CRI/A/39/87 IN THE HIGHCOURT OF LESOTHO
In the Appeal of:
'MATHAMAE THAMAE Appellant
Delivered by the Hon. Mr. Justice Sir Peter Allen on the
10th day of September, 1987
The appellant, a woman aged 28 years, was convicted
after trial on 8 September 1986 by a first class magistrate at T.Y.
on a charge
of assault with intent to do grievous bodily harm. She
was sentenced to imprisonment for two years and this appeal is
only. After serving a month of her sentence she was
released on 7 October 1986 on bail pending the disposal of this
According to the lower court record the complainant
woman Justina Maboeane was attending a beer-drinking and conversing
with the younger
brother of the appellant and encouraging him to buy
a vehicle that he wanted. For no apparent reason the appellant
addressed the complainanat in a rather abusive and
insulting manner disparaging the fact that the complainant had
She then became violent and the owner of the premises
When the complainant eventually also left she found the
appellant waiting on the way for her in a threatening
manner, so the complainant picked up some stones so as
to defend herself. The appellant's brother took away the stones and
broke a bottle and jabbed her in the face with it five
times until the appellant was effectively prevented by another man
with her assault.
This was a deliberate assault with a dangerous weapon.
In her own words in the lower court, the appellant said:
" I picked up a bottle in the forecourt and broke
it to make a weapon."
The medical report on the complainant when she was
eventually seen by the eye specialist at Queen Elizabeth II Hospital
was as follows:
" On examination she had numerous facial
lacerations some of which had been sutured at T.Y. Hospital. Her
vision was normal in
the right eye but she could only see the
movement of the hand with her left eye. The left eye had a
perforation of the cornea with
iris prolapse. She was admitted on
13/5/86 and had surgery to repair the lacerated cornea on 26/5/86
under local anaesthesia. She
was discharged on 1/6/86. Today she came
for follow up and her vision in the left eye is 6/60. which is still
far from normal."
Two weeks later, on 24 June 1986 she was examined again
and it was found that there was an improvement as the sight in her
was then 6/30. But normal sight is 6/6, so it was still
/The lower ...
The lower court record for 8 September 1986 is
very brief, as follows:-
" 8/9/86 Judgment - Guilty as charged. No previous
convictions. Plea in mitigation First Offender Sentence - Two years
The appellant then filed this appeal and, on 25
September 1986, the trial magistrate recorded his "Reasons for
which also included his reasons for sentence.
In my opinion this is absolutely wrong. Once the trial
magistrate has passed sentence he becomes functus officio and nothing
should be added by him to the trial record. In any case the
judgment ought to have been written before, and delivered on, 8
1986. It should be addressed to the accused and
prosecutor in that court and not written as an explanation or
this Court. Similarly the reasons for sentence should
have been recorded and given to the accused at the time when she was
Both she and the prosecutor were entitled to know why that
particular sentence was awarded. I have remarked in previous
appeal judgments that 1 find this peculiar practice and procedure
presently followed in magistrates courts to be incorrect and
It could amount to a serious miscarriage of justice.
Both counsel for the appellant and for the Crown
objected not only to the fact that the trial magistrate gave no
reasons for sentence
at the time, with which
/I have ...
I have already dealt, but also that the magistrate
failed to examine the appellant about her personal
circumstances before sentencing her.
Mr. Ramodibedi referred to my judgment in Makateng& Anor. v Rex CRI/A/33-34/87, which appeal I heard last
month, and in which Mr. Ramodibedi also appeared. Apparently he and
some others have found
it difficult to understand what I said there
although it is very simple and straight forward. He asked me to
reconsider it. The
passage from my judgment is as follows:-
" Mr. Ramodibedi thought that information as to
whether the appellants were married and the state of their health
been obtained. But it is up to the convicted
accused to decide what they wish to say in mitigation. Sometimes
to remain silent. I do not think that an accused should
be cross-examined about such matters. He is not required to give his
history. It might just occasionally be necessary or helpful for
a particular question to be put to an accused at this point, e.g.,
. age or whether he goes to school or what work he does,
but this is a matter for the discretion and common sense of the
in any particular case where such information is
I still maintain the same opinion, but I will enlarge on
it slightly. In another recent appeal judgment I pointed out a
omission made by almost all the magistrates whose records I
have read so far. This is that when recording the testimony of
and accused, they simply record the name of the witness
/and then ...
and then follow on with the actual testimony. There is
no attempt to record the particulars of the witnesses and accused,
should always be done. After recording the full name
there should follow the age, nationality, occupation (which can
include housewife) and, in the case of women, whether married
whom. The level of literacy is useful, but that is usually obtained
These facts help to build up a picture of the background
of the witness and accused which is useful not only to the trial
when weighing and evaluating that person's testimony for
judgment; but even more useful to an appeal court which has never
people. Without these vital details the record is very
deficient. What is relevant to the present subject in this appeal is
these same details of an accused are the "personal
circumstances" which various counsel seem to think should be
from the accused at the time of sentencing. I disagree
because in fact they should have been obtained well before that point
reached, as I have already explained.
The only times when such details may not be on the
record of evidence is when the accused pleads guilty or when he
chooses to remain
silent, so that there is no record of testimony
which such details refer to. Then it would be reasonable for the
Court to ask specific
questions such as I have suggested in my above
However, any experienced judicial officer knows
when some accused are asked to speak in mitigation
/they will ...
they will tell any story in the hope of obtaining
leniency. 1 have often found accused inventing wives and quantities
and stomach ulcers and weak hearts and so on, in order
to try to avoid going to prison. It is rather naive to expect a
of truth at this stage of the proceedings. That is one
reason why it is better to obtain such information earlier in the
if possible, before the question of a sentence has
been reached. It might then be more accurate and truthful.
As I have already said, some accused choose to say
nothing for their own reasons. It would be wrong to interrogate them
the questions. There is no legal requirement for them to
reply or to inform and, if they indicate that they do not wish to,
they must take the consequences and be sentenced simply on the
basis of the offences which they have committed.
What is most important is that the magistrate should put
everything on the record at the time. That must include the judgmentbefore verdict and the reasons for sentence, and a brief
explanation of any other decisions taken. This will not only assist
and his counsel but, most of all, the appeal court.
Returning to the present appeal, Mr. Ramodibedi thought
that the appellant ought to have been given the option of paying a
the complainant also has a remedy by way of a civil
action for damages. I disagree, Here we have a woman appellant who
had not herself
been attacked, who admitted that she deliberately
bottle to make a dangerous weapon and then jabbed the
complainant in the eyes and face with it. She must have known it was
dangerous thing to do. She could have blinded the
complainant and may well have intended to do so. She certainly
damaged the sight
in one eye. The assault was vicious and inexcusable
and the appellant behaved like a bar-room hooligan. Why should she
be treated leniently? She is aged 28 and not a child.
There is no way that I can agree that a fine would be an
adequate punishment. People such as the appellant are a menace to the
and they need a sharp lesson in the hope of deterring them
from repeating such offences. A custodial sentence is therefore
In the trial magistrate's later given reasons for
sentence he said that the appellant attacked and "took out"
eye. This was an exaggeration. in fact, and it may
perhaps have influenced him with regard to the length of imprisonment
imposed, and I shall take that possibility into
But the other fact, that the appellant has no previous
convictions, is largely irrelevant here, in my opinion, since the
vicious, mindless and unprovoked. The public expects such
behaviour to be severely condemned by the courts.
Accordingly, taking all these factors into account,I
shall allow this appeal against sentence to the extentthat I set
aside the sentence of imprisonment for twoyears and I substitute
for it a sentence of imprisonmentfor six months.
/The appellant's ...
The appellant's bail is discharged and she must now
serve the balance of her sentence, of which she has already served
one month before
being released on bail.
10th September, 1987
Mr. Ramodibedi for the Appellant Mr. Thetsane for
IN THE HIGH COURT
LEFU SEFALI Appellant
The appellant, aged 36 years, was convicted by a first
class magistrate at T.Y. on 25 July 1986 on his own pleas of guilty
counts. The first was of assault with intent to do grievous
bodily harm, and the second count was of posessing a dangerous weapon
without a lawful purpose c/s 3(1) Dangerous Weapons Order No.20 of
On count 1 he was sentenced to imprisonment for one year
and on count 2 he was fined M20 or imprisonment for one month in
Four days later he was released on bail pending the
disposal of this appeal against the sentences only.
The appellant agreed with the facts given in the lower
court by the prosecutor. Apparently the appellant missed
some cattle and horses which he reported to Matela
Police Post. The number of these animals was not given. He suspected
Keresemese Mosehlela, not because he saw any of
/his animals ...
his animals there, but simply because the complainant
had a rope that looked similar to the appellant's.
On 9 June 1986 the appellant and his father rode over to
see the complainant and the appellant demanded the return of his
The complainant denied having them and the appellant
produced a home-made sword and assaulted the complainant with-it,
head and both hands.
The magistrate convicted the appellant and sentenced him
but without giving any reasons for the sentences awarded. There have
many directions given by this Court that reasons must always be
given to the accused person at the time of sentencing him. It is
only fair that he and others in the court should know why a
particular sentence has been decided upon in those circumstances.
It is quite wrong for a magistrate to wait for an appeal
to be lodged before stating the reasons for the sentence. They must
at the time of making the award.
In this instance the magistrate recorded that the
appellant stated in mitigation that he was provoked by the
complainant. In his
later reasons for sentence the magistrate
rejected this and found that it was the appellant who provoked
the complainant and
that the appellant acted senselessly as he had no
reasonable grounds to suspect the complainant.
The appellant is not a young man. At 36 years old he
ought to be able to avoid acting hot-headedly. He had reported the
the police but then decided to take matters into his own
hands. This was wrong, and there was no excuse at all for using a
weapon on the
However, the fact that he pleaded guilty and so saved
the time of the court; and that he had no previous
convictions, were reasons why some degree of leniency could have been
At the same tike he must learn that he cannot use
dangerous violence and get away with it. I consider that a custodial
is appropriate but that it would be proper for this Court to
reduce the sentence awarded on count 1.
With regard to count 2, the magistrate and the police
appear to have overlooked the fact that the whole of the Dangerous
1970, was repealed by s.82(2)(a) of the Internal
Security (General) Act, No.24 of 1984. The correct charge for this
have been c/s 45(2) of the 1984 Act.
As it stands the appellant was convicted under a
nonexistent law and Crown Counsel agreed that the conviction
could not be allowed
Accordingly this appeal is allowed in the following
On count one I set aside the sentence of imprisonment
for one year and I substitute for it asentence of imprisonment
for six months.
On count two the conviction is quashed and thesentence
is set aside.
The appellant's bail is discharged and he must now serve
Mr. Kali for Appellant 10th September. 1987
Mdhluli for Crown
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