CRI/A/76/87

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LEBOHANG
MOKETA Appellant

and

REX
Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 3rd day of May, 1988

The
appellant was convicted by the magistrate of Thaba-Tseka of the
offence of assault with intent to do grievous bodily harm. He
was
sentenced to six (6) months' imprisonment without the option of a
fine. He is now appealing to this Court against sentence.
He alleges
that the sentence is too heavy and induces a sense of shock having
regard to the attendant circumstances.

The facts
of the case, which were admitted by the appellant. were that on the
21st November, 1987 the complainant and his wife together
with other
people were drinking beer in a restaurant at Thaba-Tseka. The
appellant arrived and joined the group. He drank beer
with them for
some time and then suddenly stood up and hit the complainant with a
knobkerrie on the head four times. The complainant
fell down and
fainted. He was taken to Paray Hospital and was admitted on the 21st
November and discharged on the 29th November.
1987.

2

The
doctor who examined the complainant found that he had four wounds on
the head and that one of them was near the right ear. On
admission
the complainant was bleeding through the right ear and when he was
discharged on the 29th November, 1987 the doctor found
that the
complainant had permanently lost his hearing because of the assault.

In
mitigation of sentence the appellant asked the court to be lenient
because on the 31st October, 1987 the complainant had assaulted
him.
He reported the matter to the police but no action was taken against
the complainant. He said that on the morning of the 21st
November,
1987 he saw the complainant exchange knives with the person with whom
they had assaulted him. He therefore assaulted
the complainant when
he met him.

The
learned magistrate did not give any written reasons for sentence as
it is required by law. It was only when the appeal was noted
that she
filed a document called reasons for judgment in which she stated,
inter alia that even if the complainant had previously
assaulted the
appellant, it cannot be said that when he attacked the complainant
with a knobkerrie he was acting in self-defence.
She says that the
appellant showed a clear intention of revenge. I agree with the above
findings which, unfortunately, are an afterthought.

It has
been stressed in numerous cases that before a magistrate can pass
sentence he must clearly write down the factor which he
has taken
into account. He must give reason why he has given little or no
weight to the mitigating factors advanced by the accused.

3

The
document called reasons for judgment which was filed several days
after the appellant had noted an appeal is on after-thought
and has
no relevance to the present proceedings. The record of the
proceedings clearly shown that immediately the appellant had

addressed the court in mitigation, a sentence of six (6) months
imprisonment was imposed. As I have stated in a number of cases

before, it is a irregularity to pass sentence without taking into
consideration relevant factors raised in mitigation.

One of
the factors which was ignored by the magistrate in the present cases
is that the appellant was a first offender. Avoiding
imprisoment is a
desirable objective particularly where, young people or 1st offenders
are concerned or where a fine would

suffie
(S. v. Muller, 1962 (4) S.A. 77; S. v. P. 1567 (2) S.A.228;

S.v.
Pillay 1968 (S.A.21).

It is
true that the offence he has committed is a fairly serus one. But
justice as to be tempered with mercy. Punishment shed as
far as
possible a reformative (Meyer and others v. Rex 19;L.L.R. 302), In
the present case the learned magistrate seems to have
given undue
weight the severity of the injuries sustained the complainant. It is
that his hearing has been permanently detroyed
but this fact ought
not to have clouded the mind of the art to the extent that other
relevant factors were ignored. It ,st always
be borne in mind that as
far as the injuries i.e. pain suffering and loss of amexxx are
concerned, the complainant has a civil
remedy to claim compensation.

Because
of the irregularities stated above this Court is entitled to
interfere with the sentence imposed by the court a quo.

4

In the
result, the sentence of the court a quo is set aside and I substitute
a sentence of M100 or six (6) months' imprisonment
and to that extent
the appeal is upheld,

JUDGE

For the
Appellant - Mr. Monyako

For the
Respondent - Miss Moruthoane