CRI/A/30/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

THABO
MONTSI 1st Appellant

FUSI
MOLISE 2nd Appellant

v.

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr Justice J.L. Kheola on the 26th day of August, 1985

The two
appellants appeared before the Resident Magistrate of Leribe charged
with assault with intent to do grievous bodily harm
They pleaded not
guilty but they were at the end of the trial found guilty as charged
and sentenced to one year's imprisonment
each. They are now appealing
against both conviction and sentence. Prior to their arrest and
conviction the two accused were members
of the Lesotho Mounted Police
and were stationed at Leribe police station.

On the
23rd February, 1983 the complainant (Vincent Lekhanya) was arrested
by the appellants on a charge of illegal possession of
a firearm His
home was searched by the appellants but no firearm was found. He was
taken to Leribe Police Station and locked up
in a cell The
complainant deposed that on the night of the 24th February, 1983 the
two appellants came to his cell and handcuffed
him, they took him out
of the cell and escorted him to another room at the charge office.
When they came into that room the appellants
closed the door and drew
the curtains They then asked him whether he was still refusing to

2

produce
the firearm. He again bold them that he had no firearm. They became
angry and tightened the handcuffs so much that they
cut his wrists
One of the appellants was armed with a flat piece of iron while the
other was armed with a stick. They hit him with
those weapons on the
head and body till he fell down. He was crying loudly while the
beating was going. Eventually one of the appellants
opened the door
and another policeman (P W.2) entered and asked the appellants why
they were assaulting a person. They did not
answer him but
immediately went out of the room. They returned after a short while
and took the complainant to a tap of water behind
the charge office
where he washed himself As a result of the brutal assault the
complainant was bleeding from the head wounds and
the wrists. He was
taken to the hospital and was treated as an in-patient for a week.

The
evidence of the complainant is corroborated by the testimony of
D/Sgt. Mokheleli (P.W.2) and Second Lt. Lithebe. Sgt Mokheleli

testified that he was on night duty on the 24th February, 1983 During
the night he heard the voice of a person who was crying in
the record
room. He immediately rushed there but found that the door was locked.
He knocked at the door and instructed the people
who were inside to
open. There was no response but the cry continued He then went to the
Second Lt Lithebe and made a report The
two officers went to the
record room and ordered the people inside to open the door Getting no
response from them, Sgt Mokheleli
threatened to break the door It was
only then that one of the appellants unlocked the door. When they
entered the appellants went
out and refused to answer any questions.
The two senior officers saw the complainant whose head and hands were
covered with blood
There was a pool of blood on the floor. The
complainant was taken to the hospital.

The two
appellants gave evidence at their trial to the effect that on the
night in question they came to the charge office at 10.00
p.m.

3

intending
to interrogate the complainant who had been arrested by them.

When they
arrived at the charge office they heard that there was a person
crying in the record room. The door was opened and the
complainant
was found inside having already sustained injuries on the head and
wrists They denied that they assaulted the complainant.

The
learned Resident Magistrate disbelieved the story of the appellants
and believed the Crown witnesses. I cannot say that he misdirected

himself on this point. The appellants were well known by the
complainant. Ho saw them very well when they came to his cell and

handcuffed him. In the record room he again saw them well because
there was light and that was the reason why they drew curtains
so
that they could not be seen by any person from outside the room. The
appe­llants were the only policemen who came out of
the record
room when Sgt Mokheleli and Second Lt. Lithebe arrived. The
suggestion by the appellants that the complainant was assaulted
by
some other person before they arrived was correctly rejected by the
trial court because the evidence against the appellants
was
overwhelming

Mr Mofolo
, for the appellants, submitted that as there was no medical evidence
led at the trial as to the injuries sustained by
the complainant and
furthermore the trial court made no observation of its own of the
injuries, the court could not convict the
appellants of assault with
intent to do grievous bodily harm. I agree with Mr. Mofolo that whore
there is no medical evidence the
court is entitled to rely on its own
observations of the injuries. That procedure was not possible in the
present case because
the trial took place about twenty-one (21)
months after the assault It is possible that scars could have been
observed, however,
the trial court did not find it wise to do so in
any case the trial court was entitled to rely on the complainant's
evidence of
his injuries as well as the fact that he was hospitalised
for a week (Chabaseoele Mohatla v. Rex, 1974 - 1975 L L R 193). If
the
injuries had been of a minor nature he could have been treated as
an

4

out-patient
The trial court was also entitled to rely on the nature of weapons
used (S v. Dipholo, 1983 (4) S A 757 (T.P D ) and
S. v. Mbelu, 1966
P.M.176). When Sgt Mokheleli and Second Lt Lithebe arrived at the
scene of the crime the complainant's hands
and head were covered with
blood and there was a pool of blood on the floor There can be no
doubt that the person who inflicted
those injuries intended to cause
grievous bodily harm. The degree of force used in the infliction of
such injuries could also be
inferred from the nature of the injuries.

I came to
the conclusion that there were no merits against conviction

The
appeal against sentence was also without any substance The
aggravating circumstances were that when the appellants assaulted
the
complainant, he was handcuffed and posed no threat to them before
they assaulted him. The general public regard a policeman
as a person
whose duty is to uphold the law and to protect citizens whose rights
are being violated It is this kind of conduct
by some members of the
Police Force that will compel some people to change their attitudes
towards policemen and regard them as
enemies who should not be helped
in their investigations of criminal cases. I am not convinced that
the learned Resident Magistrate
misdirected himself in any way with
regard to sentence. It appears to me that the sentence of twelve (12)
months' imprisonment
without the option of a fine was on the lenient
side

The
appeal against both conviction and sentence is dismissed.

J L
KHEOLA

JUDGE

2nd
December, 1985.

For
Appellants Mr Mofolo

For Crown
Mr. Kabatsi