CRI\A\34\92 IN THE HIGH COURT OF LESOTHO
In the matter between:
RENANG TSIETSI APPELLANT
Delivered by the Honourable Mr. Justice J.L. Kheola
on the 19th day of April. 1993.
The appellant appeared before the Subordinate Court for
the district of Mokhotlong charged with housebreaking with intent to
and assault. It is alleged that upon or about the 27th day of
October, 1988 and at or near Sebera, Mapholaneng, in the district of
Mokhotlong, the said appellant did unlawfully and intentionally and
with intent to assault break and enter a house there situated
'Malebamang Lethakha and did unlawfully assault one Teboho Nkoko by
stabbing him with a knife and also striking him with a
stick on his
body with intent of causing him grievous bodily harm.
The appellant pleaded not guilty but was found guilty as
charged at the end of the trial and was sentenced to five years'
He is now appealing against the conviction on the
2 following grounds:
1, The Crown had not proved its case beyond
reasonabledoubt in that
There is evidence that Accusedacted in self-defence
in that itwas the complainant who was theaggressor
Even if it may be said Accusedacted beyond the
bounds of self-defence he could not have beenfound guilty as
charged but on alesser offence for lack ofnecessary
The evidence by Crown witnessesis contradictory in
nature henceit leaves doubt.
2. Certain witnesses gave evidence without being
formallywarned by the court a quo as required in law.
The evidence of the complainant, Teboho Nkoko, is to the
effect that on the day in question he visited his lover one
at about 9.00p.m. When he arrived there her
lover was in the company of 'Malengolo Lethakha and 'Mapoleliso
Lethakha. About five
minutes after his arrival there was a knock at
the door. The person at the door angrily said: "Open here. It is
The owner of the house refused to open the door.
Thereafter Renang (appellant) broke the window and entered through
The complainant says that when the appellant entered he
was standing in the middle of the house. The appellant tried to hit
a stick but he warded off that blow with his left arm. He
tried to get hold of the appellant but he discovered that he had a
in his right hand. He struggled with him in an attempt to
wrest the knife from him. In their struggle they both fell near the
and the appellant managed to stab him at the back with the
knife. He tried to rise but fell down. The appellant hit him with a
stick behind the left ear and again on the left arm. The appellant
left him lying there.
On the following day the complainant was taken to
Mapholaneng clinic. He was transferred to Mokhotlong Hospital where
he was admitted
for a month. After he was discharged he came to Queen
Elizabeth II Hospital for further treatment. He also went to Mapoteng
for further treatment. He is still not well because his left
side of the body is semi-paralysed and his bladder is so damaged that
he has to use a catheter.
The evidence of 'Malebamang is that on the 27th October,
1988 she was on her way to the Republic of South Africa to see her
She never reached her destination because on the way she
met the appellant. They quarrelled and fought with each other until
escaped and ran away back to her house. As she
ran away the accused took a radio-cassette from her.
When she arrived at the house 'Malengolo and 'Mamothibeli came. As
she was explaining
to them what had happened to her complainant
arrived. She closed and locked the door because she was afraid that
the appellant would
come and assault her.
The appellant came and asked her to open the door as he
had brought the radio-cassette and wanted that they should have a
refused. He opened the window and as he was entering
through it the complainant who was carrying an iron rod struck him on
with it. The appellant entered and found the complainant
standing on the bed. The two men struggled with each other until they
near the door. They rose and went to fall at the forecourt.
'Malebamang says that she left them there and went to the home of
and called her. She came and separated them.
There is no doubt that the appellant and the complainant
did fight on the night in question. The Crown has proved beyond a
doubt that the complainant was stabbed at the back by the
appellant during that fight. The only question to be decided by the
a quo was whether the appellant acted in self-defence. On this
point the learned magistrate says:
"Accd's cross-examination tends to suggest
P.W.1 provoked the fight and that he acted in
self-defence, Circumstances negate this more so as there was a
barrier in between them
and he could have simply stayed away. Instead
he played hero and ventured towards what he wants court to believe
was a danger to
him. It must also be borne in mind that he had been
refused entry and therefore had no right whatsoever to do so."
Earlier in his judgment the learned magistrate found as
a fact that on the night in question the accused went to the home of
for the purpose of returning the radio-casette he had
seized from her during the day and probably to iron out issues
There is altogether no evidence that the accused went
there with the intention of committing any assault upon any person in
. There is no evidence that when he knocked at the door and
was refused entry, he was aware that the complainant who was also the
lover of 'Malebamang, was present in the house. When the appellant
made his entry through the window his intention was to return
radio-cassette and to have a talk with his lover. He did not enter
with an intention to assault the complainant. He was not
that the complainant was
6 in the house.
What happened when the appellant appeared at the window?
The complainant suddenly struck him on the head with an iron rod. He
not uttered a single word before he struck the appellant who had
forced entry into the house for an entirely different purpose. I
regard the complainant to have been the aggressor and that the
accused was a victim of an unprovoked attack. He was therefore
to defend himself with all the means at his disposal. He
apparently had a knife in his possession and during the struggle he
the deceased at the back.
When P.W.5 'Mamothibeli Lethakha arrived at the scene of
the fighting the appellant and the complainant were still holding
He remonstrated with them and ordered them to leave her
premises. They heeded her remonstration and separated. The
The appellant remained behind. The evidence of the
complainant cannot therefore be true that the appellant hit him twice
with a stick
on the arm and behind the ear while he was still lying
on the ground and left him there. It was the complainant who left the
there. In any case the doctor who examined him on the
following day makes no reference to any injury on his head and arm.
There are some contradictions in the evidence of the
which create some doubt in the strength of the Crown
case. That doubt ought to have been exercised in favour of the
says the appellant opened the window and
entered. But the complainant says he broke the window. The
investigating officer makes no
reference to a broken window. I am
aware of the law that in housebreaking the opening of a closed door
or window amounts to breaking.
In this case the complainant is
actually referring to simple breaking of the window.
The complainant says that he was in the middle of the
house when appellant tried to strike him with a stick. 'Malebamang
the complainant was on the bed when he delivered a blow
with his iron rod. The appellant warded off that blow with his own
The complainant makes no mention of the fact that he
struck the appellant with an iron rod when the latter entered through
I am of the view that the contradictions which I have
mentioned above and others ought to have created a doubt in the mind
The appeal is allowed on the ground that for the reasons
stated above it cannot be said that the Crown proved its case
8beyond a reasonable doubt.
J.L. KHEOLA JUDGE
19th April, 1993.
For Appellant - Mr. Khauoe For Respondent - Mr.
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