HIGH COURT OF LESOTHO
by the Honourable Mr. Justice G.N. Mofolo on the 8th day of February.
appellant was charged in the Subordinate Court of the District of
Leribe it being alleged that
The said accused is charged with attempted murder in that upon or
about the 2nd day of September, 1994 near or at Ha Lejone. in the
Leribe district the said accused did unlawfully and acting unlawfully
and with intent to kill did shoot at one Peter Titisi Sefali.
The said accused is charged with the offence of assault with intent
to cause grievous bodily harm in that upon or about the 2nd day of
September, 1994 near or at Ha Lejone in the district of Leribe the
said accused did unlawfully and intentionally assault Morenene
Lethaha with a blunt object on his body with intent to cause him
grievous bodily harm.
The said accused is charged with the offence of Assault with intent
to do grievous bodily harm in that upon or about the 2nd day of
September, 1994 near or at Ha Lejone in the district of Leribe the
said accused did unlawfully and intentionally assault one Lehlohonolo
Phakoe with fists on his body with intent to cause him grievous
It is to
be noted that the offences charged occurred at one place and on the
same day. The magistrate had convicted the accused on all the
three(3) counts and sentenced him to 5 years imprisonment, M200-00 or
2 years imprisonment and M200-00 or 2 years imprisonment
respectively. It was also ordered that sentences run consecutively.
appellant had lodged an appeal on grounds that:
learned magistrate misdirected herself in holding that the version
of the prosecution outlining the manner of the infliction of the
injuries on complainant in the first count was not challenged.
learned magistrate misdirected herself in rejecting the version of
the accused when such version was reasonably possibly true.
judgment of the learned magistrate is against the weight of evidence
and bad in law.
sentence of the magistrate is harsh and induces a sense of shock.
this court in argument Mr. Mathafeng for the appellant concerning
Count I said it would seem P.W.6 had rushed at the appellant to fight
him and while P.W.6 was engaged in a scufle with the appellant the
latter had produced a gun and then there followed a struggle between
P.W.6 and the appellant for the control of the gun. This struggle had
attracted P.W.2 who, on advancing on the appellant and P.W.6 had been
shot. Mr. Mathafeng has submitted it is wrong to say appellant shot
P.W.2 for the shot was discharged while appellant and P.W.6 were
struggling for the possession of the gun and this viewed from any
angle it could not be said that the
had the necessary intention to shoot P.W.2. As for P.W.6, Mr.
Mathafeng says it's true he was injured but here again it was in
course of the fracas which had ensued between the appellant and P.W.6
and it cannot be said appellant had the intention to injure P.W.6. He
says in going off it is wrong to say the gun was pointed in a
particular direction or for that matter in P.W.2's direction as then
the appellant had had no altercation with P.W.2 and had no reason to
point a firearm at him. It was also wrong to say that appellant
discharged the shot that injured P.W.2 based on the inference by the
court a quo that because the gun was appellant's he must have pressed
the button. Mr. Mathafeng says facts as deposed to by P.W.2 are not
in harmony with what actually happened for P.W.2 says he was hardly 2
steps into investigating the squabble when he was shot. He says where
there is no intention the law does not punish. He says where a shot
goes off in a struggle for possession of the gun there can be no
question of negligence. He says in struggling over the possession of
the gun appellant was defending himself and that to this extend
appellant's version could reasonably be true.
to Mr. Mathafeng. appellants story was that he was being attacked by
P.W.6 and his fellow employees with sticks and knives and the
appellant was entitled to resort to means at his disposal to repel
the attack. He says commensurability of weapons is not the norm for
this would make mockery of self-defence. He says an eye for an eye
has no room in the practice of law. He says in Count I the version of
the crown is not consistent with probabilities nor is appellant's
version so demonstrably false as to be rejected out of hand. He says
the court a quo failed to apply its mind to whether appellant's story
could have been reasonably true.
Count II Mr. Mathafeng has admitted that appellant bludgeoned P. W.5
with the gun in warding off the attack by P.W.6 and his co-employees
and according to P.W.2's evidence this had occurred before P.W.2 was
shot. He says while the assault is admitted it was not unlawful for
it was in course of the appellant defending himself from P.W.6 and
his co-employees attack and in the event appellant was entitled to
repel the attack. He says there's nexus between P.W.5 and P.W.6 for
they were P.W.2's (Sekhele's) employees. Mr. Mathafeng says the
aggressor was P.W 6 and but for his aggression the incidents would
not have materialised. Mr. Mathafeng says in Count I & II there
was no corroboration. He says P.W.5 is the only witness of how he
sustained his injury in Count 11 while in Count 3 P.W.6 is the only
witness as to cause of the assault. He says punching or boxing one
cannot amount to Grievous Bodily Harm. He says sentences were harsh
considering complainants have fully recovered.
Kotele for the crown has submitted that the totality of evidence
before the court a quo had shown appellant to have pointed a gun at
P.W.2 - a fact testified to by P.W.3, 5 & 6. He says no witness
testified to appellant being attacked with sticks and knives nor has
D.W. 1 supported appellant's story. While agreeing it was in a
beerhall, Mr. Kotele says there is no evidence as to the state of
drunkenness of the appellant. Mr. Kotele says it was in fighting with
P.W.6 that P.W.5 in intervening P.W.5 sustained a scratch, a swollen
right eye and bled. He agrees offences committed at the same time
sometimes, am concurrently.
Peter Titisi Sefali's evidence is that he was shot by the appellant
to whom he had previously spoken to. According to P.W.2, he had asked
go to his
office alternatively to hand over his gun to him to keep and
surrender the same the following day to appellant's office. According
to the witness appellant had asked for pardon. When appellant had
asked P.W.2 to go outside and have a chat, P.W.2 had declined the
invitation saying he was tired. Later P.W.2 had received a report
relating to Morenene who had sustained a wound and was bleeding on
his head. In trying to go to the appellant the latter had shot him,
so said P.W.2. He says when he was shot by accused no word had been
uttered between the accused and P.W.2. In cross-examination P.W.2 has
denied that it was while appellant was fighting over the gun with
Phakoe, (P.W.6), Morenene (P.W.5) and other employees of Sekhele
(P.W.1) that that gun went off. Actually question was, at p. 13 of
'Accused will tell the court that at time he shot you, it was an
accident because he was fighting over the gun as Phakoe, Morenene and
other employees of Sekhele were fighting for that gun, is that so?'
That is not true.
evidence was denial of an accident or that the appellant shot him
accidentally. According to P.W.3, he had seen appellant and Phakoe
pulling each other and did not know if they were fighting. It was
P.W.3's evidence that he had suggested P.W.2 talk to appellant and
Phakoe but even before P.W.2 did so he had seen appellant shoot at
P.W.2. According to P.W.3, appellant was holding his gun in his left
hand when he shot at P.W.2; according to the witness, the appellant
and Phakoe were standing close to each other when appellant shot at
P.W.2 and appellant and Phakoe were not fighting. The witness says
appellant had pointed the gun at P.W.2. In answer to counsel for the
defence, the witness testified that when
shot Phakoe and accused had stopped pulling at each other', see page
16 of the record. The witness asked on page 16 of the record what he
said to P.W.2 replies on p. 17 by saying:
'I said I saw accused was pulling at Phakoe and that 1 was going to
close down the accordion music so that P.W.2 could find out what they
were fighting for and even before I did that 1 saw accused pull out
his gun by his left hand and shoot at P.W.2.'
also P.W.4's evidence that accused shot at P.W.2 while the latter was
advancing towards the appellant (see page 20 of the record). P.W.4's
evidence in material respects was no different especially his
reference to 'accused holding his gun with his left hand' and 'P.W.2
going towards accused/(page 20 of the record). Clearly, because P.W.2
was going towards the appellant the latter must have figured that
P.W.2 was a threat to him.
evidence was to the effect that he had heard a gun shot as a result
of which P.W.2 fell. He had had a quarrel with appellant over fish;
after opening the tin offish appellant had taken it and eaten it.
Accused had then taken out a gun and bruised the witness on the head
with it. He says before appellant assaulted him he had not fought
accused in any way. He says when he heard a gun report he had already
sustained the injury.
cross-examination at pages 27 - 28 of the record this was P.W.5's
According to your evidence, the accused assaulted you with a gun,
did you e ever report your case in relation to that incident to the
Q Do you agree with me that you have been forced to come and say you
the answer, notice that the witness insisted appellant hit him with
his gun causing the witness to run away from appellant. Also please
notice a question asked by counsel for appellant at p.31 of the
Q. Accused says he took out the gun and hit you with it as you
fought him for having eaten your fish and he say you were armed with
a knife too?
is not so.
Q, He says he held one person who was armed with a knife and one of
the people held his left hand in which he was holding the gun with
which he had assaulted you?
A. That is not so. There were only two of us when he hit me with his
gun I did not see anybody hold accused's gun.
Q. Accused tells me that it was as that other person was holding his
gun that a bullet was fired and that bullet hit the complainant out?
A. I do
not know about that.
to P.W.6 appellant had asked him to buy beer for him and when he said
he had no money for beer accused had said Tlale's driver's were
selfish and had hit him with a fist below his right eye. He had then
gone to accused intending to fight back and by putting his right hand
by his wrist he knew appellant was taking out a gun. He says he held
to accused's right hand and accused had taken out the gun with his
left hand and as he did so he shot at P.W.2 who was standing behind
the counter (see page 32 of the record). He says at the time
appellant shot at P.W.2 no one was fighting the accused (see p.33 of
the record). It will be seen that in his allegations the appellant
has no support from either the crown witnesses or his own witness
precise, according to D.W.1 Tpr. Sefali, appellant was fighting with
P.W.5 and other people were intervening. According to the defence
witness, he has not testified that there was wrestling for the
possession of the gun or appellant was being fought by the host's
(P.W.2's) employees. Of importance is this testimony by D W.1 at p.39
of the record:
happened to accused after he shot at P.W.2? A. I saw him running away
and people chased after him.
words, D.W.1 admits that it is the appellant who shot at P.W.2 and
ran away after shooting at P.W.2. If it was not guilty knowledge why,
then, did the appellant run away?
has said that he was defending himself and the question arises as
he was defending himself. For eating P W.5's fish without authority
and on being stopped by P.W.5 from hitting P.W.5 on the head with his
(appellant's) gun? Or is it for P.W.6 refusing to buy appellant beer
and protesting he had no money that earned P.W.6 to be punched? It
would seem the appellant wanted everybody to do his bidding lest all
these wrongful acts appellant says he was defending himself. Visser
and Mare' in their General Principles of Criminal Law through the
cases - 3rd Ed. at p. 181 say to give rise to a situation warranting
action in private defence or as it were self-defence, there must be
an unlawful attack, which has commenced or is imminent, upon a
person's legal interests. The attacked person may in such a case ward
off the attack by reasonable means directed at the attacker.
first place, no unlawful attack was directed at the appellant, it is
the appellant who initiated the attacks. There was no legal interest
the appellant was protecting and the means he used were unreasonable
in the circumstances.
(2) S.A 508 is illustrative of the concept of self:
In this case in a crowded hall the deceased supported by a number of
friends made a murderous attack upon the appellant with a
businesslike knife. The appellant avoided two thrusts by dodging and
jumping over a bench. To repel further attack, he opened a small
pocket knife then in his possession and stabbed the deceased. He was
charged with murder and he raised private defence. The trial court
thinking the appellant had 'gone too far' convicted him as, according
to the court, he should have kept on jumping from bench to bench to
In upholding the appeal, the Appellate Division had reiterated
attitudes of eminent writers in Roman-Dutch Law like Mathaens (48 5 3
7), Moorman (2 2 12) and Van der Linden amongst others who said where
a man can save himself by flight he should flee rather than kill his
assailant. Damhonder with his ideas of defence against honour is
shown as expressing a different viewpoint for, according to him, no
one can be expected to take to flight to avoid an attack, if flight
does not afford him a safe way of escape in that a man is not bound
to expose himself to the risk of a stab would in the back, when by
killing his assailant he can secure his own safety - see also Moorman
(2 2 12).
have seen, in the instant case there was no unlawful attack upon the
appellant; on the contrary, he deliberately provoked P.W.5 and P.W.6
and having done so assaulted them. The appellant in the instant case
would have this court believe the appellant was subject-matter of an
attack by P.W.5 and his co-workers, a fact which is not borne out by
facts in the case and was denied by prosecution witnesses.
follows that appellant's version of what took place cannot be
reasonably true and the court a quo was justified in believing the
prosecution witnesses and rejecting the defence version. Courts are
creatures of evidence and where there is direct evidence as was the
case in the instant appeal, this is to be preferred than engaging in
unnecessary speculation and inferences in direct conflict with
court has read the learned magistrate's judgment and found she has
material respects, misdirected herself. Accordingly, the appeal
against convictions is dismissed and the convictions are confirmed.
sentence, it has variously been pressed home that it is better if
doctors give evidence in support of their medical reports busy as
doctors are. The advantage of doctors giving evidence is that they
are able to amplify their reports and bring the court on board to
appreciate the nuaces of medical examination. In this case, the
medical reports are clear and the defence freely admitted their
production and consequently there is no prejudice. En the result the
appeal on sentence is also dismissed and the sentences are confirmed.
By reason, however, of the offences having occurred at the same time
and place, it is ordered that sentences on the three (3) counts run
Applicant: Mr. Mathafeng
Crown: Mr. Kotele
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