CRI/A/89-90/82

IN THE
HIGH COURT OF LESOTHO

In the
appeal of :

JULIA TAU
Appellant

V

REX Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K Molai on the 4th day of May. 1983.

The
appellant and one Jacubus Jozua Reynders were charged and convicted
of the crimes of

(i) Assault with intent to do grievous bodily harm and

(ii) Kidnapping before the Subordinate Court of Maseru.

The
allegations were as follow :

Count I "In that upon or about the 15th day of February, 1981
and at or near Ha Thamae in the district of Maseru the said
accused
one or both of them did unlawfully and intentionally assault one
Sessie Lerotholi and Phillipina Thamae by beating them
with a sjambok
or canes on their bodies and threatening them with a gun, with the
intention of causing them grievous bodily harm."

Count II "In that upon or about the 15^th February,
1981 and at Marakabei in the district of Maseru, the said accused did
each or one or both of them unlawfully and intentionally
deprive
Sessie Lerotholi and Phillipina Thamae of their liberty by
imprisoning them in a house for a period of eight days."

Initially the appellant and her co-accused pleaded not guilty to both
counts but after the Crown had adduced the

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evidence
of the two complainants and a police officer, they admitted to have
assaulted the complainants and accordingly changed
their plea of not
guilty to that of guilty on Count I which plea of guilty was accepted
by the prosecutor. As has been pointed
out, the appellant and the
co-accused were,at the close of the trial convicted as charged on
both counts. They were each sentenced
to one year imprisonmention
count I. A fine of M200 or one year imprisonment in default of the
payment of the fine, was imposed
on each of the accused on. Count II.
The sentences were to run consecutively.

The
appellant and her co-accused appealed against the whole Judgment but
the co-accused subsequently withdrew his appeal and the
appeal is now
proceeding in respect of the appellant only. The grounds of appeal
were a long list which can, however, be summed
up in that the
convictions were against the weight of evidence and the trial
magistrate failed to consider mitigating factors for,
purposes of
sentence.

It was
common cause that the appellant and her co-accused, hereinafter
referred to simply as Reynders, lived together as wife and
husband,
although it was not clear whether they were legally married to each
other. They owned a residential, house at Upper Thamae
on the
outskerts of Maseru Township. Reynders operated a trading store at a
place called Marakabei, right in the heart of the mountains,where
he
and the appellant spent most of their time. While appellant and
Reynders were at the trading store at Marakabei, their house
at Ha
Thamae

remained
under the care of appellant's sister, one 'Maboetseng.

The two
complainants, one of whom (Phillipina) is a relative of appellant,
also stayed at Ha Thamae where they shared a room not
very far away
from appellant's house.

The
evidence of the two complainants was that on one occasion the
appellant and Reynders were as usual away at Marakabei when their

house remained with Maboetseng. During

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that time
'Maboetseng also had to go out for work at a place called Nazareth
about 30 km outside Maseru. Apparently, her work at
Nazareth was to
take Maboetseng a few days. Before leaving for Nazareth Maboetseng
left the key of the kitchen door of appellant's
house with one of the
complainants (Sessie Lerotholi).

On the
early morning of 14th February, 1981 at about 4.00 a.m. and during
the absence of Maboetseng,the complainants had the occasion
to pass
next to. appellant's house when they noticed that the door of the
living-room was left open and the lights in some of the
rooms were
on. The complainants immediately went to the house to find what was
happening. They found that there was nobody in the
house but. noticed
that a radio-gram which used to be in the living-room was no longer
there. Phillipina at once went to report
at the police charge office
while Sessie Lerotholi remained keeping watch over the house. "
After reporting to the police
Phillipina returned to the house where
she and Sessie awaited for the arrival of the police. The police did
eventually come and
searched around the house. After the police had
completed their work, the complainants locked the door of appellant's
living-room
by means of a key which they had borrowed from a next
door neighbour. . When later on Maboetseng returned home from
Nazareth, the
complainants gave back to her the kitchen key of
appellant's house presumably with the explanation of what had
happened at the
house during her absence.

On the
following day 15th February, 1981, at about 8.00 a.m., the two
complainants were called to appellant's house where they found
the
appellant, Reynders, Maboetseng and a male servant of Reynders
waiting for them.' After the complainants had entered into the
house
Reynders told them to produce his property which he had found missing
from the house.

According
to the complainants, they denied knowledge of the property and before
they could even make any explaination

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Reynders
got hold of a plastic sjambok with which he started beating them up
all over the body. Reynders admitted to have beaten
up the
complainants with the sjambok and said that was because they had
laughed at him when he demanded his property from them.
Complainants
denied to have laughed at Reynders. According to the complainants,
both the appellant and Maboetseng joined Reynders
and assaulted them
(complainants) with fists and open palms. At some stages, however,
Reynders handed the sjambok over to appellant
and Maboetseng who,
also used it on the complainants. Appellant admitted to have joined
Reynders in the assault on complainants
but that she used only her
fists and open palms and not the sjambok.

Whether
or not appellant used her. fists and open palms and not the sjambok
does not really matter. The important thing is. that
she was aware
that Reynders was assaulting the complainants with the sjambok and
she clearly associated herself with what he was
doing. They all had
no right to take the law in their own hands and assault the
complainants. She was. clearly a socius criminis
and equally liable
for the criminal conduct of Reynders on the doctrine of common
purpose.

Complainants'
evidence went on to disclose that during the assault they were
stripped naked by their assailants so that they remained
with their
panties only. It may be mentioned at this stage that complainants are
women of over 20 years of age. A naked body of
a woman of that age
must be a shock to see and it is simply beyond my comprehension how
any descent person could even contemplate
the thought of strippinng
naked women of complainants' age. It is indecency in its extreme.

While the
flogging of the complainants continued, Reynders was from time to
time threatening that he would shoot them with a pistol
which he
openly had in his possession. He tried to deny this but in their
evidence the complainants were positive that he did.
The complainants
told the court that during the assault on them there was a time when
Reynders disappeared from the house and on
his return he was in the
company of four (4) strange men whom he described as C.I.D. members.
In the presence of the appellant
and Maboetseng he instructed

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those men
to beat up the complainants so that they should produce his goods.
The four men joined in the assault on the complainants.
They were
kicking the complainants with their booted feet and whipping them
with the sjambok which Reynders and the appellant had
been using.
There is nothing to suggest that ,the appellant did anything to
dissociate herself with the instructions given by Reynders
on those
four men. Appellant and Reynders conceded that the four men did
assault the complainants in their house but denied that
the men were
brought by Reynders. According to their story appellant and Reynders
had, been away from the house and on their return
they found the
complainants already stripped naked in one of the rooms in the house
and the four strange men assalting them in
an attempt to pursuade
them to produce the missing property. Appellant told those men to
stop assaulting the complainants but all
in vain. The men were
eventually stopped by Reynders.

The trial
magistrate accepted as the truth the explanation given by the.
complainants and rejected as incredible the story advanced
by
appellant and Reynders that they had nothing to do with the four men
and what they did to the;. complainants in their house.
On the
evidence, the learned " magistrate was perfectly entitled to do
so for it is ridiculous to suggest that the four men
could have come
uninvited to appellant's house and joined in the assault on the
complainants telling them to produce the missing
goods. How could
they have known that there were goods found missing from appellant's
house and that the complainants were the
persons held responsible for
the disappearance of those goods? Indeed, Reynders and appellant
conceded that they did not even report
to the police that they had
found those four men in their house assaulting the complainants who
were admittedly stripped naked.
, There is no doubt' whatsoever in my
mind that on the evidence appellant and Reynders associated
themselves with the assault perpetrated
on the complainants by the
four men -the so-called C.I.D. members.

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The
ingenious suggestion that the four men who took part in their
criminal act were the C.I.D. members was,in my view,a vicious
attempt
on the part of Reynders and appellant to blot the reputation of the
Police Force in this country and the trial magistrate
rightly
rejected it with the contempt it deserved.

The
brutality of the assault ,on the complainants Phillipina and Sessie
is evidenced by their photographs -Exhs (A(i) -(c)and B(i)
-(c),
respectively, taken on 24th February, 1981 (9 days later) by P.W.3.
D/Tpr. Smatlane who testified that even on that day the
scars and
weals on the backs, buttocks, thighs and breasts of these women were
still visible as clearly reflected on those exhibits.
The medical
doctor who examined and treated the complainants on 25th February,
1981 were also consistent with the evidence. that
the assault on the
complainants was brutal. According to the medical evidence,
complainants had sustained multiple longi-tudinal
lacerations and
abrasions both on the upper and lower extremities,breasts, back and
buttocks. In the opinion of the doctor, the
injuries could have been
inflicted with an instrument such as a whip and a considerable degree
of force must have been used. One
of the complainants, Sessie
Lerotholi, had also sustained an injury on her left eye which injury
was consistant with the use of
a whip.

Taking
into account the nature of the injuries,the type of instrument used
to inflict the injuries, the degree of. force used and
parts of the
body on which the complainants were assaulted there is no doubt in my
mind that the appellant and her co-assailants
had the intention to
cause complainants grievous bodily harm. She was therefore rightly
convicted of assault with intent to do
grievous bodily harm.

It was
common cause that complainants were in appellant's house from 8 a.m.
until 6 p.m. when according to their evidence the complainants
with
their hands tied up by Reynders' male servant on the instruction of
Reynders himself were taken onto a van. Reynders in the
company of
appellant drove the van to their trading store at Marakabei where the
complainants were locked up in a room apparently
used for storing
maize. They wore provided with a bucket for relieving nature. For
eight

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For eight
days complainants were locked up in that room for the nights. During
the day they were at times allowed out to water
vegetables in
appellant's garden or do some other menials jobs on the premises.
They could not escape and run away owing to their
injuries and fear
of being killed. They were eventually spotted by a relative of
Phillipina, one 'Manthabiseng who reported their
presence at the
trading store to the police. It was only then that the police were
able to come to their rescue by releasing and
sending them for
medical treatment.

In their
evidence appellant and Reynders admitted to have driven the
complainants to Marakabei in their van.They had asked the
complainants whether they preferred to be taken to the police charge
office or to Marakabei where their parents. could be contacted
about
what they (complainants) had done The complainants voluntarily opted
to be taken to Marakabei where they were offered a sleeping
room. At
Marakabei complainants were free to go anywhere they liked.

It was
not disputed that at the time they were driven to Marakabei
complainants had already sustained the serious injuries described
by
their evidence confirmed by the medical report and the evidence of
P.W.3.It is therefore unlikely that com-plainants could have

voluntarily opted to go with appellant and Reynders to Marakabei
rather than to the police charge office from where they would
be able
to consult a medical doctor for treatment which they naturally needed
badly. It is significant that both appellant and
Reynders admitted
knowing that the homes of Sessie and Philllpina were respectively at
Matsieng and Machache,a few kilometers from
Ha Thamae and therefore
within easy reach of complainants' parents. If they really intended
contacting complainants' parents, appellant
and Reynders could have
kept complainants at Ha Thamae rather than drive them to Marakabei,
right in the heart of the mountains,
where for obvious reasons it
would be very difficult for complainants' parents to reach. Indeed,
in their own

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evidence
appellant and Reynders conceded that no word was ever sent to
complainants' parents about the whereabouts of the complainants.
It
was therefore preposterous for Reynders and appellant to suggest that
their intention in taking complainants to Marakabei was
to contact
their parents. The story of Reynders and appellant that complainants
voluntarily went with them to Marakabei was rejected,and
rightly so
in my view, by the trial magistrate, who accepted as the truth
complainants version that, they were forcibly and against
their will
taken to that place which is not only remote but very far from their
homes. That forcible removal of complainants to
Marakabei by
appellant and Reynders was in itself clearly an unlawful act. Having
regard to the remoteness of Marakabei and complainants'
ill-health
resulting, from their injuries, it must be accepted that complainants
were rendered incapable of: leaving that area.
They were therefore
virtually deprived of their liberty. That constituted the. crime of
kidnapping which Hiemstra J. in S. v. Levy
and Another 1967(1) S.A.
351 at 353 defined as the wrongful and intentional deprivation of
the liberty of another."

In my
view there is ample evidence that the appellant acting in concert
with Reynders committed this offence.

There is
therefore no substance in the ground of appeal that the convictions
were against the weight of evidence.

The trial
court was addressed on the question of mitigation and the grounds of
appeal against the sentence were in effect nothing
but a repetition
of the very factors which the court was invited to consider. There
was nothing on record to indicate that the
magistrate had refused to
consider those factors. He did not however, turn a blind eye on the
other factor of which consideration
no doubt aggravated the offences
against which appellant and Reynders were convicted.

People
like appellant and Reynders who will not hesitate to take the law
into their own hands by punishing others for the flymsiest
of
suspicions must be reminded that the courts

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of law
will take a rather dim view of their actions. In the circumstances of
this case, I am not prepared to interfer with the sentences
imposed
by the learned trial magistrate.

I would
therefore dismiss this appeal.

JUDGE

4th May,
1983.

For the
Appellant : Mr. Molyneaux,

For the
Crown : Miss Surtie.