Case No. 1/2000 CR 4/2000
Order No. 1/2000
HIGH COURT OF LESOTHO
accused a mosotho adult aged about 25 years of Sixondo in the Quthing
district was charged with the crime of rape in that on the 1st day of
January 2000 at Patise Sixondo in the Quthing district he did
unlawfully and intentionally have sexual intercourse with Kelly
Nelisa Mtabane a mosotho female aged about eight years and thus
incapable in law of consenting thereto and on the alternative that he
had contravened the provisions of Section 3 (1) of Women and Girls'
Protection Proclamation No. 14 of 1949 in that at the aforementioned
place and date he did
and intentionally have sexual intercourse with Kelly Nelisa Mtabane,
a minor female aged about 8 years.
charge the accused pleaded guilty and after the prosecution had
outlined the facts under Section 240 of the Criminal Procedure and
Evidence Act of 1981, he was found guilty under the alternative
charge, and was sentenced to five years imprisonment.
what the facts as outlined revealed which has caused me concern. For
a conviction under Section 3 of the Proclamation sexual intercourse
must be proved as penile penetration into the vagina. In the medical
report that was handed in the medical officer of Quthing who examined
the complainant on the 4th January 2000 made following remarks:-
"Abrasions around the anus and the vestibule." "There
is physical evidence that she was sodomised." "Patient was
sodomised" "Vagina: normal"
common law on unnatural sexual offences, sexual relations between a
male and a female per anum do not constitute an offence (Snyman -
Criminal Law 3 Ed p.341; J Van der Linden 2.7.7. If the woman is not
a consenting party, intercourse with her per anum constitutes
indecent assault. R v. M (2) SA 406 - (where a verdict of indecent
assault was substituted).
outlined point that the complainant along with other children had
been sent to buy a case of beer and that on their way back, the
accused had intercepted her and taken her to a valley where he
molested her sexually.
I am of
the view that the evidence or findings of the medical doctor must be
relied on and to do so necessarily means that the alternative verdict
cannot stand because sexual intercourse or vaginal penetration has
not been proved. What facts point to is anal penetration. Section 187
of the Criminal Procedure and Evidence Act of 1981 reads-
"(1) Any person charged with rape may be found guilty of-
with intent to commit rape; or
with intent to do grievous bodily harm; or
statutory offence of unlawful carnal knowledge of, or committing any
immoral or indecent act with a girl of or under a specified age; or
if such be the facts proved.
of this case do not indicate rape (or vaginal penetration) but
sodomy. It is competent for this court to substitute a verdict
correct in law, namely, that of indecent assault because sodomy
cannot be committed by a man upon a woman. S. v. M 1979 (2) SA 406
(R, AD). This may appear to be an anatomical mystery to an ordinary
circumstances of this case, justice requires that the conviction of
rape be set aside because the facts do not prove vaginal penetration
but an anal one. The only competent verdict is one of indecent
assault as neither rape or sodomy can be sustained.
ordered therefore that the verdict of rape be aside and substituted
with one of indecent assault. (S v M 1984 (4) SA. 111 R v Abrahams.
1918 CPD at 593).
regards sentence, there is no reason to interfere with sentence
despite the substitution of verdicts. Sentence is therefore
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