CRI/A/37/95

IN THE
HIGH COURT OF LESOTHO

In matter
between:

WANDA
PHEKO Appellant

vs

REX

JUDGMENT

Delivered
by the Honourable Chief Justice, Mr Justice J.L. Kheola on the 2nd
day of June. 2000

The
appeal was heard on the 25th February, 1996. Judgement was reserved.
It seems that the file was removed from my desk and filed away. The
appellant never reminded the Registrar that the judgment of his
appeal was reserved. Unfortunately his attorney, the late Mr. Pheko
passed away in 1998 before he made any inquiries about this appeal.
It was only after four years after the appeal was heard that the
appellant approached the office of the Registrar and made inquiries
about his appeal and its judgment that a diligent search was made and
it was found. I am sorry that the file was removed from my desk
before I wrote the reasons for judgment. I had forgotten all about
it.

2

The
appellant was charged with two counts of assault with intent to do
grievous bodily harm. He was found guilty on both counts and
sentenced to pay R100 or three months' imprisonment on each count;
sentences were to run consecutively. The appeal is against both
convictions and sentences.

The
appellant is the husband of 'Matsepang Pheko who was P.W.1 at the
trial. At the relevant time she was estranged from the appellant
under the custom of "ngala". Under that custom the husband
and wife live separately while their parents are trying to reconcile
them. The wife is usually expected to live at her maiden home while
the negotiations are still going on.

P. W.2
Bernard Moeletsi is the second victim of assault by the appellant. He
worked with P.W. 1 at Metro Wholesalers in Mohale's Hoek. He owned a
motor vehicle which could be hired by people to transport their
goods. On the 10th January, 1995 P.W.I hired P.W.2's vehicle to
transport her goods from the place where she lived during her
separation from her husband. They picked up the goods and P.W.l's
children. As P.W.2 was driving along the road the appellant suddenly
blocked the road with his motor vehicle and forced P.W.2 to stop his
vehicle.

3

P.W. 1
testified that as soon as their vehicle stopped the appellant got out
of his vehicle and approached them on the driver's side. He pulled
out a gun and pointed it at P.W.2 and insulted him. He then asked
P.W.2 if he was the one who had been running about with his wife.
P.W.2 replied that it was P.W.I who had asked for transport. The
appellant did not heed the answer but came to the driver' s door and
tried to open it by force. P.W.2 resisted this move. The two men
struggled over the door for some time without any success to have it
opened. Realising that the door could not be opened the appellant
picked up stones and hit the two occupants of the car with them. He
hit them through the open window.

P.W. 1
says that she decided to get out of the vehicle because it was clear
that her children who were in the vehicle with her would sustain
injuries. As soon as she got out the appellant hit her with fists on
the face, he kicked her all over the body and also hit her with
stones. After he had satisfied himself he ordered her to return to
the place where she came from and to stay there. P.W.I says that
after that she left everything in the car and slept at the home of
'Mabrown that night. On the following day she reported the matter to
the police. She was given a medical form and was examined by a
doctor.

According
to the medical report which is Exhibit "A" P.W.I had a

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periorisital
swelling on the right eye and subdural haemorrhage, bruised chest
wall posteriorly. Abrasion right knee.

The
evidence of P.W.2 is substantially the same with that of P.W.I. He
testified that on the day in question P.W. 1 asked him to transport
her goods from Qalakhoeng to a place where she was then going to stay
during her separation with her husband. After picking up the goods
and driving through Qalakheng P.W.2 says that he saw appellant's car
blocking their way. The appellant got out of his car and approached
P.W.2's car. When he came to him (P.W.2) he accused him of breaking
up his marriage and insulted him. He failed to drag P.W.2 out of the
car. He then pointed at him with a gun but immediately put it back
into his pocket and hit P.W.2 with stones. The window on the driver's
side was open. He hit P.W.2 on the ribs several times with stones.
P.W.2's right arm and wrist were injured. It was only after P.W. 1
had got out of the car that P.W.2 managed to get through the
passenger's door and tried to run away. He saw when the appellant
assaulted P.W.I outside the car. After assaulting P.W.I he went
toP.W.2's car and removed all the goods of P.W.I and put them in his
own car and drove away.

P.W.2
then got a chance to go back to his car and found that it had been
slightly damaged.

5

According to medical evidence (Ex. "B") P.W.2 had the
following injuries.

Bruised
chest wall Right lateral. Swollen Right wrist.

The
version of the appellant is more or less the same with the evidence
of P.W. 1 and P.W.2. He denies that he insulted P.W.2 and pointed a
gun at him. He says that there were many people who witnessed his
fight with P.W.1 and P.W.2. His long story relates to his quarrels
with his wife (P.W.I) before the date of the assault in question. His
wife had run away (ngalaed) from him on several occasions. It is
common cause that during those earlier quarrels or misunderstandings
his wife ran away without having been assaulted by him. His story
about their struggle over the car door is that it was P.W.2 who was
furious and wanted to get out and assault him. After the struggle
over the door P.W.I opened the passenger's door and went out. P.W.2
followed her through the same door.

The
appellant says that after P.W.2 had come out of the car he came to
him and tried to hit him with a fist. He (appellant) warded off that
blow. He then hit P.W.2 with a fist on the right side under the
armpit, P.W.2 felldown while he was fighting with P.W.2, P.W.I hit
him on the back with fist and pulled his clothes. When he turned he
kicked P.W. 1 and hit her with a fist. She stumbled and went

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away.

The first
question put to the appellant by the public prosecutor was this:

Q: Do
you agree that you assaulted the two (2) complaints?

A: Yes.
It's true.

It seems
to me that the appellant's answer settles the whole dispute between
the parties. In other words the appellant admitted that he had
committed the crime of assault. The medical reports of P.W.1 and P.
W.2 clearly shows that the injuries were serious and are consistent
with the use of dangerous weapons such as stones. The appellant is
not telling the truth that he hit P. W.2 below the armpit only once.
He had several other injuries which were seen by the doctor. He is
again not telling the truth that he hit P. W. 1 with a fist only
once. She then stumbled and ran away. She also had several other
injuries.

The first
ground of appeal is that the learned magistrate erred and/or
misdirected herself in law in not approaching the evidence of P.W.I
and P.W.2 with caution in the circumstances of this case. There is no
merit at all in this ground. The complainants were not accomplices
and gave their evidence in the most straightforward manner that there
was no reason to suspect that their

7

evidence
was false. In fact the appellant has admitted that he assaulted the
complainants.

The
second ground of appeal is that the learned magistrate erred
or/misdirected herself in not holding that the appellant was acting
in self-defence and under extreme provocation. The appellant was not
acting in self-defence. He attacked the complainants in a car and hit
P.W.2 with stones while he was still in the car. He went to P.W.2's
car and attacked him with stones. P.W.2 only came out of the car
through the passengers' door and ran away. He never attacked the
appellant who was the aggressor from the beginning of the encounter
to the end.

The third
ground is that the judgment is not supported by evidence. There is no
merit in this ground of appeal. The evidence of the attack of the
complainants by the appellant is overwhelming and is corroborated by
medical evidence which shows that the complainants had fairly serious
injuries.

The
fourth ground is that in the light of the medical evidence the
sentence passed therein raises a sense of shock. I do not agree with
this ground. Parts of the bodies of complainants were bruised and the
eye of one of them was swollen and there was subdural haemorrhage. I
am of the view that the sentence was on

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the
lenient side.

For the
reasons stated above the appeal is dismissed.

J.L.
kheola

chief
justice

2nd JUNE,
2000