CRI/A/61/91

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

PAKI
MOAKI APPELLANT

V.

REX
RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo on the 24th day of
November, 1995.

In this
appeal the appellant has appealed against both the conviction and
sentence wherein he was charged of Common Assault in that
he:

"wrongfully and unlawfully assaulted one Mothepane Nkhi by
punching her with fists and kicking her with shoes on the body."

He was
found guilty in the Magistrate's Court for the District of
Butha-Buthe and sentenced to pay M1,000-00 or undergo twelve (12)

months imprisonment. As I have said, it is against both the
conviction and sentence that he has appealed to this court.

In the
court a quo the complainant Mothepane Nkhi gave evidence to the
effect that on 16 June. 1991 returning from church she called
at
So-Go Supermarket to buy. One of the Chinese running the shop had
called another and told him that the complainant was a Sales
Tax
lady. Another Chinaman had then asked her why she had gone to Maseru
and that they had said the

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Chinaman
was to pay Sales Tax where he buys if he did not have a number.
Complainant had admitted that she worked for Sales Tax
but that on
this occasion she wasn't on duty and merely came to buy.

When the
Chinaman invited the complainant for a chat the latter had declined
the invitation but the Chinaman had dragged her and
punched her face:
they were next to the appellant's residence.

The
complainant went on to say that the Chinaman was accused 2 at the
trial. Accused 2 had then dragged complainant to where appellant
was.
Appellant had then emerged out of the door and accused 2 had pushed
complainant towards appellant whereupon appellant had
punched
complainant in her face accompanying this with an insult namely: your
mother's vagina, your mother's anus, you devil, civil
servant -
police - soldier - you are the ones who steal from the Chinese in
Maseru and as he insulted the complainant he was punching
her wish
fists and kicking her with his shoes the while she cried loudly.

Appellant
while beating up the complainant asked for a gun to shoot this dog
dead. She had freed herself and left her jersey and
hymn book behind.
She had then reported the incident at the police charge office in
Butha-Buthe. At the charge office she had been
given a medical form
to consult a doctor. Her upper

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lip was
swollen, she had a swelling on the right side of her face and on the
jaw - her clothing had been soiled and she was in pain
all over her
body.

In
cross-examination several suggestions had been made against the
complainant that she went to the Chinaman to claim Sales Tax
and if
it was not paid she had threatened to close the Chinaman's business.
In cross-examination and before this court it was suggested
appellant
was roused from his bed and he had pushed complainant out of his
house.

P.W.2 who
had been with P.W.1 from church supported P.W.1 in all material
respects including the fact that people who had assembled
as
appellant continued beating up complainant refused to intervene
because:

" Accused 1 (appellant) was a dangerous person and none of us
although so many could come to P.W.1's rescue."

That the
people at the time assembled dared not get closer to accused 1's
(appellant) yard as he could insult and fight them.

P.W.2
referred to a man who asked accused 1 what he was doing to the child
and to leave the child alone to which accused replied
with an
expletive to the effect: your mother's vagina -go out of my yard - I
will shoot you.

P.W.3
Manor Monyane had also given evidence to the effect

4

that
accused 1 (appellant) mentioned he had beaten complainant because she
was bad mannered.

P.W.4
gave evidence to the effect that accused 1 had been holding
complainant who was in tears and inquiring what was happening
accused
1 had told him to vacate his premises and he had left.

P.W.5
gave evidence to the effect that at accused 1's premises he had found
complainant's jersey and hymn book which accused 1 refused
to
release.

Medical
evidence had been handed in and showed bruises to the upper lip,
slight bruise left side face. The degree of force was shown
to be
moderate.

Appellant
had given evidence in his defence stating, amongst other things, that
accused 2 on arrival with the complainant he (appellant)
had asked
accused 2 what the matter was and the latter had said complainant
wanted Sales Tax money and he had told the complainant
that as it was
a Sunday Sales Tax could not be collected. Appellant went on to say
that in reply to his question complainant had
said that appellant had
built many shops which he had rented to foreigners who did not pay
tax and that he (appellant) made money
out of these foreigners. He
had been infuriated by complainant's assertion and pushed her out of
the door.

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What I
find very strange is that none of the Crown witnesses present when
appellant assaulted complainant or pushed her out as he
said
supported the appellant in this regard. If what appellant is saying
is true. I also find it odd that when he was asked by
some witnesses
what he was doing to complainant he did not tell them that
complainant was trying to exact Sales Tax from accused
2 on a Sunday.

In any
event, the learned Magistrate did not believe appellant's story and
on appeal I was not shown that as to the conviction the
court a quo
had in any way was misdirected itself. For the sake of clarity. I
must state that at the trial two people had been
charged of assault
namely: the appellant and one Chang Jiann Jong and that both had been
convicted and sentenced, I was informed
by crown counsel that only
appellant's appeal remained to be determined as Jong (who was accused
2 at the trial) had been deported.

At the
trial appellant was claimed to be 73 years old and counsel for the
appellant urged this court for purposes of sentence, even
if the
conviction was confirmed, to seriously consider the age of the
appellant.

Ordinarily,
the age of an accused is a factor that courts have to consider and
having regard to the fact that appellant had a previous
conviction it
is probable that the court a quo

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considered
the acre of the appellant. As for me. appellant in evidence was shown
to be

a man of
bad reputation. As MR. RAMAFOLE for the Crown submitted, the sentence
was lenient considering the degrading and humiliating
manner in which
the complainant was treated. The savage and unmitigated fashion in
which complainant was abused and assaulted by
a man of 73 years shows
to what low levels some people, however old, can descent to
sometimes. The fact that the trauma, humiliation
and indignity
visited on the complainant was by an old man of over 70 years will
and is bound to trouble complainant's mind for
the natural term of
her life.

For me,
appellant is lucky that there was no application for the increase of
sentence seeing that appellant behaves like an adolescent.

As was
said by Innes C.J. in R. v. MAPUMULO and OTHERS, 1920 A.D. 56 at p.57
:

"The infliction of punishment is pre-eminently a matter for the
discretion of the trial court. When a trial court gives a
decision on
a matter entrusted to its discretion, a court of appeal can interfere
only if the decision is vitiated by irregularity
or misdirection, or
is one to which no court could reasonably have come - in other words,
if a judicial discretion was not exercised."

Observations
and strictures reminiscent of the present appeal are to be found in
REX v JONES. 1952(1) S.A. 327(E.) where it was
remarked:

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He ought
to be deterred from laying hands on women; and he ought to be made to
realise that a sjambok can be an instrument of cruelty

While I
do not think that the sentence imposed on the appellant is salutary
enough to deter him from laying hands on women and others,
I have
formed the opinion that no impelling cause arises to interfere with
the sentence imposed by the learned magistrate.

Accordingly
the appeal is dismissed and both the conviction and sentence are
confirmed.

JUDGE

24th
November. 1995.

For the
appellant: Mr. Lehana

For the
Crown: Mr. Ramafole