CRI/A/8/90

IN THE HIGH COURT OF LESOTHO

In the
Appeal of :

LELOKO NHLAPHO

v REX

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 6th day of February, 1991

The accused was charged with the crime of Assault with
intent to do grievous bodily harm ;the charge was read on the 28th
November
1988 in respect of an offence allegedly committed on the
21st of February 1988. The Charge Sheet stated that the accused had
intentionally
assaulted Kompi Komota by stabbing him on the chest and
arm with a knife with the intention of causing him grievous bodily
harm.

Evidence was led in the court below which showed that on
the day in question P.W.1 and two others had occasion to go and
impound the
appellant's cattle. These cattle were being tended by an
old man who gave no resistance when it was explained that the purpose
of
this company was to impound the appellant's cattle for trespassing
on reserved pastures.

When the cattle were about cleared from this reserved
area or were starting to move the appellant pitched on the scene. He
had been
in the company of a woman called 'Matumo Nkhasi. The
appellant happened to have appeared from a

/donga

-2-

donga nearby. He challenged P.W.1 telling him that
P.W.1 had been under a terrible mistake whereby he, the others and
their chief
had been deceiving one another thinking that this area
where cattle were impounded belonged to them. He told them that the
area
belonged to his own chief - thus implying that they had no right
to impound his cattle.

P.W.1 testified that the appellant rushed at him and
pierced him with a knife on the arm and that P.W.1 tried to hit the
accused who
either thwarted the blow or hit hack at P.W.1. But the
crux of the matter is that P.W.1 fell and the accused stabbed him
with a
knife on the chest. P.W.1's colleagues came to his
assistance.

The accused gave his own evidence and it hardly touched
on what one could refer to as giving local colour as to what was
happening
on that day in question. What could have caused him to
engage in this attack was never put to the Crown witnesses. He told
the
Court for the first time when he was giving evidence that the
complainant had hit him with an iron bar on the finger and on the
lower
lip. P.W.1 had given evidence before that court. There was no
reason why this aspect of the evidence by the accused was never put
to him. That court also heard for the first time when the accused
was giving evidence that these cattle of his were there because
he
was about to inspan them to do some ploughing or planting on his
field which is nearby. Had this been true nothing would have
stopped
the accused putting this question to the Crown witnesses nor could
the old man who was cooperative have withheld this explanation
from
the men who came saying that they were coming to impound these
cattle.

As has been stated time and again the use of a knife is
a serious matter. Using it on the upper body of a fellow being is an
even
more serious matter. The doctor has indicated that the use of
this knife on this particular occasion resulted in severe bleeding
of
the liver - a very

/vital

-3-

vital organ of the body.

With regard to intention it has time and again been said
that it can he gathered from the nature of the weapon used; the area
or the
spot where the blow with such a weapon has been inflicted; and
the force with which the delivery was applied. Evidence has not been
challenged of one of the Crown witnesses who showed that the
appellant was not being attacked when he embarked on this unlawful
use
of a knife on a fellow being. For these reasons I find that the
appellant was properly convicted in the court below. I accordingly
dismiss the appeal against conviction.

The learned Magistrate who happened at that time to have
been a First Class Magistrate had passed a sentence of five (5)
years' imprisonment
for the offence against the appellant. The
offence had been committed long before the enactment of the law
enhancing the sentencing
powers of his class. But when the matter
came for hearing the Magistrate's powers had been enhanced. Thus the
learned Magistrate
mistakenly believed that he had power therefore to
impose a sentence in accordance with the enhanced jurisdiction that
he had just
had.

Reference to the case of Sigcan v Q (1895) 12 SC
256 at 266 shows that De Villiers CJ said: "there is a strong.

presumption against any construction of the act

whereby an individual would be liable to punishment by
means of a retrospective statute". Cookram in his
Interpretation of Statutes
(1975) at page 66 says

"There is also a presumption against implying that
a statute which increases the penalty for an offence should apply
retrospectively,
unless the statute expressly provides that the
increased penalty should he retrospective".

Order No. 10 of 1988 does not expressly say that the
increased penalty should he retrospective; nor indeed does the
Subordinate Courts
Order of 1988. It looks like

/the

-4-

the learned Magistrate fell victim to a temptation to
apply these two Orders retrospectively relying on an old mistake
which is made
mention of by Cockram at page 66 as follows :

"At one time the South African Courts, under the
influence of British decisions (e.g. DPP vs Lamb (1941) 2 K.B 89)
preferred
the view that an accused becomes liable to punishment only
upon conviction of an offence, and thus if between the commission of
the
offence and the conviction , therefor the penalty was increased,
the accused should he liable for the increased penalty e.g. R. vs
Bankshaird 1952(4) SA 512 AD".

This Court in the case of Rex vs Ndabohleke Qhosheka
CRI/S/10/88 (unreported) at 5 had this to say :

"However it inspires one with delight and
confidence to learn that the above case was later overlooked by the
Appellate Division
which decided in R.vs Mazibuko 1958(4) SA 353 AD
that :

'where an
amending statute provided the death penalty for Robbery with Assault
and intent to murder, this penalty could not he imposed
where the
Robbery had taken place before amending statute was passed n"..

In the case that I am referring to which was decided by
this Court it was further stated on page 6 -

"No express provision is to be found in Order No.10
of 1988 to show that offences committed before July 14th 1988 fall to
be
treated under the prescribed minimum penalty section. In any
event, and as an alternative approach to the foregoing, it would be
doubtful whether the lawgiver intended the effect of that Order to
affect pre-existing offences as at the date of its passage. Such
doubt should redound to accused's benefit".

I have been told from the Bar that as at the time of the
offence referred to in this case the First Class Magistrate's
sentencing
powers extended only to two (2) years. So it was
obviously wrong of him to have imposed five (5) years' imprisonment
relying, as
the Judgment shows, on the minimum Penalties Order of
1988. The sentence

/therefore

-5-

therefore imposed by the Court below, is set aside.

Having set aside this sentence I have to consider what
suitable sentence is to he imposed regard being had to the
seriousness of the
offence. As stated by Mr. Lenono for the
Crown the complainant was only lucky that he got immediate medical
attention. His liver had been stabbed

and he had bled profusely. That would lead to nothing
hut

not death if medical attention was/rendered quickly.
Having said that I find that the least sentence that the Court
imposes is that
you have actually served your sentence. You were
properly convicted. Your sentence starts from the date when the
Magistrate imposed
it and it ends today i.e. after you have served an
effective jail term of 1 year and 4 months.

JUDGE
6th February, 1991

For Appellant : Mr. Teele For Respondent : Mr.
Lenono