HIGH COURT OF LESOTHO
Case No. 1/02 C.R. No. 783/01
Order No. 1/02 In Maseru District
matter has been brought to me on automatic review from the Magistrate
of Maseru. It follows the conviction of an 18 years old Ntete
Mabaleha (Ntete) of Ha Palama under Headman Nkuebe Moshoeshoe. The
young man having admitted that he had done the wrongful act with
which he was charged. It was recorded on the charge sheet that he
have done it" Furthermore it was recorded:
to have done it and committed to the JTC." The charge was that
of indecent assault, it being alleged that:
"Upon or about the 31/10/01 and at or near Ha Palama in the
district of Maseru the said Ntete did unlawfully and intentionally
commit the assault of an indecent character upon one Kefuoe Makhotla
by touching the private parts of the said Kefuoe Makhotla thus
committed the offence as aforesaid."
learned magistrate has recorded all necessary things about the charge
including the facts proved, Accused's statement in mitigation and at
the end made her findings as recorded on the 3rd January 2002.
to the proceedings was a medical report which I need not comment
about for the purpose of these proceedings. What was most important
was the pre-sentence report by Senior Probation Officer (Miss Moliehi
Tšehlo) of the Probation Unit of the Ministry of Justice,
Human Rights and Rehabilitation, of the 28th September 2001.
TOWARDS THE OFFENCE
"Even though Ntete claiming that he slept with the victim's
consent he states that he is sorry for what he did. He did not
realize the seriousness of his actions." GENERAL
"According to the interviewer, this is Ntete's first offence in
criminal justice system. Even the headman indicated that Ntete has
never been brought before him for any misdeeds. Members of the
community were shocked that Ntete has committed this offence.
Some of the neighbours feel that Ntete seem to be lacking proper
From the observations made, Ntete's behaviour is mainly due to
ignorance. He was not aware of the consequences of his actions."
"his is Ntete's first offence in criminal justice system.
It is the duty and responsibility of the Probation Officer to liaise
with the families and communities in their endeavour to correct
anti-social behaviour of children and youth. African character on the
rights and welfare of The Child Article 4(1) states that all the
actions concerning the child undertaken by any authority the best
interest of the child shall be of the primary considerations. Ntete
is a student. Thus, it is recommended that offender be given
probation order with supervision as well as community service.
It is also recommended that the Court orders a family group
conference for both families, as the Probation Officer foresees the
possibility that member of either families offending against each
other. This will be done under the supervision of Probation Officer."
a report which encouraged a sentence which would eminently conduce to
and provide an opportunity for rehabilitation of the offender without
much effort as opposed to imprisonment with all its detrimental
following interim order was made on the 15th February 2002 after the
interview by probation officer in the presence of Prison Officer
Matime and the Assistant Registrar:
to be released from the J.T.C. forthwith pending a final review
order. In the meantime the Probation Officer will ascertain whether
he has secured school at Abia High School in Maseru and conditions
such as whether he is boarding at school or will reside with parents
or his uncle as a day scholar.
Probation Officer will report on the 1st March 2002 on these aspects.
In the meantime the Probation Officer will make arrangements to
contact respective families with the view to settling the question of
family group conference. Progress thereof will be reported to the
Registrar and the Review Judge.
aspect of school has been established the Court will be able to make
an order with respect to supervision and things connected with
whether the Community Service Order will be feasible in the
22nd March 2002 the Probation Officer will report on every aspect and
enable making of final order.
requisite attention to the Senior Probation Officer's report one had
to be reminded and to focus on the prescription of the Lesotho Prison
Service's informative. Strategic Framework towards Improve
Corrections in Lesotho (7th January 2002). This document provides as
follows at relevant portions:
majority of offenders can be dealt with effectively in the community
by means of non-custodial correction programmes. Imprisonment should
be used with restraint and as a measure of last resort. "F.
Respect for human worth
correctional work shall respect the individual person and accepted
human rights standards and norms.
Sense of Justice
work shall take account of the general sense of justice in society
and among the victims on crime.
Exercise of responsibility
work shall be so organized that the offender has opportunity to
develop a sense of personal responsibility, self respect and self
confidence and become motivated to actively strive for a crime free
life by assisting personal, social vocational and educational
work shall support and motivate prisoners rehabilitation, reformation
and reintegration into community taking into consideration the
rehabilitative needs of the offender, the protection of the society
and the interests of the victim.
OBJECTIVES H. HUMAN RIGHTS OF PRISONERS
right to life and integrity of the person.
right to self-development I. CATEGORY OF VULNERABLE PERSONS
JUVENILE JUSTICE BASIC GUIDING PRINCIPLES 1. Environment of the well
being of the child.
Treatment in a manner consistent with the promotion of the child's
sense of dignity and worth.
Treatment in a manner which reinforces the child's respect for human
Use of diversion and non-institutional treatment.
Deprivation of liberty used as a measure of last resort and for the
shortest appropriate period of time.
and recreation etc.
clear that the Senior Probation Officer's report was a good guide as
to how the problem of Ntete was to be approached. For this 1 was
fortified having looked at the Strategic Framework document (supra)
the interim order of the 15th February 2002 the Senior Probation
Officer attended in my chamber on the 1st March 2003 and reported on
the aspects of the Family Group Conference (FGC) (victim treatment)
and school progress as follows:
probation officer would (as she proposed) make a request that the
report on the progress of the FCG be made on the 22nd March 2002
before the Registrar and the Review Judge. I thought the proposal
would have to be modified on the ground that the urgency of the
review should not be diluted by reason of undue delay or effluxion of
Probation Officer reported that Ntete had been admitted for COSC
study programme for the year 2002 at Abia High School in Maseru.
However he failed to report on the 6th February 2002 as he was still
in detention at JTC. The Principal explained that his place was
consequently filled as it was not known whether he was coming to
had attended school at Moshoeshoe II up to Form C class Ntete's
family (supported by the Probation Officer) applied to be admitted
and was fortunately granted a place at Moshoeshoe II High School.
This was even more fortunate because Ntete resided with both his
parents at Ha Palama under Chief Nkuebe Palaina Moshoeshoe, in the
D class has not yet been allocated a class teacher, therefore the
Probation Officer only met the school principal and is yet to meet
the class teacher. The Form D class "re-opened" on the 11th
February 2002 Ntete is now doing Form D.
Probation Officer further reported that she was to make arrangements
and report on its progress on the 22nd March 2002. She felt however
that the FGC progress report will not be complete on the expected
date. This was due to the fact that the victim's mother works in the
Republic of South Africa and comes home only during public holidays.
She was expected during the forthcoming Easter holidays.
Probation Officer further humbly requested this Court to re-schedule
the submission of the report to the 20th April this year. While I
partly agreed I did not think, with my final order which was overdue,
the attention of this Court would be necessary any longer. Whatever
the Court did by way of receiving necessary reports was done with a
view to facilitating a comprehensive final order and not because it
is the role of this Court to monitor progress of any directives
connected with punishment of offenders however anxious the Court
would be to bring about a reasonable review order.
Court finally made the following review order:
Ntete is to be released from the JTC with immediate effect as
ordered on the 15th February 2002 to stay with his parents. This was
done with a view that his schooling ought not to be interfered with.
Probation Officer and the Magistrate of Maseru shall arrange
participation in a Community Service placing that will be suited to
his position and dignity. It will have to be a school or such like
institution. It should not interfere with his day to day schooling
Probation Officer will proceed with Family Group Conference as best
as she is capable of within proper ethics and procedure of her
That Ntete be granted a probation order with supervision.
matters to do with taking into effect or failure to do so will be
reported to the Magistrate of Maseru and the Director of the JTC.
Should Ntete cause failure or default on any of these conditions
within a year he shall be taken back to the JTC. The magistrate of
Maseru will be seized with determining whether it is proper in the
ruling circumstances to take this step.
O/C Police Maseru
O/C Prisons Maseru
O/C Central Prison
Director of Prisons
Director of Public Prosecutions
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