CRI/A/58/65

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

SOBHUZA
SOPENG Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Acting Chief Justice, Mr. Justice M.P. Mofokeng on 17th
day of October,1983

The
appellant (who will be referred to as the accused) was charged in the
Maseru Subordinate Court with assault with intent to do
grievous
bodily harm it being alleged that on the 12th day of August 1983 he
unlawfully and intentionally assaulted the complainant
by hitting him
with fists on the face and with the intention to cause him grievous
bodily harm. Accused pleaded not guilty but
was eventually found
guilty and sentenced to undergo imprisonment for a period of three
(3) months.

The
evidence is briefly to this effect that on the day in question
complainant drove his vehicle to the outpatient department section
of
the hospital commonly referred to as Casualty. As he had recently
been discharged from the same hospital he was rushing to collect
his
prescriptions. The time was between 4.30 p.m. and 5 p.m. As he rushed
to the entrance he heard a voice call his name. He could
not wait
otherwise he would be late. All he could do, was to wave back without
looking to see who the person was who called. As
he waited for his
medicines, the accused arrived. As soon as he had received the said
medicines, the accused asked him if he knew
him. He answered in the
affirmative. He further asked him if he knew one Mrs. Chabalala and
that she was his wife but before he
could /answer

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answer
the accused started raining blows all over his head and face. He
drove him down the passage to the Casualty. The complainant
was
bleeding through the mouth. They went out into another section of the
hospital that is where payments are made. Eventually
they got
outside. Accused was still assaulting him continuously. He was at the
same time being insulted. Accused forced him into
his car. He had
tried to resist eventually he gave in. By this time complainant's
wife and his friend who were in the car were
with them. The wife was
trying to beg the accused to leave assaulting her husband who managed
to throw his car keys at them.

Accused
car went to the Charge Office and then to the Police Headquarters. In
accused's office he was insulted and was ultimately
instructed to sit
in the passage outside. He obliged. After some time accused came out
in possession of a firearm and said he was
going to kill the
complainant. He was instructed to go away. Accused stood behind him
as he said so. Nevertheless complainant left.
His version that he was
being beaten by the accused as they emerged from the hospital
precincts and further assaults and that he
bled is borne out by many
Crown witnesses. He did not deny before Mr. Tsasanyane and in fact
threaten that he was still going to
thrash the "boy" as he
disparingly referred to the complainant, a married man. The medical
doctor who examined the complainant
on the same day found lacerations
on the lower and upper lips, a haematoma on the occipital region. The
wounds, were not dangerous
to life but the force used was
"considerable" and the injuries were caused by a blunt
object. It was suggested to the
doctor by the accused that the
complainant might have fallen. The doctor rejected that and said
blunt objects such as fists for
an example might have caused similar
injuries. He gave reasons for that statement.

Accused
denies the Crown's version. He says that he met the complainant at a
counter. He "caught hold" of him by the"shoulder".

He instructed him to get into his (accused's) motor vehicle but he
"resisted". He then "commanded" him to get

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in which
he did. He does not explain the nature of the command which appeared
to be, so suddenly effective. He went via the charge
office as he had
an arrested person in the car as well. From there they proceeded to
the Police Headquarters where the accused
apparently has an office
(for he is a high ranking officer). Outside his office he made
complainant to stand and he "reprimanded
him never to repeat
that act". Then "I asked for his full names and addresses".
Under cross-examination he conceded
that because of his rank in the
police force he has "great responsibility to the nation".
He saw the complainant and
his brother's wife in a car. Further
details he obtained from secondary sources. He gave a somewhat
startling answer to the effect
that he did not know whether or not
the complainant went into the motor vehicle with his (complainant's)
will. He was asked if
he had arrested the complainant to which he
answered in the negative. He was then asked if he had requested him
to enter the motor
vehicle to which the answer was in the
affirmative. He did so as an ordinary man.

The
accused further called Mrs. Manamolela who describes herself as a
"major" in the police force. Through her, he merely
wished
to establish that the charge against him is a deliberate fabrication
because the investigating officer (who is his senior
in the
department) hates him. That might be so. The obiter to decide which
case shall be prosecuted and before which court is the
sole
prerogative of the Director of Public Prosecutions. It has not been
alleged that he displayed, in any manner whatever, manifestation
of
bias towards the accused.

When the
accused first saw the complainant and Mrs, Chabalala together, he
said nothing. Instead he went on a fishing expedition
and obtained
hearsay evidence concerning the complainant. Their meeting at the
hospital in my view was no coincidence. The accused
must have known
that complainant would be there at that particular point in time, I
say so because he does not seem nor does he
give any reason for his
presence at the hospital at that particular time. However,

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even if I
am wrong, the formation of an intention can be made on the spur of
the moment. It needs no ceremony to be made. It can
also be inferred
from subsequent acts of the accused. His assaults were vicious and
hard. They were concentrated on the most vulnerable
part of the body.
His utterances before his senior Colonel Tsasanyane show clearly that
the assault was with intent to do grievous
harm.

it is a
painful task for the Court to call its officers by labels such as
liars and the like adjectives. But some law enforcement
officers who
in the words of Cotran, C.J. in the case of R. v Thabo Monaleli,
Review Order 42/1982 "should have known better"

persistently perform such wanton acts that leave the courts utterly
speechless. The accused is described as a Captain. He says
he
"commanded" a person to do an act. Surely he knows what it
is to give a command. At the rank where he is he has issued
many
commands. But he says he had requested that same person to do the
same act. Command is not a synonym of request. One has to
obey a
command on sufferance of pain if you disobey (Court Marshall). One
can accept or refuse a request. There is no semanticism
of the
English language involved. The accused used a word which is used
frequently in his profession. It Is in his vocabulary,
He was just
trying to mislead the Court which is a very distasteful thing to say
about an officer of one's Court. But when the
moment has arrived
these things must be spoken so as to be corrected.

There are
eye-witnesses who saw the assault take place. They are honest to say
they did not see how it all started but they saw
when the two people
emerge. There is a ring of truth about their version of what they
saw, corroborated to a certain degree by
the evidence of the accused
himself in trying to evade the simple truth. You reprimand a person
and after a good lecturing, as
a final act, you then say: "By
the way, who are you and where do you live? Surely that does not make
sense.

There is
no merit in this appeal whatever. In his own words the accused has
conceded that he has

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"great
responsibility to the nation". Cotran C.J. said in R. v Thabo
Monaleli (supra): "He shot a person for no reason,
in cold
blood, at virtually point blank range". Here, the accused
chased, pushed assaulted a member of the general public
in a public
place, full of people who were victims, perhaps of assaults and
awaiting the police to act with utmost dispatch and
apprehend their
assailants. Instead, they see a law enforcement officer, himself,
doing the work of thugs. A true administrator
of the law (a police
officer is but a part of that huge organisation) encourages the
general public to respect (and take their
complaints to) the law and
that self-help is not allowed by law. Now what do they say when they
see a senior police officer, an
administrator of the law in their
eyes taking the law into his hands? A police officer resorting to the
doctrine of self-help the
consequences of which he knows pretty well
from practical experience? We all hang over heads in shame.

We have
had a spade of cases recently in this Court involving police officers
doing quite irresponsible acts. Unless the Commissioner
of Police
rectifies this situation and soon, there will be a tragedy.

The
sentence imposed upon the accused by the Court a quo is hopelessly
inadequate. It is a traversity of justice. A police officer
who lost
his appeal in this very Court is serving a sentence of nine(9) months
imprisonment. (Takalimane v R, CRI/A/35/83). It
is true that in that
case a firearm had been used. But then it was at the Officers1 Mess
and there were only two or three people
left. There should, where
possible and circumstances permitting, be uniformity of sentences.
The assault on the complainant was
vicious and oren. The complainant
had recently been discharged from the hospital. He was threatened
with death. He saw the firearm
in the hands of the accused, who took
the law into his hands (self-help) which is frowned upon by the
Courts. The list is not exhaustive.
The sentence imposed by the Court
a quo is

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hereby
set aside (s.8(l)(d) of the High Court Act No.5 of 1978) and it is
substituted by the following :

"Nine
(9) months imprisonment".

ACTING
CHIEF JUSTICE

17th
October, 1983

For
Appellant : Mr. Nthethe

For
Respondent: Adv.Nku