HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.P. Mofokeng on the 8th day of November,
appellant, together with two others who have not noted an appeal, was
charged before the Subordinate Court of Qacha's Nek with
the crime of
assault with intent to do grievious bodily harm. It is alleged that
on the 14th June 1982 acting in concert, they
assaulted Mamzamkhulu Phenduka (hereinafter referred to as the
complainant) by hitting her with sjamboks
all over the body, putting
her into a bale and tying it to the roof of a house, by tying her
foot with a rope to the roof and pulling
it until she was suspended
in air, with the intention of causing her grievious bodily harm.
Appellant and his co-accused, pleaded
not guilty but were found
(i) Appellant "as charged" and sentenced to serve a term of
imprisonment of four (A) months.
(ii) Accused 2 and 3 of assault common and were each fined M20.00 or
in default of payment to undergo imprisonment for a period
of one (1)
month. The whole of the sentence is suspended on
gave evidence which, briefly, is to the following effect :
alleged date in the charge sheet, the complainant was with accused 3,
Thamae Mokoteli, Mofoka Khali (P.W.2) and Nepo (was
accused 4 but
absconded) at her home. These men informed her she was called by the
chief i.e. Appellant. She was then with her
husband. He allowed her
to go with them. On the way, they called at Mokoto Mohale's place.
Appellant, who had now joined them,
opened the door. A number of men,
also, entered and so did the complainant. Appellant asked her for an
explanation about her clothing.
She proceeded to describe the
clothes. He asked her about a blanket she had given an explanation.
She said she had left it at home.
He asked her why she changed
clothes when he sent for her. She said she had not. He said he knew
her very well to be a deep person.
He asked her if she knew him. He
stood up and said "you will tell the truth." He hit her
with the sjambok first on the
legs and then said she should put off
her blanket, which she wore, and whipped her all over the body and
said that she would "tell
the truth." There was a lamp
which was lit in that house. Napo also whipped her with sjambok and
kicked her. Mofoka Khali
(P.W.2) intervened. Appellant then said he
would tell her why he was whipping her: "because you have broken
house." He further said "I should produce
shoes, pair of trousers, money and cosmetics." She denied these
Then appellant started whipping her all over the body
with a sjambok. Mofoka Khali was present. Appellant said that he will
me with a plastic rope." And he did.
"... and hoisted it on (the) roofs; after fastening my hands, he
fastened my left foot to my hands and raised me, the right
hanging in the atmosphere and (he) whipped me. Accused 2 and 3 were
present and seated and did nothing. He whipped me
until I said lost
property was there at my home. He unfastened me and let me down."
accused 2 and 3 accompanied her home. Her husband was
and told that she had made a full confession. They told him that she
had been whipped at Mokoto's place end that she was
coming to hand
over the stolen property. He asked her and she replied :
"I said I have not taken any, is just because I had been
messengers refused to conduct a search for the alleged goods, at the
request of her husband. They said she had played the fool.
her back to the house in which they had left the appellant and the
rest of the men.Appellant put her in a bale and closed
with a rope and wires. He had said he would put a cat inside. The
bale was pulled around in the house. She was suffocating.
to open a hole with one foot. It was through this that she was able
to detect her assailants. She recognised their
voices. After all,
they were fellow-villagers. She was also kicked by accused 2 and 3.
The rope, tied to the bale, was passed over
the rafters and pulled as
a result of which she was lifted together with bale and she was
swinging. The assaults continued. She
was now tired and she cried.
She escaped from this bale and found Mokotso present, Appellant
ordered her to leave for her home.
cross-examination appellant suggested that he was not present when
she was being assaulted, Mofoka Khali(PW.2)
most of her story. That appellant was present when she was inside the
bale and was in that bale when Mokoto Mohale
(P.W.3) arrived is not
disputed. He corroborates the complainant. He heard her screams. In
any event, the appellant conceded that
he assaulted the complainant
although he lied and said it was with a strap from a jokeskei: He
conceded that he had no right to
whip anybody. He conceded that he
never took complainant to the police. That appellant assaulted the
complainant by hitting or
whipping her with a sjambok is corroborated
by Mofoka Khali.
gave evidence under oath and told a pack of lies and at the end he
was forced to concede that he was guilty. In his own
words he said :
"I now agree that I am guilty of assaulting P.W.1 not in the way
that it is alleged."
not man enough to make a clean breast of it. Complainant, in my view,
has been amply corroborated and the trial Court believed
of the witnesses I have mentioned. It is obvious that the explanation
of the accused is false and in the end he was
forced literally to
make a confession in open Court.
result, the conviction is confirmed but the sentence is a traversity
of justice. A woman cannot be abused in this manner
responsible be made to get away with it. All people are equal before
the law. They must be treated equally without any
fear or favour.
Chiefs occupy a position of high esteem and must not abuse that
position. In Courts of law, corporal punishment
is applied very
rarely to males but never to females. A chief who indulges in such
sadistic acts must not expect mercy from
Courts. The remarks I made recently in the judgment of David
Lelingoana v Rex, CRI/A/60/82 dated 5.11.82 apply in this present
case with even greater force and a sense of urgency. The situation is
intolerable and calls for prompt action.
sentence imposed by the learned magistrate is set aside and it is
substituted by the following :
Registrar is requested to forward a copy of this judgment to the
Ministry of Chieftainship Affairs.
Appellant : In Person
Respondent :Miss Surtie
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