CRI/A/36/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

THATO
JEREMIA Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr, Justice M.P. Mofokeng on the 14th day of July. 1982.

The
appellant (hereinafter called the accused) was charged before the
Subordinate court of Leribe on two (2) counts, one of assault
common
and the other indecent assault. He pleaded not guilty but at the
close of the Crown's case was discharged on the offence
of indecent
assault (although the test applied was a wrong one at that etage of
the proceedings. The test is not proof beyond a
reasonable doubt),
and at the close of the whole of the case, was found guilty of having
committed the offence of assault common.
He was sentenced to six
months' imprisonment. He now appeals to this Court against both such
conviction and sentence.

The facts
have been succintly summarised as follows, by the learned magistrate
in judgment :

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"In respect of count 1 the prosecution adduced the evidence of
P.W.2 a mosotho female girl aged about 18 years she says on
the
9/2/82 she paid her grandfather a visit at Hlotse Reserve and
returned at sunset and when she went past the prisons Security
fence
she saw accused and accused asked her (complainant) to wait for him
then accused gave a chase until she was trapped by a
pot hole along
the path and she fell, then accused got her and tried to pull off her
panties but she resisted and freed herself
and ran away then accused
chased her once more until she reached a certain house screaming and
threw herself inside it this witness
says she was very frightened
then one Palesa went outside the house after which she returned in
the house and P.W.2 gave Palesa
a report. She says she then made a
report at the Charge Office she next the next morning and she was
taken to the prisons compound
where she identified accused as his
assaulant. This witness says accused appeared very drunk on the
evening of the attack and she
was seeing accused for the first time.
In cross examination she says she saw accused's face but accused was
identified as a constable
by Palesa. She further states that it was
dark but the street lights provided some lights. She further states
in cross-examination
that she was taken to the prisons to identify
accused after she had seen accused at the Charge Office where accused
was asked about
this assault in her presence. Now comes the evidence
of P.W.3 a mosotho female girl states that on the 9/2/81 she was at
her home
at Mankoaneng around 8.00 p.m. when she heard a scream and
she made to the door of her house then P.W.2 came rushing and threw
herself inside the house. She says she then advanced towards the
fence surrounding the house and saw accused running out of the
gate
and she identified accused as the person who was chasing P.W.2. This
witness further states that she saw accused well because
a certain
vehicle which was passing near her home provided light with its
headlights and this witness said to accused "I have
identified
you" she then returned in the house and P.W.2 gave her a report.
She says P.W.2 appeared very shocked and frightened.
She further
states that she had known accused prior to that night as a member of
prisons department and she positively identified
accused on that
night and accused was the person who was attacking P.W.2.

Now comes the evidence of accused who denies that he ever attacked
P.W.2 and that P.W.3 never saw him on the night in question

assaulting P.W.2."

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The
complainant was a very fair witness. She did not wish to unfairly
implicate the accused. Although she had seen the accused in
the early
dusk, she was perhaps hesitant about her identification of the
accused even though, she had spoken to him. However, the
accused was
properly identified by a person who knew him very well; who saw him
through adequate street lights supplemented by
the bright lights of a
car. Accused was the person who had been chasing the complainant that
evening. The learned magistrate had
no doubt whatever about that. He
believed the Crown's version and, on adequate grounds, rejected that
of the accused. He did not
doubt the credibility of the Crown's
witnesses. The appeal against conviction is therefore dismissed.

The
sentence meted out to the accused produces a sense of shock. The
assault, although on a female, was not unduly serious to warrant
a
term of imprisonmnent without the option of a fine. The accused
committed the offence in his private capacity and the fact that
he
was a prison officer should not be brought to bear on him by way of
punishment. He did not commit the offence whilst on duty.
He was,
moreover, a first offender. In the personal circumstances of the
accused this Court is of the opinion that an alternative
of a fine
would not have been out of place. The sentence of the learned
magistrate ought to have been one of M60 or 6 months' imprisonment

half the sentence being suspended for a period of 2 years on
condition that

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during
the period of the said suspension he is not convicted of an offence
involving violence to the person of another. It is accordingly
so
ordered. It is further ordered that the appeal deposit be refunded to
him.

JUDGE

For the
Appellant : Mr. G. Mofolo

For the
Respondent : Mr. K. Khauoe