CRI/A/18/2001
IN THE HIGH COURT OF LESOTHO

In
the matter between:

MOTLATSINTEO Appellant

and

REX Respondent

For the Appellant : Mr M E Teele

For the Respondent : Miss L Mahanetsa

REASONS FOR JUDGMENT

Delivered by the Honourable Mr. Justice T. Monapathi on
the 5^th day of February 2002

This was an appeal from the magistrates court of Leribe.
The Accused had been charged with the crime of assault with intend to
do
grievous bodily harm of one Taolana at Malahleha at night upon or
about the 13^th September 1998. He was convicted and
consequently sentenced to a fine of M500.00 or twelve months
imprisonment.

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It was common cause that the Complainant who was a
policeman went into or entered into the premises of the Appellant on
that night.
Complainant testified to say he was drunk.

It was not gainsaid that Appellant had suffered a
previous theft at his premises at night. It could not be said that
that the Appellant
story was not reasonably possibly true that he had
feared that the Complainant was a thief and that this belief was not
unreasonable
in this circumstances. This Miss Mahanetsa conceded.

The Court noted that in the particulars of the charge it
was alleged that the Complainant was beaten with fists (not a sjambok
as
claimed in the evidence). Indeed the assault was said to be severe
on most accounts. Furthermore the medical report form had recorded
that "the complainant had been assaulted all over the body with
a sjambok". This conflict would be worrisome for obvious
reasons. The Court would not take the matter further in view of
concessions made by the Crown over the larger picture.

It was not disputed that it was the Accused who took the
Complainant to the police station. This led the Accused's Counsel to
submit
that in all the circumstances the Appellant's acts were
consistent with a person who had been engaged in and whose primary
purpose
was arrest of the Complainant.

The Accused had denied that the Complainant could have
identified himself It could not be suggested seriously that the
Appellant could
beat up a policeman the latter having identified
himself and after assaulting him to take him to the

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police station amongst his colleagues. It was submitted
the Accused's story had a reasonable possibility of being a true one.

Once the above circumstances prevailed as Applicant's
Counsel submitted that would make the arrest effected by the
complainant a lawful
one. Accused could not be convicted merely
because he acted unreasonably. I was referred in that regard to Rex v
Britz 1949 (3) SA
293 at 303. It was said that the above case would
reveal that the learned magistrate had been in error in trying to
weigh the seriousness
of te offence and the measures used to effect
arrest which arrest was said to have been resisted in the instant
case. That was why
(as it was submitted) even a fatal assault could
be justified even if one was only stealing a spoon in a dwelling
house at night.
The Court was again referred to Burchell and Hunt:
South African Criminal Law and Procedure Vol I (2^nd
Edition) (and cases cited therein). And Matlou v Makhubelu 1978 (1)
SA 946. The Crown conceded most fairly that on this ground alone
the
appeal ought to succeed.

The Court had been addressed on what Counsel said it
would be Accused's main defence. It was by way of resort to section
42(1) of
the Criminal Procedure and Evidence Act No.7 of 1981 (CP&E).
This section provides that a person who is entitled, inter alia,
to
arrest another, who has committed or is on reasonable grounds
suspected on having committed an offence mentioned in part 17 of
the
first schedule of the CP&E and that person resists of fleas the
arrester, if he kills the suspect, when no other means of
apprehending the suspect than to cause his death the death shall only
be guilty of justifiable homicide.

Mr. Teele added that since theft (which complainant was
suspected of) is included in the offences mentioned but qualified by
section
42(2) of the CP&E

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which links theft to theft in a dwelling house at night,
it was significant for the purpose of this case also, that included
in part
II offences is, inter alia," entering on premises with
intent to commit or offence either at common law or in contravention
of any statute."

I was asked to note that section 42(1) of the CP&E
contemplates that there are various measures that in themselves may
be dangerous
but not fatal. It was thus admitted that even these are
included in acts that would be justifiable under the section if they
were
employed and a person was not killed. The greater includes the
lessor. The act of beating the complainant with fists would thus be
covered by the section.

There had been an alternative argument. It was that
there was no evidence as to which of the assailants, that is the
Appellant or
the alleged others, inflicted which injury or that one
was aware of what weapons (if any) others used. In the circumstances,
as submitted,
it could not be said Applicant had been proved beyond a
reasonable doubt to have acted with intention to do grievous bodily
harm.

It was further submitted that it had been a misdirection
that the trial Court failed to make a finding as to whether it
believed Complainant
or Accused on whether the former resisted the
arrest or not. This finding could only be made by the trial court as
it affects credibility.
The fact that such a finding was not made did
not assist the Crown's case. It was quite clear, however, that the
Court approached
the matter like an armchair critic and failed to
take other factors and probabilities into account such as the
following.

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That the Appellant could not have realized the drunken
state of the Complainant. Second, that it was improbable that
Appellant would
beat up a policeman only to take him to the Charge
Office and make a report. Third, that it was quite probable that
being drunk and
feeling that he was innocent of any wrongdoing,
Complainant might well have resisted. In that case the Court would be
urged to feel
that it was at large to make its own findings. See R v
Dlhlumayo 1948(2) SA 678.

It was lastly submitted that it did not necessarily
follow that because Complainant lost a tooth it meant that the charge
was proved.
The Complainant must have been severely assaulted
according to the medical report.

I heard my own reservations about the way the case was
investigated or prosecuted. This did not affect the situation that at
the end
of the day the Crown conceded that the charge had not been
proved or most specifically that the Applicant's story might
reasonably
have been possibly true or furthermore that the Appellant
should had been given the benefit of doubt.

The appeal succeeded.

T. Monapathi

Judge

5^th February, 2002