CRI/A/24/95

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

JAKOTE
KHELEMETHE APPELLANT

v.

REX
RESPONDENT

JUDGMENT

Delivered
by the Honourable Justice G.N. Mofolo on the 9th day of November,
1995.

Appellant
was charged in the Magistrate Court for the District of Leribe in
that on or about the 20th October. 1993 at or near Makokoane
in the
District of Leribe

accused did wrongfully and unlawfully assault Thipa Motoboli by
hitting him and stabbing him with a knife with the intention of

causing him grievous bodily harm.

Appellant
had pleaded not guilty but on being found guilty had been sentenced
to 3 years imprisonment.

Before
this court Mr. Fantsi for the appellant had abandoned the appeal
against conviction and challenged the sentence which he
claimed to be
not consistent with the offence committed and in the circumstances
arousing a sense of shock.

He
pointed out that this was a family matter the altercation and
attendant injuries having flowed from strained relations between
the
complainant and the appellant who was complainant's

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son-in-law.
That the fact that the complainant had taken away appellant's wife
and the children exarcebated the relationships; this,
submitted Mr.
Fantsi amounted to provocation and is a factor which the Magistrate
along with other factors should have taken into
account in sentencing
the appellant. Moreover. Mr. Fantsi submitted that although it was
alleged dogs were set on the complainant
medical evidence had not
shown there were dog bites. The sentence was justified if the
complainant had sustained permanent injuries
or was defaced but these
were not borne out by medical evidence.

Mr.
Ramafole for the Crown contended that the court can only interfere
with sentence if particular reasons had been advanced. He
submitted
that a son-in-law assaulting his father-in-law was in itself so
degrading that this, in itself, called for harsh sentence.
Whether
dogs had injured the complainant or not this was immaterial in that
setting dogs on a person is so degrading as to amount
to an
aggravating circumstance; and even if it were to be said that
injuries on the complainant were not so serious, the act of
the
appellant coupled with the fact that complainant spent a number of
days in hospital and was not treated as an out­patient
merited
the sentence which the Magistrate imposed.

The
difficulty, so went on Mr. Ramafole, was while there was nothing
wrong with the sentence it is not clear why the learned Magistrate

did not give the appellant an option of a fine given the person and
circumstances of the appellant and that if the

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learned
Magistrate had used his discretion -judiciously he would at least
have given the appellant an alternative of a fine.

The
reason appellant was sentenced to 3 years imprisonment seem to be.
from the point of view of the learned Magistrate:

"Accused was the aggressor as he went out of his way to assault
complainant a relatively elderly man and unleashed doge at
him and at
the same time swearing at him. The dogs bit him and tore his trousers
and accused hit and knocked him down. Lying on
the ground helpless
like that accused continued to hit him with the stick and stabbed
him. Even though the medical report does
not reflect multiple
injuries I am convinced beyond doubt that the manner in which
complainant was assaulted is indicative of the
fact that accused had
the necessary intent to cause complainant grievous bodily harm."

Nobody
has any quarrel with the finding of the court a quo but nowhere did
the complainant say that dogs bit him. All that the complainant
said
was he unleased dogs on me which even tore my pair of trousers.

The court
a quo was also disturbed by the fact that the appellant insulted the
complainant and taking the fact that dogs had bitten
complainant and
appellant had insulted complainant found the cumulative effect of
these circumstances so great that he imposed
a sentence of 3 years
imprisonment. If the learned Magistrate had been right there would
perhaps be nothing wrong with his sentence.
But here again although
P.W.I the complainant did say that appellant insulted him, what
appears in

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the
original transcript is he insulted me with my mother, he said
"ngoan'a 'mao". The original script and the type-written

script is the same. Significantly, the Magistrate did not say P.W.I
said appellant insulted him by his mother's private parts,
he said he
insulted me with my mother, namely: 'ngoan'a mao:' with respect this
is not an insult and to say it is is stretching
the language too far.
If perhaps the learned Magistrate was at odds with the spelling, he
could have translated the insult as is
normally done.

Medical
evidence disclosed that injuries were caused by a stab would in which
a 'sharp object' was used; injuries were not dangerous
to life and
were 'minor limited.'

I do not
think that in arriving at a sentence it is right for the court to
ignore medical evidence for this kind of evidence is
adverted to in
order to establish injuries caused and their nature. When, however,
there is no medical evidence the court is at
large and is entitled to
listen to the testimony of witnesses as to the injuries caused and
their nature. I may add that medical
evidence also guards against
exaggerations to which some witnesses may be prone.

In
passing sentence the court recorded that it had taken into account
the following factors:

1. accused
   had no previous convictions

   
   

2. accused
   and complainant are son-in-law and father-in-law.

   
   

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3. accused's
   personal circumstances.

   
   

I doubt
if the learned Magistrate had taken above factors into account he
would have passed a sentence of 3 years imprisonment as
it is. I am
saying this because although Mr. Fantsi for the appellant abandoned
the appeal on conviction, there was evidence by
D.W.3 that a knife
had been wrested from P.W.1 showing, in my view, that there was
fighting between P.W.1 and the appellant necessitating
the appellant
to defend himself. This evidence favoured the apppellant and the
learned Magistrate should not have ignored it and
should have at
least taken it into account for purposes of mitigation i.e. that the
appellant was provoked into having to defend
himself against his own
father-in-law.

I do not
agree that the appellant was the aggressor for evidence showed that
it was on appellant accosting P.W.1 about the whereabouts
of his wife
and children that fighting erupted. I do not approve of parents being
cause of conflict and separation between young,
married couples. In
my view P.W.1 had no business whatsoever in keeping appellant's wife
and children away from the Appellant and
this, in itself, was highly
provocative and likely to ignite emotions at any time especially in
view of the fact that appellant
had appealed for release of his wife
and children to the complainant and chiefs all in vain. These are
personal circumstances of
which the Magistrate spoke of and had he
taken them into account would not have resulted in the sentence
passed by the learned
Magistrate.

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In S. v.
Mokaloba En Andre, 1964(1) S.A. 697(0) it was held

The courts of appeal should only interfere with a sentence of a lower
court on the ground that it induces a sense of shock where
there
exists a real and substantial difference between their opinion as to
what is a proper sentence and that of the lower court.
Where this is
without doubt the case it is the duty of the court of appeal to
interfere.

There is
also the question of Medical evidence which, according to the learned
trial Magistrate's judgment showed the injuries were
not dangerous to
life. This is a factor which the court a quo should have taken into
account in imposing the sentence.

I arrive
at the conclusion that the sentence which the learned Magistrate
imposed is not the only sentence which could have been
reasonably
imposed if the learned Magistrate had taken all the factors in favour
of the appellant into account.

Accordingly
the appeal on sentence succeeds but to the extend that the sentence
of 3 years imprisonment is set aside and substituted
therewith with a
sentence of payment by appellant M200-00 (Two Hundred Maloti) in
default thereof 3 years imprisonment.

G.N.
MOFOLO

JUDGE

9th
November. 1995

For th
Appellant: Mr. Fantsi

For the
Crown: Mr. Ramafole