CRI/A/24/95 IN THE HIGH COURT OF LESOTHO
In the matter between:
JAKOTE KHELEMETHE APPELLANT
v.R E X RESPONDENT
Delivered by the Honourable Justice G.N. Mofolo on the
9th day of November, 1995.
Appellant was charged in the Magistrate Court for the
District of Leribe in that on or about the 20th October. 1993 at or
in the District of Leribe accused did wrongfully and
unlawfully assault Thipa Motoboli by hitting him and stabbing him
with a knife
with the intention of causing him grievous bodily harm.
Appellant had pleaded not guilty but on being found guilty had been
to 3 years imprisonment.
Before this court Mr. Fantsi for the appellant had
abandoned the appeal against conviction and challenged the sentence
which he claimed
to be not consistent with the offence committed and
in the circumstances arousing a sense of shock.
He pointed out that this was a family matter the
altercation and attendant injuries having flowed from strained
the complainant and the appellant who was
son-in-law. That the fact that the complainant had
taken away appellant's wife and the children exarcebated the
submitted Mr. Fantsi amounted to provocation and
is a factor which the Magistrate along with other factors should have
account in sentencing the appellant. Moreover. Mr.
Fantsi submitted that although it was alleged dogs were set on the
medical evidence had not shown there were dog bites.
The sentence was justified if the complainant had sustained permanent
or was defaced but these were not borne out by medical
Mr. Ramafole for the Crown contended that the court can
only interfere with sentence if particular reasons had been advanced.
that a son-in-law assaulting his father-in-law was in
itself so degrading that this, in itself, called for harsh sentence.
dogs had injured the complainant or not this was immaterial
in that setting dogs on a person is so degrading as to amount to an
circumstance; and even if it were to be said that
injuries on the complainant were not so serious, the act of the
with the fact that complainant spent a number of
days in hospital and was not treated as an outpatient merited
which the Magistrate imposed.
The difficulty, so went on Mr. Ramafole, was while there
was nothing wrong with the sentence it is not clear why the learned
did not give the appellant an option of a fine given the
person and circumstances of the appellant and that if the
learned Magistrate had used his discretion -judiciously
he would at least have given the appellant an alternative of a fine.
The reason appellant was sentenced to 3 years
imprisonment seem to be. from the point of view of the learned
"Accused was the aggressor as he went out of his
way to assault complainant a relatively elderly man and unleashed
doge at him
and at the same time swearing at him. The dogs bit him
and tore his trousers and accused hit and knocked him down. Lying on
ground helpless like that accused continued to hit him with the
stick and stabbed him. Even though the medical report does not
multiple injuries I am convinced beyond doubt that the manner
in which complainant was assaulted is indicative of the fact that
had the necessary intent to cause complainant grievous bodily
Nobody has any quarrel with the finding of the court a
quo but nowhere did the complainant say that dogs bit him. All that
said was he
unleased dogs on me which even tore my pair of trousers.
The court a quo was also disturbed by the fact that the
appellant insulted the complainant and taking the fact that dogs had
complainant and appellant had insulted complainant found the
cumulative effect of these circumstances so great that he imposed a
sentence of 3 years imprisonment. If the learned Magistrate had been
right there would perhaps be nothing wrong with his sentence.
here again although P.W.I the complainant did say that appellant
insulted him, what appears in
the original transcript is he insulted me with my
mother, he said "ngoan'a 'mao". The original script and
script is the same. Significantly, the Magistrate
did not say P.W.I said appellant insulted him by his mother's private
he said he insulted me with my mother, namely: 'ngoan'a mao:'
with respect this is not an insult and to say it is is stretching the
language too far. If perhaps the learned Magistrate was at odds with
the spelling, he could have translated the insult as is normally
Medical evidence disclosed that injuries were caused by
a stab would in which a 'sharp object' was used; injuries were not
to life and were 'minor limited.'
I do not think that in arriving at a sentence it is
right for the court to ignore medical evidence for this kind of
evidence is adverted
to in order to establish injuries caused and
their nature. When, however, there is no medical evidence the court
is at large and
is entitled to listen to the testimony of witnesses
as to the injuries caused and their nature. I may add that medical
guards against exaggerations to which some witnesses
may be prone.
In passing sentence the court recorded that it had taken
into account the following factors:
(a) accused had no previous convictions
(b) accused and complainant are son-in-law and
5 (c) accused's personal circumstances.
I doubt if the learned Magistrate had taken above
factors into account he would have passed a sentence of 3 years
it is. I am saying this because although Mr. Fantsi
for the appellant abandoned the appeal on conviction, there was
D.W.3 that a knife had been wrested from P.W.1 showing,
in my view, that there was fighting between P.W.1 and the appellant
the appellant to defend himself.
This evidence favoured the apppellant and the learned
Magistrate should not have ignored it and should have at least taken
account for purposes of mitigation i.e. that the appellant
was provoked into having to defend himself against his own
I do not agree that the appellant was the aggressor for
evidence showed that it was on appellant accosting P.W.1 about the
of his wife and children that fighting erupted. I do not
approve of parents being cause of conflict and separation between
married couples. In my view P.W.1 had no business whatsoever
in keeping appellant's wife and children away from the Appellant
and this, in itself, was highly provocative and likely to ignite
emotions at any time especially in view of the fact that appellant
had appealed for release of his wife and children to the complainant
and chiefs all in vain. These are personal circumstances of
Magistrate spoke of and had he taken them into account would not have
resulted in the sentence passed by the learned Magistrate.
6 In S. v. Mokaloba En Andre, 1964(1) S.A. 697(0) it
The courts of appeal should only interfere with a
sentence of a lower court on the ground that it induces a sense of
shock where there
exists a real and substantial difference between
their opinion as to what is a proper sentence and that of the lower
this is without doubt the case it is the duty of the
court of appeal to interfere.
There is also the question of Medical evidence which,
according to the learned trial Magistrate's judgment showed the
not dangerous to life. This is a factor which the
court a quo should have taken into account in imposing the sentence.
I arrive at the conclusion that the sentence which the
learned Magistrate imposed is not the only sentence which could have
imposed if the learned Magistrate had taken all the
factors in favour of the appellant into account.
Accordingly the appeal on sentence succeeds but to the
extend that the sentence of 3 years imprisonment is set aside and
therewith with a sentence of payment by appellant M200-00
(Two Hundred Maloti) in default thereof 3 years imprisonment.
JUDGE 9th November. 1995
For th Appellant: Mr. Fantsi For the Crown: Mr.
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