Public law : review of November 2015 session of Court of Appeal

• DOI: 10.10520/EJC196796
• Date: 01 January 2016
• Published date: 01 January 2016
• Pages: 45-60
• Author: H. 'Nyane

PUBLIC LAW

‘NYANE, H⃰

MATSOSO V R (C OF A (CRI) NO 7 OF 2014)

This matter inv olves the controversial doctrine of common

purpose. Common purpose is the common law doctrine of

criminal law which is fairly esta blished in Lesotho. The

doctrine dictates that if two or more people having a common

purpose to commit crime act together i n order to achieve that

purpose the conduct of one of them in the execution of that

purpose is imputed to others.

1

What has divided judicial as

well as academic opinion over the years though, has been

whether causation which is such a fundamental element of

criminal liability can also be imputed.

2

The facts o f this case are fairl y straightforward. The appellant

and two other men faced two counts of murder of one Tṧeliso

Mpheulane and attempted murder of one Malisebo Mpheulane.

The i ndictment alleged t hat on 24th December 2008 and at or

near Mekaling, Ha Kopo in the district of Mohale’s Hoek, t he

‘accused one or other or all of them’ had u nlawfully and

intentionally killed the deceased Tseliso Mpheulane and had

stabbed ‘Malisebo Mpheulane with knives with common

1

S v Safatsa 1988(1) SA 8 68.

2

See Parker P. ‘South Africa and Co mmon Purpose Rule in Crowd

Murders’. Journal of Afr ican Law 1996 Vol. 40(1) pp. 78 -102; see also

Matzukis, NA. ‘The N ature and Scope of Common Purpose’. SACJ

1988 p226; Parmanand, SK and Ra maite, MS. ‘Dissociation from a

Common Purpose’. Stel lenbosch L aw Review . 1994 p82.

46 LL J Vol. 24 No. 2

intention to kill. The crow n largely relied on the evidence of a

single witness who was there at the scene and was apparently

the mother of the deceased. The accused pleaded alibi, but at

the same time placed an issue on whether he could be

convicted on the evidence of a single witness and wheth er he

could be appropriately convicted on the basis of the principle

of common purp ose.

Evidence of Single Witness

When dealing with the evidence of a single witness t he Court

invoked Section 238 (1) of the Criminal Procedure and

Evidence Act (CP & E)

3

reads thus,

Subject to subsection (2) any court may convict

any person of any offence alleged against him in

the charge on single evidence of any competent

and credible witn ess.

Relying on t he previous decisions of the court,

4

it was

reaffirmed that,

No corroboration is required under the above-

cited provision. Our courts have over time

developed certain trite principles to be followed

in approaching the evidence of a single witness.

Thus, it is trite principle that before convicting

upon the evidence of a single witness, the court

must satisfy itself that the evidence of a single

3

No.9 of 198 1.

44

Leleka v R LAC (1970-1979) 74; Mohale v R LAC (2009-2010) 120.