IN THE HIGH COURT OF LESOTHO
In the Appeal of:
THEBE MAHAPA APPELLANT
Delivered by the Honourable Acting Judge, Mr. Justice
M.L. Lehohla, on the 18th day of August, 1986.
The Appellants this case appeared before the Magistrte's
Court at Mafeteng, charged with assault with intent to do grievous
He pleaded guilty to the charge and confirmed the Public
Prosecutor's outline of the case and was properly convicted. His
against sentence only.
The facts in brief show that complainant's son Paulus
Khotle was herding cattle on 18-4-86. He drove them home in the
the cattle were about to enter the kraal, accused
started chasing after Paulus. Complainant intervened and asked why
chasing his son. Thereupon accused came at
complainant, drew a sword and fetched him a gashing blow with it on
Complainant was sent for medical treatment and was not
admitted to hospital. The injury is described as a cut wound fracture
left forearm. Accused surrendered himself to the police ten
days later, was cautioned and charged.
The Appellant is a first offender. In mitigation of
sentence, it is recorded "the accused asks for clemency".
In his reasons for Judgment, the learned Magistrate
stated that "In using a lethal weapon such as a sword, shows
that the accused
in fact intended to cause grievous bodily harm on
the person of the complainant or even to bring about his death".
Indeed the outline of the case by the Public
Prosecutor disclosed enough evidence to show that accused had
intended committing the
offence charged, i.e. assault with intent to
do grievous bodily harm. The weapon used
was a lethal one, namely a sword.
But in imposing sentence it does not seem that
Appellant's personal cirumstances were taken into account. Nothing in
the records reveals
that he has a family to support. No probing into
his means of livelihood has been done. While on the one hand the mere
he is a first offender does not entitle Appellant to expect
kid-glove treatment from the courts, yet on the one hand in assessing
the totality of his personal circumstances that fact cannot be
Before this Court, he reiterated his remorse for
having caused the injury, a factor borne out by his
readiness to plead guilty despite what in argument before me appeared
to be a case of self-defence or a claim of right to
chief's the cattle in obedience to the chief's orders. 1
only in passing because it is not in issue as such.
Appellant submitted that he is married. He has children
whom he has to find in food and clothing.
It is significant that the Court a quo in its
reasons for judgment indicated that accused in using a lethal weapon
had intended even to bring about his death.
Yet the facts outlined did not bring to surface any such
notion. It cannot, in the circumstances, be said the Court a quo was
influenced in imposing sentence by this notion in the absence of
any mention into what factors it took into account regarding
personal cirumstances. The nature of the injury warranted
treatment of complainant as an out-patient. It is not stated how
the injury was.
Regard being had to the concessions made by the Crown
that the Court a quo did not give due weight to factors not
revealed in the record it is clear that omission of such factors
amounts to a misdirection
warranting intervention by this Court.
NTHONGOA & ANOTHER vs. R. 1880(1)LLR at 197 and Mojela vs Rex
1977 LLR at 321.
Consequently the appeal against sentence is quashed
in and/its place is substituted the following' Accused
sentenced to six months' imprisonment or M60 fine.
M.L. LEHOHLA ACTING JUDGE
For Appellant : In Person For Respondent : Mr.
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