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