HIGH COURT OF LESOTHO
by the Honourable Mrs. Justice K. Guni On 1st Day of October, 2001.
accused in this case, is charged with the crime of ASSAULT WITH
INTENT TO DO GRIEVOUS BODILY HARM. It is alleged that on 14th of July
2000 and at or near THE MASERU MAGISTRATES COURT premises in the
district of MASERU, the accused did unlawfully assault NIKIWE SETSABI
by biting her and inflicting upon her certain injuries reflected in
the medical reports, with the intention of causing her grievous
essential elements of the offence charged, are that (a) there must be
an assault, (b) committed with intent to do grievous bodily harm.
SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE, VOL.11 (Common Law Crimes)
THIRD EDITION By JRL MILTON page 432.
led evidence from six witnesses. The facts as appear from the
evidence of these witnesses are as follows: The alleged assault may
be divided into three episodes. The first episode happened in the
privacy of the complainant's office. During the lunch hour between
one and two o'clock in the afternoon of the day in question, the
complainant was in the PROBATION OFFICE. She was in the company of
TSEPISO MAJORO, SEITHATI MOTSAMAI AND LIEKETSENG. They were having
lunch therein when
heard a knock at the door. The person knocking at the door was
invited in. The door opened and the accused entered. Without even
greeting the occupants of the office she had just entered, the
accused looking at the complainant, and obviously addressing her
said, "I have come to your office". The complainant, who
was looking down at that moment lifted her head and noticing that the
accused is talking to her, she consulted her watch and replied, "
I am still having my lunch" or it is still lunch hour" or
words to that effect.
accused went on to explain to the complainant, that she has not come
on official business. The complainant got up from her seat. The two,
(complainant followed by the accused) left the PROBATION OFFICE for
the complainant's office. On arrival at the complainant's office,
complainant went round her desk. She pulled out her chair and sat
down. She offered the accused a chair. The accused declined
and remained standing right infront of the complainant, on the
opposite site of her desk.
accused told the complainant she has the information that the
complainant insulted her husband (accused's husband) when she went to
Dominic to cleanse her family's name. The complainant asked the
accused who told her that. The accused pointed out to the complainant
that, that is not the issue. But nevertheless she named the person
who told her as one Dominic. The complainant admitted that she did
talk to this Dominic but she denied ever insulting the accused's
husband during their discussion. The accused quoted the words
allegedly used by the complainant as "le Polaki oa satane o na
le teng ha koranda li ngoloa - translated -even the satan Polaki was
present when the newspaper was written or published" or words to
to the accused this Dominic is related to her husband. She indicated
to the complainant, that
of that relationship, she could not understand why Dominic would lie.
In response to this intimation the complainant enquired from the
accused, if she then suspects that the complainant is a liar. This
was answered in the affirmative. This being the case, the complainant
pointed out to the accused that she could therefore not convince her.
The best they could do is to confront this Dominic together (that is,
the accused and the complainant).
accused said to the complainant that they are not the same and they
will never ever be alike in their lives. With this intimation the
complainant agreed completely. The accused went on to say that the
complainant is "sekatana" translated "worthless"
whereupon the complainant exclaimed, "'na ? sekatana? translated
me? worthless?" The accused answered in the affirmative.
complainant laughed. She turned her head away from facing the accused
and looked outside through the window behind her as she laughed. May
be this gesture talked louder than any word that was ever uttered by
the complainant at this point. May be the accused felt ridiculed. Her
temper apparently snapped.
accused arrived at the PROBATION OFFICE earlier on that afternoon,
when she called the complainant to her office she had a 135ml bottle
of Guava juice in her hand. She was still holding it as they talked
in the complainant's office. When the complainant returned her face
to look at the accused, she saw that bottle of guava juice come
flying towards her face. She raised her hands to shield her face. The
bottle hit her on the hand and fell. The juice was splashed on the
complainant overcoat, papers on her desk and the wall behind her. As
she threw that bottle at the complainant the accused said, "uena
satane tooe ea letekatse-translated-you satan bitch"
complainant said she was caught off guard. She hardly expected this
sort of thing to happen. I should have mentioned earlier on that
these two people are magistrates. They work as such on those Maseru
Magistrates Court premises. The complainant said she was so shocked
that it took some moments to gather herself. When she did come round
she asked, "Tlotliso u etsang? - translated - what are you
accused came round the desk towards the complainant. There was a
punch on the desk. She tried to pick it up and hurl it towards the
complainant, as she moved closer towards her but it fell in the
process. The accused picked it up again. This time she had moved
closer to the complainant. She attempted hitting the complainant on
the face with it. The complainant had by then grabbed hold of the
accused's hand that was armed with the punch. The punch fell down
once again. The complained picked up the telephone and tried to make
said she intended calling the Probation Officers next door. The
accused rushed to the complainant and grabbed the telephone from the
complainant. She tried to hit her with that telephone. It fell. She
picked it up again. This time she succeeded to hit the complainant
with that telephone set on the chest just below her breast.
all this fighting the complainant kept asking the accused, "Tlotliso,
what are you doing?" repeatedly. The complainant told the court
that she told the accused that she is aware this accused want a fight
but she will not give her a fight. The complainant ran towards the
door. The accused who was still holding on to the complainant's hair
ran along with her towards the door. The complainant got hold of the
door handle and turned it to open the door. The accused pushed shut
that door and got hold of the lock and tried to turn it in order to
lock it. The struggle ensued. This struggle for the possession and
control of the door went on for
The complainant was trying to open it and the accused was trying to
they fought to open and close that door the complaint saw and/or felt
the accused take a bite at her left cheek, twice. The complainant has
sustained an open wound on the cheek as a result. The evidence of
Dr.Maitin who testified at this trial is to the effect that that cut
could have been made by teeth or nails. The counsel for the defence
put it to the complainant and the Dr. that the accused will say she
caught with her nails the complainants' cheek when she tried to grab
the complainant's hair. The complainant claims that because she has
such an oily skin on her face, the accused could not manage to grab
hold of the flesh on her cheek. Her teeth slipped. While the struggle
went on, somehow the complainant succeeded to open the door and ran
out. As she ran back to the PROBATION OFFICE, she heard the accused
say, "Tsoa ka hara lapa laka you bastard"- translated, -
"Get out of my family or
family affairs you bastard!" or words to that effect.
complainant looked back and saw the accused threw an object at her.
This object was the stapler. She lifted her overcoat to cover her
head and quickly shut the door behind her, immediately after she
re-entered into the PROBATION OFFICE. There was a loud bang "Qhuu"
as the stapler smashed on that door and fell down. While on her way
to take a seat, the complainant said, "Batho ba Molimo! Motho ke
enoa a ntoantsa! Ha ke tsebe hobaneng. Ho 'me nkeke ka mo loantsa."
Translated. People, here is someone fighting me. I do not know why.
But I will not fight back". One of those probation officers
therein asked, "what?" in apparent astonishment. The
complainant replied, "Tlotliso is fighting me!" The
complainant sat for a few moments. She got up again. This time
Tsepiso and Seithati ((PW4 & 5) went out. The complainant
accused was standing outside the complainant's office. PW4, 5 and the
complainant went there. On their arrival PW4 asked, "what is the
matter?" The question was directed to both the complainant and
the accused. PW4 was pulling away from the complainant's office this
accused. The accused was pulling herself away from PW4 who asked her
"what are you doing?" Then the accused replied, "let
me beat up or assault this prostitute." The accused succeeded to
break free from PW4 and got to the complainant whom she started
assaulting by hitting her with fists.
went between the accused and the complainant. PW4 got hold of the
accused by her waist and dragged her away from the complainant.
Seithati and Tsepiso escorted the accused away from the complainant's
office. They pleaded with the accused to go to her own office. As I
mentioned earlier on the accused and the complainant work as
magistrate on these premises. The accused's office is upstairs. From
office, one can get to the accused's office upstairs by using a lift
or a staircase. PW4 and 5 were escorting the accused in that
direction, towards the lifts or staircase. The accused seems to
suggest that she went to her office on her own volution and without
an escort. While proceeding thus to her office, the accused indicated
to PW4 & 5 that she was going back to the complainant's office to
fetch her hat. PW4 suggested to her that PW5 will go and collect it
on her behalf. The accused insisted that she was going herself. She
broke free from PW4's grip and returned to the complainant's office.
the complainant had come to her desk and had sat down. She saw
hanging from the open middle drawer of her desk, the accused's hat.
At the time she rushed to the telephone to call the Probation Office
and eventually ran out of her office after struggling with the
accused, that hat was not there. I may just venture a suposition
here, that this hat may
fallen there during the struggle for the possession of the punch and
the telephone set. This appears to be the only time when the accused
according to the evidence was on that side of the complainant's desk.
accused re-entered the complainant's office, she said, "NIKIWE!
give me my hat!" The complainant replied that it is evidence. As
the accused came round the complainant's desk, the complainant stood
up. PW4 & 5 were coming behind the accused in hot pursuit.
Lieketseng was also present in that office this time and was the
first person to go between the complainant and the accused as the
accused attacked the complainant.
which was hanging on the open drawer was not within sight of PW4, 5
and perhaps Lieketseng who were on the other side of the
complainant's desk. It was put to the complainant that she attacked
the accused when she returned to retrieve her hat. The compliant
denied that accusation. She pointed out that the accused
attempt to pick up her hat which was still hanging on that open
drawer. But she straightaway launched both physical and verbal attack
upon the complainant after demanding her hat from her.
present in that office at the time also saw the accused hit the
complainant with the fist and the altercation ensuing therefrom.
Lieketseng went between the accused and the complainant and started
to push them apart. The complainant retreated. The accused kept
advancing and hitting the complainant. The attempt by Lieketseng to
keep the accused and the complainant apart was not successful. The
accused was seen taking a bite at the complainant's forearm. The
complainant tried to push the accused away from her forearm by
pushing at the accused's forehead. That attempt failed. The
complainant with her left hand tried to remove the accused's head
from her right forearm by pulling the accused by her hair. PW5 tried
to pull the accused away by her hand. According to the complainant
her grip with her teeth on the complainant's flesh. The complainant
was in pain. She kept crying,
complainant cried out and pleading with the accused not to bite her,
PW5 grabbed the accused by her waist and dragged her away from the
complainant. This time the accused let go with her teeth and spat
out. After they had been successfully separated the accused bend down
and picked up her hat. The complainant said to the accused, that was
her evidence. The accused replied "To hell with your evidence".
And she left with her hat. But on her way out of the complainant's
office, the accused said she had not yet finished with the
retrieving her hat, the accused without much difficulty left for her
own office. The medical evidence by Dr. Maitin showed this court that
the complainant has sustained the following injuries:-
wound middle of left cheek with surrounding induration due to
laceration lower end of the right forearm. This wound measures 3x4cm
with surrounding induration due to inflamation.
of the left thumb.
bruise volar aspect of the right hand measuring 4x4cm
tenderness of the 9th 10th and 11th ribs due to bruising.
tenderness of the left shoulder due to bruising -movement very
of hair on top of the skull.
close of the crown case, counsel for the accused indicated that he
intends to make an application for the discharge of the accused. This
application is made in terms of Section 175 (3) CRIMINAL PROCEDURE
AND EVIDENCE ACT
1981. It provide, "(3) if, at the close of the case for the
prosecution, the court considers that there is no evidence that the
accused committed the offence charged or any other offence of which
he might be convicted thereon, the court may return a verdict of not
guilty". (my underlining)
section merely empowers the court to consider returning the verdict
of not guilty at this stage of the trial in the cases where first of
all there is no evidence, placed before that court, on which the
accused might be convicted of the offence charged or might be found
guilty of any competent verdict under this particular charge. There
is therefore a further requirement placed upon this court by this
section to examine carefully, the evidence led before it and satisfy
itself that there is no evidence on which this accused could be
convicted of the office charged or
offence under the same charge. In this particular case before me. I
am required in terms of the said section, to examine carefully the
evidence before me and determined in the light thereof, whether or
not the accused might be convicted of the offence charged that of
Assault WITH INTENT TO DO GRIEVOUS BODILY HARM or ASSAULT COMMON .
evidence before this court which, if believed, might result in the
conviction of the accused on the offence charged. This court is urged
not to believe that evidence. The defence counsel has submitted, that
evidence led by the prosecution on the whole is so incredible, that
it is not worthy of the court's consideration. R.V. MATETE and Others
1977 LLR page 262 was cited as authority for the above submission. In
this case MOFOKENG J. (as he then was) decided that the crown has
failed (1) to adduced prima facie evidence to prove
elements it set out in the indicament and (2) in addition the
evidence that the crown has adduced is "so patently unworthy of
credit that a reasonable man acting carefully might not convict. (see
page 281 R.V. MATETE Supra) (my underlining and numbering to
highlight the salient point decided in that case).
no evidence, that established a prima facie case against the accused
in MATETE'S case. Coupled with the absence of prima facie evidence,
was the existence of evidence before that court that was so patently
unworthy of credit that a reasonable man, acting carefully might not
convict. Furthermore, that evidence did not disclose the commission
of any other offence, of which the accused might be convicted.
Pursuant to those findings, the court was entitled to discharge the
accused at the close of the prosecution case. There is no law that
obliges the court to discharge the
at the close of the prosecution case. Rex. V.THOBALA 1981 (2) LLR363.
On that authority of Rex. V.Matete (Supra), it is clear that the
evidence adduced by the prosecution must be essentially beyond
present case the proper analysis of the prosecution evidence, makes
the criticism of its worth unjustified. For example; the evidence of
the police office PW2, who is the Investigating Officer of the case,
showed this court that the papers and books were scattered on the
desk and the floor in the complainant's office. This police officer
visited the scene of the alleged crime (4) four days after the
alleged assault had occurred. The defence seemingly entertained the
possibility of interference with the scene of the crime during the
interviewing period before the Investigating Officer inspected it.
The doubt should have been put to rest by evidence of this witness to
the effect that he
specific instructions to the complainant, not to enter her office
before it was inspected by him. In her evidence the complainant
testified to the effect that she obeyed those instructions issued to
her by the police office.
PW3, the complainant, gave evidence, it was put to her that she
deliberately shuffled the papers and books on her desk. It was put to
her that she was annoyed by the accused when she (the accused)
pointed out to her that she believes Dominic - the informer who
allegedly informed the accused that the complainant insulted her
husband. It was put to the complainant that she started shuffling
papers and books on her desk as she expressly promised to bring a
disaster upon the accused. The defence counsel seemed to suggest that
the complainant deliberately scattered those papers and books on her
desk and floor of her office.
these suggestions to the crown witnesses, the defence may seem to
admit, in an oblique way, that the scene of the offence, (the
complainant's office), appeared as if it had been hit by a mini
earthquake or severe whirlwind. The splashes of that pink fruit juice
on the coat and wall of the complainant's office, were according to
both the complainant's and the defence counsel from that 135 ml
bottle of guava juice which the accused was holding in her hand when
she arrived at the PROBATION Office that afternoon, when she called
the complainant to her office. The complainant told the court that
the accused threw that bottle with content at her face. The
suggestion made by the defence counsel is to the effect that the
complainant is the one who threw that bottle at the accused.
medical report from Queen Elizabeth II Hospital by Dr. Marina Punnen
was produced by
of the parties.The injuries sustained by the complainant are
described in this report as "Laceration on the left cheek and
dorsum of the right forearm". The other medical report was made
by Dr. Maitin. It was also produced by the said Dr. before this
court. The injuries are descried therein as (i) Puncture wound middle
of the left cheek.
(ii) Ragged laceration lower case of the right forearm.
(iii) Loss of hair causing mopecia areata.
accused does not deny causing the injuries described in the two
medical reports, produced before this court. The challenge was made
as regards what was used to cause the open wound on the complainant's
left cheek. It was put to both the complainant and Dr. Maitin under
cross-examination, that it was the accused's nails or nail, not
teeth, which caused the open wound in the complainant's left cheek.
The accused has admitted
that injury. It is not very material whether it was by nail or teeth.
complainant was about to re-enter the PROBATION OFFICE, she saw the
accused threw the stapler at her. She thought she was going to be hit
on the head. She raised her overcoat to cover her head. She also
closed the door behind her immediately after making the entry. That
stapler hit the door and fell down. The accused admit throwing the
stapler but not with intent to assault the complainant. It is claimed
on her behalf that she threw the stapler in frustration when the
complainant left her behind. Those in the PROBATION OFFICE testified,
that they head the bang and saw the stapler fall. The complainant was
seen re-entering that office with her head covered with her overcoat.
It is an
essential element of the crime of Assault with intent to cause
grievous Bodily Harm that, there should be an assault. The crime of
assault has in turn its essential elements. Amongst which there must
be an inspiration of apprehension of fear that force is about to be
applied upon the victim's person. The actions taken by the
complainant in order to protect her head are indicative of her
inspiration of apprehension of imminant application of force upon her
It is the
complainant's evidence that she felt pain and she tried her level
best to remove the accused's head by pulling it with the hair from
her forearm. The accused seems to claim a right to bite the
complainant who she accused of being in her way and preventing her
from retrieving her hat. The complainant did not have in her hands
the accused's hat. It was hanging on the open drawer of the
complainant's desk. This is perhaps where it
during the previous scuffles between the parties. I do not accept
that the accused had a right to bite her as a way to recover her hat
under any circumstances.
evidence before this court on which the accused might be convicted on
this charge. The prosecution has succeeded to establish a prima facie
case for this accused to answer. There might be some minor
discrepencies as the various witnesses observed different things or
paid their attention on different aspects. This was a fight and an
allowance must be made for witnesses to miss out on some aspects. On
the main the crown witnesses corroborated each other's evidence on
all material and relevant respects.
application for discharge of the accused must fail. It is therefore
Crown: Mr. Lenono
Defence: Ms. Teele
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