CRI/A/4/81 IN THE HIGH COURT OF LESOTHOIn the Appeal of:MPHETHE PEKECHE ) Appellants FANTENG TSOANTSO )REX RespondentJUDGMENTDelivered by the Hon. Acting Chief Justice, Mr. Justice M.P. Mofokeng on 25th May 1981The 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,
-2-wife, and first appellant were injured. Complainant and first appellant were admitted at a hospital suffering from seriouswounds.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
-3-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, 1981For Appellants : Adv. Ramodibedi For Respondent : Mr. Mdhluli