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IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CRI/REV/0117/ 2023
In the matter between:
PAKALITHA MAKHELE 1st APPLICANT
`MAREATLEHILE SEFOLOKO 2nd APPLICANT
and
THE MAGISTRATE, QACHASNEK 1st RESPONDENT
MAGISTRATE COURT, MR BALE
THE CLERK OF COURT, QACHASNEK 2nd RESPONDENT
MAGISTRATE COURT
THE DIRECTOR OF PUBLIC 3rd RESPONDENT
PROSECUTIONS
Neutral citation : Pakalitha Makhele and Another v The Magistrate, Qacha’s nek Magistrate Court, Mr Bale and 2 Others [2023] LSHC 60 CRI (12 April 2024)
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CORAM : KHABO J.,
HEARD : 26 MARCH 2024
DELIVERED : 12 APRIL 2024
SUMMARY
Criminal law and procedure - Conviction and sentence - Review - Application for the review, correction and setting aside of proceedings where Applicants were charged on two counts of committing a sexual act and each sentenced to fifteen (15) years imprisonment on each count, cumulatively thirty (30) years without an option of a fine - Applicants seeking the review thereof on several grounds including that the sentences ought to run concurrently and not consecutively - The Court discerning no irregularity in the proceedings in the court a quo - Sentence is confirmed.
ANNOTATIONS
Statutes and subsidiary legislation
Sexual Offences Act, 2003
Subordinate Court (Amendment) Rules, 2006
Subordinate Court Rules, 1996
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Cases cited
Lijane Nthunya v REX CRI/A/23/86
Nthongoa and Another v Rex 1980 (1) LLR 196
Roma Taxi Association v Officer Commanding, Roma Police Station and 6 Others C of A (CIV) No. 20/2015
Tau Lefu v REX C of A (CRI) No. 6/2011
Other jurisdictions
Then Rhodesia
S v Mutawarira and Another [1973 (3)] 901
South Africa
Johannesburg Consolidated Investment Co., v Johannesburg Town Council 1903 TS 111
Mzwake v Road Accident Fund No. 24460/2015, 26-10-2017
United Kingdom
Constable of the North Wales Police v Evans [1982] 3 All ER 141
Literature
Baxter L., Administrative Law - JUTA & CO, LTD, 1984
Herbstein and Van Winsen - The Civil Practice of the Supreme Court of South Africa 4th ed., JUTA & CO, LTD, 1997
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JUDGMENT
KHABO J.,
Introduction
[1] Applicants a male adult aged 56 and a female aged 22, respectively, were charged by the Qacha’snek Magistrate Court in CR 117/23 on 14th November, 2023 on two counts of unlawfully and intentionally committing sexual offences on two girls, one aged 12 and 14 and offering them money in contravention of Section 10 (1) of the Sexual Offences Act, 20031 read together with Section 32.
[2] The 1st Applicant gave each girl Five Maloti (M5.00) on the first episode and Ten Maloti (M10.00) and Fifteen Maloti (M15.00) on the second occasion which they gave to the 2nd Applicant. The acts purportedly occurred on two occasions, initially in September, 2023 and in October same year. 2nd Applicant’s role was to lure the two girls to the 1st Applicant to unlawfully commit sexual acts on them for money which was
1 Act No.3 of 2003
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subsequently given to her. Applicants were not legally represented at the court a quo.
[3] In terms of Section 10 (1) of the Act:
(1)
A person who commits a sexual act with a child for financial or other reward, favour or compensation to the child or to any other person commits an offence.
Section 32 is on sentencing.
The charges
[4] The charges read:
Accused No. 1
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Count (1)
The accused is charged with contravening the provisions of Section 10 (1) read with 32 of the Sexual Offences Act No. 3 of 2003
in that upon or about sometime during the month of September, 2023 and at or near Paulosi in the district of Qacha’s Nek, the said Accused did unlawfully and intentionally commit a sexual offence in relation to both (name withheld to protect the identity of the minor child), a M/girl aged 14 years and (name also withheld), a M/girl aged 12 years wherein he took turns in inserting his penis inside their vaginas and offered them money in return and did thereby contravene the provisions as aforesaid;
Count (2)
That the said accused is charged with contravening the provisions of Section 10 (1) read with 32 of the Sexual Offences Act No.3 of 2023
in that upon or about sometime during the month of October, 2023 and at or near Paulosi in the district of Qachas Nek, the said Accused did unlawfully and intentionally commit a sexual offence in relation to both (name withheld) a M/girl aged 14 years and (name also withheld), a M/girl aged 12 years
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wherein he took turns in inserting his penis inside their vaginas and offered them money in return and did thereby contravene the provisions aforesaid.
Accused No. 2
Count (1)
That the said Accused is charged with contravening the provisions of Section 10 (1) read with 32 of the Sexual Offences Act No. 3 of 2003
In that upon or about sometime in the month of September, 2023 and at or near Paulosi in the district of Qacha’s Nek, the said Accused No. 2 did unlawfully and intentionally commit a sexual offence in relation to both (name withheld) a M/girl aged 14 years and (name withheld as well), a M/girl aged 12 years wherein she induced them to allow them to Accused No.1 to commit an unlawful sexual act of penetration unto them for monetary compensation to her and did thereby contravene the provisions aforesaid;
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Count (2)
That the said accused is charged with contravening the provisions of Section 10 (1) read with 32 of the Sexual Offences Act No. 3 of 2023
In that upon or about sometime during the month of October, 2023 and at or near Paulosi in the district of Qacha’s Nek, the said Accused No. 2 did unlawfully and intentionally commit a sexual offence in relation to both (name withheld) a M/girl aged 14 years and (name withheld also) a M/girl aged 12 years wherein she induced them to allow Accused No.1 to commit an unlawful sexual act of penetration unto them for monetary compensation and did thereby contravene the provisions as aforesaid.
Applicants pleaded guilty to all the charges levelled against them.
Applicants’ case
[5] Applicants were found guilty as charged on the two counts and were each sentenced to fifteen (15) years imprisonment on each count without an option of a fine. The sentences were to run consecutively which effectively means that the Applicants are each sentenced to thirty (30)
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imprisonment. Aggrieved by this sentence Applicants approached this court to have proceedings in CR117/23 reviewed and set aside or for the variation of the sentences to run concurrently instead of consecutively on the basis that:
(a)
That they were first offenders;
(b)
That they were remorseful;
(c)
That the charges were a duplication;
(d)
That they have families to support; and
(e)
That accused No. 2 was at a tender age.
[6] Applicants complained that the learned Magistrate committed a number of irregularities in , namely, that they were not afforded a fair hearing, that they were not adequately advised of their right to legal representation; that the charge was not sufficiently explained to them, were not informed of the seriousness of the charge; that had they known they could have secured the services of a lawyer; that the sentences on count 1 and 2
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amounts to a duplication of sentences; that they were forced into pleading guilty by the investigating officer; that they were not advised of their right to appeal within eighteen (18) months; that the proceedings were conducted in both Sesotho and English, yet there was no interpreter and that the record of proceedings is in English yet the proceedings were conducted in Sesotho.
[7] This application was initially opposed but on the day of hearing both Counsel presented the court with a settlement agreement which they wanted to be made an order of court. The prosecution had withdrawn its intention to oppose. The settlement agreement was to the effect that:
(a)
The sentences in CRI 117/23 to be ordered to run concurrently; and
(b)
No order as to costs.
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Analysis
[8] As a matter of principle, the court always has to satisfy itself that whatever parties agree on is in order. As Weiner J., put it in Mzwake v Road Accident Fund:2
In being requested to make this an order of court the court is not merely a rubberstamp. The court has a duty to investigate the matter and ascertain whether or not the agreement is one which should be made an order of court. This is even more essential when the respondent is a public institution whose finances and the administration thereof are in the public interest.
In casu the Respondent happens to be a public institution financed by public funds.
[9] Courts are enjoined to exercise their judicial oversight before making settlement agreements orders of court. This court, therefore, has to exercise its discretion to either make this settlement agreement an order of court or not. Looking at the seriousness of the charges against the
2 Case No. 24460/2015, 26-10-2017 at para 6
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Applicants, the court insisted on being addressed on the basis of the review application by Applicants’ Counsel.
Powers of courts to interfere by way of review?
[10] It is trite that “the passing sentence is pre - eminently the discretion of the trial court. But that discretion must be exercised judiciously and not arbitrarily.”3 With sentencing pre - eminently lying with the trial court, the learned Magistrate had a discretion to impose any sentence he deemed fit in the circumstances of the case that was before him as long as such a discretion was exercised judiciously. Applicants have approached this court to challenge this sentence by way of review.
[11] In reviews, the enquiry must be whether the sentence was procedurally arrived at. Review is an attack on how the decision was reached at the court a quo. The court stated in Constable of the North Wales Police v Evans 4 per Lord Brightman that:
3 Tau Lefu v REX C of A (CRI) No. 6/2011 at para. 8 p. 7, also in Nthongoa and Another v Rex 1980 (1) LLR 196 at 197 and Lijane Nthunya v REX CRI/A/23/86
4 [1982] 3 All ER 141 at 154, also quoted in Baxter L., Administrative Law JUTA & CO, LTD, 1984 at p. 305, footnote 21
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Judicial review is concerned, not with the decision, but with the decision - making process. Unless that restriction on the power of the courts is observed, the court will in my view, under the guise of preventing abuse of power, be itself guilty of usurping power.
[12] In explaining what may constitute unprocedural aspects in a decision - making process, the court held in Roma Taxi Association v Officer Commanding, Roma Police Station and 6 Others5 that “unless the four grounds exist, namely, illegality, procedural impropriety, unreasonableness and disproportionality any curial intervention by the court will be impermissible.” According to the Johannesburg Consolidated Investment Co., v Johannesburg Town Council6 both civil and criminal cases are brought on review in respect of grave irregularities occurring during the course of proceedings.
Whether the decision of the court a quo warrants any interference by this court
[13] The paramount question at this juncture is whether any irregularities occurred during the course of proceedings in CR117/23? and this would
5 C of A (CIV) No. 20/2015 at para. 34 p.18
6 1903 TS 111 per Innes CJ., Herbstein and Van Winsen - The Civil Practice of the Supreme Court of South Africa 4th ed., JUTA & CO, LTD 1997 at p. 928
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be ascertained by whether the learned Magistrate considered all the relevant factors in determining a criminal case. It appears ex facie the record that charges were read to the Applicants. They were explicitly asked whether they understood them, and they answered in the affirmative. The record read verbatim;
CT : So you understand the charge
ACD : 1. I understand
2: l understand.
Their rights including the right to apply for bail, the right to legal representation of their choice were also explained to them and extenuating circumstances considered. All these appear ex facie the record.
[14] Applicants aver that the proceedings were conducted in both Sesotho and English, yet there was no interpreter but turns around to say the record of proceedings is in English yet the proceedings were conducted in Sesotho. A glaring contradiction. Be that as it may, Rule 63 (6) of the Subordinate
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Court Rules, 19967 (as amended by the Subordinate Court (Amendment) Rules, 20068 which provides that:
It shall be competent in civil or criminal proceedings for a presiding officer to record evidence in English without the assistance of a court interpreter where all parties know and understand Sesotho and the services of the Interpreter cannot be secured without undue delay, expense or inconvenience.
[15] The court discerns no irregularity here because Applicants themselves conceded in para 9.8 of the founding affidavit that they know Sesotho, and the above Rule allows the Magistrate where all parties know Sesotho to proceed in it and record in English.
The sentence imposed by the learned Magistrate
[16] In explaining his reasons for the sentence that he imposed on the Applicants, the learned Magistrate stated his reasons clearly at the end of the record (unfortunately not paged) which included that the victims are two very young girls who have been turned into prostitutes by two adults
7 Legal Notice No. 132 of 1996
8 Legal Notice No.76 of 2006
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who were supposed to be guardians to them and that the 2nd accused was selfish and inconsiderate as she indicated that she could not offer herself to the 1st Applicant because she was married. This being a review application, the court raised this just to examine any procedural irregularities in the conduct of the case against the Applicants.
Whether the sentences ought to run concurrently and not consecutively
[17] Applicants aver in this regard that the court a quo improperly duplicated the convictions in making the sentences to run consecutively instead of concurrently. If we may revisit Applicants’ prayers, one of them is that proceedings in CR117/23 be reviewed and set aside or that the sentences be varied to run concurrently. It is the court’s considered view that Applicants were charged and convicted for two separate incidents, one in September and the other in October, 2023. It was not a continuous act, it occurred on two separate occasions, if one may borrow the words used in Tau Lefu (supra)9 the offences were not “one single transaction.” This is not tantamount to splitting of charges which is sometimes referred to as “duplicity of convictions.”10
9 Para 15 (2) at p.12
10 S v Mutawarira and Another [1973 (3)] 901 at 902 para.C
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Conclusion
[18] The court finds the trial court to have considered all the relevant factors in a criminal case. It, therefore, finds no reason to interfere with the sentence. As far as it is concerned, the review application is misconceived because none of the grounds for review have been established.
ORDER
[19] In the result:
(a)
The application for review of proceedings in CR117/23 is dismissed;
(b)
The sentence of the court a quo is confirmed; and
(c)
The application having not been opposed; the court makes no order as to costs.
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F.M. KHABO
JUDGE
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For the Applicants : Adv., T.N. Habasisa
For the Crown : Adv., T. Lepheana