IN THE HIGH COURT OF LESOTHO In the Appeal
Delivered by the Hon. Sir Peter Allen on the 27th day of
The Appellant was convicted on 10 June 1986 by a
magistrate first class at Maseru of assault with intent to cause
grievous harm. He
was sentenced to pay a fine of M180.00 or
imprisonment for six months in default.
The offence occurred on the afternoon of 29 March 1986
at the village of Makopong on a Saturday when a traditional feast was
place. The complainant, Habofanoe Masakale, took part in the
feast and had been drinking liquor during the day, although he
that he was not drunk at the time. He said that the
appellant had also been drinking.
A taxi driven by one Mohapi Kobeli (D.W.1), and carrying
passengers, was stationary in the road and the complainant spoke to
and to some of the passengers. After that the appellant
also came up and spoke to the driver who then drove off. The
and the appellant
/were known ...
were known to each other and apparently there already
existed a grudge between them over a land dispute.
It seems that rude and possibly insulting words passed
between them. According to the complainant he "collided"
appellant who then punched him between the eyes with his
fist and used or put an overall around the complainant's neck and
him. The complainant responded by throttling the appellant
and a struggle ensued. The appellant held the complainant and moved
backwards pulling the complainant with him. He then took a knife
from a pocket and stabbed the complainant in the left armpit and
the back on the right side. The complainant was bleeding and and he
went to hospital for treatment. The more serious injury
in his armpit which still had not healed at the time of the trial,
over two months later.
The prosecution called an eye-witness, Tseko Makopong
(P.W.2), a cousin of the complainant and a relative of the appellant.
that he saw both of them at the feast and when they both
approached the taxi in the road. After the vehicle left a fight took
and the witness saw the appellant and the complainant
throttling each other and he separated them. But they both
other again and he saw the appellant stabbing the
complainant with a knife, first above the shoulder and then below the
chasing the complainant. He added that the complainant
ran away, picked up a stone and threw it at the appellant but missed
The appellant then rushed towards the complainant and they were
separated by people present at the scene and the appellant was caught
and the knife taken from him.
/The stone ....
The stone throwing incident was denied by the
complainant but it was really of little importance or relevance since
it happened (if
it happened at all) after the actual stabbing with
which we are here concerned.
Mr. Seotsanyana who appeared for the appellant also
represented him in the trial court and he made much of alleged
inconsistencies in the testimony of the complainant
and Tseko (P.W.2). But I agree with the trial magistrate and Crown
they were minor points. In such circumstances, where the
witnesses have been drinking and the confusion of a struggle end a
take place, it would be very surprising and unnatural if
witnesses all observed or remembered all of the events or even the
order of events. In fact, if the witnesses each told exactly
the same story, there would usually be a suspicion that they had
or been coached in their testimony.
At his trial the appellant exercised his right to remain
silent but he did call one witness, the taxi driver , whose testimony
not really of any assistance since he said he drove off before
the trouble started.
Mr. Seotsanyana submitted to this Court that the
appellant acted in self-defence and so he should have been acquitted.
When it was
pointed out that the appellant had not testified and so
he had not actually raised the defence of self-defence, counsel
the defence had been indicated in the course of his own
cross-examination of the two prosecution witnesses. He added that,
case, the trial court should have considered such a defence
even if it was not raised.
/In Burchell & Hunt's ...
In Burchell & Hunt's South African Criminal Law &
Procedure, Vol.1 (1st edition) page 107, the authors write:
" In accordance with the general rule, when the
accused raises a special defence (i.e., one which challenges the
proof of the commission of the crime, including all its
elements, by the accused) or a general defence which exclude the
of the actus, he does not have to prove the defence, not
even on the balance of probabilities; only an evidential burden rests
him. It is merely incumbent on him to introduce or adduce
evidence which shows that the defence is 'a possible factor in the
When a defence is so raised the prosecution only discharges
the onus of proving the actus and its unlawfulness where that is the
only possible inference.."
Further on, on page 182,they add:
" The legal burden of establishing the accused's
guilt beyond reasonable doubt does not require the prosecution to
defence pleaded by the accused unless it is 'genuinely
raised in a genuine fashion', or unless a proper foundation (for the
is laid' by the accused in the sense that the Court could
find that the defence in question existed, or 'unless the evidence
it as a possible factor in the case' ".
(See A.G. for N. Ireland v. Bratty (1453) AC 386 at 406
and R. v. Thibane 1949(4) S.A. 720 (A.D.) at 731). Thus the Court
ignore evidence of the possibility that the accused acted in
self-defence, even if he did not rely on it, but it would be
if there was no such evidence on record to consider. This
/in my opinion, ....
in my opinion, when the accused is unrepresented and so
cannot be expected to be aware of all the possible defences available
under the law. But, in a case such as this present one, where
the appellant was represented at his trial by counsel, then I would
expect proper foundations for a particular defence to be laid and for
that defence to be properly raised at the trial.
In the present instance Mr. Seotsanyana claimed that the
defence of self-defence was raised in cross-examination of the
witnesses. But that is not "raising" a defence;
that is merely laying some of the foundations. It is simply not good
to do this and then fail to follow it through in the actual
I have further criticisms to make of the conduct of the
defence. When cross-examining the complainant (P.W.I), counsel put
six points to him:
- " Accused will say you were drunk, and when you
found him with the driver you throttled him with
- " Accused and other witnesses will say Tseko did
not Intervene until the struggle had taken 100 paces,"
- " Accused will say he got the knife from your
- " Accused will say you are lying about it (the
dispute) since you have never reported it to the chief,"
- " Accused will say you were pulling him to the
and you told him that you will catch him at Makopong,"
and /- " Accused ...
- " Accused will say you finally ran to your home
to.get a spear."
From this sort of foundation the trial court would
naturally expect, and indeed require, the defence to call the accused
it was, to substantiate what defence counsel has announced
would be included in that person's testimony. But, in fact, the
did not testify at all and none of the above proposed
allegations was made by him or anyone else. The trial court was thus
or at least, misled into believing that the accused was
going to testify in his defence. This was not a proper or acceptable
of conducting a defence. Counsel must be completely open and
honest with the Court and should not state or imply that certain
will be adduced while in fact knowing that this was not to
be the case.
If counsel wished to put such matters to the complainant
in such a case the proper form would have been, "I put it to you
such-and-such was done or said or whatever." It was totally
unnecessary to imply that the accused was going to testify about
if he was not. Questions put by
counsel are not to be considered as part of the evidence
Returning now to the defence of self-defence which, as I
have held, was not properly raised in the trial court, the magistrate
referred to the failure of the appellant to testify and to
substantiate the allegations. The magistrate, at the same time,
to those allegations as probably being his defence (of
self-defence) and so they were duly considered and discarded. This
the appellant used a knife on the complainant who was not
/For self-defence ...
For self-defence to succeed as a defence the appellant
must have been unlawfully attacked and have reasonable grounds for
that he was in imminent danger of death or serious injury.
Furthermore, he must not use excessive force or means in relation to
the danger in those particular circumstances. Naturally, in such
cases, the court can reasonably expect that the accused person
testify and explain why he acted or reacted in that particular way.
Without that sort of evidence there is not much else for
the court to
There was no evidence that the complainant tried to use
a dangerous weapon or other means to kill or seriously injure the
There was nothing to show that the appellant was in any
danger of death or serious injury. It appeared that there was
sort of drunken brawl between them, brought on by a
combination of drink and an existing grudge. I agree with the trial
that the evidence does not reveal any justification for
the use of a knife by the appellant.
But,even if the appellant was acting in self-defence
(and I am satisfied that he was not) the use of the knife was
excessive in the
circumstances. Indeed it was totally unjustified.
Furthermore, to stab someone under the left armpit is an extremely
act since the knife and the injury would thus be in close
proximity to the heart.
Consequently I can see no good reason to interfere with
the conviction of the appellant in this case.
As regards the sentence, I think that the trial
magistrate was extremely lenient to award only a fine when
/ a custodial ...
a custodial sentence was well deserved. However, the
magistrate clearly took into consideration that the parties had been
and that there had probably been some provocation by the
Accordingly this appeal is dismissed and the conviction
and sentence will stand.
27th May, 1987
Mr. Seotsanyana for appellant Mr. Seholoholo for
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