CRI/T/2/2001 IN THE HIGH COURT OF LESOTHO
In the matter between:-
vs TLOTLISO POLAKI
Delivered by the Honourable Mrs. Justice K. Guni On 1st
Day of October, 2001
The accused in this case, is charged with the crime of
ASSAULT WITH INTENT TO DO GRIEVOUS BODILY HARM. It is alleged that on
14th of July 2000 and at or near THE MASERU MAGISTRATES
COURT premises in the district of MASERU, the accused did unlawfully
SETSABI by biting her and inflicting upon her certain
injuries reflected in the medical
reports, with the intention of causing her grievous
The essential elements of the offence charged, are that
(a) there must be an assault, (b) committed with intent to do
harm. SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE,
VOL.11 (Common Law Crimes) THIRD EDITION By JRL MILTON page 432.
The crown led evidence from six witnesses. The facts as
appear from the evidence of these witnesses are as follows: The
may be divided into three episodes. The first episode
happened in the privacy of the complainant's office. During the lunch
between one and two o'clock in the afternoon of the day in
question, the complainant was in the PROBATION OFFICE. She was in the
company of TSEPISO MAJORO, SEITHATI MOTSAMAI AND LIEKETSENG. They
were having lunch therein when
they heard a knock at the door. The person knocking at
the door was invited in. The door opened and the accused entered.
greeting the occupants of the office she had just
entered, the accused looking at the complainant, and obviously
addressing her said,
"I have come to your office". The
complainant, who was looking down at that moment lifted her head and
noticing that the
accused is talking to her, she consulted her watch
and replied, " I am still having my lunch" or it is still
or words to that effect.
The accused went on to explain to the complainant, that
she has not come on official business. The complainant got up from
The two, (complainant followed by the accused) left the
PROBATION OFFICE for the complainant's office. On arrival at the
office, complainant went round her desk. She pulled out
her chair and sat down. She offered the accused a chair. The accused
the offer and remained standing right infront of the
complainant, on the opposite site of her desk.
The accused told the complainant she has the information
that the complainant insulted her husband (accused's husband) when
to Dominic to cleanse her family's name. The complainant
asked the accused who told her that. The accused pointed out to the
that, that is not the issue. But nevertheless she named
the person who told her as one Dominic. The complainant admitted that
did talk to this Dominic but she denied ever insulting the
accused's husband during their discussion. The accused quoted the
allegedly used by the complainant as "le Polaki oa satane
o na le teng ha koranda li ngoloa - translated -even the satan Polaki
was present when the newspaper was written or published" or
words to that effect.
According to the accused this Dominic is related to her
husband. She indicated to the complainant, that
because of that relationship, she could not understand
why Dominic would lie. In response to this intimation the complainant
from the accused, if she then suspects that the complainant
is a liar. This was answered in the affirmative. This being the case,
the complainant pointed out to the accused that she could therefore
not convince her. The best they could do is to confront this
together (that is, the accused and the complainant).
The accused said to the complainant that they are not
the same and they will never ever be alike in their lives. With this
the complainant agreed completely. The accused went on to
say that the complainant is "sekatana" translated
whereupon the complainant exclaimed, "'na
? sekatana? translated me? worthless?" The accused answered in
The complainant laughed. She turned her head away from
facing the accused and looked outside through the window behind her
laughed. May be this gesture talked louder than any word that
was ever uttered by the complainant at this point. May be the accused
felt ridiculed. Her temper apparently snapped.
When the accused arrived at the PROBATION OFFICE earlier
on that afternoon, when she called the complainant to her office she
a 135ml bottle of Guava juice in her hand. She was still holding
it as they talked in the complainant's office. When the complainant
returned her face to look at the accused, she saw that bottle of
guava juice come flying towards her face. She raised her hands to
shield her face. The bottle hit her on the hand and fell. The juice
was splashed on the complainant overcoat, papers on her desk
wall behind her. As she threw that bottle at the complainant the
accused said, "uena satane tooe ea letekatse-translated-you
The complainant said she was caught off guard. She
hardly expected this sort of thing to happen. I should have mentioned
that these two people are magistrates. They work as such
on those Maseru Magistrates Court premises. The complainant said she
so shocked that it took some moments to gather herself. When she
did come round she asked, "Tlotliso u etsang? - translated
what are you doing".
The accused came round the desk towards the complainant.
There was a punch on the desk. She tried to pick it up and hurl it
the complainant, as she moved closer towards her but it fell
in the process. The accused picked it up again. This time she had
closer to the complainant. She attempted hitting the
complainant on the face with it. The complainant had by then grabbed
the accused's hand that was armed with the punch. The punch
fell down once again. The complained picked up the telephone and
to make a
call. She said she intended calling the Probation
Officers next door. The accused rushed to the complainant and grabbed
from the complainant. She tried to hit her with that
telephone. It fell. She picked it up again. This time she succeeded
to hit the
complainant with that telephone set on the chest just
below her breast.
During all this fighting the complainant kept asking the
accused, "Tlotliso, what are you doing?" repeatedly. The
told the court that she told the accused that she is
aware this accused want a fight but she will not give her a fight.
ran towards the door. The accused who was still
holding on to the complainant's hair ran along with her towards the
door. The complainant
got hold of the door handle and turned it to
open the door. The accused pushed shut that door and got hold of the
lock and tried
to turn it in order to lock it. The struggle ensued.
This struggle for the possession and control of the door went on for
sometime. The complainant was trying to open it and the
accused was trying to shut it.
While they fought to open and close that door the
complaint saw and/or felt the accused take a bite at her left cheek,
complainant has sustained an open wound on the cheek as a
result. The evidence of Dr.Maitin who testified at this trial is to
effect that that cut could have been made by teeth or nails. The
counsel for the defence put it to the complainant and the Dr. that
the accused will say she caught with her nails the complainants'
cheek when she tried to grab the complainant's hair. The complainant
claims that because she has such an oily skin on her face, the
accused could not manage to grab hold of the flesh on her cheek. Her
teeth slipped. While the struggle went on, somehow the complainant
succeeded to open the door and ran out. As she ran back to the
PROBATION OFFICE, she heard the accused say, "Tsoa ka hara lapa
laka you bastard"- translated, - "Get out of my family
leave my family affairs you bastard!" or words to
The complainant looked back and saw the accused threw an
object at her. This object was the stapler. She lifted her overcoat
her head and quickly shut the door behind her, immediately
after she re-entered into the PROBATION OFFICE. There was a loud bang
"Qhuu" as the stapler smashed on that door and fell down.
While on her way to take a seat, the complainant said, "Batho
Molimo! Motho ke enoa a ntoantsa! Ha ke tsebe hobaneng. Ho 'me nkeke
ka mo loantsa." Translated. People, here is someone
I do not know why. But I will not fight back". One of those
probation officers therein asked, "what?"
astonishment. The complainant replied, "Tlotliso is fighting
me!" The complainant sat for a few moments. She
got up again.
This time Tsepiso and Seithati ((PW4 & 5) went out. The
complainant followed them.
The accused was standing outside the complainant's
office. PW4, 5 and the complainant went there. On their arrival PW4
is the matter?" The question was directed to
both the complainant and the accused. PW4 was pulling away from the
office this accused. The accused was pulling herself
away from PW4 who asked her "what are you doing?" Then the
replied, "let me beat up or assault this prostitute."
The accused succeeded to break free from PW4 and got to the
whom she started assaulting by hitting her with fists.
Seithati went between the accused and the complainant.
PW4 got hold of the accused by her waist and dragged her away from
Seithati and Tsepiso escorted the accused away from
the complainant's office. They pleaded with the accused to go to her
As I mentioned earlier on the accused and the complainant
work as magistrate on these premises. The accused's office is
complainant's office, one can get to the accused's
office upstairs by using a lift or a staircase. PW4 and 5 were
escorting the accused
in that direction, towards the lifts or
staircase. The accused seems to suggest that she went to her office
on her own volution and
without an escort. While proceeding thus to
her office, the accused indicated to PW4 & 5 that she was going
back to the complainant's
office to fetch her hat. PW4 suggested to
her that PW5 will go and collect it on her behalf. The accused
insisted that she was going
herself. She broke free from PW4's grip
and returned to the complainant's office.
Meanwhile, the complainant had come to her desk and had
sat down. She saw hanging from the open middle drawer of her desk,
hat. At the time she rushed to the telephone to call
the Probation Office and eventually ran out of her office after
the accused, that hat was not there. I may just
venture a suposition here, that this hat may
have fallen there during the struggle for the possession
of the punch and the telephone set. This appears to be the only time
the accused according to the evidence was on that side of the
As the accused re-entered the complainant's office, she
said, "NIKIWE! give me my hat!" The complainant replied
is evidence. As the accused came round the complainant's
desk, the complainant stood up. PW4 & 5 were coming behind the
in hot pursuit. Lieketseng was also present in that office
this time and was the first person to go between the complainant and
accused as the accused attacked the complainant.
This hat which was hanging on the open drawer was not
within sight of PW4, 5 and perhaps Lieketseng who were on the other
the complainant's desk. It was put to the complainant that
she attacked the accused when she returned to retrieve her hat. The
denied that accusation. She pointed out that the accused
did not attempt to pick up her hat which was still
hanging on that open drawer. But she straightaway launched both
physical and verbal
attack upon the complainant after demanding her
hat from her.
Those present in that office at the time also saw the
accused hit the complainant with the fist and the altercation ensuing
Lieketseng went between the accused and the complainant
and started to push them apart. The complainant retreated. The
advancing and hitting the complainant. The attempt by
Lieketseng to keep the accused and the complainant apart was not
The accused was seen taking a bite at the complainant's
forearm. The complainant tried to push the accused away from her
by pushing at the accused's forehead. That attempt failed.
The complainant with her left hand tried to remove the accused's head
from her right forearm by pulling the accused by her hair. PW5 tried
to pull the accused away by her hand. According to the
complainant the accused
tightened her grip with her teeth on the complainant's
flesh. The complainant was in pain. She kept crying,
As the complainant cried out and pleading with the
accused not to bite her, PW5 grabbed the accused by her waist and
dragged her away
from the complainant. This time the accused let go
with her teeth and spat out. After they had been successfully
separated the accused
bend down and picked up her hat. The
complainant said to the accused, that was her evidence. The accused
replied "To hell with
your evidence". And she left with her
hat. But on her way out of the complainant's office, the accused said
she had not yet
finished with the complainant.
After retrieving her hat, the accused without much
difficulty left for her own office. The medical evidence by Dr.
Maitin showed this
court that the complainant has sustained the
Puncture wound middle of left cheek withsurrounding
induration due to infection.
Ragged laceration lower end of the rightforearm.
This wound measures 3x4cm withsurrounding induration due to
Sprain of the left thumb.
Tender bruise volar aspect of the right handmeasuring
Marked tenderness of the 9th 10th
and 11th ribsdue to bruising.
Moderate tenderness of the left shoulder due
tobruising -movement very tender.
Loss of hair on top of the skull.
At the close of the crown case, counsel for the accused
indicated that he intends to make an application for the discharge of
accused. This application is made in terms of Section 175 (3)
CRIMINAL PROCEDURE AND EVIDENCE ACT
NO.9 of 1981. It provide, "(3) if, at the close
ofthe case for the prosecution, the court considersthat there
is no evidence that the accusedcommitted the offence charged or
any other offenceof which he might be convicted thereon, the
courtmay return a verdict of not guilty". (my underlining)
This section merely empowers the court to consider
returning the verdict of not guilty at this stage of the trial in the
first of all there is no evidence, placed before that
court, on which the accused might be convicted of the offence charged
be found guilty of any competent verdict under this
particular charge. There is therefore a further requirement placed
court by this section to examine carefully, the evidence
led before it and satisfy itself that there is no evidence on which
accused could be convicted of the office charged or
any other offence under the same charge. In this
particular case before me. I am required in terms of the said
section, to examine
carefully the evidence before me and determined
in the light thereof, whether or not the accused might be convicted
of the offence
charged that of Assault WITH INTENT TO DO GRIEVOUS
BODILY HARM or ASSAULT COMMON .
There is evidence before this court which, if believed,
might result in the conviction of the accused on the offence charged.
court is urged not to believe that evidence. The defence counsel
has submitted, that evidence led by the prosecution on the whole
so incredible, that it is not worthy of the court's consideration.
R.V. MATETE and Others 1977 LLR page 262 was cited as authority
the above submission. In this case MOFOKENG J. (as he then was)
decided that the crown has failed (1) to adduced prima facie
the elements it set out in the indicament and (2) in
addition the evidence that the crown has adduced is "so
patently unworthy of credit that a reasonable man acting carefully
not convict. (see page 281 R.V. MATETE Supra) (my underlining
and numbering to highlight the salient point decided in that case).
There was no evidence, that established a prima facie
case against the accused in MATETE'S case. Coupled with the absence
facie evidence, was the existence of evidence before that
court that was so patently unworthy of credit that a reasonable man,
carefully might not convict. Furthermore, that evidence did
not disclose the commission of any other offence, of which the
might be convicted. Pursuant to those findings, the court was
entitled to discharge the accused at the close of the prosecution
There is no law that obliges the court to
accused at the close of the prosecution case. Rex.
V.THOBALA 1981 (2) LLR363. On that authority of Rex. V.Matete
(Supra), it is clear
that the evidence adduced by the prosecution
must be essentially beyond criticism.
In our present case the proper analysis of the
prosecution evidence, makes the criticism of its worth unjustified.
For example; the
evidence of the police office PW2, who is the
Investigating Officer of the case, showed this court that the papers
and books were
scattered on the desk and the floor in the
complainant's office. This police officer visited the scene of the
alleged crime (4) four
days after the alleged assault had occurred.
The defence seemingly entertained the possibility of interference
with the scene of
the crime during the interviewing period before the
Investigating Officer inspected it. The doubt should have been put to
evidence of this witness to the effect that he
gave specific instructions to the complainant, not to
enter her office before it was inspected by him. In her evidence the
testified to the effect that she obeyed those
instructions issued to her by the police office.
While PW3, the complainant, gave evidence, it was put to
her that she deliberately shuffled the papers and books on her desk.
put to her that she was annoyed by the accused when she (the
accused) pointed out to her that she believes Dominic - the informer
who allegedly informed the accused that the complainant insulted her
husband. It was put to the complainant that she started shuffling
papers and books on her desk as she expressly promised to bring a
disaster upon the accused. The defence counsel seemed to suggest
the complainant deliberately scattered those papers and books on her
desk and floor of her office.
From these suggestions to the crown witnesses, the
defence may seem to admit, in an oblique way, that the scene of the
complainant's office), appeared as if it had been hit
by a mini earthquake or severe whirlwind. The splashes of that pink
on the coat and wall of the complainant's office, were
according to both the complainant's and the defence counsel from that
ml bottle of guava juice which the accused was holding in her
hand when she arrived at the PROBATION Office that afternoon, when
she called the complainant to her office. The complainant told the
court that the accused threw that bottle with content at her face.
The suggestion made by the defence counsel is to the effect that the
complainant is the one who threw that bottle at the accused.
The medical report from Queen Elizabeth II Hospital by
Dr. Marina Punnen was produced by
consent of the parties.The injuries sustained by the
complainant are described in this report as "Laceration on the
and dorsum of the right forearm". The other medical
report was made by Dr. Maitin. It was also produced by the said Dr.
this court. The injuries are descried therein as (i) Puncture
wound middle of the left cheek.
(ii) Ragged laceration lower case of the right forearm.
(iii) Loss of hair causing mopecia areata.
The accused does not deny causing the injuries described
in the two medical reports, produced before this court. The challenge
made as regards what was used to cause the open wound on the
complainant's left cheek. It was put to both the complainant and Dr.
Maitin under cross-examination, that it was the accused's nails or
nail, not teeth, which caused the open wound in the complainant's
left cheek. The accused has admitted
causing that injury. It is not very material whether it
was by nail or teeth.
As the complainant was about to re-enter the PROBATION
OFFICE, she saw the accused threw the stapler at her. She thought she
to be hit on the head. She raised her overcoat to cover her
head. She also closed the door behind her immediately after making
entry. That stapler hit the door and fell down. The accused admit
throwing the stapler but not with intent to assault the complainant.
It is claimed on her behalf that she threw the stapler in frustration
when the complainant left her behind. Those in the
PROBATION OFFICE testified, that they head the bang and
saw the stapler fall. The complainant was seen re-entering that
her head covered with her overcoat.
It is an essential element of the crime of Assault with
intent to cause grievous Bodily Harm that, there should be an
crime of assault has in turn its essential elements.
Amongst which there must be an inspiration of apprehension of fear
is about to be applied upon the victim's person. The
actions taken by the complainant in order to protect her head are
of her inspiration of apprehension of imminant application
of force upon her person.
It is the complainant's evidence that she felt pain and
she tried her level best to remove the accused's head by pulling it
hair from her forearm. The accused seems to claim a right to
bite the complainant who she accused of being in her way and
her from retrieving her hat. The complainant did not have
in her hands the accused's hat. It was hanging on the open drawer of
complainant's desk. This is perhaps where it
fell during the previous scuffles between the parties. I
do not accept that the accused had a right to bite her as a way to
her hat under any circumstances.
There is evidence before this court on which the accused
might be convicted on this charge. The prosecution has succeeded to
a prima facie case for this accused to answer. There might
be some minor discrepencies as the various witnesses observed
things or paid their attention on different aspects. This
was a fight and an allowance must be made for witnesses to miss out
some aspects. On the main the crown witnesses corroborated each
other's evidence on all material and relevant respects.
This application for discharge of the accused must
fail. It is therefore dismissed.
JUDGE 1st OCTOBER, 01
For Crown: Mr. Lenono For Defence: Ms. Teele
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