CRI/A/119-120/84

IN THE HIGH COURT LESOTHO

In the Appeal of

FRANCIS PHOMANE 1st Appellant

BOOMO MOSHOESHOE 2nd Appellant

v
REX Respondent

JUDGEMENT

Delivered by the Hon Mr Justice J L Kheola on the
4th day of March 1985

The appellants were convicted by the Resident Magistrate
at Butha Buthe of the crime of assault with intent to do grievous
bodily
harm it being alleged that upon or about the 25th June, 1933
and at or near Butha-Buthe Reserve in the district of Butha Buthe the
said accused did each or other or all of them intentionally assault
one Patrick Sempe Lerotholi by hitting him on the head with a
stick,
kicking him all over his body with booted feet and also hitting him
above the left eye with a stone with intent to cause
him grievous
bodily harm To this charge the appellants pleaded not guilty but
they were each found guilty as charged and sentenced
to Nine months'
imprisonment

At the trial the present appellants were accused 1 and
accused 3 respectively Accused 2 was found not guilty and
discharged at the
close of the Crown case

The complainant, Patric Sempe Lerotholi, testified that
on the 25th June, 1983 at about 10 00 p m he arrived at Pholosa ' s
night
club and bought a tin of beer From the

/counter

-2-

counter he proceeded Co his seat near the door On the
way he inadvertently tiamoled on the feet of the second appellant
Although
he immediately apologized the second appellant was nor happy
and threatened to assault him He went bad. to his chair and sat
down
Accused 2 came to him and tried to hit him with a fist but
missed and smashed a window pane The owner of the club repri-manded
accused 2 and told him that he would have to pay for the damage he
had caused The complainant returned to the counter to buy another
tin of beer When he returned to his seat he was confronted by the
first appellant, second appellant, accused 2 and one Khosi Rankoroane
who died before the trial started (I shall refer to him as the
deceased) They accused him of having stabbed accused 2 with a knife
and ordered him to produce the knife They attacked him and kicked
him with booted feet on the legs During the scuffle Trooper
Thakalekoala arrived and stopped the fight The complainant escaped
and ran away to the charge office The appellants gave chase
When
he came to the gate of the security fence at the charge office the
second appellant caught up with him and struck him with
a stick on
the back of the head He continued to run till he entered into the
charge office.

The complainant further stated that he was already in
the charge office when the first appellant arrived and snatched a
stick from
the second appellant and hit him on the left elbow and on
the neck with it The blow on the neck felled him on the floor
whereupon
the appellants. accused 2 and the deceased started kicking
him all over the body with their booted feet As he lay prostrate on
the floor the appellants held him by his legs and dragged him out of
the security fence and again started to kick him and

to hit

-3-

to hit him with stone on the left eye He lost
consciousness When he regained his full senses he was in the
Butha-Buthe hospital
After two days he was transferred to Queen
Elizabeth II Hospital where he remained as remained as an in-patient
for two weeks
He had no knife in his possession that day Under
cross-examination the complainant denied that he attacked accused 2
with a knife
He also denied that subsequent to the assault at the
charge office he was assaulted at the Maseru Stadium

L/Sgt Thakalekoala corroborated the evidence of the
complainant that he arrived during the scuffle He asked the
complainant if
he had any knife Ihe complainant 3aid he had no
knife He put his hands in the pockets of his jacket to prove that
he had no knife
During the scuffle the complainant managed to get
out of the club house ana picked up a stone and threw it at the door
It hit
the wall but no one was hurt He said that if the appellants
were present at the club he would have seen them

Sec Lt Paul Letsie testified that on the night of the
25th June, 1983 he heard noise in the charge office He went there and
found
the appellants and complainant in the charge office The
latter had already sustained injuries and the appellants were still
kicking
him and hitting him with fists They ignored his order that
they should stop beating up the complainant As a result of their
insubordination
he instructed one Sgt Khalane (P W 5 1 to go and
call Mr Mohapi who was the officer commanding The appellants stopped
the assault
after Sgt Khalane had left and they told him (Lt. Paul)
that the complainant had killed a policeman and asked him if he
remembered
what had happened to fro Ntepe who had recently been

killed

-4-

killed by people in the village while on duty He left
the charge office and went to his office so that he could telephone
Mr Mohapi
As he left the charge office he met the deceased who
appeared to be very violent Having rung the officer commanding he
returned
to the charge office but found that the appellant the
deceased and the complainant were not there The complainant was
later found
lying prostrate and uncouscious under the trees near the
security fence

Trooper Seturumane corroborated the complainant that
when he come to the gate the second appellant hit him on the back of
the head
with a stick He saw when the deceased assaulted the
complainant in the charge office

Dr Msulwa examined the complainant on the 26th June,
1983 and transferred him to Maseru on the 29th June, 19G3 On the
12th August,
1983 he prepared a medical report from the complainant's
health book which had been filled by the doctor in Maseru

The story of the appellants was identical They
testified that on the night in question they found the complainant in
the charge
office He had already sustained injuries It was the
deceased who assaulted the complainant in the charge office At one
stage
the complainant said he was going to point out the knife but
escaped .He escaped towards the prison and they never found him that
night

D W 3 deposed that the appellants were not at the club
and that the quarrel was between the complainant and accused 2 The
former was
armed with a knife Later the complainant was chased by
many people who threw stone at him D W 4 denied

/that

—5—

that the second appellant hit the complainant with a
stick at the gate But he does not knew what happened in the charge
office
D W 5 is a self confessed lier (see page 24 line
2)

Mr Ramodibedi for the appellants submitted that

the complainant did not merit any credence as he must
have been extremely drunk This submission is not supported by any
evidence
The more fact that the complainant had earlier that night
been at the Crocodile Inn ana later went to the club does not mean
that
he was drunk We know that at the club he had hardly drunk two
tins of beer when the fight started It was never shown how much
beer be drank at Crocodile Inn We know that besides drinking he
went there to play darts

It has been suggested that the complainant lied when he
said that the appellants were at the club and that he is contradicted
by P
W 2 and D W 3 The former said he did not see the appellants
then. The latter said he did not see the appellants There were
many
people at the club and failure to see them may have been due to
the presence of so many people It seems to me to be a rattier
strange
coincidence that when the complainant arrived at the charge
office the appellants were still on his heels

XL is argued that the evidence of P W 4 exculpated the
first appellant (p 12 lines 23-24) P W 4 left the charge office
on instructions
to go and call the officer commanding He does not
Know what happened after he had left but when he returned the
complainant was
lying uncon­scious under the trees In my view P
W 4 ' s evidence does not exculpate the first it appellant This
witness
did not contradict himself in any way Li one looks at the
original

/manuscript

-6-

manuscript one will find that the witness said the
second appellant assaulted the complainant outside the gate when he
struck him
on the head with a stick He did not know if he assaulted
him again in the charge office

It was contended that the learned magistrate

ailed to take into consideration the likelihood of bias
in the Grown witnesses who sought to implicate the appellants,
particularly
P W 3 who apparently did not even bother to investigate
the allegation that P.W 1 had attempted to stab one of the appellants
with
a knife. Reference was made to the case of Mphethe Peckeche
and another v Rex,CR/A/4/81 (unreported) at p 2 This case was
concerned with the evidence of members of one family against the
evidence of members
of another family There had been a dispute over a
plantation and the cause of the fight was the plantation In a case
like that
there is always a likelihood of bias, the same applies to
cases of faction fighting In the present case the people involved
are
members of L M P they fail under the same commanding officer
The attempt by the appellants to say that there was a friction
between
the C I D and the general division was not supported by any
evidence When P W 3 arrived at the charge office the assault upon
the complainant was already going on, he tried to stop the appellants
but they ignored him This was gross insubordination by junior
officers to a senior officer When they eventually stopped to
assault the complainant P W 3 decided to go and telephone the
officer-commanding
When he returned to the charge office the
appellants had dragged their victim to another spot where

/they

-8-

they continued their assault To say that P W 3 did not
investigate the allegation that a policeman had been stabbed is to
ignore
the sequence of the events I have stated above The next
thing was that the complainant was found lying unconscious under the
trees
and the appellants were nowhere to be been This was followed
by their arrest and investigations P W 3 did not have the chance
to
investigate the allegation while the assault was going on

Mr.Ramodibeli further submitted that a grave
irregularity was committed by the Public Prosecutor by suppressing
evidence in his possession
which supported -he defence case He
referred to the case of Thabang Makhakhe v Rex, 1980
(2) L L P 253 at p 255 I think that case is clearly distinguishable
from the present case In that case the appellant had
been charged
with rape just before closing the Crown case the public prosecutor
informed the court that the doctor who examined
the complainant was
overseas The defence counsel said he was prepared to accept the
medical report made by the doctor The public
prosecutor refused
saying that the medical report could "prejudice the Crown This
was obvious suppression of evidence which
could support the defence
In the present case the public prosecutor decided not to call some of
the police officers whose evidence
was not favourable to his case
These witnesses were called by the defence There is no evidence
that he expelled them from the
court premises making it impossible
for the defence to use them He was not expected to announce in
court that he Had discarded
some of the witnesses who had made
statements to Mm Circumstances leading to the discovery of these
witnesses by the defence have
not been disclosed The public

/prosecutor

-9-

instrument made from these notes is not admissible
unless the original is lost or destroyed I think in a case where
the doctor has
prepared a report from his own notes made during the
examination ouch a report is admissible provided that if asked to do
so the
doctor would produce his notes It is true that medical
evidence is very helpful to the court in a case of assault with
intent to
do grievous bodily harm, however, it docs not necessarily
mean that without medical evidence the court cannot convict an
accused
person of assault with

intent to do grievous bodily harm R v Sele,
1960 (3) S A

172) In the present case the complainant was struck on
the head with a stick and sustained an open wound, he was Licked all
over
the body with booted feet, he was hit with a stone on the left
eye and sustained serious wound on the elbow and he fainted because
of the assault He was admitted into hospital for two weeks as a
result of the injuries. All these factors prove beyond a reasonable
doubt that there was

intent to injure and to injure in a serious respect (S
v

Mbelu, 1966 (1) P H , H 176 (N)Mbele 1966

I do not intend to change the verdict because despite my
ruling that medical evidence was inadmissible there was overwhelming
evidence
to support the conviction I also do not intend to
interfere with the sentence of the court a quo The assault was
a very serious one and was committed in the charge office by junior
officers in defiance of orders from their senior
officers to stop it
The appellants are police officer and ought to have known better
that taking the law into their hands would
land them into serious
trouble- If the

/complainant ..

-10-

complainant had committed an offence their duty was to
arrest him and put him before a court of law

For the reasons I have stated above the appeal is
dismissed

J L KHEOLA

J
U D G E

4th March, 1905

Tor the Appellants Mr Ramodibeli
For the
Respondent Miss Moruthoane