HIGH COURT OF LESOTHO
THABO KANONO Appellant
by the Honourable Mr. Justice J.L. Kheola on the 8th day of March,
appellant appeared before the subordinate court for the district of
Maseru charged with the offence of assault with intent to
bodily harm. He pleaded guilty to the charge and admitted the summary
of the facts of the case as stated by the public
learned Magistrate found that the facts disclosed the offence charged
and returned a verdict of guilty as charged.
I have no difficulty
with that verdict and agree entirely with the learned Magistrate.
of the case were very clear and were as follows: The complainant is
an old woman of seventy-three years of age. The appellant
grandson. On the 28th May, 1989 the complainant was planting aloes at
her place when the appellant arrived. He appeared
to be very angry
and suddenly attacked the complainant with his stick. He hit her on
the head three times, once of the ribs and
once of the shoulder. On
the 28th May, 1989 the complainant was examined by a doctor at Scott
Hospital, Morija. He found three
wounds on the head and sutured them.
He also found a wound on the shoulder and on the ribs. He formed the
opinion that the wounds
on the head were dangerous to life and that
the force used to inflict them was moderate.
called upon to plead in mitigation of sentence the appellant said:-
"This thing happened to me as a surprise. As I am still under
care because of a sickness I have of ancestors (Balimo). I had
blackout, thereafter immediately went to police to report myself. I
got frightened as I am still struggling at home to make ends
am still struggling to get a cattle (sic) so that I could be cured.
There is nobody who is helping me in my sickness; everything
is on my
shoulders. I ask for forgiveness before court of law. I am not a
traditional doctor. I am still a trainee, I do not know
what will in
the end happen to me."
commenting on the gravity of the offence the learned magistrate
sentenced the appellant to five (5) years' imprisonment.
appellant is now appealing to this Court against both the conviction
and sentence on the ground that the learned Magistrate
passing sentence on him when it became clear before then that he had
a defence to the offence charged which, if successful,
least, have reduced the offence to one of common assault. The learned
Magistrate ought to have terminated the proceedings
at once and
referred the matter to the High Court for a review and setting aside
of the conviction and the nomited of the matter
to the subordinate
court for re-trial before a different Magistrate.
second ground of appeal is that the wounds were more consistent with
common assault than with assault with intent to do grievous
with the first ground of appeal and on that ground alone the appeal
must succeed (See S. v. Mfesi, 1978 (4) S.A. 28; S.
v. Mandlasi, 1987
S.A. (4); S. v. Van As, 1989 (3) S.A. 881). In the present case the
appellant clearly pleaded guilty and later
accepted the facts which
undoubtedly disclosed an offence, whether it was the offence charged
or common assault, I propose not
to express any opinion at this
stage. The learned Magistrate duly returned a verdict. In his
mitigation of sentence the appellant
raised what appears to me to be
a very genuine defence of a complete blackout apparently due to some
mental illness. I agree that
the defence was raised at a very late
stage in the proceedings, however, the learned Magistrate was not
entitled to ignore it.
He was dealing with an ordinary Mosotho man
represented by a legal practitioner. The appellant was not even
raising it as a defence as Such, but he was merely saying in
sentence the learned Magistrate must know that at the time of the
commission of the offence he had a blackout or he did
not know what
he was doing. The learned Magistrate ought to have stopped the
proceedings at once and to have sought the assistance
of this Court.
said the defence was a genuine one and is supported by the evidence
of the Crown. The appellant and his grandmother had
before this incident and there is no evidence that he had any grudge
or any complaint against her. The complainant
did not provoke him in
any manner before he assaulted her. There is no evidence that the
appellant is a violent person. All these
things tend to suggest that
the appellant's defence is a genuine one but as a layman he did not
know that a blackout is a defence
and I think it is only fair to give
him a chance to prove it in a re - trial before another magistrate.
It will be for the trial
court to decide whether blackout has been
proved or not.
reasons stated above the appeal is allowed. The conviction and
sentence of the court a quo are set aside. The matter is
the Subordinate Court for re - trial before a different magistrate.
Appellant - Mr. Sello
Crown - Miss Moruthoane.
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