CRI/A/45-49/87

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of:

MOKO.TELI
HATANE Appellant

v

R E
X Respondent

JUDGMENT

Delivered
by the Hon. Sir Peter Allen on the 20th day of August, 1987

The
appellant and four others were convicted on their own pleas on 3 June
1987 by a magistrate at Mohale's Hoek of the offence of
assault with
intent to do grievous bodily harm. The appellant and the other
accused were each sentenced to imprisonment for six
months.

The
appellant was the first accused in the lower court and he is the only
one of the five accused to have appealed. The others are
now serving
their sentences and have indicated that they do not intend to appeal.

The
appellant pleaded guilty and so he cannot appeal against his
conviction. However, Mr. Pheko, appearing on his behalf, asked
the
Court to review the conviction on the ground that the facts given to
the lower court by the prosecutor do not disclose an offence
by the
appellant.

Before
doing so I wish to comment on the charge sheet.

2

There was
only one count and. it charged that the five accused did "wrongfully,
unlawfully and intentionally assault one Ramakoatla
Koroloso and
Moeketsi Sarele ..... with intent to cause (them) grievous bodily
harm."

This was
not the correct procedure. The alleged assault upon two different
complainants each constituted a separate offence and
there should
thus have been two counts in the charge sheet and not one. This is
essential because the accused persons might have
wished to admit one
assault and deny the other, or the prosecution might have satisfied
the court that one offence was committed
but failed with regard to
the other. The trial magistrate should be in a position to make a
separate finding and verdict in each
in­stance, and this must
always be done in future.

Returning
now to the facts disclosed by the prosecutor, this is the second
appeal that I have heard this month in which both sides
have
complained of the inadequacy of the facts given to the lower court by
the prosecutor. Magistrates must insist upon being supplied
with
sufficient facts so as to reveal whether or not the offence charged,
or a lesser offence, has been committed, and also enough
information
to indicate just what part the accused person played in the
commission of the offence. This information is essential
so that the
magistrate can enter a proper verdict and assess an appropriate
sentence; and also so that the accused person is placed
in a position
whereby he knows exactly what is alleged against him, and so that he
can then agree or dis­agree with those facts.

3

In the
present case the prosecutor informed the Court that on 2 May 1987 the
five accused persons, including the appellant, were
in a larger group
of men who stopped the second complainant, Moeketsi, and proceeded to
beet him about the body with sticks. The
first complainant,
Ramakoatla, intervened and tried to rescue Moeketsi, but only
succeeded in being beaten as well. They both managed
to escape and
run away but Moeketsi fell down and was further beaten and stabbed by
two others of the accused persons (not the
appellant).

The
injuries to Moeketsi consisted of open wounds on . his head and right
arm. Ramakoatla. had bruises on his head, left arm, left
leg and
back. No medical report forms were put in as they should have been,
so as to assist the magistrate in assessing the seriousness
of the.
two assaults. They were clearly more than,common assaults.

A month
later the appellant and two other accused handed they over sticks to
the police that they admitted using in the assault.The
other two
accused surrendered a knife. They were then all arrested.

These
facts were admitted by all of the accused and, in mitigation none of
them said anything except to ask for leniency. They were
then
sentenced.

With
regard to the conviction it would have been helpful to have had more
facts, especially the medical reports. but I cannot agree
with
counsel that no offence of assault was disclosed.. In fact I am
satisfied that two separate offences of assault were revealed
and,
indeed, should have been charged.. The facts' indicate that the
appellant was one of those who took part in beating these
two men and
he later

4

handed
over to the police the stick which he used for that purpose. He
clearly knew what it was all about.

The
offence of assault is not a difficult one for the ordinary person to
understand, though he probably would not know the various
legal
grades of assaults. 1 am satisfied that the appellant did so
understand the charge and that he admitted taking part in the

assaults. It is not clear just how much effort he put into assaulting
the complainants but, when a group or gang of people indulges
in such
activities, it is often the case that the amount of individual
participation is not known to the victim or the police.
It was up to
the appellant, if he wished, to say in mitigation that he merely
stood and watched, or only pretended to strike blows,
or only struck
once, or whatever he wants to say. This appellant said nothing like
that at all when the plea was taken, nor when
the facts were read,
nor when he spoke in mitigation. He had ample opportunity to speak.

In the
event, his admission of the charge and the facts is sufficient, in my
opinion, to justify his conviction as charged. I am
therefore not
prepared to interfere with the conviction on record.

Turning
now to the appeal against sentence, both counsel for the appellant
and Mr. Mokhobo for the Crown agreed that imprisonment
for six
months, in the case of the appellant, was too harsh and excessive and
I agree. The worst part of the assault was the later
use of the knife
and it appears that the appellant was not involved in that episode.

The
appellant was aged 31 years and the eldest of the five accused, but
not necessarily of the whole group. But

5

he was
certainly old enough to know that he should not behave in this
fashion, just as if he was a teenaged street hooligan. No
reasons
were given for the attack upon Moeketsi and there was no evidence of
provocation. I think the magistrate ought to have
tried to find out
the motive of these people. Fortunately the two complainants were not
badly injured. The appellant is a first
offender who pleaded guilty
and so saved the time of the Court and police, and it is customary in
such cases to be lenient in these
circumstances.

Consequently
I think that this would have been a proper case in which to give the
appellant an opportunity to pay a fine rather
than commit him to
prison without the option. That, in my opinion was an excessive
punishment in these particular circumstances.

Accordingly
this appeal against sentence only is allowed and I set aside the
sentence of imprisonment for six months and substitute
for it a fine
of M100 or, in default, imprisonment for two months. The appellant's
bail is also discharged.

With
regard to the other four accused persons who have not appealed, they
have already served about 2½ months of their terms
of
imprisonment. In the circumstances, in order to be fair to them and
in view of my decision with regard to the appellant, I now
set aside
each of their sentences of imprisonment for six months and I
substitute for those sen­tences in each case a sentence
of
imprisonment for such a period as will ensure their immediate release
from prison.

P.A.P.J.
ALLEN

JUDGE

20th
August, 1987

Mr. Pheko
for the Appellant

Mr.
Mokhobo for the Crown