CRI\A\34\92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

RENANG
TSIETSI APPELLANT

AND

REX
RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 19th day of April.
1993.

The
appellant appeared before the Subordinate Court for the district of
Mokhotlong charged with housebreaking with intent to assault
and
assault. It is alleged that upon or about the 27th day of October,
1988 and at or near Sebera, Mapholaneng, in the district
of
Mokhotlong, the said appellant did unlawfully and intentionally and
with intent to assault break and enter a house there situated
of one
'Malebamang Lethakha and did unlawfully assault one Teboho Nkoko by
stabbing him with a knife and also striking him with
a stick on his
body with intent of causing him grievous bodily harm.

The
appellant pleaded not guilty but was found guilty as charged at the
end of the trial and was sentenced to five years' imprisonment.
He is
now appealing against the conviction on the

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following
grounds:

1. The
   Crown had not proved its case beyond reasonable doubt in that

   
   

1. There
   is evidence that Accused acted in self-defence in that it was the
   complainant who was the aggressor

   
   

2. Even
   if it may be said Accused acted beyond the bounds of self-defence
   he could not have been found guilty as charged but on
   a lesser
   offence for lack of necessary intention.

   
   

3. The
   evidence by Crown witnesses is contradictory in nature hence it
   leaves doubt.

   
   

2. Certain
   witnesses gave evidence without being formally warned by the court a
   quo as required in law.

   
   

The
evidence of the complainant, Teboho Nkoko, is to the effect that on
the day in question he visited his lover one 'Malebamang
Lethakha at
about 9.00p.m. When he arrived there her lover was in the company of
'Malengolo Lethakha and 'Mapoleliso Lethakha.
About five minutes
after his arrival there was a knock at the door. The person at the
door angrily said: "Open here. It is
me Renang." The owner
of the house refused to open the door. Thereafter Renang (appellant)
broke the window and entered through
it.

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The
complainant says that when the appellant entered he was standing in
the middle of the house. The appellant tried to hit him
with a stick
but he warded off that blow with his left arm. He tried to get hold
of the appellant but he discovered that he had
a knife in his right
hand. He struggled with him in an attempt to wrest the knife from
him. In their struggle they both fell near
the door and the appellant
managed to stab him at the back with the knife. He tried to rise but
fell down. The appellant hit him
with a stick behind the left ear and
again on the left arm. The appellant left him lying there.

On the
following day the complainant was taken to Mapholaneng clinic. He was
transferred to Mokhotlong Hospital where he was admitted
for a month.
After he was discharged he came to Queen Elizabeth II Hospital for
further treatment. He also went to Mapoteng Hospital
for further
treatment. He is still not well because his left side of the body is
semi-paralysed and his bladder is so damaged that
he has to use a
catheter.

The
evidence of 'Malebamang is that on the 27th October, 1988 she was on
her way to the Republic of South Africa to see her husband.
She never
reached her destination because on the way she met the appellant.
They quarrelled and fought with each other until she
escaped and ran
away back to her house. As she

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ran away
the accused took a radio-cassette from her. When she arrived at the
house 'Malengolo and 'Mamothibeli came. As she was
explaining to them
what had happened to her complainant arrived. She closed and locked
the door because she was afraid that the
appellant would come and
assault her.

The
appellant came and asked her to open the door as he had brought the
radio-cassette and wanted that they should have a talk.
She refused.
He opened the window and as he was entering through it the
complainant who was carrying an iron rod struck him on
the head with
it. The appellant entered and found the complainant standing on the
bed. The two men struggled with each other until
they fell near the
door. They rose and went to fall at the forecourt. 'Malebamang says
that she left them there and went to the
home of 'Mapoleliso and
called her. She came and separated them.

There is
no doubt that the appellant and the complainant did fight on the
night in question. The Crown has proved beyond a reasonable
doubt
that the complainant was stabbed at the back by the appellant during
that fight. The only question to be decided by the Court
a quo was
whether the appellant acted in self-defence. On this point the
learned magistrate says:

"Accd's cross-examination tends to suggest

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P.W.1 provoked the fight and that he acted in self-defence,
Circumstances negate this more so as there was a barrier in between

them and he could have simply stayed away. Instead he played hero and
ventured towards what he wants court to believe was a danger
to him.
It must also be borne in mind that he had been refused entry and
therefore had no right whatsoever to do so."

Earlier
in his judgment the learned magistrate found as a fact that on the
night in question the accused went to the home of 'Malebamang
for the
purpose of returning the radio-casette he had seized from her during
the day and probably to iron out issues between them.

There is
altogether no evidence that the accused went there with the intention
of committing any assault upon any person in the
house . There is no
evidence that when he knocked at the door and was refused entry, he
was aware that the complainant who was
also the lover of 'Malebamang,
was present in the house. When the appellant made his entry through
the window his intention was
to return the radio-cassette and to have
a talk with his lover. He did not enter with an intention to assault
the complainant.
He was not even aware that the complainant was

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in the
house.

What
happened when the appellant appeared at the window? The complainant
suddenly struck him on the head with an iron rod. He had
not uttered
a single word before he struck the appellant who had forced entry
into the house for an entirely different purpose.
I regard the
complainant to have been the aggressor and that the accused was a
victim of an unprovoked attack. He was therefore
entitled to defend
himself with all the means at his disposal. He apparently had a knife
in his possession and during the struggle
he stabbed the deceased at
the back.

When
P.W.5 'Mamothibeli Lethakha arrived at the scene of the fighting the
appellant and the complainant were still holding each
other. He
remonstrated with them and ordered them to leave her premises. They
heeded her remonstration and separated. The complainant
left. The
appellant remained behind. The evidence of the complainant cannot
therefore be true that the appellant hit him twice
with a stick on
the arm and behind the ear while he was still lying on the ground and
left him there. It was the complainant who
left the appellant there.
In any case the doctor who examined him on the following day makes no
reference to any injury on his
head and arm.

There are
some contradictions in the evidence of the Crown

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which
create some doubt in the strength of the Crown case. That doubt ought
to have been exercised in favour of the appellant. 'Malebamang
says
the appellant opened the window and entered. But the complainant says
he broke the window. The investigating officer makes
no reference to
a broken window. I am aware of the law that in housebreaking the
opening of a closed door or window amounts to
breaking. In this case
the complainant is actually referring to simple breaking of the
window.

The
complainant says that he was in the middle of the house when
appellant tried to strike him with a stick. 'Malebamang says that
the
complainant was on the bed when he delivered a blow with his iron
rod. The appellant warded off that blow with his own stick.

The
complainant makes no mention of the fact that he struck the appellant
with an iron rod when the latter entered through the window.

I am of
the view that the contradictions which I have mentioned above and
others ought to have created a doubt in the mind of the
learned
magistrate.

The
appeal is allowed on the ground that for the reasons stated above it
cannot be said that the Crown proved its case

8.

beyond a
reasonable doubt.

J.L.
KHEOLA

JUDGE

19th
April, 1993.

For
Appellant - Mr. Khauoe

For
Respondent - Mr. Qhomane.