CRI/A/24/89

IN THE HIGH COURT OF LESOTHO
In the
matter between;.

THABISO RABOBOJANE Appellant

and
REX

REASONS FOR JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 8th day of September, 1989

The appellant was charged with two counts of assault
with intent to do grievous bodily harm. He pleaded not guilty to both
charges
but was found guilty of common assault in Count 1 and guilty
as charged in count 2. He was sentenced to pay a fine of M40-00 or
four
months' imprisonment and six (6) months' imprisonment
respectively.

He is now appealing to this Court against sentences only
on the following grounds:-

/2

- 2 -

1. 
   The sentence of M40.00 or 4 months'
   imprisonment for
   an assault with fists
   where a minor degree of force has
   been
   applied is too severe and induces a
   sense of shock.

   
   

2. 
   The sentence of six months without the
   option of a
   fine where the only injury
   caused is a small incised wound on
   the
   wrist is out of proportion with the
   gravity of the offence
   charged.

   
   

3. 
   The Honourable Resident Magistrate having
   given the
   Appellant an option of a fine in
   the one count ought to have
   given the same
   consideration in the other count otherwise
   the
   option of a fine served no reasonable
   purposes since appellant
   still has to serve
   a term of imprisonment although a fine
   has
   been paid.

   
   

The facts of the case were that on the 15th May, 1987
Puleng Mafisa was in her house at about 7.45 p.m. The appellant
arrived there.
He asked Puleng to allow him to sit on the bed but
Puleng refused and said that he must sit on a bench. He sat on a
bench and introduced
himself to her. He proposed love to her but she
told him that she had a lover and did not want to have any other
lover. They both
went outside and found Puleng's lever waiting for
her outside.

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- 3 -

The appellant suddenly attacked Puleng without any
warning and punched her on the face with fists and kicked her on the
legs. She
ran away to a neighbour's house but the appellant chased
her. He found her in the house and again hit her on the face with
fists.

Medical evidence was to the effect that Puleng had
bruises on the face which were minor and not dangerous to life.

The facts of the case in count 2 were that on the 13th
September, 1987 Policewoman Masopha was at T.Y. bus stop between 5.45
p.m.
and 6.00 p.m. She was in the company of her two sisters, namely
Lineo Lechele and 'Mahalieo Makhupane who wanted to see her off to
Maseru. After she had boarded a taxi she noticed that the appellant
was holding Lineo in an indecent manner. She alighted and reprimanded
the appellant, but the latter did not take kind to the reprimand. He
slapped Police­woman Masopha on the face. She also slapped
him
and then the appellant took out a knife from his pocket and stabbed
her on the right wrist.

Medical evidence is to the effect that she had a small
incised wound on the right wrist-posterior aspect. The doctor did not
say whether
or not light decree of force was used. It can reasonably
be inferred that only light force was used to. inflict that small
incised
wound. A knife is a sharp object which does not require any
considerable force to cause severe

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- 4 -

injury to a human being whose skin is very delicate. In
the instant case the injury was so minor that it cannot be said that
the accused
had the requisite intention to cause grievous bodily
harm.

In S.v. Mbelu 1966 (1) P.H., H176 (N) Miller, J.
said:-

"The court ... usually has to rely on four main

factors which provide the index to the accused's state
of mind. I am not suggesting that these four factors are exhaustive;
I do suggest
that in the large majority of cases these are the
factors which provide a guide to the accused's state of mind. They
are, first,
the nature of the weapon or instrument used; secondly,
the degree of force used by the accused in wielding that instrument
or weapon;
thirdly, the situation on the body where the assault was
directed, and and fourthly, the injuries actually sustained by the
victim
of the assault."

I am of the opinion that the injury actually sustained
by the victim of the assault in the instant case fail to prove beyond
a reasonable
doubt that the appellant had the requisite intent
because it is too minor.

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- 5 -

I set aside the conviction and sentence in Count 2 and
substitute a conviction of common assault and a sentence of M150-00
or five
(5) months' imprisonment.

There Is no merit in the appeal against the sentence in
count 1. I accordingly dismiss the appeal. In count 2 the appeal is
upheld
to the extent shown above.

J.L. KHEOLA
JUDGE

16th October, 1999

For Appellant - Mr. Matete
For Crown - Mr. Lenono.