spoke for the soldiers was however not to accept that they
(soldiers)
could participate and assist the civilians in their proposed venture.
Chief Khoabane tried to convince the soldiers
by saying that they
should not be afraid as the lawyer present (Mr Makotoko) would help
them.

It should
be recalled that one of the suggestions to the soldiers was that all
they had to do would be to stand back while certain
steps were taken
to overthrow government. Incidentally the witness spoke about

17

knowledge
on the part of Selala that soldiers were to be arrested and that they
would like the soldiers to "contribute"
to the civilian
plan. No details were presented to the Court. There was no dispute
that Accused did not say anything for or against
the suggestion made
to the soldiers. Accused would say it was more than that. It is that
he was never inside the room but was attending
to a radio news
broadcast. This was about the only departure from the trend of the
witnesses evidence which in any event did not
meet any considerable
challenge and was generally truthful as I concluded.

The
witness said that after this meeting Accused transported them all
home. That is those people with whom had come. The witness
testified
further that he had not known in advance what the meeting would be
about and that when Accused asked him to go with him.
Accused had not
told him that they were going to attend a meeting at Chief Khoabane
Theko's house. It was merely that they were
going somewhere with
Lance Corporal Ndaba. Lance Corporal Tsukulu. This was so even after
the two officers were collected by the
Accused. But it was not
difficult for the witness "to work out in his mind" that
they were going to Chief Khobane Theko's
place because of the
direction which they took. To be noted was the fact that amongst
those people who were

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found
already present at Chief Khoabane's place it was him only with whom
the witness the other soldiers had had prior working relationship.

The sixth
meeting all allegedly took place at W/O Mafoea's place "who had
to be talked to first" There the witness travelled
with Accused,
W/O Lerotholi in a white Land Cruiser vehicle, which belonged to the
Accused's church and had been driven by the
Accused. The witness was
accompanied by W/O Lerotholi and S/L Phaila. It is true that there
was confusion about either the presence
of the Accused together with
S/L Phaila at the first or on the last meeting with W/O Mafoea. But
as the witness said there was
more than one meeting and at one of the
meetings Accused was present. W/O Mofoea belonged to the Band
company.

At one of
the meetings at W/O Mafoea's place both Accused and W/O Lerotholi had
been present it was at that meeting where there
a bereavement was
reported by W/O Mafoea following death to one of his family. It was
shown to W/O Mafoea or rather he was invited
to support the venture
for arresting officers. The details thereof were discussed. The
reasons for seeking his support were given
and clarified by W/O
Lerotholi. This included the intention to prevent or foil the
quelling of a protest at the Royal Palace by
a group of army officers
who had to be arrested before their attempt to disperse the
protesters. W/O Mafoea

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seemed to
be in agreement with the scheme. He ended up requesting for a sketch
to give a "picture" of the mission."
This was promised
to him.

The
witness further spoke about what is recorded as the seventh meeting.
This meeting was said to have been a continuation of one
which had
been held at the office of the Chief of Likhoele. This one took place
at St Gerard Mafeteng. Present thereat were Accused
L/Corporal Ndaba
and L/Corporal Tsukulu (PW 5). The meeting was to receive a report
concerning recruitment of military officers
of Band Company of the
LDF and other aspects including the time for arrest of the officers
had to be familiarized. W/O Lerotholi
had already indicated that he
could not be part of the meeting because he had had to go to South
Africa to fetch fodder for his
animals. Accused drove the mentioned
officers to the meeting. He drove a white Corolla Sedan.

PW 3
continued in his testimony to say that when the senior officers of
the army were ultimately arrested on the 15th October he
went into
hiding. There he phoned the Accused who picked him up at Katlehong on
the outskirts of the Maseru City Centre. He took
PW 3 to a place in
the direction of Mafeteng. Accused was driving a Nissan van which he
later changed to a white Corrolla at Borokhoaneng
in Maseru. While in
hiding he maintained contact with the Accused, who often

20

advanced
money at the witness' request. The contact and assistance continued
until the witness was arrested.

PW 3
stated towards the end of his testimony that the Accused, a cleric by
the name of Father Khutlang. S/L Phaila and the witness
had together
written a letter at the Roman Catholic Church hall, dealing with
inter alia the allegations against General Mosakeng,
in that the
latter had had a farm given to him in South Africa and other aspects
of maladministration, discrimination in the army
which the witness
described among other grievances. To this letter as I gathered there
was no dispute by Accused that the mentioned
persons were the
authors. The letter was photocopied and broadly distributed.

The
witness agreed that he testified at the Leon Commission and at the
Court Martial. He conceded that he had given different versions
on
some aspects which were different from the one that he was giving
before the Court. He said the last version was the ultimate
truth. He
explained that he later came out with the version before this Court
which he felt he ought to reveal "as the real
truth". He
gave reasons for this change of heart.

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Accused's
Counsel suggested, as surely one would, that it said a lot and.
indicated much as to the witness' unreliably in that he
told
different versions at different times. I agreed that that may
ordinarily be so. But I became concerned that as respect the
meetings
that were held at which the matter of arrest of senior military
officers were discussed these were amply corroborated
by almost every
witness. In these meetings as I have earlier suggested Accused was
present and became part of the discussions if
not more. He was being
a willing participant who indicated acquiescence at the very least.
If however there are issues which were
said to indicate or as
submitted showed lack of blameworthiness on the part of the Accused
they are suggested by the line of cross-examination
of PW 3. But not
denied was that Accused attended meetings and participated therein.
The issues are as follows:

Firstly.
PW 3 conceded that Accused was not informed about the exact time of
the arrests of senior military officers and that in
relation to the
arrest of the officers, many meetings were held at which the Accused
was not a party, the Accused not being a key
person in the actual
operation.

PW 3 said
that there was no intention on his part to overthrow the Government
or on the part of S/L Phaila or W/O Lerotholi. Indeed
this

22

would be
said as concern L/Corporal Tsukulu (PW 5) and other officers who
attended at the home of Chief Khoabane Theko. While one
can merely
suspect (at most) that the Accused may have known of the plot or
nefarious intention of Chief Khoabane and his civilian
friends one
cannot say even on a balance of probabilities that the Accused was
proved to be part of that particular plot which
civilians seemingly
orchestrated . This is distinct from his moves or contacts in
relation to arrest of senior army officers.

PW 3
would say that he and Accused enjoyed a close relationship and met on
matters unrelated to the LDF. This could lead to or called
for an
inference that these meetings with Accused could have been about
other things other than arrest of senior officers. I do
without
hesitation, whatever these may amount to. conclude that the evidence
seemed to be overwhelming that arrest of senior military
officers was
discussed by the Accused by way of encouraging others to buy into the
venture. This is based on abundant corroboration
and accordingly and
consequently became overwhelming. That will be my conclusion.

PW 3 was
driven to accept that on the day of arrest of army officers, the
vehicle previously used by Accused were not used in arrest

23

of the
senior officers. I observed that that had been no suggestion from the
Crown that the vehicles were so used.

I have
already indicated that on the relevant issue of the meetings and
Accused's participation the witness was firm in his testimony
and was
not shaken by Mr Semenya searching cross-examination. There were no
tendencies towards exaggeration on the part of the
witness or such
like. He was. in my view, a witness to the truth and I believed him
on the relevant issues. No motive was suggested
for this witness to
have fabricated against the Accused. 1 found none.

Joseph
Ndaba who was the fourth Crown witness was a member of the LDF. He
was serving a term of imprisonment as a consequence of
his
participation in the events of October 1998 about disturbances in the
army. The first meeting he attended was one at Mafeteng
between
August and September 1998. The purpose of the meeting was to enable
PW 3 and others to give a report about what was being
dealt with by
PW 3 and others. There he met Accused for the first time. Others
present besides the Accused was PW 3 S/L Phaila,
L/C Tsukulu.

PW 4
attended another meeting on the 7th September 1998 at the home of
Chief Khoabane Theko. It was at night. He said he had no
idea

24

that such
a meeting was going to take place. He had been at his home when Sako
(PW 3) and Accused arrived. PW 3 called him out of
his house and then
they travelled in a motor vehicle driven by the Accused. They
proceeded to pick up L/C Tsukulu. The witness
said further that he
did not know about the meeting "from the beginning."
Neither was he told where he was going, nor
did he not know the owner
of the place where the vehicle stopped.

On
entering the house together with PW 3, Accused they found Chief
Khoabane Theko. Mr Moeketse Malebo. Mrs Mamello Morrisson. Father

Hlalele. a certain lawyer and Chief Selala present. The latter seemed
from the evidence to have had most words to say on behalf
of his
group.

During
the meeting Chief Selala requested support from the witness and his
companions to overthrow the LCD Government "since
they were not
satisfied with it." L/C Tsukulu disagreed with this request and
none of the soldiers agreed to go along with
the plan to overthrow
the Government. This was despite entreaties from Mrs Morrison such
as: "Gentlemen we really need your
support" Incidentally
the cleric in the group (in order to underline the seriousness of the
discussions) is reported to ha\e
said "Gentlemen now that there
is no agreement won't this issue

25

be
treated confidentially because if this is to be known, these people
will kill us".

According
to PW 4 Accused was present throughout the meeting. When the meeting
was concluded Accused drove them back to Maseru.

I placed
value on the testimony of the witness to say that meetings had been
held at which a report was given about PW3's dealing
and that further
meeting was held at which no agreement was reached about the
intention to overthrow lawful government and the
attitude of the
military men at those meetings. To the extent that the evidence was
not challenged it is to be accepted as the
truth of what PW 4 said
transpired.

PW 5 was
Lance Corporal Azael Tsukulu. He was a member of the LDF. He
testified to say that sometime before September 1998 there
was a
meeting at St Gerard Mission in Mafeteng which he attended
accompanied by S/L Sekoati. There also attended the Accused. PW
3 L/C
Ndaba and S/L Phaila.

The
meeting discussed and all were in agreement about arresting of senior
officers of the LDF. At some stage during the meeting
Accused pointed
out that W/O Lerotholi had failed to attend and seems not to

26

attend
their meeting, like that meeting of Mafeteng......but he chose to go
for fodder."

A second
meeting occurred at Ha Tsosane Maseru at Chief Khoabane Theko's place
a few days before 11th September 1998. PW 5 had not
been aware that
such meeting would take place except that he was collected without
prior notice by Accused. L/C Ndaba and PW 3.
The vehicle that carried
the group was driven by Accused.

All
entered Chief Khoabane Theko's house. Chief Selala Sekhonyana opened
the discussion in the presence of civilians referred to
by PW 4 in
his testimony and in the presence of all of officers in the group
with which he came. Chief Selala asked for help to
overthrow the
Government of Lesotho. PW 5 disagreed and warned that people would
die and others would be arrested.

Chief
Selala said that they would be assisted with a lawyer who was also
present in the meeting. The lawyer would provide legal
services as
the witness replied when questioned. It must have been his
understanding. After the meeting at which there was apparent
lack of
agreement PW 5 left with his group. This included the Accused.

27

The
witness was not cross examined. I would pass the same remark as to
the previous witness about the value of the unchallenged
evidence. It
proved beyond a reasonable doubt that meetings were held at which it
was agreed that senior army officers were to
be arrested.

Captain
Gerard Motheolane Mafoea became the sixth witness for the Crown. The
witness had in July 1998 spoken to the Accused at Accused's
church
about the funeral arrangements of the witness' wife. The Accused did
not however conduct the funeral. Accused was therefore
a person the
witness was used to dealing with.

At some
stage S/L Phaila. Private Phaila and Accused visited the witness at
his home. A discussion ensured about past national election
about
which there was dissatisfaction because allegedly the elections had
been rigged. The soldiers were said to have been unhappy
with those
results and had said that something should be done.

The
witness testified further that the same three persons who had visited
him previously again visited him. The previous discussions
were
re-visited and opened by Private Phaila and that the situation "of
dissatisfaction with elections" should be normalized
by
arresting some of the senior officers of the LDF. The strike at the
Lesotho

28

Telecommunications
was cited as one indication that there was dissatisfaction. It was
said further that a large portion of the army
was dissatisfied. This
discussion reached some depth. It was even said that SADCC was going
to be consulted if government of one
member was destabilized. That
SADCC had however failed to participate to prevent the political
unrest of 1994. This can only show
that the discussions were quite
involved. The fear of involvement of the SADC was repeated by this
witness when questioned by the
Court. Apparently some officers may
have underestimated the aspect SADCC involvement. One of them was S/L
Phaila. History was to
prove this in a way that was so severe and
unforgettable

The need
to recruit soldiers was shown but PW 6 who pointed that this would
not be easy and it would be dangerous. He even as he
testified lied
that "the head of intelligence was at my home" and
therefore "something can happen to them."
The threats by
the witness did "not succeed the person who was a bit threatened
was the Accused soldiers were not scared they
insisted on going
ahead." That the witness intended not to go along with the
mission needs only to be observed by his attitude
and the threatening
attitude of PW 3 to him. The witness did not agree that soldiers
should be recruited from his platoon because
he said it was not easy.

29

Another
visit followed at PW 6's home. Those present told him that the LDF
and a large part of the army had decided to carry out
the mission of
arresting senior officers. Again the witness expressed reservation
and he said he lied that the Head of Intelligence
Branch had got wind
of the plan and had visited the witness' home to indicate that this
was the situation. Accused who was present
at the meeting was looking
scared. During Cross examination of the witness astonishment was
expressed at the attitude of the witness
in having had to have
continue to entertain the meetings when he was, as he says, not
prepared to co-operate. From examination
of the witness by the Court
hinted at the anomaly. I would observe that, strange as it was.
Another meeting followed. It was the
fourth meeting.

The same
group visited PW 6. They included PW 3. The latter produced a
document detailing the plan of how the arrest were to be
conducted.
It included an indication that senior officers were to be expelled,
some would be imprisoned and some would be killed.

PW 6
explained that according to the plan which was to be executed on the
5th September 1998 on a Saturday according to the witness'
"a
platoon Irani the south would enter Makoanyane." take some

30

soldiers
there and proceed to LDF headquarters at Ratjomose. Then they start
arresting officers some will be expelled, some will
be imprisoned and
some will be killed."

Another
development during the discussion was that PW 3 wanted to know what
PW 6's platoon would do at the time. PW 6 testified
to say: "I
told him that I was not going to be part of that. They seemed
dissatisfied when I said that. PW 3 pointed me with
a finger and said
"we will meet". He did not say that politely. It was a
threat.

Yet
another aspect was what Accused is said to have said when the meeting
was about to disperse. He said to PW 6 that it seems the
soldiers and
the community were supportive and all what remained was as to who is
going to pull the trigger. Then the witness continued
"After
they left I then realized that I had failed to "work my way out.
that they should drop the issue of arresting
officers. I then picked
up the phone and reported to my seniors." The Court was never to
learn what the seniors did by way
of a reaction if the witness told
the truth on this aspect.

Indeed
this witness was one of the three who went through the thorough
cross-examination brush of Adv. Semenya. But concessions
and
contradicts if any were few and insignificant. PW 6 conceded that

31

Accused,
as far as he knew was only involved at the meetings but not in the
actual execution of the arrest of officers, to wit:

DC : Do you know nothing about his participation in the execution of
the mission?

PW 6 : That is so My Lord."

Defence
Counsel's attitude, if the answers that followed are indication of PW
6*s attitude, was that if the witness was present
in the meetings and
entertained no thought of arresting officers that would similarly be
so with the Accused. With respect that
cannot be so because the
witness openly distanced himself from mission. It was not so with
Accused.

Another
answer which was brought out by defence Counsel's cross examination
on

PW 6 is interesting for the answer it elicited thus:

"DC: PW 3 tells us. and it is uncontradicted evidence that the
military were opposed to the overthrowing of the government
of
Lesotho. You concur with that?

PW 6 : I have no knowledge.

32

DC: No intention by the military to subvert the government can't deny
can you?

PW 6 There was a plan to subvert the powers if officers were to be
arrested"

No doubt
that this suggested an inference or implication of overthrowing of
government as the Crown later submitted.

PW 6
disputed that Accused was not present when the detailed plan "about
movement of platoons" was discussed.

It was
put to PW 6 that he was untruthful about the soldiers (PW 3 and
others) visiting him on four occasions and that if he did
not want to
participate they would not have repeatedly visited him. He insisted
that it was never his intention to participate
in the plan.

I
concluded that the aspect of the witness entertaining meeting to
which his soul was not involved can only say that he is a weak
person
I cannot however go to an extent of saying that he was proved to be a
liar nor was he shaken in cross-examination throughout.
Fortunately
his evidence is such that it has been corroborated. He cannot have
been

33

proved to
be a liar on the crucial aspect of his testimony namely that Accused
attended a number of meetings with soldiers some
of them who
testified before this Court such as PW 6 and PW 3. It was mainly to
arrest senior army officers PW 6 was a credible
witness in the
result.

The last
Crown witness was John Mokhele (PW 7). He had been a member of the
LDF with the rank of Second Lieutenant. In 1998 he was
dismissed from
the army. A suggestion was however made by the witness that a Court
of law had declared his dismissal unlawful.
As a matter of fact he
had not been re-instated. It would be remiss of me not to describe
the character of PW 7. He was obviously
stylish and confident in a
combative kind of way. He obviously relished the challenge that an
accomplished cross examiner like
Mr Semenya would offer, I thought
the witness was an intellectual sort of With early reading habits and
good grounding he would
have become one. It was obvious.

PW 7 said
under oath that in about July 1998 he received a telephone call from
Accused who he had not known to see him urgently
at Our Lady of
Victory Roman Catholic Church. He met Accused late in the afternoon
in his office. Accused said to the witness that
he had already spoken
to S/L Sekoati, S/L Phaila, Colonel Masupha, Colonel

34

Lesitsi,
Brigadier - Sebajoe (PW2), Private Sako (PW 3), L/Corporal Ndaba (PW
4) and L/C Tsukulu. Accused inquired from the witness
as to what kind
of a person Brigadier Sebajoe was.

Accused
told him that he was in a plot to eliminate Prime Minister Mosisili,
his deputy Mr Maope, and other members of parliament.
He contended
that it was a lesser evil (to act that way) and it was necessary to
save the nation and said he had been advised by
Colonel Lesitsi (PW
1) to call him as they wanted to restructure the army. He added that
the government had ruined the elections
"and they did not want
the report of Justice Lanka to be released. That is why they were
trying to act immediately."
PW 7 said he told the Accused that
he would not have anything to do with the suggestion and Colonel
Lesitsi could do as he pleased.
The witness, when examined by Crown
Counsel, denied that the Accused suggested to replace the government
with another except that
certain people were to be eliminated. In
response to whether there would be people supporting the plan he only
alluded to "soldiers
who were assisting the Ministers as body
guard and drivers. He mentioned Lance Corpora) Malitsane who he
thought was the driver
to the Prime Minister.

PW 7 was
one of the Crown witnesses who suffered a lengthy cross examination
from Mr Semenya. PW 7 denied that he wished to

35

implicate
Colonel Lesitsi who however had been responsible for having him
dismissed from the army. He neither wished to get even
with him. PW 7
stated in addition that he was testifying against the Accused not
PW1.

PW 7
denied that the Accused had called him to discuss the annulment of
his marriage. The witness agreed that he wanted his marriage
annulled
and this could have got certain publicity if Father Seakhi who
handled the annulment spoke about the issue to him.

I did not
discern any specific area in which the witness was proved to be a
liar, indeed a lot of things had to do with his colourful
character
or that much of it which he exhibited in Court. But it was not any
more than that. I thought he ought to be believed
to the extent that
there are two things which the Accused told him about. This is
besides whether the Accused told him the truth
about for example what
the Accused alleged said he talked to Colonel Lesitsi about. It did
not appear that he accepted to engage
in or go along with the
invitation by Accused to join military officers either to topple
government or to arrest senior army officers.
It was not suggested
that there was any motive to lie against the Accused. I found none.

36

Accused
testified in his own defence and he was the only witness for defence.
He denied all the allegations in the indictment which
were put to him
by his Counsel thus declaring his innocence. Accused said he has been
a priest of the Roman Catholic Church since
1992. Among his duties
was counselling of people who had difficulties or problems.

Accused
testified that he came to know about the arrest of senior officers of
the army through junior officers of the LDF before
it took place.
Sako (PW 3) Tsukulu (PW 5) Ndaba (PW 4) and others had approached him
with their concern about Lieutenant General
Mosakeng. The allegations
against were that he had been bought farm and a motor vehicle by the
Government, and had bought sheep
belonging to the army when
entertaining Ministers of state. These issues were raised in certain
pamphlets which had been disseminated.

When
junior officers discussed the matter with him they indicated that the
solution to the problem would be arrest of senior officers
while he
believed that the solution lay in holding discussions, as the arrest
would bring about bloodshed.

Accused
denied he phoned Brigadier Sebajoe and told him about the imminent
arrest of his boss and other officers. Accused further

37

denied
that he spoke to Brigadier Sebajoe explaining that the reason for
arrest of Lieutenant General Mosakeng which was that he
disliked the
church. Accused had had. according to him, an open relationship with
Brigadier Sebajoe who was "like a friend"
to him although
he was older than the Accused. "Again he was Chairman of the
Legion of Mary."

Accused
said he did speak to Colonel Lesitsi about the rumours. The latter
did acknowledge that there were difficulties in the army.
He denied
however that he told Colonel Lesitsi that he was in charge of 100
soldiers and that Lieutenant General Mosakeng should
be arrested.

Accused
admitted that Lance Corporal Ndaba (PW 4) was correct when he said
that he was present at Chief Khoabane's home. He said
he went there
to see the Chief and that he was accompanied by Sako (PW 3), Ndaba
(PW 4) and Tsukulu (PW 5). He denied that he was
part of the
discussion about overthrowing the Government. As the Court observed
nothing is reported in anywhere about the attitude
of the Accused.
One would readily think that if there was any item which the Accused
shared with the soldiers it was the question
of arrest. It never
became clear that this was discussed, at least, at. the meeting held
at Chief Khoabane Theko's place in the
presence of civilians such as
the talkative Chief Selala. Accused denied however that he was part
of the discussion about

38

overthrowing
the Government. On my part, as I did observe and of course it seemed
to be common cause not all agreed with the idea
of overthrowing
government. It was never made clear that the Accused fell on the side
of overthrowing the Government. He would
obviously deserve benefit of
doubt on this aspect.

Accused
further said he knew PW 7 from when he came to the church seeking to
have his marriage annulled. He denied having any conversation
with
him about restructuring the army. As regard PW 3 Sako, Accused said
he knew because he had come to the church seeking for
guidance on
work related problems. It should be remembered that PW 3 is that
impressive witness who laid down a story so replete
with detail not
coming about contact with the alleged ubiquitous Accused and about so
many thing e.g. hotel room, cell phones and
others. He referred to
the pamphlets against General Mosakeng which Accused allegedly
co-authored from the testimony of PW 3. I
found no motive from PW 3
to have fabricated against Accused as I have concluded earlier in the
judgment. I would without hesitation
reject Accused's denial of PW
3's story.

Accused
admitted that PW 3 was correct that he was at Chief Khoabane's place,
but denied that he agreed with any of the suggestions

39

made. I
have already said the Accused was to be given benefit of doubt. This
is so despite a strong suspicious that that having
recruited the
soldiers to the meeting at Chief Khoabane's place he must have had an
idea about what was to be discussed+-. It however
remains unproved
that Accused was on the side of Chief Selala and his cohorts . My
impression about this group is of people who
will never know the
meaning of true patriotism.

Accused
conceded that he had given cellular telephones to PW 3 and Phaila
because after discussions they heard about the rumours
he felt it was
wise for them to communicate thereafter. But this as Accused
protested was not to extent that he could rightly be
said to have
been in charge of communications. Under cross-examination he said
since soldiers had come to him he was going to assist
them to
facilitate discussions between soldiers and senior officers. He had
had open relationship with certain members of the LDF.

Accused
denied phoning his partners (soldiers witnesses) on the 11th
September. 1998 (on the day of arrest of senior officers) nor
on any
other day. Nor was it intended that he should not phone them on that
day. He denied that he ever made his car available
on the day of the
actual operation nor was it intended that it would he used. He was
accordingly

40

surprised
on hearing the news of the arrests. He did not try to get any
information from any of the soldiers witnesses. He never
even met
them later.

Accused
agreed that as a citizen of this country he knew that the country had
parliament which made laws for its people.

Soldiers
would come easily to the Accused for any kind of problems for which
they asked for his assistance. If there was tension
he would calm the
situation. He admitted that he would end up knowing problems in the
army because such problems were brought to
him. He ended knowing
pamphlets that were distributed in the street about complains against
General Mosakeng. This the Accused
said they were public knowledge.

Accused
said Lieutenant-General Mosakeng was well known to him. He was a
member of his congregation. He first knew of the complaints
against
him in 1998 through the pamphlets that were circulated. This
distribution of pamphlets disturbed him more especially because
they
concerned Lieutenant General Mosakeng about whom he was to see to it
that: "where a person lives there is rest and peace."

41

Accused's
intention as he contended had been to assist with regard to those
problems or related complaints. This was one of the
things he was
going to address. Towards that he even contacted Brigadier Sebajoe,
Colonel Lesitsi: "Colonel Lesitsi. we met
without calling him".
It turned out later when Accused was cross examined he had merely
heard people talk about the papers.
He had not personally seen them.
Accused was therefore asked to phone the Lieutenant General about
"What is it that I read
about you? What is the problem? What is
going on?" He did not however call Lieutenant General Mosakeng.

Accused
did not also call Lieutenant General Mosakeng when he heard a certain
complaint about Lieutenant General's promotion which
resulted from
"the pressure of politics". About this the Accused and
fellow priest Father Mahlangu attempted to call
the General on a
certain day when Father Mahlangu spoke to the General Accused was
unable to do so. He was absent. He apparently
knew about Lieutenant
General's discussion with Father Mahlangu. He was however not
satisfied about what transpired. He however
decided to call junior
officers instead. He did not call him because "there are many
ways of killing a cat."

The
aspect of the pamphlets was put to Accused in cross-examination. The
impression had been that's he had himself seen the

42

pamphlets
with his own eyes. This he denied. He had merely heard about the
pamphlets and what they contained. This I found difficult
to believe.
This is against the background that PW 3 had testified that Accused
was a party to the drafting of the pamphlets at
the Roman Catholic
Church and this had not been disputed. Accused could not in my view
credibly deny that he had knowledge of the
origins of the pamphlets.

Accused
said he had always understood that the arrest of soldiers would lead
to bloodshed because it was a serious thing. Then surprisingly
he
said he neither told Colonel Lesitsi and Brigadier Sebajoe about. One
of the issues could be that he ought to have suggested
to Brigadier
Sebajoe that the junior and senior officers be made to discuss the
problems and to avoid serious consequences. It
was to be expected
that he would follow upon Brigadier Sebajoe which he did not do.
Instead he said he did something.

Adv.
Himraj asked Accused what he did and he replied. "I was
praying". Much as Accused was a man of prayer. I could however

observe the way he treated the matter of intending to see, negotiate
or intervene was without conviction. As the lengthy questions
on the
matter revealed prayer and intention to enter into negotiations in
this matter

43

military
conundrum or saga was in my opinion the last thing on Accused's mind.

When
Accused said he discussed the matter with Brigadier Sebajoe, he did
not advise him to discuss those issues with Lieutenant
General
Mosakeng. However when it was specifically put in cross-examination
of Brigadier Sebajoe that Accused told him to speak
to Lieutenant
General Mosakeng about these issues, he could not explain why he had
later conceded that he did not specifically
say that Brigadier
Sebajoe should go and talk to Major General Mosakeng. This showed an
obvious contradiction in his evidence.

With
respect to Colonel Lesitsi Accused said he showed a very warm
relationship with him. He said that the meeting that he had with

Colonel Lesitsi where the various issues were raised was not
pre-arranged. He denied that he telephoned Colonel Lesitsi at his

house and asked to meet him. Nor that he on. a number of occasions,
asked to meet with him after mass. He said Colonel Lesitsi
had
fabricated on this.

During
1998 as the cross examination of Accused, revealed he had had use of
vehicles belonging to the church and he would sometime
give soldiers
a ride. He had merely accompanied Tsukulu (PW 5). Ndaba (PW

44

4) and
Sako (PW 3) when they went to Chief Khoabane's place. I observed that
during the cross examination of the Crown witnesses
he did not
distinctly suggested that this was the case. This was expected of
someone who came into the witnesses by chance or of
someone from whom
transport was requested for. I would say even that probability was
not suggested. I did not believe the Accused
on this aspect.

Accused
said he gave cellular telephone to Phaila not knowing the other
person to whom the second cellular phone would be given.
Accused
certainly struggled to convince that he had any good reason for such
magnanimity. It was not convincing. I agreed with
Crown Counsel that
the suggestion by Accused was too remote. That is why he when asked
to whom he gave the two phones to this answer
is "1 gave two
cell phones to Piyela (Phaila) but Sekoati was present. One answer
from the Accused was that ho did not even
know to whom the other
telephone would be given. Such kind of evasiveness was always in
large quantities from the Accused even
on the simplest of the issues.

It became
strange that Accused would confess to have given a cellphone to an
unknown person. If it was to be given to someone with
whom he had had
to communicate why would he anticipate a strange

45

situation
whereby he would have to communicate with someone he did not know.
See this line of exchange:

"With a person that you don't know who is going to have that
cell phone? At the time you gave it you don't know where it is
going.
but you are going to communicate with that person? But ultimately I
knew that".

Indeed if
it was about the need to facilitate negotiations, to make junior
soldiers talk to senior officers what is the reason for
the
evasiveness, reticence and at some places nonsense from the Accused?
The reason is that Accused did not want to be candid or
was being
economical with the truth.

The
genuineness of the so-called negotiations became extremely
questionable in my opinion just by reason of the way Accused went

about building a mystery about them. One could suspect that it could
have had something to do with the need for secrecy about the
goings
on in the military. It however begs the question as to why the
Accused, as a civilian, would have to meddle in the affairs
of the
military and sometimes became a custodian of their secrets. The
attitude of the senior officers Brigadier Sebajoe and Colonel

Lesitsi. as was to be expected from people who exuded integrity,
clearly showed their distaste about the Accused having had to
make
military affairs his business.

46

Accused
justified his attitude in dealing with matters of the military
because soldiers had come to him with the problems and he
was
consequently going to assist them by facilitating discussion between
junior and senior army officers. That is why he phoned
Brigadier
Sebajoe and Colonel Lesitsi. But still, why should Accused make the
business of the army his business?

Regarding
PW 3 Sako. Accused did agree that a relationship developed between
them over several meeting. Respecting the first meeting,
he said that
PW 3 fabricated in his evidence that a discussion took place about
the arresting of certain members of the army and
also suggested the
evidence the Accused suggested the next meeting to be held at the
Church. In addition that again PW 3 fabricated
that the similar
meeting took place where Chief Khoabane and W/O Lerotholi were
present at the church and that transport and communication
were
discussed.

Accused
further denied that third meeting took place in Room 412 of the
Victoria Hotel where cellular phones were issued. Taking
alone the
evidence of PW 3 Sako. who was impressive witness in every detail it
becomes clear how steep it becomes to Accused to
even seek to isolate

47

certain
events by denying others when the chain became so interlinked. To
make one simple illustration it begs the question of why,

incidentally. does PW 3 speak about Chief Khoabane Theko, a colossus
in the whole drama, from almost the beginning until the end
and
finally at the Chief's residence.

It became
difficult for the Accused to distance himself from any event which I
need not emphasize the evidence about which seemed
to be
overwhelming. One incident for example is this one of a third meeting
in Room 412 of Victoria Hotel where cell phones were
allocated.
Accused sought to deny this. He was not convincing.

Coming to
the visit at Chief Khoabane Theko's place Accused agreed that he went
there with Tsukulu (PW 5). Sako (PW 3) and Ndaba
(PW 4). He entered
into the house together with his companions. They became seated.
Accused said instead he left to go to the vehicle
to listen the news
broadcast from a radio. He came back into the room where others were
after about 10 to 15 minutes. The others
seemed to be in a meeting.
As he suggested he did not participate. He waited for a while and
left with those persons he had arrived
with. The suggestion being
that he did not participate or comment. Indeed no one said he
commented except that the evidence suggested
that he was in the room
and amongst

48

those in
the group which discussed the invitation to overthrow government. I
have earlier in the judgment stated what transpired,
on the evidence
of Tsukulu (PW 5) amongst others and what the attitude of the latter
witnesses was and over which they corroborated
each other. It was
that they did not want to associate themselves with overthrowing of
government.

Accused
was cross-examined about how it came about that the three soldiers,
PW 3, PW 4 and PW 5. accompanied him, he said they happened
to be
present at the church and they went along with him. He denied the
versions of the soldiers that he fetched each of them from
their
homes. The Accused wanted to call it a coincidence. I struggled in my
mind about the strangeness of the coincidence when
evidently it was
not the only event at which these witnesses featured in the company
of the Accused. The other question is obviously
as to what special
interest could the soldiers have had that caused them to be so
accident-prone supposing these various meetings
were accidents. My
impression was that they got involved because they were either
malleable or they were dealing with a very pervasive
character of
Rasputinian proportions in the person of the Accused.

49

It was
not convincing on the part of the Accused to have denied that all
what the witnesses said transpired or what witnesses said
was said
during the meeting inside Chief Khoabane's house.

It was
equally not very convincing for the Accused to have insisted that
people including himself left during the discussion when
no cross
examination had been put on his behalf in that regard. Accused said
Sako, Ndaba and all the witnesses for the Crown fabricated
these
allegations implicating him. I thought a motive should have been put
forward for these military officers to have singled
out Accused for
such serious implications. I have to remind that the Crown witnesses
gave their evidence in a straightforward and
coherent manner with
respect. Indeed all made a good impression on my Court.

On the
other hand Accused was evasive, contradicting and patently
untruthful. In some instance I observed as if he did not take
the
proceeding seriously. That he had fabricated a large part of his
evidence, especially with regard to the sequence of events
at the
meeting at Chief Khoabane's home, said a lot about a witness who
either made his evidence as he went along considering that
a large
portion of Crown's evidence went largely unchallenged and then became
an impressive edifice.

50

That a
large part of Crown evidence went unchallenged is supported by
absence of cross examination of witnesses such as PW 3 Sako
about the
number of meetings, about seven he alleged were held. What transpired
in these meetings went largely unchallenged, Ndaba
(PW 4) and Tsukulu
(PW 5) testified about the meeting at Chief Khoabane's home, where
the issue of overthrowing the government
was raised in the presence
of the Accused. No cross examination followed on these witnesses'
testimony.

The
Accused proved to be an unreliable witness. His evidence was fraught
with improbabilities. One obvious issue is this one as
to why various
persons who belong to his church or congregation and with whom he had
or even how should a warm relationship all
seek to incriminate him
for no reason whatsoever. The respect which the senior officers who
were witnesses for example Brigadier
Sebajoe. although bordering on
effusive, showed to the Accused was such that the same question had
to be asked.

In the
circumstances of the respect and to a greatly extent the influence
that Accused had on his congregation, it is difficult
to understand
why were so many serious and scandalous rumours circulated

51

about
Lieutenant General Mosakeng, the Accused did not phone General
Mosakeng who was a member of his congregation and discuss the
problem
with him. On his own evidence Accused knew the General very well and
was on speaking terms with him. For reasons only known
to the Accused
he surprisingly chose to speak only to officers who were subordinate
to the General.

If the
Accused's attitude of facilitating dialogue or calming the hot waters
or avoiding looming bloodshed is to be believed Accused
should have
warned General Mosakeng and others. If he had done this there is
surely no reason why all the witnesses should speak
of Accused having
advocated arrest of senior officers something that had the effect of
precipitating the very grievous situation
that he proposes to have
wanted to avoid. It can therefore not be sufficient from him to say
that there was no opportunity for
him to do so. when he was able to
talk to the senior officers Sebajoe and Lesitsi. Why should the two
similarly tell the story
of intended arrest of officers to which they
were invited?. As for the opportunity for the Accused to have done
the right things
he was in command of church vehicles and telephone
equipment although his explanation as to why he gave the two cellular
phones
to the soldiers did not make sense. And he had a strong will,
as i observed. How much can one wish for.

52

In
concluding the aspect it has to be repeated that the Accused was
clearly untruthful in his fabricated version about leaving Chief

Khoabane Theko's home to go to the vehicle to listen to the radio,
consequently missing the discussion in the house. The version
was not
put to the Crown witnesses, nor did Accused testify to it in his
evidence- in-chief.

Except
that Accused was untruthful there was no version from him to have
denied that he had contacted one of the three soldiers.
As the
uncontroverted evidence of Sako (PW 3) showed the witness was
assisted to hide from authorities. He was also assisted with
money,
transport and accommodation until he handed himself over to the
police.

There was
finally no good reason for Accused to have denied that on a number of
times he conveyed Sako (PW 3) and other soldiers
in church vehicle in
his possession. Accused was an unreliable witness whose story ought
not to be believed. 1 found him untruthful.

The
position remains that as a result of the evidence led by both
parties, it becomes clear that a number of meetings were held
by some
of the witnesses at which Accused was pan. At one of them if not more
than two meetings Accused was not present. The issue
that now remains

53

to be
determined is whether the evidence adduced established the offences
charged.

The onus
is on the Crown to satisfy the Court on the Accused's guilt beyond a
reasonable doubt there must be no reasonable doubt
of the guilt of
the Accused. See DPP v Khoanyane 1997-1998, LLR-LB (C of

A 25 at
page 33"

"The law does not and cannot require proof beyond all doubt.
merely that there be no reasonable doubt of the guilt of the
accused.
(See S v Clegg 1973 (1) SA LR 34(A)). To upset the conviction on the
strength of a "lingering suspicion:, or doubt
based on mere
speculation, was to err in law".

Thus as a
general rule, in a criminal case, it is always the duty of the
prosecution to prove the guilt of the accused beyond a
reasonable
doubt, subject to statutory experience and the defence of insanity,
the Crown must prove every ingredient in the crime.
In the words of
Lord Sankey LC in Woolmington v Director of Public Prosecutions
[1935| AC 462:

"Just as there is evidence on behalf of the prosecution so there
may be evidence on behalf of the prisoner which may cause
a doubt as
to his guilt. In either case, he is entitled to the benefit of the
doubt. But while the prosecution must prove his innocence
and it is
sufficient for him to raise a doubt as to his guilt: he is not bound
to satisfy the jury of his innocence.

54

This is the real result of the perplexing case of R. v Schama (1914)
84 L.J.K.B. 396 (CCA.)' which lays down the same proposition,

although perhaps in somewhat involved language. Juries are always
told that if conviction there is to be prosecution must prove
the
case beyond reasonable doubt. This statement cannot mean that in
order to be acquitted the prisoner must "satisfy"
the jury.
This is the law as laid down in the Court of Criminal Appeal in R. v.
Davies (1913) 29 T.L.R. 350. the headnote of which
correctly states
that where intent is an ingredient of a crime there is no onus on the
defendant to prove that the act alleged
was accidental".

As said
before PW 3, PW 4 and PW5 were considered by the Crown to have been
involved in the same acts of the Accused and of the
same intent and
what would be mutinous conduct and which would amount to treasonable
acts. The Crown would contend that that the
said witnesses arc
accomplices by reason of the fact that they were involved in and
convicted by mutiny which the Crown contends
constitutes treason in
civil courts (as against Court-martial).

The
defence has already taken the point that one cannot validly contend
that a person convicted of mutiny my also be convicted of
an offence
constituted by the same set of facts. These witnesses are
accomplices, in my view, only to the extent of the crimes
for which
the Accused may be convicted and which the witnesses would be
convicted.

55

These
should be the crimes with which the Accused is presently charged. And
on the facts are the same upon which the present crimes
are founded.
It is correct that in some instances the facts may be those with
which the accomplices were charged. The Crown contends
however that
the crime with which the witnesses would be convicted is e.g. on
mutiny. See my ruling in R v Monyau CRI/T/111/2002.
dated 24th
September 2003 The similarly or confluence of the facts I have found
to be of no value. So that the witnesses would
remain and ought to
remain as accomplices. The law on accomplice witnesses is well
illustrated as provided in section 239 of Criminal
Procedure and
Evidence Act 1981 which is:

"239. Any court may convict any person of any offence alleged
against him in the charge on the single evidence of any
accomplice-provided
the offence has. by competent evidence other than
the single and unconfirmed evidence of the accomplice, been proved to
the satisfaction
of the court to have been actually committed."
(My emphasis)

To the
extern that I have be!ie\ed Brigadier Sebajoe and Colonel Lesitsi's
evidence there is other evidence than that of the accomplices.
In
addition the Courts have developed a cautioning rule which is set out
in the South African Appellate Division case of R v Ncanana
1948(4)
399 at 405-6:

"The cautious court or jury will often properly acquit in the
absence of other evidence connecting the accused with a crime,
but no
rule of law or practice requires it to do so. What is required is
that the trier of facts should warn himself, or. if the
trier is a
jury, that it should be

56

warned, of the special danger of convicting on the evidence of an
accomplice; for an accomplice is not merely a witness with a
possible
motive to tell lies about innocent accused but is such a witness
peculiarly equipped by reason of his inside knowledge
of the crime,
to convince the unwary that his lies are the truth. This special
danger is not met by corroboration of the accomplice
in material
respects not implicating the accused, or by proof aliunde that the
crime charged was committed by someone; so that
satisfaction of the
requirements of section 285 [section 239 in Lesotho], does not
sufficiently protect the accused against the
risk of false
incrimination by an accomplice. The risk that he may be convicted
wrongly although section 285 has been satisfied,
will be reduced, and
in the most satisfactory way. if there is corroboration implicating
the accused. But it will also be reduced
if the accused shows himself
to be a lying witness or if he does not give evidence to contradict
or explain that of the accomplice.
And it will also be reduced even
in the absence of these features, if the trier of fact understands
the peculiar danger inherent
in accomplice evidence and appreciates
that acceptance of the accomplice and rejection of the accused is. in
such circumstances,
only permissible where the merits of the former
as a witness and the demerits of the latter are beyond question."
(My emphasis)

I endorse
that I have on occasions which I have singled out stated the Accused
to have been a liar. In this connection see also
the Lesotho High
Court case of R v Mabea LLR 1991-1996. page 1192 CHC at 1195:

"What the effect of the lies an accused person tells will be.
depends on the circumstances of each case. Although a court
should go
by evidence not just by possibilities, courts have over the years
understood an accused person might give false evidence
because he
believes the truth is not likely to be convincing. See Maharajah v
Parandaya 1939 NPD 239 and S v Piphuti. 1985 (1)
SA 9. Even so. in an
appropriate case, the court may draw adverse inferences from the lies
of the accused if the circumstances
of the case call for such a
course." (My emphasis)

57

As has
been repeatedly shown in this judgment in some instance the Accused
was evasive, on the crucial aspects. He lied because
he was hiding
his involvement in certain events. This Court concluded in those
circumstances that the Crown witnesses were telling
the truth. To the
bargain there were instance where the Crown evidence on those issues
had been unchallenged. It was safe to conclude
not only that the
Accused was a liar but that the Crown evidence became proved and
truthful.

In some
instance the accuracy of accomplice witness became vexing the test
would ordinarily be to what extent the evidence is corroborated.
In
addition to the trier of fact has to appreciate (as 1 do) the
inherent danger of such evidence and the accused having given
false
evidence. The Court was again referred to was again referred to
Mamoleka v R LAC (1980-1984) 202 at 206 where the Court of
Appeal
confirmed what was stated in Tsiu Lethola and Seven Others v Regina
1963-1966 HCTLR 12(CA)at 15-1. that:

"The passage in Mpompotshe's ease only says that the warning
that much be given is that, when the accused has given exculpatory

evidence which is not demonstrably false, and when the accomplice
evidence is not so clearly superior to that of the defence as
to

58

warrant conviction without corroboration, there must be
corroboration, and if corroboration is required, it must implicate
the
accused. Otherwise the risk of a wrong conviction against which a
cautionary rule provides some protection, remains.

Neither Ncanana's nor Mpompotshe's case attempts to circumscribe the
various factors that may lead the triers of fact to conclude
that the
superiority of the accomplice evidence over that of the accused is
beyond question. It is not a mere matter of demeanour.
A plurality of
the accomplices does not in itself constitute corroboration for the
purposes of the cautionary rule, since several
accomplices are just
as likely as one to implicate innocent persons falsely. But such a
plurality provides material for checking
truthfulness and may in some
cases be important. Possible motives to implicate the Accused falsely
- additional to those normally
associated with accomplice evidence -
may lessen the weight to be given to the accomplice evidence, while
the weight may be increased
if there is blood relationship or
friendship between the accomplice or accomplices and the Accused.
Circumstances of various kinds
may justifiably lead to the conclusion
that the risk ordinarily inherent in the acceptance of accomplice
evidence does not exist
because of the clearly established
superiority of the accomplice over the defence evidence."

Mr
Semenya was correct in latching on to the remarks of the learned
judge in the last mentioned ease on the principles regarding
the
cautionary rule at page 207 thus:

A
convenient summary of the principles governing the cautionary rule is
contained in the judgment of Leon J in S v Van Vreden 1969(2)
SA 524
(N) at 531F-532H. I find it necessary to quote only the following
propositions there stated:

59

[2] An accomplice is a person with a possible motive to tell lies
about an innocent Accused, for example, to shield some other
person
to obtain immunity for himself.

[3] Corroboration not implicating the Accused but merely in regard to
the details of the crime is no guarantee of the truthfulness
of the
accomplice. The very fact of him being an accomplice enables him to
furnish the court with details of the crime which is
apt to give the
court, if unwary, the impression that he is in all respects a
satisfactory witness........

[10] When it is said that the merits of an accomplice as a witness
must be "beyond question" in order to be accepted
as
sufficient for a conviction, this does not mean that his evidence
must be free from any defect."

Where the
evidence of an accomplice is confirmed by the evidence of another
accomplice, the provisions of section 239 no longer
apply. See R v
Letsie & Another (6) LLR 1991 - 1996 at p.1041 at p 1073/4 and
the cases there quoted.

But as I
have concluded the evidence was overwhelming as to the occurrences at
the meetings and what was discussed vis-a-vis the
Accused. I excluded
the evidence as at the meeting at Chief Khoabane's place on the
aspect of alleged plot to overthrow government.
Incidentally none of
the civilians was called in evidence which makes the situation not
strong enough to the extent that it was
intended to connect the
Accused with what was intended or conspired by the civilians led by
Chief Selala.

60

Objection
was raised to the evidence of PW 3 as to what was said by various
persons at Chief Khoabane's home as being hearsay. The
Crown argued
that these statements were made in the presence of the Accused who
was entitled to and in a position to dispute the
evidence. In any
event the evidence was tended by the Crown to prove the truth of the
statements.

Those
statements would accordingly fall into that category of statements
described as executive statements. This is being said however
bearing
in mind that the role of the Accused has already been fully described
concerning the events at Chief Khoabane's place.
That it was not
different from that of PW 3 and others as concern the intention
conveyed by Chief Selala and others.

Even if
the statements were thought to be of any value, as a matter of proof
it still amounts to suspicion nor would if found any
irresistible
inference that Accused was co-conspirator and nothing more. Much as a
discussion can be made of the Hearsay rule on
the apt of liability of
the

61

Accused
it is not very useful. The value of those statements made can only be
that they were made and only that..

The first
principle is that : Oral or written statements made by persons who
are not parties and are not called as witnesses are
inadmissible to
prove the truth of the matter stated: See Phipson on Evidence (12th
Edition) LH Hoffman and DT Zeffert South African
Law of Evidence (4th
edition) at page 623. This is the formulation of the rule that has
been accepted largely by South African
and Lesotho Courts. See R v
Faku and Ors(l) 1976(2) LLR 214 at 224-226; R v Holhausen 1948 (4) SA
852(A) at 575-859, R v Samuel
Monontsi Maliehe 1993 LLR 1238 (H.G).
The learned authors of Phipson on Evidence (12th edition) at 629
continued:

"Evidence of a statement made by a witness who is himself not
called as a witness may or may not be hearsay. It is hearsay
and
inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement. It is not hearsay
and is
admissible when it is not proposed to establish by the evidence, not
the truth of the statement but the fact that it was
made."

See also
R v Faku and Others (supra) at 224-26A treatise on Anglo-American
System of Evidence in Trial at Common Law Vol (iv) 3rd
Edition: .JH
Wigmore. Little. Brown and Co at paragraph 1776.

62

The Crown
submitted that the evidence by Sako, Ndaba, Tsukulu as to what was
said at the meeting at Chief Khoabane's home is not
hearsay evidence
and ought to be admitted in any event misses that the value for which
it was brought was to prove not only that
there was intent to
overthrow or coerce the government but it was brought to prove that
there was an overt act committed and other
essential, while
constituted the charges subject of the indictment. But did the
evidence prove all the charges?

There arc
four essential elements of the crime of Treason. Those being (about
treason) on the understanding that it is distinguishable
from
sedition and other crimes. (1) There must be an overt act committed
(2) with hostile relent to overthrow or coerce the Government
by (3)
a person owing allegiance to the State in which (4) must possess
majestas. See R v Mofelehetsi Moerane and Others 1974-1975
LLR 212 at
218-219. R v Makalo Moetsana and Others 1974-1975 LLR 317 at 323-324.

Perhaps
there is a need to define what sedition (first alternative count) is
at this stage. Sedition consists in unlawful gathering
together

63

with a
number of people with 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 the Government. S v
Twala 1979(3) SA 854 (T) at 866 H, S v Zwane (1) 1987(4)
SA 369(W) at
374 D. See also South African Law and Procedure, Vol.2 (Common Law
Crimes) 3rd Edition page 50.

Then
there is a need to define what an overt act is. As has been defined
in R v Thistlewood (33 SE TV 684) it is "...... any
act
manifesting the criminal intention and tending towards the
accomplishment of the criminal object". See also R v Leibradt

and Another 1944 AD 253 - at 284 R v Mofelehetsi Moerane and Others
1974-1975 LLR 212 at 219 BC and R v Makalo Moletsane and Others

1974-1975 LLR 319 and 325. Overt also means "done or shown
openly" Concise Oxford Dictionary.

The key
definitive element of high treason that distinguished it from lesser
forms such as sedition is the element of hostile intent.
The courts
have frequently stated what hostile intent does not mean than to
define it in positive terms. It is however useful to
look at various
guides

64

that
point to hostile intent. In R v Viljoen 1923 AD 90, at 94, Innes CJ
defined "hostile intent" as "intent to treat
the
[government] as an enemy]" and in R v Strauss 1948(1) SA 934
(A), at 940, Watermeyer CJ said that a person acts with "hostile

intent" if he is "intentionally antagonistic towards"
the State; Schreiner J (as he then was) defined hostile intent
as
"intent to overthrow the government or coerce it by force."

As the
Crown submitted further an act may appear to be perfectly innocent,
but if it can be proved that such an act was committed
with the
necessary "hostile intent'", it will amount to an "overt
act of treason" and this Court would be entitled
to find that
such an act was proved. And then the Court was referred to a passage
quoted from Hardies case as quoted by Rambottom
Hon J in R v Wentzel
1940 WLD 269 at 275.

"Now gentlemen, overt act and deed, man firstly an intention to
commit any of the species of treason need not necessarily
be an act
of treason itself for example suppose there is an undoubted scheme
proved or admitted to raise insurrection or to levy
was against the
thing for a general purpose, there can be nothing more innocent in
itself in the world than the ringing of a bell
on the firing of a sky
rocket, the breaking of a drum, or anything of that sort, but if it
be proved at the time that any of these
were signals to the
insurrection, then these acts perfectly innocent in themselves, if
done by a person who was aware of the object
of them is an overt act
of treason, that is to say. it is an overt act. intimating
treasonable purpose the man has in view....."
(My emphasis)

65

See also
R v Mofelehetsi Moerane and Others (supra) R v Makalo Moletsane and
Others (supra) mention is made of "insurrection''
in doing
certain overt acts in that regard. Insurrection meaning: "a
violent uprising against authority''. See Concise Oxford
Dictionary.

The Crown
emphasised that as in Mofelehetsi Moerane's case (supra) and Makalo
Moletsane's case "a mere act of preparation"
as well as
conspiracy to commit treason are themselves overt acts of treason.
Secondly, a person who knows that an act of treason
is being
committed or is to be committed and who fails to communicate his
knowledge to the authorities himself commits an act of
treason. And
lastly anyone who renders assistance in or engage in any kind of
preparation cither before or alter an act of treason
would be said to
have committed an act of treason. I have already commented about
whether the communication between Chief Selala
his cohorts and the
Accused and the soldiers would constitute preparation conspiracy,
assistance nor conspiracy on the part of
the Accused. See Mofelehetsi
Moerane case (supra) at page 325D and also R v Leibrandt and Another
(supra) at page 275.

66

As regard
proof of a conspiracy, this Court has both in Mofelehetsi Moerane's
case and in Makalo Moletsane's case (supra) accepted
the dictum in R
v S 1959(1) SA 680 at 683 to say:

"Conspiracy to commit a crime require the agreement on the part
of two or more accused to commit the criminal act (see R v
Solomon.
15 SC 107 and R v Dlhamini 1941 OPD 154) mere intention is not
sufficient, there must be an actual concurrence of minds
in an
agreement to do the action in question such occurrence need not
necessarily be by way of explicit spoken words for agreement
to
constitute a crime, as any other agreement can be arrived at tacitly
and by conduct (see for example R v B 1956(3) SA (E) at
365) Where,
however, the agreement is sought to be inferred solely from the
conduct of alleged conspirators such inference must
on the conduct
unless of logic enunciated in R v Bloon 1939 AD 188 at pp 202 and 3
be consistent with all proved facts and the
proved facts must in turn
be such that they exclude every reasonable inference from them save
the one sought to be drawn."
(My emphasis)

That is a
perfect reference to the principle about the requirement that there
must be proof beyond a reasonable doubt. In this case
it ought to be
whether that "hostile intent" was proved. The Crown
referred in regard to conspiracy to R v S 1959(1)
SA 6S0(c)
Mofelehetsi Moerane's case

67

(supra)
at 326 B-E and Phalatsi v Rex 1971-1973 LLR 9 1971-1973 LLR 92.

The Court
would have found it wise to investigate further the question of
sufficiency of evidence on a charge of Treason as provided
in section
238(2) (b) of the Criminal Procedure and Evidence Act 1981 (CP&E).
But the remarks which follow make it unnecessary.

The Crown
submitted that there was more than two witnesses who testified about
Accused involvement in the conspiracy and his overt
acts were
testified to by those witnesses. Consequently as submitted the
provision of section 238 of the CP&E were fulfilled.
It would
still bring the question whether "hostile intent" was
proved.

I agreed
that for proof of facts evidence need not have been any "direct
evidence". Proof could be established by circumstantial

evidence, oral admissions and documents as well as direct evidence. I
was again referred to Makalo Moletsane's case (supra) at
326 B-E and
R v Leibrandt (supra).

68

On the
basis or within the premise that the Crown could not have been able
to prove beyond a reasonable doubt that the charge of
treason was
committed nor that there was a furtherance of common purpose in that
I thought [ could not develop the discussion any
further in respect
of that charge. I would however endorse the principle that it is
trite that the executive statement of a co-conspirator
made in
furtherance of a common purpose is admissible against other
co-conspirators.

The
question would still however be whether it was towards a furtherance
of a common purpose. See R v Miller, 1938 AD 106 at page
115 also at
117 and 118 where the principle about the acts and declaration of one
conspirator being admissible against the others.
This is illustrated
by cases one hired against a gent in murderous activity in R v Mayet
1987(1) SA 492(A). In this case it is
endorsed and explained that the
evidence someone who may have been approached and failed to provide
murderous assistance is admissible
against the mandator. As Sehreiner
J pronounced at page 498 it is immaterial whether or not the
conspirators are charged together.
But still there has to be proved
that there was a concerted action. See R v Mathews 1960(1) SA 752 (A)
per Sehreiner J. This principle
is developed further in S v Banda
1990(3) SA (A) on a charge of treason. See 507 B-C. See also Makalo
Moletsane's case

69

(supra)
at 372 D-E. Such statements must contribute to the formation or
execution of a conspiracy in order to be included and the
accused
must have been proved to have "joined the combination."

I have
already earlier in my judgment remarked at the failure of the defence
to have cross-examined on certain issues by way of
disputing them.
The principles in this regard have been broadly enunciated. This is
to be found in Cross Examination in South African
Law, D J's Pretoria
at pages 148-149. See also Small v Smith 1954(3) SA 434 (supra) at
438 C-F and, R v M 1946 AD 1023 at 1027-1028.

Generally
on the issue of absent cross examination it can be concluded that the
witness account is acceptable. Such evidence cannot
later be
doubted". See also R v Innes Grant 1949(1) SA 753(A) at 763-764.
While a cross examiner is under no burden or onus
there is no doubt
that there is a clear responsibility on the cross-examiner to reveal
his defence or at least highlight relevant
aspects of an accused's
case. This is achieved quite easily by putting to the witness issues
of fact which arc challenged disputed
or would form a basis of
accused's defence. See also Holland v Ciccione 1937 NDP 58.

70

The
effect of absence of cross examination at the right time and
challenging of Crown's evidence in accused evidence-in-defence
may
create a serious doubt in some situations. This may in proper cases
suggest that the version is fabricated adapted and improvised
to
reflect an afterthought. See Cross Examination in South Africa
(supra) at page 151-152 and R v Innes Crint (supra) at 763-764.
A
failure in doing the right thing on this aspect "will have the
result that the defence will be immediately be weakened"
See
South African Criminal Law and Procedure (formerly Gardner and
Lawrdsdown) Vol II At page 5 where the legal position is aptly

summarized.

I have
already commented earlier in my judgment as to the specific areas on
which the defence nor the Accused in his defence stood
to be blamed
on this score. It is only convenient now therefore to make concluding
remarks as follows. The defence is duly bound
to put its case to the
prosecution witnesses. See McDonald J in S v P 1974(1) SA 581 (RAC)
at 582-583A. That the need to state
one's case to the opposite side
is a cornerstone of administration of justice has also been shared
and understood in a number of
cases including S v As 1991(2) SA CR 74

71

(W). The
statement in Phipson on Evidence distinctly encapsulates the
principle rather admirably that:

"As a rule a party should put to each of his opponents witnesses
in turn so much of its own case as concern that particular
witnesses,
or in which he had a share, eg if the witness has deposed to a
conversation, the opposing counsel should indicate how
much he
accepts of such version or suggest to the witness a different one. If
he asks no questions he walks in England - generally
be taken to
accept the witness account. Moreover, where it is intended to suggest
that the witness is not speaking the truth upon
a particular point
his attention must first be directed to the fact by cross examination
so that he may have an opportunity of
explanation, and this applies
to all cases in which it is proposed to impeach the witness credit."

My
opinion was finally invited to a suggestion that the alleged
shortcomings in putting the Accused's case could not fall on the

shoulders of Adv Semenya an eminent Counsel. I agreed however and
would conclude that the Accused was a dishonest witness who invented

his evidence as he went along.

It became
readily apparent that Accused was in any event involved in the
preparation for the 1 1th September 1998 when the senior
officers
were arrested. Accused had known about what was being planned. He
failed to report or communicate his knowledge to the
authorities and

72

rendered
assistance before, during and after the events of the 11th September
1998 I differed however, with respect, that the inference
is
irresistible that he committed an act of treason.

That the
Accused had known of the events of the 11th September 1998 cannot be
an act of coincidence judging by the response of PW
3 Sako. Sako
while in hiding, after the event, contacted Accused who provided
assistance as more specified earlier in the judgment.

That the
Court had to decide by inference went further as submitted by the
Crown. It was that had the operation of the 1 Ith September
1998 been
successful, it would undoubtedly have deprived the Lesotho Government
of the means of maintaining law and order and the
overthrowing of the
Government would have inevitably followed. Consequently as it was
argued the Crown had established the necessary
hostile intent "as
required by Moerane's case". A departure from Moerane's case is
to be found from the present in that
(at page 222)

"the declared object of the attacks was the overthrow of the
Government and too from the fact that according to the statements

made by some of the people who took a leading part in the events

73

that followed, similar attacks were expected to be made on police
stations throughout the country in the inference is irresistible
and
in escapable that these attacks were a result of a pre-arranged and
co-ordinated plan by some person or persons. This to my
mind, prove
beyond a reasonable doubt that the existence of a conspiracy which
object was to overthrow or at least the coercing
of government."

That
there was hostile intent is even difficult to say in this case on the
principle of R v Blom's case. Indeed if logic was to
be the guide one
would say that since the arrest of officers had a relationship with
the events of the statement at the Royal Palace
where protestors had
sojourned and if the effect was to bring disorder and chaos then the
case for overthrow or coercing of government
would necessarily have
been proved as treasonable act on the part of the Accused and his
gang of military rogues. From their definition
which have been
recorded already it will also be clear that Treason and Sedition arc
not the same. This has to be imphasized. The
Lesotho Court of Appeal
in Lepoqo Seoehla Molapo v Rex 1999-2000 LLR-LB 316 at 320 Steyn P
had occasion to distinguish between
Treason and Sedition in the
following words:

"Sedition consists in unlawful gathering, together with a number
of people with intention of impairing the majestes of the
state by
defying or subverting the authority of its government but without
intention of overthrowing or coercing that government.”

74

(See
South African Criminal Law and Procedure, 3rd Ed. JRL Milton Vol II
page 42. In Rex v Phakiso Molise and 32 Others ................
Molai
J had the following to say:

"I turn, now to the first alternative charge of Sedition. In R v
Moletsane and Others 1974-75 LLR at page 328, it was said:

"Sedition consists in unlawful gathering together with number of
people with 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 the Government.
"

See also
R v Sesinyi and Others 1981(2) LLR 580 at 589 at et seq. In my view
it is clear, from the above cited definition of sedition
that its
essential ingredients are the same as those of high treason except
that the former "hostile intent" is not a
requirement. I am
fortified in this view, by JRL Milton in his work South African
Criminal law and Procedure Vol.11 (1996 3rd Ed.)
where at page 54 the
learned author has this to say. on this issue:

"The critical factor which distinguishes treason from sedition
is that for the found "hostile intent'' to overthrow or
coerce
the government is required. For the latter it is not."

75

I
accepted that it was correctly submitted by the defence that in the
present case, as distinguished from the above case there does
not
appear, or the facts to have executed an unlawful gathering which was
carried with common intent of defying or subverting the
authority of
Government.

Again it
was clear from the evidence of the Crown witnesses themselves that
their own presence at various meetings where they attended
had
nothing to do with undermining the authority of the state.

It was
against correctly submitted with respect that the arresting of
officers pure and simple would not amount to subverting this

authority of the Government. As Molai J said and correctly pointed
out in Molise's case (supra)" "in assailing police

management/department, as they did. the suspects and the other junior
police officers, were not assailing the state in its Government
of
Lesotho." So would the charge for treason not succeed on the
above test.

76

I
disregarded the point made by the defence that the Accused was never
present when the senior military officers were arrested.
This was
insignificant because on the evidence of PW 3 the Accused was
suddenly made aware of PW3's whereabouts and they communicated
and PW
3 was indeed assisted. Indeed there is no evidence that the Accused
gathered together with other people who actually were
arresting the
senior officers. On the evidence Accused could not have been aware of
the timing and other details. He must however
even remotely
anticipated the event. But he had been the prime mover of this what
eventually resulted.

I
disagreed however that judging on the totality of the evidence. just
because the Accused could not have been at the actual operation
he
did not have the requisite intent. Accused is guilty of sedition.
This is beyond a reasonable doubt.

The
simplicity of the second count is to be found in the way the section
183(2) of the CPE is couched. It reads:

77

"183(2) Any person who -

1. conspires
   with any other person to aid or procure the commission of or to
   commit or

   
   

2. Incite.
   Instigates, commands or procures any other persons to commit an
   offence whether at common law or against a statute or
   statutory
   regulation is guilty of an offence and liable to the punishment to
   which a person convicted of actually committing
   that offence would
   be liable." (My emphasis)

   
   

The Crown
submitted that regard being had to the actions and conduct of Accused
as earlier detailed, he is guilty of the count 2.
This charge largely
depend on the evidence of PW 7 Tsolo John Makhele. His testimony can
only be summarised where relevant even
if it is repeated.

According
to PW 7 that they were in a plot to eliminate the Prime Minister.
Hon. P B Mosisili. Hon. Thomas Thabane. Colonel Lefosa
His Deputy Hon
K A Maope. Lt Matobakele. thereby (in their intended

78

action)
doing a lesser evil which can only have the effect of "rescuing"
the nation. PW 7 testified that Accused informed
him that he had been
referred to the witness by Colonel Lesitsi. He however pointed out
that Colonel Lesitsi was the one who prosecuted
him in the army. PW 7
said these thing he was talking about he was told by the Accused.

I have
said already that PW 7 was a witness to the truth. Furthermore no
motive was disclosed as to why PW 7 would pick on the Accused
for
fabrication. I believed that Accused at the least incited,
investigated and sought to procure PW 7 for the wicked criminal

activities which would have had one consequences..

The
defence did have some criticism against PW 7. It is that he was
aggrieved and vindictive. He considered that he had been prosecuted

in the army. He also seemed to consider that people hated him. PW 7
testified to what Accused said and reported to him things that
may
have had no foundation. But what is relevant is that he was inciting
and instigating him to be involved in unlawful activity
which
distinctly is in the preview of with the provision of section 183(2)
of the CPE which has created the offence.

79

Accused
disputed without credence that he had had any association of any kind
with the plot to arrest and kill officers and Ministers
of
Government. I disbelieved him. I believed PW 7.

The
Accused is guilty of Count 2. I have already found him guilty of the
alternative count of sedition.

My
Assessor agrees.

T
Monapathi

Judge

27th
September 2004