HIGH COURT OF LESOTHO
by the Hon. Mr. Justice Sir Peter Allen on the 10th day of September,
appellant, a woman aged 28 years, was convicted after trial on 8
September 1986 by a first class magistrate at T.Y. on a charge
assault with intent to do grievous bodily harm. She was sentenced to
imprisonment for two years and this appeal is against sentence
After serving a month of her sentence she was released on 7 October
1986 on bail pending the disposal of this appeal.
to the lower court record the complainant woman Justina Maboeane was
attending a beer-drinking and conversing with the
younger brother of
the appellant and encouraging him to buy a vehicle that he wanted.
For no apparent reason the appellant intervened
and addressed the
complainanat in a rather abusive and insulting manner disparaging
the fact that the complainant had no children.
She then became
violent and the owner of the premises evicted her.
complainant eventually also left she found the appellant waiting on
the way for her in a threatening
so the complainant picked up some stones so as to defend herself. The
appellant's brother took away the stones and the appellant
bottle and jabbed her in the face with it five times until the
appellant was effectively prevented by another man from
with her assault.
a deliberate assault with a dangerous weapon. In her own words in the
lower court, the appellant said:
" I picked up a bottle in the forecourt and broke it to make a
medical report on the complainant when she was eventually seen by the
eye specialist at Queen Elizabeth II Hospital in Maseru
" On examination she had numerous facial lacerations some of
which had been sutured at T.Y. Hospital. Her vision was normal
right eye but she could only see the movement of the hand with her
left eye. The left eye had a perforation of the cornea
prolapse. She was admitted on 13/5/86 and had surgery to repair the
lacerated cornea on 26/5/86 under local anaesthesia.
discharged on 1/6/86. Today she came for follow up and her vision in
the left eye is 6/60. which is still far from normal."
later, on 24 June 1986 she was examined again and it was found that
there was an improvement as the sight in her left
eye was then 6/30.
But normal sight is 6/6, so it was still quite defective.
court record for 8 September 1986 is very brief, as follows:-
" 8/9/86 Judgment - Guilty as charged. No previous convictions.
Plea in mitigation First Offender Sentence - Two years imprisonment."
appellant then filed this appeal and, on 25 September 1986, the trial
magistrate recorded his "Reasons for Judgment"
included his reasons for sentence.
opinion this is absolutely wrong. Once the trial magistrate has
passed sentence he becomes functus officio and nothing more
added by him to the trial record. In any case the judgment ought to
have been written before, and delivered on, 8 September
should be addressed to the accused and prosecutor in that court
and not written as an explanation or submissions
to this Court.
Similarly the reasons for sentence should have been recorded and
given to the accused at the time when she was sentenced.
Both she and
the prosecutor were entitled to know why that particular
sentence was awarded. I have remarked in previous
judgments that 1 find this peculiar practice and procedure presently
followed in magistrates courts to be incorrect and
could amount to a serious miscarriage of justice.
counsel for the appellant and for the Crown objected not only to the
fact that the trial magistrate gave no reasons for sentence
time, with which
already dealt, but also that the magistrate failed to examine the
appellant about her personal circumstances before
Ramodibedi referred to my judgment in Makateng & Anor. v Rex
CRI/A/33-34/87, which appeal I heard last month, and in which
Ramodibedi also appeared. Apparently he and some others have found it
difficult to understand what I said there although it
is very simple
and straight forward. He asked me to reconsider it. The passage from
my judgment is as follows:-
" Mr. Ramodibedi thought that information as to whether the
appellants were married and the state of their health should have
been obtained. But it is up to the convicted accused to decide
what they wish to say in mitigation. Sometimes they choose
silent. I do not think that an accused should be cross-examined about
such matters. He is not required to give his life
history. It might
just occasionally be necessary or helpful for a particular question
to be put to an accused at this point, e.g.,
. age or whether he goes to school or what work he does, but this is
a matter for the discretion and common sense of the magistrate
particular case where such information is relevant."
maintain the same opinion, but I will enlarge on it slightly. In
another recent appeal judgment I pointed out a common
made by almost all the magistrates whose records I have read so far.
This is that when recording the testimony of witnesses
they simply record the name of the witness
follow on with the actual testimony. There is no attempt to record
the particulars of the witnesses and accused, yet this
be done. After recording the full name there should follow the age,
nationality, occupation (which can include housewife)
and, in the
case of women, whether married and to whom. The level of literacy is
useful, but that is usually obtained anyway.
facts help to build up a picture of the background of the witness and
accused which is useful not only to the trial magistrate
weighing and evaluating that person's testimony for judgment; but
even more useful to an appeal court which has never seen
people. Without these vital details the record is very deficient.
What is relevant to the present subject in this appeal
is that these
same details of an accused are the "personal circumstances"
which various counsel seem to think should
be obtained from the
accused at the time of sentencing. I disagree because in fact they
should have been obtained well before that
point is reached, as I
have already explained.
times when such details may not be on the record of evidence is when
the accused pleads guilty or when he chooses to remain
that there is no record of testimony which such details refer to.
Then it would be reasonable for the Court to ask specific
such as I have suggested in my above quoted passage.
any experienced judicial officer knows that when some accused are
asked to speak in mitigation
tell any story in the hope of obtaining leniency. 1 have often found
accused inventing wives and quantities of dependants
ulcers and weak hearts and so on, in order to try to avoid going to
prison. It is rather naive to expect a great deal
of truth at this
stage of the proceedings. That is one reason why it is better to
obtain such information earlier in the proceedings
before the question of a sentence has been reached. It might then be
more accurate and truthful.
As I have
already said, some accused choose to say nothing for their own
reasons. It would be wrong to interrogate them and pursue
questions. There is no legal requirement for them to reply or to
inform and, if they indicate that they do not wish to, then
take the consequences and be sentenced simply on the basis of the
offences which they have committed.
most important is that the magistrate should put everything on the
record at the time. That must include the judgment before
the reasons for sentence, and a brief explanation of any other
decisions taken. This will not only assist the accused
counsel but, most of all, the appeal court.
to the present appeal, Mr. Ramodibedi thought that the appellant
ought to have been given the option of paying a fine
complainant also has a remedy by way of a civil action for damages. I
disagree, Here we have a woman appellant who
had not herself been
attacked, who admitted that she deliberately smashed a
make a dangerous weapon and then jabbed the complainant in the eyes
and face with it. She must have known it was an extremely
thing to do. She could have blinded the complainant and may well have
intended to do so. She certainly damaged the sight
in one eye. The
assault was vicious and inexcusable and the appellant behaved like a
bar-room hooligan. Why should she expect to
be treated leniently? She
is aged 28 and not a child.
no way that I can agree that a fine would be an adequate punishment.
People such as the appellant are a menace to the public
and they need
a sharp lesson in the hope of deterring them from repeating such
offences. A custodial sentence is therefore appropriate.
trial magistrate's later given reasons for sentence he said that the
appellant attacked and "took out" the complainant's
This was an exaggeration. in fact, and it may perhaps have influenced
him with regard to the length of imprisonment which
he imposed, and I
shall take that possibility into consideration.
other fact, that the appellant has no previous convictions, is
largely irrelevant here, in my opinion, since the assault
vicious, mindless and unprovoked. The public expects such behaviour
to be severely condemned by the courts.
taking all these factors into account, I shall allow this appeal
against sentence to the extent that I set aside the
imprisonment for two years and I substitute for it a sentence of
imprisonment for six months.
appellant's bail is discharged and she must now serve the balance of
her sentence, of which she has already served one month
released on bail.
Ramodibedi for the Appellant
Thetsane for the Crown
HIGH COURT OF LESOTHO
appellant, aged 36 years, was convicted by a first class magistrate
at T.Y. on 25 July 1986 on his own pleas of guilty on two
first was of assault with intent to do grievous bodily harm, and the
second count was of posessing a dangerous weapon
without a lawful
purpose c/s 3(1) Dangerous Weapons Order No.20 of 1970.
1 he was sentenced to imprisonment for one year and on count 2 he was
fined M20 or imprisonment for one month in default.
Four days later
he was released on bail pending the disposal of this appeal against
the sentences only.
appellant agreed with the facts given in the lower court by the
prosecutor. Apparently the appellant missed some cattle and
which he reported to Matela Police Post. The number of these animals
was not given. He suspected the complainant Keresemese
because he saw any of
animals there, but simply because the complainant had a rope that
looked similar to the appellant's.
On 9 June
1986 the appellant and his father rode over to see the complainant
and the appellant demanded the return of his animals.
denied having them and the appellant produced a home-made sword and
assaulted the complainant with-it, cutting
his head and both hands.
magistrate convicted the appellant and sentenced him but without
giving any reasons for the sentences awarded. There have been
directions given by this Court that reasons must always be given to
the accused person at the time of sentencing him. It is
that he and others in the court should know why a particular sentence
has been decided upon in those circumstances.
quite wrong for a magistrate to wait for an appeal to be lodged
before stating the reasons for the sentence. They must be
the time of making the award.
instance the magistrate recorded that the appellant stated in
mitigation that he was provoked by the complainant. In his
reasons for sentence the magistrate rejected this and found that it
was the appellant who provoked the complainant and
appellant acted senselessly as he had no reasonable grounds to
suspect the complainant.
appellant is not a young man. At 36 years old he ought to be able to
avoid acting hot-headedly. He had reported the matter to
but then decided to take matters into his own hands. This was wrong,
and there was no excuse at all for using a dangerous
weapon on the
the fact that he pleaded guilty and so saved the time of the court;
and that he had no previous convictions, were reasons
why some degree
of leniency could have been exercised. At the same tike he must learn
that he cannot use dangerous violence and
get away with it. I
consider that a custodial sentence is appropriate but that it would
be proper for this Court to reduce the
sentence awarded on count 1.
regard to count 2, the magistrate and the police appear to have
overlooked the fact that the whole of the Dangerous Weapons
1970, was repealed by s.82(2)(a) of the Internal Security (General)
Act, No.24 of 1984. The correct charge for this offence
been c/s 45(2) of the 1984 Act.
stands the appellant was convicted under a nonexistent law and
Crown Counsel agreed that the conviction could not be
this appeal is allowed in the following terms:-
count one I set aside the sentence of imprisonment for one year
and I substitute for it a sentence of imprisonment for
count two the conviction is quashed and the sentence is set aside.
appellant's bail is discharged and he must now serve his sentence.
Mdhluli for Crown
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