CRI/A/22/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of.

MATETE
SEEPHEEPHE Appellant

V

R E
X Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Acting Mr. Justice S. Peete on the 10th day of June, 1985

The
appellant was originally charged with the offence "of defeating
or obstructing the ends of justice," it being alleged
that on
the 2nd February 1985 and at or near Thaba-Tseka, the appellant
unlawfully ordered one Francis Maoeng and Tsebo Maoeng
to refuse to
be apprehended by a police officer who was arresting the two men for
unlawfully wounding one Kaone Motsepa. He was
found guilty as charged
and was sentenced to serve six months imprisonment without an option
of a fine. The appeal is against both
conviction and sentence. On the
10th June 1985 I dismissed the appeal against conviction but altered
the sentence to read "M100.00
or 6 months imprisonment - half of
which is suspended for three years on condition that the appellant is
not, during that period,
found guilty of an offence involving
interference with the administration of justice." My reasons now
follow.

Having
heard Mr. Ramodibeli, for the appellant and Mrs Boslu for the Crown,
I felt convinced that the Crown,

2

had
proved its case beyond a reasonable doubt. Firstly, it was contended
by Mr. Ramodibedi, that the offence charged had not been
proven
because "arrest" had not been effected according to law.
Section 41(1) of the Criminal Procedure and Evidence
Act of 1981
reads as follows

" In making an arrest a peace Officer or other person authorised
to arrest shall actually touch or confine the body of the
person to
be arrested unless there be a submission to the custody by word or
action". (my own underlining)

According
to the undisputed evidence of P.W.1 Trooper Tsemane, after having met
the complainant Kaone Motsepa (who was full of injuries)
he went to
the two men Kaone pointed out and told them the reason why he was
arresting them. He did not handcuff them but they
submitted to him
and he drove them towards the charge office. It is clear that
therefore it was not necessary that the policeman
effecting arrest
should have physically touched and confined the two men who did not
give him any trouble but submitted to his
authority. The arrest had
therefore been properly effected, and I so decide. It was again
limply suggested by the learned counsel
for defendant that it had not
been proven by the crown that the offence for which the arrest was
being effected, is one of those
itemised under Part II of the First
Schedule of the C.P.&E. (1981) but I am con­vinced that Kaone
Motsepa had serious injuries
or wounds. This satisfies the
requirement that the wound inflicted must have been dangerous. The
officer was therefore indeed entitled
to arrest the two men without a
warrant despite the fact that the weapon used was not readily
ascertainable, nor were the injuries
described in detail to the trial
Court.

3

The
appellant gave evidence under oath and gave a rambling version of
what happened that day. The learned magistrate rightly rejected
it as
being false beyond all doubt, and I can but say that it shows
clearly, as it later appeared, that the appellant was drunk
on that
day and his story in Court was a hazy recollection of those events
and at worst a futile fabrication.

Regarding
sentence, I however felt that the sentence was rather on the severe
side - and Mrs Bosiu indeed correctly made a concession
in this
regard. Accused is still a young man and perhaps with still warped
attitude towards authority. I think he ought to be given
a chance. He
is a first offender who, with a drink-befuddled mind, became an
officious Robin Hood to his drunken mates. The sentence
is thus
altered as already shown in the first paragraph of this judgment.

ACTING
JUDGE

11th
JUNE, 1985

For the
Appellant Mr. Ramodibedi

For the
Respondent Mrs Bosiu