IN THE HIGH COURT OF LESOTHO In the
Appeal of :
JOHN MONNE MAJALLE
Delivered by the Hon. Chief Justice Mr. Justice T.S.
Cotran on the 18th day of September 1984
The appellant, who is a Lieutenant in the Lesotho
Mounted Police, was convicted of assaulting, with intent to do
grievous bodily harm,
Policewoman Makakole, who was then working with
the appellant at Mohale's Hoek Police Station. He was sentenced to
nine months imprisonment
and he is appealing against his conviction.
There are two main grounds of appeal.
The first ground of appeal, which is one of law, is that
the proceedings against the appellant were null and void from
reason of the fact that the local Public Prosecutor did
not have before him a sworn declaration in writing to enable him to
a prosecution against the appellant in contravention of
s.11(4) of the Criminal Procedure and Evidence Act 1981. This
"Whenever there is lodged with or made before a
public prosecutor a sworn declaration in writing by any person
disclosing that any other person has committed an offence chargeable
in a subordinate court to which the public prosecutor
is attached, he
shall determine whether there are good grounds for prosecution or not
except that -
he may refer to the Director of PublicProsecutions
the question whether toprosecute or not; and
any other person may be specially
authorised by the Director of Public Prosecutions to
prosecute in the matter".
Mr. Monaphathi submits that this subsection is
peremptory and not directory.
This subsection was in existence in the Criminal
Procedure and Evidence Proclamation 1938 (s.13(1) Vol.11 Laws of
Lesotho p.865} which
was repealed by the Act of 1981.
Research has revealed that the subsection was taken from
s.13(3) of the South African Criminal Procedure and Evidence Act
1917 which Act and the subsection were repealed by the South
African Criminal Procedure and Evidence Act No.56 of 1955. When the
subsection was in existence in South Africa between 1917 and 1955,
Gardiner and Landsdown, the learned authors of South African Criminal
Law and Procedure -(3rd Edition, 1929 Vol.1 p.119) wrote thus:-
"This provision does not require that sworn
information shall necessarily precede the institution of
prosecutions; it merely
prescribes what shall be done when sworn
information is submitted. In many cases it is impracticable to secure
sworn statements before
trial, and in others, from the nature of the
circumstances information is sufficiently conveyed to the prosecutor
by other means".
No authority was cited. The same passage, with no
authority cited, appears in Vol.1 of the 6th Edition of Gardiner and
written after the South African Act of 1955 (which
omitted this provision) came into force (p.195).
There is nothing in the wording of the subsection which
leads me to the conclusion that a sworn declaration is mandatory.
of appeal must accordingly fail.
The second ground of appeal is that there were a number
of factors which were adverse to the truth of the complainant's
that the magistrate (the appellant has sworn that the
incident was a figment of the complainant's imagination)
should have entertained some doubt about the appellant's
and acquitted him.
The credibility of the witnesses is a matter for the
trial Court and an appellate tribunal will not interfere in findings
unless it is manifest that a grave error has been made
or that the evidence as a whole is such that it would not be
sustain the conviction.
It is common cause that the appellant and the
complainant were lovers. The complainant's story that the appellant
assaulted her in
the circumstances she described are not inherently
improbable and there was some evidence to support her story. There is
that Dr. Leister (P.W.5) saw some injuries on some woman on
19th October 1982. The doctor did not himself write the name of the
in the space provided for this section of the form. It is
possible that the complainant, who herself signed the police form,
have sent some other woman, who happened to have received the
same kind of injuries she says she sustained, but this possibility
really too far fetched. The fact that the "occurrence book"
has disappeared from the station is not evidence in favour
appellant. He himself could have organised its disappearance. There
is no reason to disbelieve two officers that a complaint
against the appellant. The delay in informing the appellant that a
prosecution has been decided upon is, to my mind, understandable,
because it may well be that the appellant's colleagues, if not thecomplainant herself wanted to deal with the matter
internally, i.e. within the Police Force Disciplinary Regulations.
This is not, with respect to Mr. Monaphathi, evidence that the
whole incident was being fabricated.
If we take into account that the appellant may lose his
job in the police force, possibly also his pension, the length
of time it took for a decision to prosecute, and the
fact that the matter has been hanging over his head for nearly two
months imprisonment is too severe a sentence. It also
seems to me that the lady complainant was also somewhat to blame for
familiarity with a senior officer in the same town. If she
was ready to flirt with the appellant, she no doubt, was prone to
I would confirm the sentence but I order that the
sentence be suspended for three years on condition that appellant be
of an offence involving violence to the person during
the period of suspension. This is, as I said, without prejudice to
the police authorities take against the appellant-
CHIEF JUSTICE 18th September 1984
For Appellant : Mr. Monaphathi For Respondent : Mrs.
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