CRI/A/4/81
IN THE HIGH COURT OF LESOTHO
In the Appeal of:
MPHETHE PEKECHE ) Appellants
FANTENG TSOANTSO )
REX      Respondent
JUDGMENT
Delivered by the Hon. Acting Chief Justice,
Mr. Justice M.P. Mofokeng on 25th May 1981
The appellants were convicted in the Subordinate Court
of Leribe on the 24th November 1980; the first appellant,
Mphethe Pekeche being in respect of assault with intent to
do grievous bodily harm while the second appellant was in
respect of assault common. The former had a fine of M80.00
or in default of payment to undergo imprisonment for a period
of six months, imposed upon him while the latter was sentenced
to pay a fine of M30.00 or in default to undergo imprisonment
for a period of three months. The appeal is only against
conviction in respect of both appellants.
The facts are briefly that the complainant, his wife,
son and daughter-in-law proceeded to a plantation where they
began to cut wood. They used an axe for this purpose It
was given in evidence, by both the defence and the Crown, that
the ownership of this plantation was disputed by the first
appellant and the complainant and that the matter was pending
before the courts of law. However, when the first appellant
saw persons cutting wood at the disputed plantation he proceeded
there with a view to finding out what exactly was taking
place. As he approached, the complainant spoke and said he
should not come any nearer but should speak from where he was.
From that moment it is not quite clear as to what precisely
happened but there was a fight in which the complainant, his
/wife,

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wife, and first appellant were injured. Complainant and first
appellant were admitted at a hospital suffering from serious
wounds.
The first appellant does not deny that he inflicted
injuries on the complainant and his wife; but he says he was
acting in his own defence because he was being attacked by the
members of the complainant's family. The axe that was used
to cut wood was being used effectively upon him by the
complainant. The complainant's son conceded that he had hit
the first appellant but even then only once. Except for the
concession by complainant's son that he assaulted first
appellant only once, the latter was found to have sustained
seven more serious wounds. It is obvious that he was assaulted
more than once. This is made clear from Exhibit "C" (medical
report).
The Crown witnesses were biased. They all gave evidence
with the sole aim that appellants should be convicted. They
disregarded the truth. The complainant exaggerated his fainting
feat whenever he was asked a difficult question and yet he
would see the first appellant assaulting him. He had either
fainted and saw nothing or did not faint and saw everything
around him. His wife, after being hit on the bridge of the
nose for "nothing" did not summon help or ran away but remained
in the vicinity to observe every movement which the appellant
made. She was laughing in Court and stated that she had not
come to give evidence about the injuries sustained by the
first appellant.
It is always important when assessing the evidence given
by opposing sides to scrutinize it very carefully. This
becomes particularly so when the likelyhood of bias is apparent.
In the instant matter the complainant and his family on the
one hand and the appellants on the other hand were involved in
a civil dispute concerning the very planatation where the
fight took place. In such circumstances it is almost
impossible to get the whole truth. The evidence bristles
with contradictions and improbabilities on the part of the
Crown's case. The appellants on the other hand told a story
which could reasonably be true and taken together with the
circumstances of this case enumerated above, it is my view
that the learned magistrate misdirected himself on his
assessment of the facts. The appeals of both appellants
/ought

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ought to be upheld and it is accordingly so ordered.
It is further ordered that the appeal deposits paid
by the appellants be refunded to them.
ACTING CHIEF JUSTICE
25th May, 1981
For Appellants : Adv. Ramodibedi
For Respondent : Mr. Mdhluli

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