CRI/A/95/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

LESHOBORO
MAJARA Appellant

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 21st day of
February, 1983

The
appellant was found guilty by a Class III Magistrate sitting at TY of
contravening s. 21 of the Internal Security (General)
Act 1967. He
was fined M50 or 5 months imprisonment in default of payment
suspended on conditions for a period of one year. Section
21 of the
Act provides :

"A person who uses obscene, abusive, threatening or insulting
language, or swears, shouts, screams or otherwise conducts himself
in
a manner that give or is likely to give such provocation to any
person as to cause such person to break the peace or to commit
any
offence against the person, is guilty of an offence and liable on
conviction to the penalty prescribed in sections 34 and 35."
(My
emphasis)

The particulars of the charge read as follows :

"That the said accused did wrongfully, unlawfully and
intentionally use obscene abusive threatening or insulting language

or otherwise conduct himself in a manner to provoke or cause a breach
of the peace or commit an offence to wit by saying to Captain

Mosoeunyane, Warrant Officer Ntoi, D/Sgt Khobatha and other members
of the Police Force "Ho ntse ho thoe mapolesa a teng
Teyateyaneng mosima 'rnabona baa ba ntse ba ahlame Teyateyaneng koana
rota tsee" and thus contravene the above section".

The
Sesotho words appearing in the particulars have been translated or
rather transliterated by a court interpreter as follows :

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"I have long been here guarding this vehicle and I was told that
there are police at TY their mothers' rectums; see these
automatic
urinators; let us go away men".

It is
common cause that "mothers rectums" (or mothers' vaginas)
are abusive and insulting words. "Automatic urinator"
is a
person who prefers to urinate in his bed at night, not involuntarily
because of illness or disease, but because the person
is too lazy to
get up to do so. Mr. Maqutu says these are not abusive or insulting
words but submits are used to convey to a person
that he is a "late
comer" or "idle" or "indisciplined". In
plain English the words used could be
something like this:

"f.....your mothers we have been waiting for you to take action
for a long time and instead you are sitting on your arses
(or your
bums) doing nothing".

With
respect to Mr. Maqutu's argument I think the words are abusive and
insulting.

The
incident arose from the following facts which were common cause.

The
appellant (aged 68) is the Principal Chief of Berea (for 35 years),
member of the Lands Tribunal, a member of the Interim National

Assembly and had had a very long career of service to the country
from well before Independence when he was adviser to the then
Regent,
during Independence, and since.

On the
4th April 1982 he was informed by one of his subjects that a vehicle,
owner untraced and unknown, was found abandoned near
Maqhaka (within
the Principal Chief's domain close to the Maseru/TY tarmac road) and
that the vehicle contained explosives. The
appellant chief gathered
some men, proceeded to the scene, and stood guard over the vehicle
pending the arrival of the police of
TY to whom a message had been
sent either by a courier, or with a policeman in a vehicle who
happened to be on his way to TY, or
both. This was on the morning of
the 4th between 7 and 8.

Maqhaka
is some 25 Km from TY but some 15 Km from Maseru. However,
administratively, Maqhaka falls within TY police jurisdiction
and
reports of suspected crimes are passed as a matter of routine to TY
police and this is what the appellant did.

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The
appellant waited with his men for rather a long time, estimated at
between 2½ to 3 hours, but there was no help forthcoming
from
the TY police.

The
appellant then proceeded in his own private vehicle to inform the
Maseru police. Having reached Maseru he encountered bureaucracy.
The
initial reaction of the Maseru police was that it was a TY police
job, not the Maseru police job. Undaunted the appellant chief
went to
the top and managed to convince a senior police officer (Lt. Col.
Sehloho PW3) that action ought to be taken immediately.
Col. Sehloho
and some police officers, in company of the appellant chief, then
drove back to Maqhaka. The Maseru police had just
started
investigating when the TY police, under the command of Captain
Mosoeunyane (PWl) pitched up. The appellant chief addressing
the TY
police then uttered the words complained of. Captain Mosoeunyane of
TY police was annoyed and did exhibit this annoyance
but Col. Sehloho
ordered the appellant chief to calm down and the matter ended there
with anger on both sides but nothing more.

In his
evidence Captain Mosoeunyane who caused the summons to be issued
against the appellant says that he was provoked and "nearly

replied and fought him".

W/O
Ntoi(PW2) also of the TY police testifies that he was provoked and
"nearly fought" the appellant at the time he was
insulted.

The
particulars of the charge read that the appellant used the abusive
words "intentionally wrongfully and unlawfully"
I see no
evidence of mens rea or intent to insult or to provoke breach of the
peace. However on reading the relevant section of
the Act it seems to
me that this is not an essential ingredient of the offence. Section
21 of the Lesotho Act however uses different
words from the
corresponding South African legislation on the subject. See Hunt
(Milton & Fuller) South African Criminal Law
and Procedure (Vol
II 1971 edition page 154 et seq). The Lesotho text says that the
words used by the person must actually (not
merely potentially) cause
the . aggrieved person (or persons) to whom the words are addressed
to break the peace or commit any
offence against the utterer. This
did not happen. . R. v Ketz 1948(4) SA p 374 and S. v Serra 1968(1)
SA p 292 are authorities
for the proposition that an

4

offence
is committed even if the addressee restrains himself (or herself)
from retaliating whether or not that person is a police
officer but
the wording of the provisions of the sections the learned Judges were
there interpreting, as I stated, are manifestly
different from our
section.

In any
event the authorities are clear that in dealing with the words used
one must look at the circumstances under which they were
uttered and
weigh the effect of the words used (R. v Innes 1917 CPD 151 and S. v
Serra. supra, p 294). Here we have a person with
a high sense of
responsibility. He is perfectly aware that explosives and bombs are
being conveyed across the country, that many
people have been killed
maimed or injured, and that thousands of maluties worth of damage to
property, public and private, has
been suffered. Within the course of
an hour or so at most that 25 Km to and from TY should have been
traversed. He waited for twice
that time at least and when there was
no response, he found it necessary to make a trip to Maseru where he
met with some frustration,
and when that was surmounted, he goes back
to Maqhaka but the TY police are still not there. The language used
was foul and in
bad taste but his mood was understandable. If the TY
police had no transport, or did not receive the appellant's message
timeously,
or did not have a man knowledgeable in handling or
difusing explosives or bombs and were looking for one, to cite a few
examples
of the possible reasons of the obvious delay, the TY police
might have, whether politely or in the same tone as the appellant's

answered him.

As I
said, I find as a matter of law that no offence has been committed
under this particular section of the Act and the appeal
must be
allowed but if I am wrong on the law it is clearly an offence, which
under the circumstances, was of a trivial kind that
warranted no
prosecution at all, or if prosecution there had to be, merited a
sentence of no more than a discharge after a caution
or reprimand in
terms of s. 319 of the Criminal Procedure and Evidence Act 1981.

CHIEF
JUSTICE

21st
February 1983

For
Appellant : Mr. Maqutu

For
Respondent: Miss Surtie