CRI/A/61/91 IN THE HIGH COURT OF LESOTHO
In the matter between:
PAKI MOAKI APPELLANT
V.R E X RESPONDENT
Delivered by the Honourable Mr. Justice G.N. Mofolo on
the 24th day of November, 1995.
In this appeal the appellant has appealed against both
the conviction and sentence wherein he was charged of Common Assault
"wrongfully and unlawfully assaulted one Mothepane
Nkhi by punching her with fists and kicking her with shoes on the
He was found guilty in the Magistrate's Court for the
District of Butha-Buthe and sentenced to pay M1,000-00 or undergo
months imprisonment. As I have said, it is against both
the conviction and sentence that he has appealed to this court.
In the court a quo the complainant Mothepane Nkhi gave
evidence to the effect that on 16 June. 1991 returning from church
at So-Go Supermarket to buy. One of the Chinese running
the shop had called another and told him that the complainant was a
Tax lady. Another Chinaman had then asked her why she had
gone to Maseru and that they had said the
Chinaman was to pay Sales Tax where he buys if he did
not have a number. Complainant had admitted that she worked for
but that on this occasion she wasn't on duty and merely
came to buy.
When the Chinaman invited the complainant for a chat the
latter had declined the invitation but the Chinaman had dragged her
her face: they were next to the appellant's residence.
The complainant went on to say that the Chinaman was
accused 2 at the trial. Accused 2 had then dragged complainant to
was. Appellant had then emerged out of the door and
accused 2 had pushed complainant towards appellant whereupon
appellant had punched
complainant in her face accompanying this with
an insult namely: your mother's vagina, your mother's anus, you
devil, civil servant
- police - soldier - you are the ones who steal
from the Chinese in Maseru and as he insulted the complainant he was
wish fists and kicking her with his shoes the while she
Appellant while beating up the complainant asked for a
gun to shoot this dog dead. She had freed herself and left her
jersey and hymn book behind. She had then reported the
incident at the police charge office in Butha-Buthe. At the charge
had been given a medical form to consult a doctor. Her
3 lip was swollen, she had a swelling on the right
side of her face and on the jaw - her clothing had been soiled and
she was in pain
all over her body.
In cross-examination several suggestions had been made
against the complainant that she went to the Chinaman to claim Sales
if it was not paid she had threatened to close the Chinaman's
business. In cross-examination and before this court it was suggested
appellant was roused from his bed and he had pushed complainant out
of his house.
P.W.2 who had been with P.W.1 from church supported
P.W.1 in all material respects including the fact that people who had
as appellant continued beating up complainant refused to
" Accused 1 (appellant) was a dangerous person and
none of us although so many could come to P.W.1's rescue."
That the people at the time assembled dared not get
closer to accused 1's (appellant) yard as he could insult and fight
P.W.2 referred to a man who asked accused 1 what he was
doing to the child and to leave the child alone to which accused
an expletive to the effect: your mother's vagina -go out
of my yard - I will shoot you.
P.W.3 Manor Monyane had also given evidence to the
that accused 1 (appellant) mentioned he had beaten
complainant because she was bad mannered.
P.W.4 gave evidence to the effect that accused 1 had
been holding complainant who was in tears and inquiring what was
1 had told him to vacate his premises and he had
P.W.5 gave evidence to the effect that at accused 1's
premises he had found complainant's jersey and hymn book which
accused 1 refused
Medical evidence had been handed in and showed bruises
to the upper lip, slight bruise left side face. The degree of force
to be moderate.
Appellant had given evidence in his defence stating,
amongst other things, that accused 2 on arrival with the complainant
had asked accused 2 what the matter was and the latter
had said complainant wanted Sales Tax money and he had told the
that as it was a Sunday Sales Tax could not be collected.
Appellant went on to say that in reply to his question complainant
said that appellant had built many shops which he had rented to
foreigners who did not pay tax and that he (appellant) made money
of these foreigners. He had been infuriated by complainant's
assertion and pushed her out of the door.
What I find very strange is that none of the Crown
witnesses present when appellant assaulted complainant or pushed her
out as he
said supported the appellant in this regard. If what
appellant is saying is true. I also find it odd that when he was
asked by some
witnesses what he was doing to complainant he did not
tell them that complainant was trying to exact Sales Tax from accused
In any event, the learned Magistrate did not believe
appellant's story and on appeal I was not shown that as to the
court a quo had in any way was misdirected itself. For
the sake of clarity. I must state that at the trial two people had
of assault namely: the appellant and one Chang Jiann
Jong and that both had been convicted and sentenced, I was informed
counsel that only appellant's appeal remained to be
determined as Jong (who was accused 2 at the trial) had been
At the trial appellant was claimed to be 73 years old
and counsel for the appellant urged this court for purposes of
if the conviction was confirmed, to seriously consider
the age of the appellant.
Ordinarily, the age of an accused is a factor that
courts have to consider and having regard to the fact that appellant
had a previous
conviction it is probable that the court a quo
the acre of the appellant. As for me. appellant in evidence was
shown to be a man of bad reputation. As MR. RAMAFOLE
for the Crown
submitted, the sentence was lenient considering the degrading and
humiliating manner in which the complainant was treated.
and unmitigated fashion in which complainant was abused and assaulted
by a man of 73 years shows to what low levels some
old, can descent to sometimes. The fact that the trauma,
humiliation and indignity visited on the complainant was
by an old
man of over 70 years will and is bound to trouble complainant's mind
for the natural term of her life.
For me, appellant is lucky that there was no application
the increase of sentence seeing that appellant behaves
like an adolescent.
As was said by Innes C.J. in R. v. MAPUMULO and OTHERS,
1920 A.D. 56 at p.57 :
"The infliction of punishment is pre-eminently a
matter for the discretion of the trial court. When a trial court
gives a decision
on a matter entrusted to its discretion, a court of
appeal can interfere only if the decision is vitiated by irregularity
or is one to which no court could reasonably have
come - in other words, if a judicial discretion was not exercised."
Observations and strictures reminiscent of the present
appeal are to be found in REX v JONES. 1952(1) S.A. 327(E.) where it
He ought to be deterred from laying hands on women; and
he ought to be made to realise that a sjambok can be an instrument of
While I do not think that the sentence imposed on the
appellant is salutary enough to deter him from laying hands on women
I have formed the opinion that no impelling cause arises
to interfere with the sentence imposed by the learned magistrate.
Accordingly the appeal is dismissed and both the
conviction and sentence are confirmed.
JUDGE 24th November. 1995.
For the appellant: Mr. Lehana For the Crown:
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