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,
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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.
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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