IN THE HIGH COURT OF LESOTHO
In the Appeal of :
TSELISO MATJOLA Appellant
Delivered by the honourable Acting Chief Justice Mr.
Justice J.L kheola on the 14th day of October, 1986.
The appellant appeared before the subordinate court of
first class at Mafeteng charged with assault with intent to do
harm; it being alleged that on the 1st day of June
1986 and at or near Ha Motanyane in the district of Mafeteng the said
did unlawfully and intentionally assault Samuel Khang by
hitting him with an axe and an iron rod on the body with intent to do
The appellant pleaded guilty to the charge. The public
prosecutor gave a summary of the facts of the case as disclosed by
in his possession. The facts were that on the day in
question the complainant was sleeping in his house when the accused
armed with an axe and an iron rod. The accused suddenly
attached the complainant and started hitting him with the iron rod.
warded off the blows with his arms. Then the accused
changed his weapons and struck the complainant with the axe on the
a large laceration. The
complainant sustained a fracture of the 4th finger on
his left hand. The accused left the scene of the crime immediately
struck the complainant with the axe.
The accused admitted the facts stated by the public
prosecutor and was found guilty as charged and sentenced to
twenty-four (24) months'
imprisonment without the option of a fine.
He is now appealing to this Court against sentence only on the ground
that the sentence
was too severe and gives one a sense of shock.
The trial court was apparently under the wrong
impression that because dangerous weapons were used, the accused had
to be severely
punished irrespective of the seriousness of the
injuries inflicted with those weapons. According to the statement of
the facts by
the public prosecutor the complainant was not admitted
into hospital but was treated as an out-patient. The size of the
on the head is not stated and no mention is made of the
sort of treatment the complainant received. When a court is faced
case of assault with intent to do grievous bodily harm medical
evidence is of vital importance because it gives the court a clear
picture of the extent of the injuries. In the present case I have no
doubt in my mind that the accused had the necessary intention
cause grievous bodily harm and that he was properly convicted.
However, the summary of the medical evidence is so vague that it
impossible to make a proper finding regarding the extent of the
injuries. Judging from the fact that the complainant was treated
an out-patient one is justified in coming to the conclusion that the
injuries were not serious nor dangerous to life.
The accused ls:a first offender and when he was asked
whether he had anything to say in mitigation of sentence he said he
to say. Ignoring numerous decisions of this Court the
magistrate hurriedly imposed a sentence of twenty-four months'
Section 295 (2) of the Criminal Procedure and Evidence
Act 1981 provides that before passing sentence, the court may receive
evidence as it thinks fit in order to inform itself as to the
proper sentence to be passed. The magistrate ought to have elicited
from the accused some relevant information that would enable him to
pass a proper sentence ('Matsepang Motlenane v Rex,
CRI/A/94/84 dated 20th December, 1984 (unreported).
Mr. Mda for the appellant pointed out other
mitigation factors such as that the appellant cooperated with the
police in the investigations
of this case; he pleaded guilty as
a sign of remorse; the injuries inflicted by the accused were not
serious and that the accused
is a married man with three minor
children. He workds as a nightwatchman and earns a salary of R120 per
Taking into account all the factors I have attempted to
summarize above I allowed the appeal on the ground that the sentence
severe and evokes a sense of shock. The sentence imposed by
the lower court was set aside and substituted with one of M150-00 or
four (4) months' imprisonment.
J.L. KHEOLA ACTING CHIEF JUSTICE.
30th December, 1986.
Defence - Mr. Mda
Crown - Mr. Seholoholo.
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