Motaboli v Director of Public Prosecutions and Others (CRI/APN/9/2004)

Case No: 
Media Neutral Citation: 
[2004] LSHC 31
Judgment Date: 
20 February, 2004




In the matter between:-







Delivered by the Honourable Mrs Justice A.M. Hlajoane

on 20th January. 2004.

This is an application for review of the decision by the Magistrate's Court for the Butha-Buthe district. The main ground for review being that the Magistrate did not take fully into account the personal circumstances of the accused person. Also that the magistrate failed to recognise that the evidence as outlined by the Public Prosecutor is at variance with the terms


of the charge sheet.

The areas of concern by the Applicant are that, in the charge sheet it is alleged that the accused chopped the complainant with a sword, whereas the facts as outlined by the Public Prosecutor state that the accused threatened the complainant with a sword. Also, in the analysis of the evidence which formed the basis of the confirmation of the verdict, stated that the accused used a double edged sharp sword to inflict injuries on the complainant. But there is no such evidence on the record.

The Applicant had been charged before the magistrate's court of assault with intent to do grievous bodily harm, it being alleged that he did wrongfully and unlawfully and intentionally assault one 'Malethoko Motaboli by striking her with a knobkerrie and chopping her with a sable on the body with intent to cause her grievous bodily harm. The accused had pleaded guilty and after the facts were outlined he accepted them and a verdict of guilty as charged was returned. He was sentenced to a term of three (3) years imprisonment without an option of a fine.

On looking at the allegations as contained in the charge sheet, it becomes clear that they differ in material respects with the facts as outlined by the Public Prosecutor. The charge sheet say that the complainant was chopped


with a sable, but the outline of facts say that complainant was threatened with a sword. If one is chopped with a sable, he definitely is going to sustain serious injuries, but when threatened with a sword, he is only being subjected to fear for his life.

In his analysis of the sentence, the magistrate has shown that the accused used a double edged sharp sword to inflict the injuries on the complainant, but there is no such evidence on record. It may well have been that the instrument was a double edged sword, but in the absence of such an explanation by the Public Prosecutor in his outline of facts, or even an observation by the magistrate when the weapon was handed in, we take it that there was no such evidence. The nature of the weapon used becomes material in determining the offence with which the accused is to be charged and the sentence to be imposed.

On the question of sentence, the Applicant is saying that in passing sentence, it is not enough for the presiding officer merely to state that he has taken into account the personal circumstances of the accused person, but he must demonstrate how he has taken them into account. Rex vs Sobi 1991-96 LLR 1371.

We have been told that the accused and the complainant are husband and


wife respectively. This is a factor which had to be considered in passing sentence. As was said by my sister Guni AJ, (as she then was), in Rex vs Tlali 1991-96 LLR 1377 that

"deterrence is not found only in the severity of the sentence, suspending part or suspended sentence may well serve as a deterrence to the accused."

On reviewing this matter, the Court feels that it has to interfere with the sentence imposed. But before I come to that part, I must say that the judgment by the magistrate, Mr Masiphole, despite other things, was a well reasoned judgment with relevant authorities cited therein. It was a good judgment. Please keep it up.

The sentence is varied to read, three (3) years imprisonment or M900.00, half of which is suspended for a period of three years, on condition that the accused is never convicted of a similar offence during the period of suspension


For Applicant: Mr Kolisang

For Respondent: Ms Motinyane