CRI/A/28/99
IN THE HIGH COURT OF LESOTHO

In the matter between:

THOLANG LEHLOENYA APPELLANT

and

R E X RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. Justice G.N. Mofolo on
the 8th day of February. 2000

The appellant was charged in the Subordinate Court of
the District of Leribe it being alleged that

Count 1

The said accused is charged with attempted murder in
that upon or about the 2nd day of September, 1994 near or at Ha
Lejone. in the
Leribe district the said accused did unlawfully and
acting unlawfully

and with intent to kill did shoot at one Peter Titisi
Sefali.

2

Count
II

The said accused is charged with the offence of assault
with intent to cause grievous bodily harm in that upon or about the
2nd day
of September, 1994 near or at Ha Lejone in the district of
Leribe the said accused did unlawfully and intentionally assault
Morenene
Lethaha with a blunt object on his body with intent to cause
him grievous bodily harm.

Count III

The said accused is charged with the offence of Assault
with intent to do grievous bodily harm in that upon or about the 2nd
day of
September, 1994 near or at Ha Lejone in the district of Leribe
the said accused did unlawfully and intentionally assault one
Lehlohonolo
Phakoe with fists on his body with intent to cause him
grievous bodily harm.

It is to be noted that the offences charged occurred at
one place and on the same day. The magistrate had convicted the
accused on
all the three(3) counts and sentenced him to 5 years
imprisonment, M200-00 or 2 years imprisonment and M200-00 or 2 years
imprisonment
respectively. It was also ordered that sentences run
consecutively.

3 The appellant had lodged an appeal on grounds that:

1. 
   The learned magistrate misdirected herself in holding
   that
   the version of the prosecution outlining the manner of
   the
   infliction of the injuries on complainant in the first
   count
   was not challenged.

   
   

2. 
   The learned magistrate misdirected herself in
   rejecting
   the version of the accused when such version
   was
   reasonably possibly true.

   
   

4. 
   The judgment of the learned magistrate is against
   the
   weight of evidence and bad in law.

   
   

5. 
   The sentence of the magistrate is harsh and induces
   a
   sense of shock.

   
   

Before this court in argument Mr. Mathafeng for the
appellant concerning Count I said it would seem P.W.6 had rushed at
the appellant
to fight him and while P.W.6 was engaged in a scufle
with the appellant the latter had produced a gun and then there
followed a struggle
between P.W.6 and the appellant for the control
of the gun. This struggle had attracted P.W.2 who, on advancing on
the appellant
and P.W.6 had been shot. Mr. Mathafeng has submitted it
is wrong to say appellant shot P.W.2 for the shot was discharged
while appellant
and P.W.6 were struggling for the possession of the
gun and this viewed from any angle it could not be said that the

4

appellant had the necessary intention to shoot P.W.2. As
for P.W.6, Mr. Mathafeng says it's true he was injured but here again
it
was in course of the fracas which had ensued between the appellant
and P.W.6 and it cannot be said appellant had the intention to
injure
P.W.6. He says in going off it is wrong to say the gun was pointed in
a particular direction or for that matter in P.W.2's
direction as
then the appellant had had no altercation with P.W.2 and had no
reason to point a firearm at him. It was also wrong
to say that
appellant discharged the shot that injured P.W.2 based on the
inference by the court a quo that because the gun was appellant's
he
must have pressed the button. Mr. Mathafeng says facts as deposed to
by P.W.2 are not in harmony with what actually happened for
P.W.2
says he was hardly 2 steps into investigating the squabble when he
was shot. He says where there is no intention the law does
not
punish. He says where a shot goes off in a struggle for possession of
the gun there can be no question of negligence. He says
in struggling
over the possession of the gun appellant was defending himself and
that to this extend appellant's version could reasonably
be true.

According to Mr. Mathafeng. appellants story was that he
was being attacked by P.W.6 and his fellow employees with sticks and
knives
and the appellant was entitled to resort to means at his
disposal to repel the attack. He says commensurability of weapons is
not
the norm for this would make mockery of self-defence. He says an
eye for an eye has no room in the practice of law. He says in Count
I
the version of the crown is not consistent with probabilities nor is
appellant's version so demonstrably false as to be rejected
out of
hand. He says the court a quo failed to apply its mind to whether
appellant's story could have been reasonably true.

5

As for Count II Mr. Mathafeng has admitted that
appellant bludgeoned P. W.5 with the gun in warding off the attack by
P.W.6 and his
co-employees and according to P.W.2's evidence this had
occurred before P.W.2 was shot. He says while the assault is admitted
it
was not unlawful for it was in course of the appellant defending
himself from P.W.6 and his co-employees attack and in the event
appellant was entitled to repel the attack. He says there's nexus
between P.W.5 and P.W.6 for they were P.W.2's (Sekhele's) employees.
Mr. Mathafeng says the aggressor was P.W 6 and but for his aggression
the incidents would not have materialised. Mr. Mathafeng says
in
Count I & II there was no corroboration. He says P.W.5 is the
only witness of how he sustained his injury in Count 11 while
in
Count 3 P.W.6 is the only witness as to cause of the assault. He says
punching or boxing one cannot amount to Grievous Bodily
Harm. He says
sentences were harsh considering complainants have fully recovered.

Mr. Kotele for the crown has submitted that the totality
of evidence before the court a quo had shown appellant to have
pointed a
gun at P.W.2 - a fact testified to by P.W.3, 5 & 6. He
says no witness testified to appellant being attacked with sticks and
knives nor has D.W. 1 supported appellant's story. While agreeing it
was in a beerhall, Mr. Kotele says there is no evidence as to
the
state of drunkenness of the appellant. Mr. Kotele says it was in
fighting with P.W.6 that P.W.5 in intervening P.W.5 sustained
a
scratch, a swollen right eye and bled. He agrees offences committed
at the same time sometimes, am concurrently.

P.W.2 Peter Titisi Sefali's evidence is that he was shot
by the appellant to whom he had previously spoken to. According to
P.W.2,
he had asked appellant to

6

go to his office alternatively to hand over his gun to
him to keep and surrender the same the following day to appellant's
office.
According to the witness appellant had asked for pardon. When
appellant had asked P.W.2 to go outside and have a chat, P.W.2 had
declined the invitation saying he was tired. Later P.W.2 had received
a report relating to Morenene who had sustained a wound and
was
bleeding on his head. In trying to go to the appellant the latter had
shot him, so said P.W.2. He says when he was shot by accused
no word
had been uttered between the accused and P.W.2. In cross-examination
P.W.2 has denied that it was while appellant was fighting
over the
gun with Phakoe, (P.W.6), Morenene (P.W.5) and other employees of
Sekhele (P.W.1) that that gun went off. Actually question
was, at p.
13 of the record:

'Accused will tell the court that at time he shot you,
it was an accident because he was fighting over the gun as Phakoe,
Morenene
and other employees of Sekhele were fighting for that gun,
is that so?'

Answer: That is not true.

P W.2's evidence was denial of an accident or that the
appellant shot him accidentally. According to P.W.3, he had seen
appellant
and Phakoe pulling each other and did not know if they were
fighting. It was P.W.3's evidence that he had suggested P.W.2 talk to
appellant and Phakoe but even before P.W.2 did so he had seen
appellant shoot at P.W.2. According to P.W.3, appellant was holding
his gun in his left hand when he shot at P.W.2; according to the
witness, the appellant and Phakoe were standing close to each other
when appellant shot at P.W.2 and appellant and Phakoe were not
fighting. The witness says appellant had pointed the gun at P.W.2.
In
answer to counsel for the defence, the witness testified that when

7

P.W.2 was shot Phakoe and accused had stopped pulling at
each other', see page 16 of the record. The witness asked on page 16
of the
record what he said to P.W.2 replies on p. 17 by saying:

Answer: 'I said I saw accused was pulling at Phakoe and
that 1 was going to close down the accordion music so that P.W.2
could find
out what they were fighting for and even before I did that
1 saw accused pull out his gun by his left hand and shoot at P.W.2.'

It was also P.W.4's evidence that accused shot at P.W.2
while the latter was advancing towards the appellant (see page 20 of
the record).
P.W.4's evidence in material respects was no different
especially his reference to 'accused holding his gun with his left
hand' and
'P.W.2 going towards accused/(page 20 of the record).
Clearly, because P.W.2 was going towards the appellant the latter
must have
figured that P.W.2 was a threat to him.

P.W.5's evidence was to the effect that he had heard a
gun shot as a result of which P.W.2 fell. He had had a quarrel with
appellant
over fish; after opening the tin offish appellant had taken
it and eaten it. Accused had then taken out a gun and bruised the
witness
on the head with it. He says before appellant assaulted him
he had not fought accused in any way. He says when he heard a gun
report
he had already sustained the injury.

In cross-examination at pages 27 - 28 of the record this
was P.W.5's evidence:

8

Q. According to your evidence, the accused assaulted you
with a gun, did you ever report your case in relation to that
incident to
the police?

A. No.

Q Do you agree with me that you have been forced to come
and say you were assaulted?

A. I realised that.

Despite the answer, notice that the witness insisted
appellant hit him with his gun causing the witness to run away from
appellant.
Also please notice a question asked by counsel for
appellant at p.31 of the record, namely:

Q. Accused says he took out the gun and hit you with it
as you fought him for having eaten your fish and he say you were
armed with
a knife too?

A. That is not so.

Q, He says he held one person who was armed with a knife
and one of the people held his left hand in which he was holding the
gun
with which he had assaulted you?

A. That is not so. There were only two of us when he hit
me with his gun I did not see anybody hold accused's gun.

Q. Accused tells me that it was as that other person was
holding his gun that a bullet was fired and that bullet hit the
complainant
out?

A. I do not know about that.

9

According to P.W.6 appellant had asked him to buy beer
for him and when he said he had no money for beer accused had said
Tlale's
driver's were selfish and had hit him with a fist below his
right eye. He had then gone to accused intending to fight back and by
putting his right hand by his wrist he knew appellant was taking out
a gun. He says he held to accused's right hand and accused had
taken
out the gun with his left hand and as he did so he shot at P.W.2 who
was standing behind the counter (see page 32 of the record).
He says
at the time appellant shot at P.W.2 no one was fighting the accused
(see p.33 of the record). It will be seen that in his
allegations the
appellant has no support from either the crown witnesses or his own
witness D.W.I.

To be precise, according to D.W.1 Tpr. Sefali, appellant
was fighting with P.W.5 and other people were intervening. According
to the
defence witness, he has not testified that there was wrestling
for the possession of the gun or appellant was being fought by the
host's (P.W.2's) employees. Of importance is this testimony by D W.1
at p.39 of the record:

Q. What happened to accused after he shot at P.W.2? A.
I saw him running away and people chased after him.

In other words, D.W.1 admits that it is the appellant
who shot at P.W.2 and ran away after shooting at P.W.2. If it was not
guilty
knowledge why, then, did the appellant run away?

Appellant has said that he was defending himself and the
question arises as

10

from what he was defending himself. For eating P W.5's
fish without authority and on being stopped by P.W.5 from hitting
P.W.5 on
the head with his (appellant's) gun? Or is it for P.W.6
refusing to buy appellant beer and protesting he had no money that
earned
P.W.6 to be punched? It would seem the appellant wanted
everybody to do his bidding lest all suffer.

For all these wrongful acts appellant says he was
defending himself. Visser and Mare' in their General Principles of
Criminal Law
through the cases - 3rd Ed. at p. 181 say to give rise
to a situation warranting action in private defence or as it were
self-defence,
there must be an unlawful attack, which has commenced
or is imminent, upon a person's legal interests. The attacked person
may in
such a case ward off the attack by reasonable means directed
at the attacker.

In the first place, no unlawful attack was directed at
the appellant, it is the appellant who initiated the attacks. There
was no
legal interest the appellant was protecting and the means he
used were unreasonable in the circumstances.

R.v.Zikalala.1953 (2) S.A 508 is illustrative of the
concept of self:

defence. In this case in a crowded hall the deceased
supported by a number of friends made a murderous attack upon the
appellant with
a businesslike knife. The appellant avoided two
thrusts by dodging and jumping over a bench. To repel further attack,
he opened a
small pocket knife then in his possession and stabbed the
deceased. He was charged with murder and he raised private defence.
The
trial court thinking the appellant had 'gone too far' convicted
him as, according to the court, he should have kept on jumping from
bench to bench to thwart deceased's

11

attacks. In upholding the appeal, the Appellate Division
had reiterated attitudes of eminent writers in Roman-Dutch Law like
Mathaens
(48 5 3 7), Moorman (2 2 12) and Van der Linden amongst
others who said where a man can save himself by flight he should flee
rather
than kill his assailant. Damhonder with his ideas of defence
against honour is shown as expressing a different viewpoint for,
according
to him, no one can be expected to take to flight to avoid
an attack, if flight does not afford him a safe way of escape in that
a
man is not bound to expose himself to the risk of a stab would in
the back, when by killing his assailant he can secure his own safety
- see also Moorman (2 2 12).

As we have seen, in the instant case there was no
unlawful attack upon the appellant; on the contrary, he deliberately
provoked P.W.5
and P.W.6 and having done so assaulted them. The
appellant in the instant case would have this court believe the
appellant was subject-matter
of an attack by P.W.5 and his
co-workers, a fact which is not borne out by facts in the case and
was denied by prosecution witnesses.

It follows that appellant's version of what took place
cannot be reasonably true and the court a quo was justified in
believing the
prosecution witnesses and rejecting the defence
version. Courts are creatures of evidence and where there is direct
evidence as was
the case in the instant appeal, this is to be
preferred than engaging in unnecessary speculation and inferences in
direct conflict
with tendered evidence.

This court has read the learned magistrate's judgment
and found she has not,

12

in material respects, misdirected herself. Accordingly,
the appeal against convictions is dismissed and the convictions are
confirmed.

On sentence, it has variously been pressed home that it
is better if doctors give evidence in support of their medical
reports busy
as doctors are. The advantage of doctors giving evidence
is that they are able to amplify their reports and bring the court on
board
to appreciate the nuaces of medical examination. In this case,
the medical reports are clear and the defence freely admitted their
production and consequently there is no prejudice. En the result the
appeal on sentence is also dismissed and the sentences are confirmed.
By reason, however, of the offences having occurred at the same time
and place, it is ordered that sentences on the three (3) counts
run
concurrently.

G.N.MOFOLO

JUDGE
24th January, 2000.

For the Applicant: Mr. Mathafeng
For the Crown:
Mr. Kotele