CRI/A/16/85
IN THE HIGH COURT OF LESOTHO
In the Appeal of:
MONYANE MOHLOMI Appellant
V
REX Respondent
JUDGMENT
Delivered by the Hon. Acting Mr. Justice S. Peete on the 29th day of April, 1985
On the 29th April, 1984, I dismissed the appeal against the conviction but altered the sentence of twelve months no fine and suspended six months thereof on condition that the appellant during the period of suspension of three years he was not convicted of an offence
involving violence to person for which he was sentenced to six months or more without an option of a fine. My reasons now follow.
The Crown relied solely upon the evidence of a single witness viz. the complainant, one Moremoholo Ntsika who stated that on the early morning of the 18th August 1984 he went to inspect his fields, probably suspecting that some animals were trespassing therein. He found 8 oxen belonging to the appellant and he drove them intending to go and impound them. He states that the appellant, his
co-villager, appeared asking where the complainant was taking the cattle. He began throwing stones - The appellant was with someone,
whom the complainant could not identify.
2
The complainant confirmed that it was the appellant by his voice. The appellant even came to the complainant and struck him a severe blow on the head and his companion joined in the assault. The left arm of the complainant, an old man of about 65, was fractured at two places in the process.
The defence raised by the appellant was that of self-defence. (See the notice of appeal) but when Mr. CD. Molapo, for the appellant,
appeared before this Court he proceeded on the basis that the appellant had not been properly identified. This argument held no
water and seems to have been resorted to as a last straw. No notice of an intention to amend the original grounds of appeal was made the Court however gratuitously allowed Mr. CD. Molapo to argue his desparate point which was summarily dismissed. There is no ground or basis whatsoever, to doubt the learned magistrate's finding that it was indeed the appellant who attacked the complainant that day. He properly cautioned himself in approaching the testimony of the single witness, that is the complainant and having heard and seen him, the learned magistrate believed him and rejected the alibi defence advanced by the appellant. In fact Mr. C.D. Molapo was at sea when the Court pointed to him that even the wife of the appellant confirmed the story of the complainant on a material respect, namely that the appellant left his house in order to look for his animals. It was early dawn and still dask. It is clear therefore that the appellant knew that his animals were astray and not enkraaled. The defence of self-defence, and the belated defence of alibi are rejected. The appeal against conviction is therefore dismissed.
3
There was also an appeal against sentence. The Court, taking into account the fact appellant is still a young man and has no previous convictions, came to the conclusion that a portion (i.e. half of the sentence) should be suspended and it is so ordered. The sentence is hereby altered to read as follows:
" 12 months imprisonment six months of which are suspended for three years on condition that during the period of suspension the accused is not convicted of an offence involving violence to person for which he is sentenced to six months or more-without an option of a fine."
ACTING JUDGE
29th April, 1985
For the Appellant : Mr. C. D. Molapo
For the Respondent : Mr. R. Kabatsi