CRI/A/76/35

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MAMAHLOLI
MALISE Appellant

vs

REX

JUDGMENT

Delivered
by the honourable Acting Chief Justice Mr. Justice J.L. Kheola on the
27th day of October, 1986.

The
appellant was charged with assault with intent to do grievous bodily
harm it being alleged that on or about the 23rd June, 1985
and at or
near Ma Telukhunoana in the district of Berea the accused unlawfully
and intentionally assaulted 'Malineo Tongoane by
stabbing her on the
left upper chest with a knife with intent to cause her some grievous
bodily harm. She pleaded not guilty but
was found guilty as charged
and sentenced to six (6) months' imprisonment without the option of a
fine. The appeal is against the
conviction and sentence.

The
complainant testified that on the 23rd June, 1985 at dusk she was
walking towards her home when she heard the foot steps of
a person
running towards her from behind. As soon as she turned and looked
back her the accused came to her and stabbed her above
the left
breast with a knife.,

She fell
down. When she rose and ran away the accused stabbed her on the back
with a knife. She then chased her until she entered
into

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Matumelo's
house. She was later taken to TY Hospital and admitted for four days.

In
cross-examination she denied that the accused found her in
compromising circumstances with her (accused's) husband. She denied

that she was in love with the husband of the accused.

Dr.
Gotink is the medical practitioner stationed at TY Hospital and he
examined and treated the complainant when she was admitted
into the
hospital. He found one stab wound on the upper left side of the ,.
chest and another stab wound at the back. There was
bleeding into the
chest. He formed the opinion that the wounds were dangerous to life
and that the degree of force used to inflict
the wounds was severe.

The
version of the accused is that for a long time the complainant had a
love affair with her husband. She complained to her husband,
to her
husband's family and to the chief but in vain. On the 23rd June, 1985
she found the complainant and her husband amorously
holding each
other. They were standing between the arable lands of 'Mahelile and
'Makhabo. The complainant saw her and warned her
(accused's) husband
that she was coming. The husband ran away. She then attacked the
complainant and stabbed her on the chest and
back with a knife. She
then chased her until they came to 'Matumelo's house where people
stopped her from assaulting the complainant,.

Mr.
Pheko, for the appellant, submitted that under the traditional view
provocation was a defence on a charge of murder but the
courts have
extended the defence of provocation to crimes involving specific
intent such as the charge in the present appeal. He
further submitted
that under the new approach to provocation as enunciated by Burchell
and

3

Hunt in
the book "South African Criminal Law and Procedure, Vol. I 1st
edition at page 242, the provocation received may not
only mean that
the accused did not intend to dp grievous bodily harm upon a charge
of assault with intent to do grievous bodily
harm, but also that he
lacked the intention required for common assault. He contended that
the trial court failed to make a proper
inquiry,

I
entirely agree with the above submissions as far as the law is
concerned, but I do not agree with the submission that the trial

court failed to make a proper inquiry as to whether the appellant had
the necessary specific intention for assault with intent
to cause
grievous bodily harm. On page 9 of the record starting from the
middle of the second paragraph the learned magistrate
states:

"But she (accused) has said she has been watching them, and
prepared to catch them red-handed; from these facts it is clear
that
she had the intention to commit grievous bodily harm because while
she was watching them she was armed with a knife and a
knife is a
dangerous weapon."

What the
learned magistrate is saying is that the appellant did not come upon
the complainant and her husband by chance; she had
been going about
armed with a knife and looking for a chance to find them in
compromising circumstances and then punish the complainant
for her
affair with her (accused's) husband.

The
appellant knew very well that her husband was having an affair with
the complainant. She took her complaint to the right people
and
finally to the chief but her husband was not prepared to bring the
affair to an end. Thus she decided to watch them with the
view or
catching them red-handed and punishing her or both of them
accordingly,

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The fact
that she went about armed with a knife clearly proves that she had
the intention to cause grievous bodily harm.

The story
of the complainant that the appellant attacked her without any cause
is untrue and must be rejected. The husband of the
accused gave
evidence that he and complainant were caught red-handed amorously
holding each other.

The
evidence before the trial court was that the appellant saw the couple
from some distance away. It is not clear how far she was
but what is
clear is that when she came to the complainant the husband had run
away, After stabbing the complainant twice the appellant
chased her
until they came to the home of one 'Matumelo.

The most
important aspect of the case is whether or not the appellant was lost
self-control and whether the provocation sudden in
terms of the
Criminal Law (Homicide Amendment) Proclamation No. 42 of 1959.
Although the Proclamation refers to murder cases, the
requirements of
provocation are the same. I do not think that the provocation was
sudden. The appellant had known the affair between
her husband and
the complainant for a long time end had been seeking an opportunity
to find them under those circumstances. (Rex
v. Setai, L.L.R. 359 at
p.378).

The
defence of provocation is not available to the appellant in the
circumstances of the present case. The appeal against conviction
is
dismissed-

Although
provocation has been rejected as a defence, I shall take it as
mitigating or extenuating circumstance in this case. The
behaviour of
the complainant and the appellants husband was so prepos­terous
that leniency must be shown in passing sentence.
The learned

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magistrate
did say that he took into account provocation as a mitigating factor.
By sending the appellant to prison without the
option of a fine the
learned magistrate seems to have given very little weight to this
important factor. The sentence appears to
be too severe under the
circumstances of this case.

The
sentence imposed by the court below is set aside and substituted with
one of M150.00 or six (6) months' imprisonment.

J.L,
KHEOLA

ACTING
CHIEF JUSTICE.

31st
December, 1986.

For
Appellant - Mr. Pheko

For Crown
- Mr. Lenono.