CRI
/A/67/86

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

LAMINA
JABBIE Appellant

v.

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 9th August, 1988.

The
appellant appeared before the magistrate court of Maseru charged with
contravening S.75(1) of the Subordinate Courts Proclamation
No. 58 of
1938, it being alleged that on or about 12th November, 1984 and at or
near Moshoeshoe II in the district of Maseru he
unlawfully obstructed
the messengers of court in the execution of their duty. He pleaded
not guilty but was, at the close of the
trial, found guilty as
charged and sentenced to M30 or two (2) months imprisonment, the
whole of which was suspended for one (1)
year on conditions.

The
appeal la against the conviction only, on a long list of grounds
which can, however, be summed up in that it cannot be supported
by
the evidence,

In as far
as it is relevant the evidence la that at about 12.45 p.m. on 12th
November, 1984 three (3) messengers of the court viz.
Lemena, Peleha
and Nqosa

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proceeded
to appellant's house, at the village of Moahoeshoe II in Maseru, to
execute writs that had been issued against the appellant.
Although
the appellant denied that when they called at his home on the day in
question the messengers were going to execute writs
against him, all
the three (3) messengers gave evidence on oath and told the trial
court that they did.

In my
view the evidence was simply overwhilming against the appellant on
this point. I find nothing un­reasonable, therefore,
in the trial
magistrate accepting as he did, the evidence of the messengers and
rejecting that of the appellant.

It is not
disputed that when they went to appel­lant's house at Moshoeshoe
II the messengers were travelling in two vehicles,
one driven by
Lemena and the other by Peleha. They parked their vehicles outside
the appellant'a yard and entered the premises.

According
to the messengers as they walked towards his house the appellant came
out of the house and angrily hurled insults at them.
He returned into
the house from which he reappeared holding a firearm. It could have
been a pistol or a revolver. He ordered them
out of the premises. The
messengers complied and returned to their vehicles.

As Lemena
was starting the engine of his vehicle the appellant came, grabbed
and forcibly removed the

3

ignition
key from the ignition hole. Asked by Lemena as to what he was doing
the appellant told him that he wanted to make sure
that he did not
move away before he had done what he intended doing. Hewing taken the
ignition key of Lemena's vehicle, the appellant
then walked to Peleha
who was standing next to his vehicle. He tried to grab the ignition
key of Pelcha's vehicle but the latter
refused and put the key into
his pocket. The appellant tried to hit Peleha a blow with a fist but
Lemena and Nqosa stopped it by
stepping in between the two men.

The three
messengers then tried unsuccessfully. to convince the appellant that
he was wrong in preventing them from executing the
writs which had
been lawfully issued against him by a court of lew. The appellant
escorted the threw (3) messengers at gun point
to the verandah of his
house where they pleaded with him to release the ignition key of
Lemena's vehicle but all in vain.

In the
mean time Peleha managed to escape to his vehicle and drove to Maseru
Central Police Station where he reported what had happened
to him and
the other two messengers at appellant's house. According to Lemena
and Nqosa after Peleha had escaped, the appellant
escorted them at
gun point into his vehicle with which he following Peleha. However,
whan he came to a place called Seputana the
appellant turned to the
left and parked the vehicle on the left side of the road. He
threatened that

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he was
going to punish them for the evils they did.

The
evidence of the appellant was slightly different. He told the court
that prior to 12th November, 1984 the messengers of the
Maseru
Subordinate court had attacked and removed some of his property to
satisfy certain judgments against him. The property was
subsequently
sold but the proceeds were misappro­priated by the messengers one
of whom was actually convicted and sentenced
to serve a terms of
imprisonment.

On 8th
November, 1984 Lemena and Peleha came to his house and served him
with other writs. He took the writs which he intended to
show to his
attorney. 'In addition he demanded from Lemena receipts for the sale
of his property which had previously been attached
and sold in
execution by the messengers of Maseru Subordinate court. Lemena
promised to bring the receipts on Friday. He never
did. Instead he
came to his house on 12th November, 1984 in the company of Peleha and
Noosa. When appellant enquired about the
receipts he was supposed to
bring on Friday, Lemena told him that he was on his way to serve
court processes at some other places.
He was, therefore, not prepared
to use his petrol to go for the receipts at his office. The appellant
then offered transport to
Lemena who, however, declined it saying it
was a nonsense.

The
appellant conceded that as Lemena started the engine of his vehicle
and was about to leave he (appellant) grabbed the ignition
key,
turned it off,

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removed
it from the ignition hole and kept it in his possession. He told
Lemena that he wanted the receipts. It was only then that
Lemena
agreed to go with him to his (Lemena's) office in appellant's
vehicle. When they came to Seputana appellant indicated his
intention
to turn to the left towaads the main traffic circle in Maseru. He was
still negotiating a turn to the left when Peleha
came in the company
of two police officers and parked his vehicle in front of him. this
was, however, denied by Lemena and Nqosa
who testified that the
appel­lant had already negotiated a left turn and parked his
vehicle on the side of the road at the
time Peleha and the two police
officers arrived. The evidence of Lemena and Nqosa was confirmed by
Peleha himself and Tpr Bebi
(P.W.4) one of the police officers who
arrived in his vehicle.

In my
view the evidence is simply overwhelming against the appellant and I
am satisfied that he was again not being honest with
the court on
this point.

As it has
already been pointed out earlier, the appellant denied that on the
day in question Lemena and the other two messengers
had come to his
place to execute any writs. He further denied that at any time he
hurled insults at and escorted, at gun point
Lemena and the other two
messengers. In support of this denial he called, as a witness, one
Lebohang Makhele.

It is to
be observed, however, that Lebohang Makhele is a boy of about 16
years of age. Because of his

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youth his
evidence has to be approached with caution. According to him,
Lebohang Makhele was playing with other children outside
the
appellant's premises and he was a time keeper in the gave at the time
Lemena and his party arrived. He, however, told the court
that there
was no altercation whatever between the appellant and Lemena or his
party.

If at the
time Lemena and his party arrived at appellant's place Lebohang
Makhele was playing with other children and was a time
keeper in the
game I find it difficult to apprehend how he could have, at the same
time, concentrated on what was happening between
the appellant and
Lemena or his party. I am not prepared to accept his story unless it
could be corroborated by the evidence of
a more reliable witness.

As it
will be seen in a moment when he managed to escape from appellant's
place Peleha drove straight to Maseru Central Police Station
where he
sought the assistance of the police. The question is why would Peleha
do this if there were no altercation between the
appellant and the
court messengers.

It seems
to me reasonable to accept as the truth the evidence of Lemena,
corroborated by that of the other two court messengers
as well as the
fact that Peleha had to rush for the assistance of the police, that
there was altercation...between him and the
appellant. I am inclined,
therefore, to reject as false the appellant's story that no
altercation took place between him and the

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court
messengers when the latter called at his place on 12th November,
1984.

The
evidence of Peleha that after he had escaped from appellant's place
he drove straight to the police station where he sought
the
assistance of the police was confirmed by Tpr. Bebi (P.W.4) who told
the court that he and another police officer were detailed
to go and
assist the court messengers. They then proceeded to ap­pellant's
home in Peleha's vehicle. When they came to Seputana,
Tpr. Bebi and
his party noticed appellant's vehicle which was parked on the side of
the rood facing the main traffic circle in
Maseru. Peleha drove to
that vehicle and parked in front of it. Tpr. Bebi then got. out of
Peleha's vehicle and walked to appellant's
vehicle. On inquiring from
him what the matter was the appellant showed him papers, some of
which clearly bore the rubber stamp
impression of the clerk of the
court, and explained that they were going to execute them.

It is
significant to note that according to Tpr Bebi the appellant did not
tell him that they were on their way to Lemena's office
where they
were to obtain receipts. If it were true that appellant was taking
Lemena and Nqosa to the office where they were to
obtain receipts the
question that immediately arises is why he did not disclose it to
Tpr. Bebi. In any event it is common cause
that the appellant was
then ins­tructed to drive his vehicle to Maseru Central Police
station where he was interrogated and
ordered to hand over

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to Lemena
the ignition key of his vehicle. That he did. The police officers
then accompanied Lemena and the appellant to the latter's
house to
ensure the release of Lemena's vehicle.

It is
again worth noting that although the crown witnesses had told the
court that the appellant had been threatening them with
a gun there
was no indication that Tpr. Bebi demanded it from him. If the
appellant did, indeed, threaten them with the gun the
crown witnesses
would no doubt have reported it to the police. That being so, I find
it incredible that Tpr Bebi would have failed
to demand it from the
appellant. It may well be that the story that the appellant had
threatened them with a gun was an exageration
or after thought on the
part of the crown witnesses.

However,
it seems to me it was clear from the interrogations which Tpr Bebi
and the other police officers had with the crown witnesses
that the
appellant had impounded Lemena's vehicle. Otherwise it would not have
been necessary for the police officers to accompany
Lemena and the
appellant to the latter's house to ensure the ra-lease of the
vehicle. Section 75(1) of the Subordinate Courts Proclamation
No. 58
of 1938 under which the appellant was charged provides :

"75. Any person who -

(1) obstructs a messenger or deputy messenger in the execution of his
duty ....... shall, upon conviction

be liable to a fine not exceeding fifty rands or, in default of
pay­ment, to imprisonment for a period

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not exceeding three months or to such imprisonment without the option
of a fine."

The
evidence in the instant case leaves no doubt in my mind that on the
day in question Lemena and the other two messengers of the
Maseru
Subordinate court proceeded to appellant's home at Moshoeshoe II to
execute writs issued by the court. They were, therefore,
carrying out
their lawful duty as court messengers. However, the appellant
impounded one of the vehicles in which they were travelling
and
prevented them from carrying out their work as messengers of the
court.

By and
large, I am satisfied that there was sufficient evidence showing that
the appellant did unlawfully obstruct the messengers
of the court in
the execution of their duty and the trial court correctly found him
guilty as charged. Quite correctly, in my view,
the appellant has not
appealed against the suspended sentence which is on the lenient side.

In the
circumstances, I take the view that this appeal ought not to succeed
and it is accordingly dismiss.:.

B.K.
MOLAI

JUDGE.

9th
August, 1988.

For
Appellant : Mr. Matsau

For
Respondent : Miss Nku.