CRI/A/44/85

IN THE
HIGH COURT OF LESOTHO

In the
appeal of:

MALEFETSANE
RATLALI

Vs

REX

JUDGMENT

Delivered
by the Hon. Mr. Justice M. P. Mofokeng on the 4th day of November,
1985

The
Accused was charged on two counts before a Magistrate of Subordinate
Court in Leribe district. In the first count he is alleged
to have
assaulted the Complainant by hitting her with a sword on her body,
thus intentionally causing her grievious bodily harm.
This occured on
the 2nd October 1984 at Baking. In the second count he is charged
with assault in that he pointed an iron rod sharpened
on one side) at
her. This occured on the 15th October 1984 at Baking.

The
version of the Crown on the first count (as given by the Complainant)
is that Appellant banged at her door and using foul language,
asked
her to open. He came in and accused her of being a prostitute. He
then took her out and threw her on the ground in the forecourt.
With
a sword he hit her on "the left side of the head". She was
treated by a neighbour. This neighbour deposed that she
found
Complainant fallen behind the door. Complainant's children were
present but frightened.

2

On second
count she alleges that Appellant came into her house, and using foul
language. pointed an iron rod which was sharpened
on one side, at
her. He went round the house with Complainant. However, he did not
stab her or hit her with that iron rod.

Appellant
gave his explanation that he did not cause the injury on Complainant
described in count one. He says that he was assaulted
by the
Complainant's children one of whom hit Complainant on the head. He
says he sustained certain injuries as a result of the
fight. He
supported this by producing medical evidence. This report handed into
Court as evidence, indicates certain injuries inflicted
on the body
of the Appellant. It is dated 3rd October, 1984 He is also supported
by a witness he called as to the assault on him.

The Crown
has not shown that the explanation of the Appellant is false in
respect of count one. The "children" who Appellant
says
assaulted him, though present, were never called as witnesses.
Complainant, herself agrees that they were present when the
assault
took place. In the case of Mocheke Phaloane and Moloko Leteketa, 1960
H.C.T.L.R. 75 at 76E, Roper, J, (as he then was)
is reported as
having said:

" In my view, not only was the explanation given by the second
accused one which might reasonably have been true, but the
evidence
was such as to suggest that it was probably true. The explanation
given was therefore satisfactory and this accused should
have been
acquitted." (See MOFOKENG : Criminal Law and Procedure through
cases pages 9 and 118).

In the
circumstances the Crown has not proved its case

3

beyond
reasonable doubt in that it has not shown that Appellant's
explanation in the Court below was palbably false beyond all
reasonable doubt.

On count
two Complainant is corroborated by an in­dependent witness
Macheli Motloheloa. His evidence reads well on the record
and the
learned magistrate who saw him give evidence, believed his evidence
and the Court sees no reason to find to the contrary.
The Crown has
proved its case. Moreover the Appellant gave to Special Constable
Chakela the iron rod which was sharpened on one
end.

In the
result the appeal on the first count is upheld and the conviction and
sentence are set aside. On the second count the appeal
is dismissed.
However the sentence is altered to read:

"to pay a fine of M20.00 or undergo imprisonment for a period of
two (2) months

.

JUDGE

4th
November, 1985

For the
Appellant : In person

For the
Respondent : Mr. Lenono