IN THE HIGH COURT OF LESOTHO
In the Appeal of :
SOBHUZA SOPENG Appellant
Delivered by the Hon. Acting Chief Justice, Mr. Justice
M.P. Mofokeng on 17th day of October,1983
The appellant (who will be referred to as the accused)
was charged in the Maseru Subordinate Court with assault with intent
grievous bodily harm it being alleged that on the 12th day of
August 1983 he unlawfully and intentionally assaulted the complainant
by hitting him with fists on the face and with the intention to cause
him grievous bodily harm. Accused pleaded not guilty but was
eventually found guilty and sentenced to undergo imprisonment for a
period of three (3) months.
The evidence is briefly to this effect that on the day
in question complainant drove his vehicle to the outpatient
of the hospital commonly referred to as Casualty.
As he had recently been discharged from the same hospital he was
rushing to collect
his prescriptions. The time was between 4.30 p.m.
and 5 p.m. As he rushed to the entrance he heard a voice call his
name. He could
not wait otherwise he would be late. All he could
do, was to wave back without looking to see who the person was who
he waited for his medicines, the accused arrived. As soon
as he had received the said medicines, the accused asked him if he
him. He answered in the affirmative. He further asked him if he
knew one Mrs. Chabalala and that she was his wife but before he
answer the accused started raining blows all over his
head and face. He drove him down the passage to the Casualty. The
was bleeding through the mouth. They went out into
another section of the hospital that is where payments are made.
got outside. Accused was still assaulting him
continuously. He was at the same time being insulted. Accused forced
him into his
car. He had tried to resist eventually he gave in. By
this time complainant's wife and his friend who were in the car were
them. The wife was trying to beg the accused to leave
assaulting her husband who managed to throw his car keys at them.
Accused car went to the Charge Office and then to the
Police Headquarters. In accused's office he was insulted and was
instructed to sit in the passage outside. He obliged.
After some time accused came out in possession of a firearm and said
going to kill the complainant. He was instructed to go away.
Accused stood behind him as he said so. Nevertheless complainant
His version that he was being beaten by the accused as they
emerged from the hospital precincts and further assaults and that he
bled is borne out by many Crown witnesses. He did not deny before
Mr. Tsasanyane and in fact threaten that he was still going to
the "boy" as he disparingly referred to the complainant, a
married man. The medical doctor who examined the complainant
same day found lacerations on the lower and upper lips, a haematoma
the occipital region. The wounds, were not dangerous to
but the force used was "considerable" and the
injuries were caused by a blunt object. It was suggested to the
the accused that the complainant might have fallen. The
doctor rejected that and said blunt objects such as fists for an
might have caused similar injuries. He gave reasons for that
Accused denies the Crown's version. He says that he met
the complainant at a counter. He "caught hold" of him by
He instructed him to get into his
(accused's) motor vehicle but he "resisted". He then
"commanded" him to get
in which he did. He does not explain the nature of the
command which appeared to be, so suddenly effective. He went via the
office as he had an arrested person in the car as well. From
there they proceeded to the Police Headquarters where the accused
has an office (for he is a high ranking officer). Outside
his office he made complainant to stand and he "reprimanded him
to repeat that act". Then "I asked for his full
names and addresses". Under cross-examination he conceded that
of his rank in the police force he has "great
responsibility to the nation". He saw the complainant and his
in a car. Further details he obtained from secondary
sources. He gave a somewhat startling answer to the effect that he
did not know
whether or not the complainant went into the motor
vehicle with his (complainant's) will. He was asked if he had
arrested the complainant
to which he answered in the negative. He
was then asked if he had requested him to enter the motor vehicle to
which the answer was
in the affirmative. He did so as an ordinary
The accused further called Mrs. Manamolela who describes
herself as a "major" in the police force. Through her, he
wished to establish that the charge against him is a
deliberate fabrication because the investigating officer (who is his
in the department) hates him. That might be so. The obiter to
decide which case shall be prosecuted and before which court is the
sole prerogative of the Director of Public Prosecutions. It has not
been alleged that he displayed, in any manner whatever, manifestation
of bias towards the accused.
When the accused first saw the complainant and Mrs,
Chabalala together, he said nothing. Instead he went on a fishing
and obtained hearsay evidence concerning the complainant.
Their meeting at the hospital in my view was no coincidence. The
must have known that complainant would be there at that
particular point in time, I say so because he does not seem nor does
give any reason for his presence at the hospital at that
particular time. However,
even if I am wrong, the formation of an intention can be
made on the spur of the moment. It needs no ceremony to be made. It
also be inferred from subsequent acts of the accused. His
assaults were vicious and hard. They were concentrated on the most
part of the body. His utterances before his senior Colonel
Tsasanyane show clearly that the assault was with intent to do
it is a painful task for the Court to call its officers
by labels such as liars and the like adjectives. But some law
officers who in the words of Cotran, C.J. in the case ofR. v Thabo Monaleli, Review Order 42/1982 "should have
known better" persistently perform such wanton acts that leave
the courts utterly speechless.
The accused is described as a Captain.
He says he "commanded" a person to do an act. Surely he
knows what it is to give
a command. At the rank where he is he has
issued many commands. But he says he had requested that same person
to do the same act.
Command is not a synonym of request. One has to
obey a command on sufferance of pain if you disobey (Court Marshall).
One can accept
or refuse a request. There is no semanticism of the
English language involved. The accused used a word which is used
in his profession. It Is in his vocabulary, He was just
trying to mislead the Court which is a very distasteful thing to say
an officer of one's Court. But when the moment has arrived
these things must be spoken so as to be corrected.
There are eye-witnesses who saw the assault take place.
They are honest to say they did not see how it all started but they
the two people emerge. There is a ring of truth about their
version of what they saw, corroborated to a certain degree by the
of the accused himself in trying to evade the simple truth.
You reprimand a person and after a good lecturing, as a final act,
then say: "By the way, who are you and where do you live?
Surely that does not make sense.
There is no merit in this appeal whatever. In his own
words the accused has conceded that he has
"great responsibility to the nation". Cotran
C.J. said in R. v Thabo Monaleli (supra): "He shot a
person for no reason, in cold blood, at virtually point blank range".
Here, the accused chased, pushed
assaulted a member of the general
public in a public place, full of people who were victims, perhaps of
assaults and awaiting the
police to act with utmost dispatch and
apprehend their assailants. Instead, they see a law enforcement
officer, himself, doing the
work of thugs. A true administrator of
the law (a police officer is but a part of that huge organisation)
encourages the general
public to respect (and take their complaints
to) the law and that self-help is not allowed by law.
Now what do they say when they see a senior police officer, an
administrator of the law in their eyes taking
the law into his hands?
A police officer resorting to the doctrine of self-help the
consequences of which he knows pretty well from
We all hang over heads in shame.
We have had a spade of cases recently in this Court
involving police officers doing quite irresponsible acts. Unless the
of Police rectifies this situation and soon, there will
be a tragedy.
The sentence imposed upon the accused by the Court a
quo is hopelessly inadequate. It is a traversity of justice. A
police officer who lost his appeal in this very Court is serving a
of nine(9) months imprisonment. (Takalimane v R,
CRI/A/35/83). It is true that in that case a firearm had been used.
But then it was at the Officers1 Mess and there
were only two or three people left. There should, where
possible and circumstances permitting, be uniformity of sentences.
on the complainant was vicious and oren. The complainant
had recently been discharged from the hospital. He was threatened
He saw the firearm in the hands of the accused, who took
the law into his hands (self-help) which is frowned upon by
the Courts. The list is not exhaustive. The sentence imposed by the
Court a quo is
set aside (s.8(l)(d) of the High Court Act No.5 of 1978) and it is
substituted by the following :
"Nine (9) months imprisonment".
ACTING CHIEF JUSTICE 17th October, 1983
For Appellant : Mr. Nthethe For Respondent: Adv.Nku
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