CRI/A/97/83

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

MAKOTOKO
MOLAPO Appellant

REX

JUDGMENT

Delivered
by the Hon the Chief Justice, Mr Justice T.S. Cotran on the 3rd day
of May, 1984

The
appellant Makotoko Molapo was convicted of crimen injuria and
sentenced to pay a fine of M150 or in default of payment to 10
months
imprisonment

In order
to bring this charge home it was incumbent upon the prosecutor to
prove that the injury to the complainant's dignity was
serious, but
as was said in R v Muller 1938 OPD 141 at 143 in its application to
the facts the crimen injuria cannot be static
in time or in relation
to persons. The matter must be left to the discretion of the Court
but it would be wrong to allow tivia
to be subject to the criminal
law

The
complainant is a high ranking police officer who was asked to
investigate a complaint made by the mother of the appellant to
the
Prime Minister (in his capacity as Chief of Rakolo) concerning the
appellant relationship with, and treatment of, his wife
with whom the
appellant did not get along well or from whom he was divorced or
separated.

There is
little doubt that the complainant's attempts to

2

investigate
wore not only unsuccessful but were resented by the appellant to a
very high degree and culminated in his sending the
complainant, what
I shall call a stinking letter, couched in foul language, in which
the complainant is described, inter alia,
as a "boy" where
the "buttock" makes his head "go crazy"

It would
seem that the appellant had served in the Lesotho Mounted Police in
the sixties He probably joined the Force before the
complainant, but
the complainant received rapid promotion whilst the appellant did
not, and he finally left the police service
and took up a civilian
job. A large part of the letter deals with this matter

I find
this lnjuria very borderline but will not substitute my own Opinion
to that of the trial magistrate because seriousness depends
to a
great extent upon the modes of thought prevalent amongst any
particular community or at any period of time or upon those of

different classes or grades of society and the magistrate is a better
judge of that

I will
confirm the conviction but I am far from happy on sentence finish
letter was in fact addressed to the complainant himself
and there is
no evidence that, apart from his secretary, the contents reached
anyone else's ears. I do not like the idea of "imprisonment
in
default of payment" and this part of the sentence is quashed I
also reduce the fine to M100 If this is not paid (or has
not been
paid yet) it will be raised by way of levy on the appellant's movable
or immovable property

CHIEF
JUSTICE

3rd May
1984

For
Appellant Adv Ramodibedi

For Crown
Mrs Bosiu