CRI/A/50/87

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

NOWINILE
MBANA Appellant

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 23rd day of October,
1987

The
appellant was convicted on her own plea on 17 March 1987 by the
Resident Magistrate at Mohale's Hoek of the offence of assault
with
intent to do grievous bodily harm. She was sentenced to imprisonment
for six months and has appealed against the sentence.

The
appellant is aged 26 years Apparently she and the complainant Mampuo
Lephatsoe were not very friendly and they had been involved
in a
fight in 1986 when the com­plainant bit the appellant on her
lips. In January this year the appellant had been cutting
some
vegetables with a knife when the complainant passed by. The appellant
asked the complainant to return her lips which had been
bitten and
the complainant in reply asked where she should excrete the lips. The
appellant then attacked and stabbed the complainant
three times in
the left chest (according to the medical report).

The
complainant reported to the local chief and was then sent to Quthing
hospital. The appellant was taken to Quthing Police Station
where

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she was
cautioned and charged. These prosecution facts were agreed by

the
appellant in the lower court.

The
medical form merely describes the chest injuries as serious with no
permanent disability, but no details are given at all.

Mr. Pheko
for the appellant argued that the complainant provoked the appellant
by her rude answer with regard to the appellant's
lips and that the
magistrate did not take into account that this was a quarrel with
mutual abuse and provocation. He added that
there was no
premeditation as the appellant was carrying the knife for purely
domestic purposes at the time.

I think
that this may have been likely but, at the same time, it was not
necessary for the appellant to resort to using the knife
just because
she was carrying it. She was not attacked herself and there was
merely an exchange of abusive words. It could have
been left at that.
There seems to be far too much readiness to use knives in situations
when there is no justification for violence
of any sort.

However,
in this case I am inclined to the view that both women were indeed
acting provocatively. I have said before in a number
of cases of this
sort that where dangerous weapons are used a custodial sentence is
usually appropriate and I repeat that now.

In the
circumstances this appeal against sentence is allowed to the extent
that the sentence of imprionment for six months is set
aside and I
substitute for it a sentence of imprisonment for three months.

The
appellant was released on bail on 3 April 1987

3

after
serving about 18 days of her sentence. Her bail is discharged and she
must now serve the balance of her sentence.

P.A.P.J.
ALLEN

JUDGE

23rd
October, 1987

Mr. Pheko
for the Appellant

Mr.
Qhomane for the Respondent