R v Moletsane (CRI/A 86 of 90) [1994] LSCA 58 (17 March 1994)

1 CRI/A/86/90 IN THE HIGH COURT OF LESOTHO In the Appeal of : TS'ELISO MOLETSANE Appellant v. REX Defendant J U D G M E NT Delivered by the Hon. Mr. Justice W. C. M. Maqutu. Acting Judge on the 17th day of March. On the 28th March, 1990 Appellant was convicted by the Magistrate Mafeteng of Assault with intent to do grievous bodily harm and was sentenced to five years imprisonment. Evidence shows that Appellant found Petrose Mokake, the complainant, P. W.1 with other people drinking alcoholic beverages inside a house. According to P. W.1, Appellant said to him: "Why is it boy that you have put on my wife's shoes." Before P. W.1 could reply, Appellant stabbed him twice on the shoulder. P. W.1 ran away but appellant cornered him forcing P. W.1 to face Appellant and hold on to the Appellant, Appellant during this struggle stabbed P. W.1 on the chest. Mofolo intervened and after that P. W.1 lost consciousness. P. W.1 denies the shoes belonged to the wife of the Appellant. Appellant had since 1988 been accusing P. W.1 of having a love affair with Appellant's wife. In 1988 Appellant had assaulted P. W.1. This matter had been before Chiefs and had been dealt with by their families. Appellant's wife had since gone to her maiden home. Under cross-examination, P. W.1 could not explain how the Appellant came to be in possession of P. W.1's photograph in which P. W.1 had a short pair of trousers but was otherwise without any clothing. He was surprised when Appellant said to him in December: "Hey you boy why are wearing my wife's shoes." P. W.1 denies that he had a knife at the time he was stabbed on the chest. P. W.2 came after P. W.1 had been stabbed with a knife. P. W.3 who say he was in the house does not say P. W.1 was stabbed by Appellant while they were in the house. It all happened outside. He confirms the cause of the quarrel was the allegation of the Appellant that P. W.1 was wearing the shoes of Appellant's wife. P. W.3 says at the scene of the fight outside the house they found another knife on the ground. According to P. W.3, P. W.1 and Accused had walked outside when Appellant had gone to P. W.1, that is how under cross-examination P. W.3 denies that P. W.1 was already stabbed by Appellant when P. W.1 ran out of the house. P. W.1 was already stabbed by Appellant when P. W.1 ran out of the house. P. W.4 says he found Appellant stabbing P. W.1 when he rushed to where they were fighting because of the noise they were making. At their feet was a brown okapi knife. That knife was unclasped. P. W.5 and P. W.6 are two policemen who gave formal evidence as to scene of crime and the arrest. Accused version corresponds with that of crown witnesses except that P. W. I answered him aggressively. Crown witnesses say that did not happen. His story differs from the uncorroborated story of P. W. I that Appellant produce a knife and stabbed him inside the house. Appellant did not tell the court how they got out of the house. He only says when he went round the corner he found P. W. I with an unclasped knife. He drew out his own and unclasped it. According to Appellant P. W. I tried to stab him but he warded of the blow with his left hand. Accused lashed at P. W.1's right arm in an attempt to disarm P. W. I Appellant says he stabbed P. W. I in self-defence. What I found strange in the Magistrate's reasoning is that she says the love affair between P. W. I and Appellant's wife could not have angered Appellant because it had been going on for four years. It seems to me that the fact that Appellant's wife had even left him two months before the incident might have cause Appellant's anger to smoulder. There is no reason to disbelieve the Appellant when he says P. W.1 was wearing shoes that Appellant believed rightly or wrongly to belong to Appellant's wife. P. W.1, the complainant was not an honest and truthful witness. He is contradicted by P. W.3 on the question of the stabbing inside the house. P. W.3, the only other witness besides P. W.1 who gives evidence about the beginning of the fight says definitely the stabbing did not begin in the house. It is therefore, difficult to believe P. W.1 when he says the shoes did not belong to Appellant's wife. Having regard to P. W.1 evidence that he was chased out of the house when P. W.3 says he just went out, I find the Magistrate not to have gone over the evidence before her (as it appears on record) carefully. There are a lot of facts that are probably true in the accused's evidence. The fact that Appellant did not remove what he believed were his wife's shoes cm P. W.1 who was lying on the ground bleeding profusely does not make Appellant a liar. Nevertheless, it seems the only inference that can be drawn that when the Appellant saw what he believed to be his wife's shoes on P. W.1 (his wife's lover) he was provokes by this. Coupled with the mouldering resentment towards P. W.1 he must have wanted to fight P. W.1. Between P. W.1 and Appellant one of them must have been the first to take out a knife. The benefit of doubt should be given to the accused on this point. P. W.1 (who bad previously been assaulted by u Appellant in 1988) must have believed himself to be about to suffer bodily harm. If P. W.1 got ready to defend himself by drawing out a knife he cannot be blamed. Appellant had no business to be following him in that manner. The knife of P. W.1 must have fallen either before or during the fight. Although Appellant was the aggressor he was entitled to defend himself if a situation compelling himself to defend himself. The production of a knife called for desperate remedies. It is very difficult to say for certain whether a person who is involved in a fight can stop once his adversaries knife had fallen. That might be arm chair speculation. Because I am at large (because of the Magistrate's wrong approach to the evidence) I have to make my findings as to credibility here. Having not seen and heard the witnesses I cannot make a definite finding on some points. P. W.3 says Appellant was holding P. W. I by the lapels of hie jacket when Appellant stabbed him on the chest. If that is so he exceeded the bounds of self-defence whatever they were at that stage of the fight. It seems to me the surrounding provocative factors and self-defence that may have been exceeded do not show Appellant has the specific intention of the kind required for a conviction of assault with intent to do grievous bodily harm. In saying this I find support in Warner J. A. in R . v. Nkosi 1960(4). 179 at 180H where he says:- "The evidence suggests that the assault took place in the course of a fight; in any event, it is not proved otherwise by the The question is whether the Crown Crown has established that the accused intended to inflict grievous bodily harm. Although a man is presumed to intend the natural consequences is rebuttable and the final question must always be whether on the facts as a whole an actual intent to do grievous bodily harm. Warner J. quashes conviction for Assault with intent to do grievous bodily harm that the Magistrate had returned and substituted Assault Common. In S. v. Neoboza 1970(3) S. A 558 it was held that in assault to do grievous bodily harm that the trial court must state in its reasons for judgment in cases of assault with intent to do grievous bodily harm whether or nor provocation has been ruled out. In S. v. Sinzani 1979(1) SA 935 it was held that for a conviction of Assault with intent to do grievous bodily harm, the Crown must show a subjective intention on the part of the accused. The conviction and sentence of guilty of assault with intent to do grievous bodily harm are set aside. Appellant is found guilty of assault common. Accused is sentenced to payment of M600.00 (six hundred Maluti) in default of payment thereof to 6 months' imprisonment, ACTING JUDGE 17th March, 1994. For Appellant : Mr Mafisa For Defendant : Mr. Thetsane.