HIGH COURT OF LESOTHO
on 22nd Day of February 2002 by the Honourable Mrs Acting Justice
an appeal from the Magistrate's Court Maseru. The Appellant, a young
man who was then 27 years old in 2000, was charged and convicted of
assault common . He has been sentenced to three years imprisonment.
It was a
pathetic case because the appellant is the son to the complainant in
this case. The Appellant is alleged to have assaulted his own father
by hitting him with a stone on the forehead.
record of this case one could gather that the relations between the
Appellant and his parents were not cordial. It came out in evidence
that P.W.1 who is the Appellant's father, had approached Appellant at
his home, as they lived at different places. Appellant said it was on
the day of the assaults but P.W. 1. said it was some other day prior
to that. P.W.1. went there to collect his basin and bucket. The
Appellant did not approve of this collecting of basin and bucket. As
a result the Appellant too felt that he should collect what belonged
to him which was still in the possession of his parents. Appellant
went to his parents' home to tell them to bring back the money he had
asked them to pay for him at the union. It appeared appellant's
mother used to attend meetings for the union on his behalf so that he
felt, there was no one who will attend the meetings for him as they
did Appellant ask for his money, he also went to the kraal and drove
away his three (3) sheep from his parents' home.
parts the evidence of the Appellant was supported by his brother,
who was D.W.2 at the trial and her mother who was P.W. 2 at the
trial. The relevant portions were where even before the fight, P.W1
told Appellant to leave them and he did. They were inside the house
and they prevented P.W. 1 from following Appellant by closing the
door. But a short while later P.W.1 went out and immediately they
heard D.W.2 telling P.W.1 to leave the Appellant. P.W.1 also did not
dispute that he was armed with an iron rod. They could not only agree
as to where P.W. 1 collected the iron rod. Appellant said it was from
another house whilst P.W.1 said he found it outside the house.
Initially P.W.1 did deny that he hit appellant with that iron rod but
eventually admitted under cross examination. It has also been P.W.1's
evidence in chief, that D.W.2 came and asked him to leave the
Appellant has appealed against both the conviction and the sentence.
And what is most interesting is that the Respondent does not support
the conviction and sentence in this case. She submits that if
anything, the Appellant could have been given a benefit of a doubt or
alternatively, if convicted, given a sentence with an option of a
further been the Crown's submission that in fact conviction should be
based on legalistic and not moralistic issues. Here she supported the
Appellant that the trial Court had been influenced by inadmissible
events of the past and as a result made a moral judgment. The trial
Court concluded that the Appellant was not respecting his parents as
he was alleged to have pointed a gun at P.W. 1 sometime in 1999.
record it appeared that in fact the complainant is the one who rushed
at the Appellant. Was the Appellant then not entitled to defend
himself? Or could it then be said he exceeded the bounds of self
defence merely because the complainant was his father? The answer is
no. The Appellant was exercising his right of self defence. Rex vs
Molato 1974-75 LLR 30. The trial Court has given no reasons for
believing the evidence of the complainant over that of the Appellant.
On looking at the evidence as a whole the story of the Appellant was
reasonably possibly true as supported by complainant himself, P.W.2
and D.W.2 Rex vs Chitja 1991-96 vol 2 LLR 963. Because the trial
Court has failed to give reasons for arriving at its decision by
believing the complainant's story the Court on Appeal is therefore at
large to decide otherwise. Lesaoana and Others vs Rex 1955 HCTLR at
considering the sentence that was imposed, there were no reasons
given for having passed a sentence of three years imprisonment. In
Mojela vs Rex
Mofokeng J. as he then was , stated that "This Court has said
before that it is of paramount importance that an accused person
should know the reasons for the imposition of his sentence. These
reasons must not be stated after the accused has noted an appel but
when the sentence is actually being imposed."
Magistrate may have been shy to state, as concluded by the Crown,
that he based his judgment on moralistic values. I am not also trying
to pity the situation, but on the facts of this case, feel obliged to
alter the decision. The Appeal is therefore upheld, the conviction
and sentence are set aside and the accused found not guilty and
Appellant: Ms M. Ramofole
Respondent: Ms H. Motinyane
BANK 1st Respondent
SHERIFF 2nd Respondent
Applicant: Sethathi & Co.
Respondents: Mr. S.C. Buys
by the Honourable Mr. Justice T. Monapathi on the 19th day of
that the application ought to be dismissed with costs inasmuch as
Applicant/Defendant's Counsel did not prosecute it to an end.
Applicant applied for an order in terms whereof the execution
scheduled for the 2nd March 2001 was stayed. The Applicant further
applied for rescission of judgment and to be granted leave to defend
the proceedings instituted against him under CIV/T/250/00.
were filed in this Court against the Applicant who was Defendant on
the 25th August 2000. Judgment was granted by default on the 11th
September 2000 against the Defendant who had instructed Counsel with
a view to settle (as he admitted liability) to no avail.
quite clear that an application of this nature by the Applicant
should and should have complied with the provisions of Rule 27(6) of
the High Court Rules, which provides for time limits within which to
apply to set aside the given judgment, and the fixing of security.
Respondent contends in his opposing affidavit that the Applicant was
already aware of the judgment on the 4th October 2000 when a warrant
of execution against movable assets was served upon him. He responded
by simply informing the Deputy Sheriff that he does not have
attachable movable assets.
days has therefore expired within which the Applicant was supposed to
bring an application and in the circumstances the failure to do so
was fatal as I concluded.
addition thereto the Applicant has failed to comply with Rule
27(6)(b) in that no security has been furnished to the satisfaction
of the Registrar of the High Court for the payment to the First
Respondent of its costs for the default judgment. The furnishing of
security is mandatory and failure to do so is fatal to the
application. See Ramdaries v Mafaesa CIV/T/56/83 delivered on the
25th May 1983 by Cotran CJ.
also evidence before this Court, in the form of correspondence
between the Applicant's Attorneys, that the Applicant admitted
liability and offered to pay the debt by way of monthly instalments.
Because an agreement could not be reached in this regard the First
Respondent proceeded (as it was entitled to) with the execution
against immovable property. The First Respondent argued that there
was no good cause for the default judgment to be set aside as is
provided for in Rule 27(6)(c), which reads as follows:
"At the hearing of the application the Court may refuse to set
the judgment or may on good cause shown set it aside on such terms
including any order as to costs as it thinks fit."
Applicant did not show good cause on which the judgment may be
rescinded. This attitude was strengthened by the fact that the
Applicant has admitted liability.
would therefore be no sense in setting aside the judgment as there
would be nothing to try before this Court once the judgment was set
aside. This in my view would be waste of time and money where the
Applicant was not able to show that he had a bona fide defence to
First Respondent/Plaintiffs claim. See Grant v Plumbers (Pty) Ltd
1949(2) SA 470(0).
circumstances the application for rescission was dismissed with
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