HIGH COURT OF LESOTHO
MAKOAE 1ST APPELLANT
MAKOAE 2ND APPELLANT
MALEKE 3RD APPELLANT
MAKOAE 4TH APPELLANT
by the Hon. Mr. Justice M.P. Mofokeng on the 17th day of December.
appellants were charged before the Subordinate Court of Maseru with
the crime of Assault with Intent to do grievous bodily harm.
alleged to have assaulted Morris Mokete by hitting him with blunt
objects, setting dogs on him until he fell over a cliff.
pleaded not guilty but were found guilty and sentenced to various
terms of imprisonment. They now appeal to this Court
convictions and sentences.
Mokete briefly stated that he knew the accused, that on the day in
question he was with his brother driving animals to their
cattle-post. Along the way his brother left him whilst he was looking
for cattle. He found him already with Appellant A. On his
they were eating. At about 10 P.M. or there about Appellant 4 left
his cattle-post where they were all sleeping and said
he was going to
get mealie-mealie for his dogs.
witness and his brother (Moeti Mokete P.W.2) were sleeping, he heard
dogs bark. Moeti got out.
witness also got out. As he did so appellants 1,2 and 3 chased Moeti.
They asked him what he wanted at the cattle post. He said
was sheltering from rain and secondly he was on his way to his own
cattle-post. Appellant 1 said that he must be "beaten
He ran away.
grabbed him, the witness, and said,
is another one". The pushed him into the hut. Appellant 1 said:
"Shall I slaughter him or not'" He insulted
him by his
mother's private parts. When the witness heard he was to be
slaughtered he managed to escape and ran out and dashed
for it. They
chased after him towards a cliff. They set dogs on him. They lit a
torch and would switch off alternately. He thus
could not see his way
properly and he fell over a cliff.
injured. He lay there. Appellants appeared from above and he heard
them ask among themselves if there was anyone of them
who had fallen
over a cliff so that they could come and kill him. When he heard them
say that he did not raise an alarm. He lay
there until 3-00 a.m. when
Moeti Mokete, chief's messengers and others came to him.
taken to the hospital at Morija,
cross-examination he said that permission of appellant 4 had been
obtained. He said that it was not true that all the appellants
them in the hut and appellant 4 knew nothing about their presence. He
permitted them. This witness is to a large extent corroborated
brother, who only adds details of where the witness was not present
for example what transpired between him and appellant
4. He is
referring to their conversation with appellant 4 on his arrival :
"We (he) said he would accomodate me since the owner would not
quarrel since we were fellow-villagers. We repaired to his
We drove our flock of sheep into the fenced area. I gave him my
provision after he had told me that he was hungry.... He told me
the dogs had no mealie-meal to feed them...My younger brother arrived
at 7.00 p.m."
Mokete answered his brother's call that evening even though he had
received injuries as the former was looking for him, and,
as he could
not see, he shouted his name. He went to him and instructed him to
remain talking to himself. Presumably if he did
not do that he would
die if he fell asleep.
put to this witness that he could not ask for permission from a young
man such as appellant 4 but had to get it from the
owner of the
cattle-post and the answer was:
"It is because at the cattle-post we do not adopt the same
procedure as we do at home normally,"
It was again put to this witness what report appellant 4 made:
"Q: I put it to you that-accused -4 reported that there are
strangers at accused's (1) cattle-post?
A; I do not deny." Nothing of the kind was ever reported.
Appellant 4 said:
"I reported to accused numbers 1, 2, 3 and my mother, I said
that there were gentlemen who arrived at the cattle-post. I reported
that (they said?) I should fasten the dogs and go home and report."
Finally Moeti Mokete was asked:
Q. What made you believe that the dogs were chasing you?
A. It is because they were setting them on us."
There was moonlight that night.
gave evidence to the effect that Kefuoe Mokete was admitted at his
hospital on 16th November 1981 and he had the following
abrasion on the left elbow swollen;
he had a
paralysis of both his arm and leg. These injuries were caused by a
blunt instrument and the degree of force was savage.
probabilities were that the injuries could also have been caused by a
the Crown' s case.
4 gave evidence and described how the first two Crown witnesses
arrived at his cattle-post.
that they came and told him that they would put up at the
cattle-post. He did not agree. They said he should fasten the
and go home to report that there were visitors. He fastened the dogs.
He went home to report as mentioned earlier.
returned with his co-appellants the dogs barked but were still
fastened. He noticed Morris Mokete get out and ran away.
He was asked
why he was running away. The second crown witness came out running
and appellant 3 asked him why he was doing so and
what he wanted at
the cattle-post. There was no reply.
the possessions of the Crown witnesses after they had fled.
Mokete brothers were not assaulted nor any dogs set upon them. He did
not know why they ran away. The dogs, moreover, were never
cross-examination it was put to him
"Q: Did you tell PW.1 and PW.2 that you were going home to fetch
some mealie-meal for the dogs9
A: Yes I said so to PW.1 and PW.2.
Q: At what stage did you tell them?
A: When they said I should sleep with them.
Q: When then did they instruct you to report to your father?
A: When I said I was going home.
Q: Meaning that when you said you were going home they told you to
report at home that they were putting up at the posf?
Q: Meaning that they did not apply any threats at all?
1 gave evidence and described how appellant 4 arrived at home at
night and made a report. He and the other appellants
went to the
cattle-post in question. As they approached he saw a person jump over
a fence and ran away. He called him back but
did not come. He had not
even touched the man. Then dogs were still fastened. Morris Mokete
had fled. Moeti Mokete came out of
,the hut and as they approached
the gate, he called him back to tell him who he was and what he
wanted. He says it was not raining
at all that night. He had not been
informed that the two brothers were coming to sleep in that hut. They
were not assaulted nor
dogs set on him. He says nobody goes to his
cattle-post without his permission.
the defence's case
learned magistrate has seen the witnesses who have given evidence on
both sides. He saw the demeanor of these witnesses and
closely. He accepted the evidence of the Crown, on adequate grounds.
The two appellants, as witnesses on the record
before me are shocking
liars. I am astounded that a young boy of the age of appellant 4 can
lie with such deliberateness. I am
in no doubt in my mind, whatsoever
that the learned magistrate in accepting the crown's evidence acted
a fallacy which persists up to the present day
common purpose to be present there must exist first an element of
conspiracy. The two concepts are entirely different as
cheese is from
chalk. For common purpose to be present ceremony is necessary nor
must consultation always be essential. It can
happen on the spur of
the moment. Whether or not two or more persons perform an act jointly
will be determined by their actions.
The appellants acted jointly.
2 and 3 have chosen not to answer a prima facie case against them
which the Crown had established against them at the
close of the
Crown's case. That evidence, in my view, called for an answer from
them and they failed to do so. The prima facie
evidence then became
conclusive proof. (R. v. Basothou Makhethe & Others. CRI/T/32/78
(unreported) dated 17th October, 1978
at pp 13 - 15.)
law the application of force in assault cases may be indirect as
where, in this case X set a dog on the complainant causing
him to run
into a pit. (See Matjekoa v. Rex, 1976 L.L.R. 258 at 262; Hunt - S.A.
Criminal Law, p. 437).
regards sentence everything was said on behalf of the appellants. It
is true that they are first offenders, that the offence
occasioned by provocation (to a very minimum degree indeed). In the
case of Appellants 1, 2 and 3 the sentence imposed by the
magistrate is extremely lenient in the circumstances of this case and
I do not propose to interfere with it. It is thus
respect of appellant 4, the position is entirely different. He was
dependant on appellant 1. He is a mere 12 year old baby. Section
gives the court a wide discretion. In my vew, a baby like that ought
to be at home under watchful eye of his parents and not
be thrown to
the wolves, so to speak. He ought to be at school, in my view and not
far away at the cattle post. Moreover, this
court has, on numerous
occasions, said that corporal punishment should not be used as a form
of punishment unless the law compels
the court in the particular or
special circumstances of that case to do so. The sentence of whipping
is hereby set aside and it
is substituted by the following:
"Accused is found guilty is cautioned and discharged."
result, therefore, the appeals of all the appellants are dismissed.
Appellants : Mr. Matsau
Respondent : Adv. S. Peete
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