IN THE HIGH COURT OF LESOTHO
In the matter between:
MOLAHLEHI JACK APPELLANT
Delivered on 22nd Day of February 2002 by the Honourable Mrs Acting Justice A.M. Hlajoane
This is an appeal from the Magistrate's Court Maseru. The Appellant, a young man who was then 27 years old in 2000, was charged and convicted of assault common . He has been sentenced to three years imprisonment.
It was a pathetic case because the appellant is the son to the complainant in this case. The Appellant is alleged to have assaulted his own father by hitting him with a stone on the forehead.
From the record of this case one could gather that the relations between the Appellant and his parents were not cordial. It came out in evidence that P.W. 1 who is the Appellant's father, had approached Appellant at his home, as they lived at different places. Appellant said it was on the day of the assaults but P.W. 1. said it was some other day prior to that. P.W. 1. went there to collect his basin and bucket. The Appellant did not approve of this collecting of basin and bucket. As a result the Appellant too felt that he should collect what belonged to him which was still in the possession of his parents. Appellant went to his parents' home to tell them to bring back the money he had asked them to pay for him at the union. It appeared appellant's mother used to attend meetings for the union on his behalf so that he felt, there was no one who will attend the meetings for him as they had quarrelled.
Not only did Appellant ask for his money, he also went to the kraal and drove away his three (3) sheep from his parents' home.
In most parts the evidence of the Appellant was supported by his brother,
Bereng who was D.W.2 at the trial and her mother who was P.W. 2 at the trial. The relevant portions were where even before the fight, P.VV1 told Appellant to leave them and he did. They were inside the house and they prevented P.W. 1 from following Appellant by closing the door. But a short while later P.W.1 went out and immediately they heard D.W.2 telling P.W.1 to leave the Appellant. P.W.1 also did not dispute that he was armed with an iron rod. They could not only agree as to where P.W. 1 collected the iron rod. Appellant said it was from another house whilst P.W.1 said he found it outside the house. Initially P.W.1 did deny that he hit appellant with that iron rod but eventually admitted under cross examination. It has also been P.W.1's evidence in chief, that D.W.2 came and asked him to leave the Appellant.
The Appellant has appealed against both the conviction and the sentence.
And what is most interesting is that the Respondent does not support the conviction and sentence in this case. She submits that if anything, the Appellant could have been given a benefit of a doubt or alternatively , if convicted, given a sentence with an option of a fine.
It has further been the Crown's submission that in fact conviction should be based on legalistic and not moralistic issues. Here she supported the submission
by the Appellant that the trial Court had been influenced by inadmissible events of the past and as a result made a moral judgment. The trial Court concluded that the Appellant was not respecting his parents as he was alleged to have pointed a gun at P.W. 1 sometime in 1999.
From the record it appeared that in fact the complainant is the one who rushed at the Appellant. Was the Appellant then not entitled to defend himself? Or could it then be said he exceeded the bounds of self defence merely because the complainant was his father? The answer is no. The Appellant was exercising his right of self defence. Rex vs Molato 1974-75 LLR 30. The trial Court has given no reasons for believing the evidence of the complainant over that of the Appellant. On looking at the evidence as a whole the story of the Appellant was reasonably possibly true as supported by complainant himself, P.W.2 and D.W.2 Rex vs Chitja 1991-96 vol 2 LLR 963. Because the trial Court has failed to give reasons for arriving at its decision by believing the complainant's story the Court on Appeal is therefore at large to decide otherwise. Lesaoana and Others vs Rex 1955 HCTLR at 36D
Now considering the sentence that was imposed, there were no reasons given for having passed a sentence of three years imprisonment. In Mojela vs Rex
1977 321, Mofokeng J. as he then was , stated that "This Court has said before that it is of paramount importance that an accused person should know the reasons for the imposition of his sentence. These reasons must not be stated after the accused has noted an appel but when the sentence is actually being imposed."
The Magistrate may have been shy to state, as concluded by the Crown, that he based his judgment on moralistic values. I am not also trying to pity the situation, but on the facts of this case, feel obliged to alter the decision. The Appeal is therefore upheld, the conviction and sentence are set aside and the accused found not guilty and discharged.
For Appellant: Ms M. Ramofole
For Respondent: Ms H. Motinyane