IN THE HIGH COURT OF LESOTHO In the
Appeal of :
MAMAHLOLI MALISE Appellant
Delivered by the honourable Acting Chief Justice Mr.
Justice J.L. Kheola on the 27th day of October, 1986.
The appellant was charged with assault with intent to do
grievous bodily harm it being alleged that on or about the 23rd June,
and at or near Ma Telukhunoana in the district of Berea the
accused unlawfully and intentionally assaulted 'Malineo Tongoane by
her on the left upper chest with a knife with intent to
cause her some grievous bodily harm. She pleaded not guilty but was
guilty as charged and sentenced to six (6) months' imprisonment
without the option of a fine. The appeal is against the conviction
The complainant testified that on the 23rd June, 1985 at
dusk she was walking towards her home when she heard the foot steps
running towards her from behind. As soon as she turned
and looked back
her the accused came to her and stabbed her above the
left breast with a knife.,
She fell down. When she rose and ran away the accused
stabbed her on the back with a knife. She then chased her until she
Matumelo's house. She was later taken to TY Hospital and
admitted for four days.
In cross-examination she denied that the accused found
her in compromising circumstances with her (accused's) husband. She
that she was in love with the husband of the accused.
Dr. Gotink is the medical practitioner stationed
at TY Hospital and he examined and treated the complainant when she
was admitted into the hospital.
He found one stab wound on the upper
left side of the ,. chest and another stab wound at the back. There
was bleeding into the chest.
He formed the opinion that the wounds
were dangerous to life and that the degree of force used to inflict
the wounds was severe.
The version of the accused is that for a long time the
complainant had a love affair with her husband. She complained to her
to her husband's family and to the chief but in vain. On the
23rd June, 1985 she found the complainant and her husband amorously
holding each other. They were standing between the arable lands of
'Mahelile and 'Makhabo. The complainant saw her and warned her
(accused's) husband that she was coming. The husband ran away.
She then attacked the complainant and stabbed her on the chest and
back with a
knife. She then chased her until they came to 'Matumelo's
house where people stopped her from assaulting the complainant,.
Mr. Pheko, for the appellant, submitted that
under the traditional view provocation was a defence on a charge of
murder but the courts have
extended the defence of provocation to
crimes involving specific intent such as the charge in the present
appeal. He further submitted
that under the new approach to
provocation as enunciated by Burchell and
Hunt in the book "South African Criminal Law and
Procedure, Vol. I 1st edition at page 242, the provocation received
only mean that the accused did not intend to dp grievous
bodily harm upon a charge of assault with intent to do grievous
but also that he lacked the intention required for
common assault. He contended that the trial court failed to make a
I entirely agree with the above submissions as far as
the law is concerned, but I do not agree with the submission that the
court failed to make a proper inquiry as to whether the
appellant had the necessary specific intention for assault with
cause grievous bodily harm. On page 9 of the record
starting from the middle of the second paragraph the learned
"But she (accused) has said she has been watching
them, and prepared to catch them red-handed; from these facts it is
she had the intention to commit grievous bodily harm
because while she was watching them she was armed with a knife and a
a dangerous weapon."
What the learned magistrate is saying is that the
appellant did not come upon the complainant and her husband by
chance; she had been
going about armed with a knife and looking for a
chance to find them in compromising circumstances and then punish the
for her affair with her (accused's) husband.
The appellant knew very well that her husband was having
an affair with the complainant. She took her complaint to the right
and finally to the chief but her husband was not prepared to
bring the affair to an end. Thus she decided to watch them with the
view or catching them red-handed and punishing her or both of
The fact that she went about armed with a knife clearly
proves that she had the intention to cause grievous bodily harm.
The story of the complainant that the appellant attacked
her without any cause is untrue and must be rejected. The husband of
accused gave evidence that he and complainant were caught
red-handed amorously holding each other.
The evidence before the trial court was that the
appellant saw the couple from some distance away. It is not clear how
far she was
but what is clear is that when she came to the
complainant the husband had run away, After stabbing the complainant
twice the appellant
chased her until they came to the home of one
The most important aspect of the case is whether or not
lost self-control and whether the provocation sudden in
terms of the Criminal Law (Homicide Amendment) Proclamation No. 42 of
Although the Proclamation refers to murder cases, the
requirements of provocation are the same. I do not think that the
was sudden. The appellant had known the affair between
her husband and the complainant for a long time end had been seeking
to find them under those circumstances. (Rex v. Setai,
L.L.R. 359 at p.378).
The defence of provocation is not available to the
appellant in the circumstances of the present case. The appeal
Although provocation has been rejected as a defence, I
shall take it as mitigating or extenuating circumstance in this case.
of the complainant and the appellants husband was so
preposterous that leniency must be shown in passing sentence.
magistrate did say that he took into account provocation
as a mitigating factor. By sending the appellant to prison without
of a fine the learned magistrate seems to have given very
little weight to this important factor. The sentence appears to
be too severe under the circumstances of this case.
The sentence imposed by the court below is set aside and
substituted with one of M150.00 or six (6) months' imprisonment.
J.L, KHEOLA ACTING CHIEF JUSTICE.
31st December, 1986.
For Appellant - Mr. Pheko For Crown - Mr.
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