CRI/S/1/99
CR 352/97

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

vs

PASEKA
PHIRI

JUDGMENT

Delivered
by the Honourable Mr Justice S.N. Peete on the 15th June, 1999

On the
1st October 1997 the accused appeared before the Mafeteng Subordinate
Court facing a charge alleging that on the 21st September
1997 the
accused did intentionally and unlawfully have sexual intercourse with
one Tlotlisang Morabaki, a Mosotho girl aged 9 years
and thus
incapable of giving consent. In the case of REX vs SIMON SEALA -1976
LLR 241 at 242 Cotran CJ as he then was observed
- "If the girl
complainant is under the age of 16, the carnal connection with her is
statutory offence under the provisions
of section 3 (1) of the Women
and Girls Protection Proclamation (No.14 of 1949), sometimes labelled
'statutory rape.' In that event
consent is inmaterial.....".

2

The
accused who was not legally represented at the trial pleaded guilty
to the charge and after the public prosecutor had outlined
the facts
disclosed by the evidence in his possession which were confirmed as
true by the accused, the learned magistrate brought
in a verdict of
"guilty as charged." In the case of Rex vs Sechaba Qatu.
1991 - 96 (2) LLR 1332, the accused had been
charged with rape (of a
girl aged 8) and alternatively with having contravened section 3 (1)
of the Proclamation 14 of 1949 and
my brother Ramodibedi AJ. as he
then was, held that the courts do not approve of a verdict in terms
"guilty as charged"
in a case where the accused person is
charged in the alternative and that the trial court must always
determine which offence the
accused is found guilty of and state so
in clear and unambiguous terms in the interests of justice and
certainty. In the present
case however the accused was charged with
common law rape and there was no alternative charge under the
Proclamation.

According
to the facts as outlined to the court by the public prosecutor in
terms of Section 240 (1) (b) of the Criminal Procedure
and Evidence
Act of 1981, the accused is a mosotho adult aged 35 years. On the
21st September 1997, the complainant - Tlotlisang
Morabaki - then
aged 9 years and her friend Lineo Maketsi were collecting vegetables
in the yard of one Mafitoro Monyane. The accused,
who is a well known
resident of the village arrived and invited the complainant to go and
collect sepaile vegetables in his garden.
The accused thereupon
accompanied the young complainant leaving Lineo behind. The accused
then invited the complainant to go into
his house promising her money
and some mealie meal. After the complainant had entered, the accused
closed the door and ordered
her to lie down and took her panty off
and got out of his pants. He then thrust his penis into the vagina of
the complainant who
then screamed in pain.

3

The
medical report made by Dr Sethinyane indicates that vaginal
examination was painful and consistent with penetration, that the

hymen was bleeding that there were bruises of the vulva.
Complainant's uncle one Mahlomola Mokebe having received a report
from
Lineo came and knocked at the door and the complainant replied
"ke 'na enoa, malome". Upon entry, the accused was found

hiding under the table naked and was apprehended and taken to the
village chief. The complainant was subsequently taken to the
doctor
at Mafeteng hospital where the examination was made on the 23rd
September 1997.

The
accused accepted the facts as outlined and was convicted as charged.
The prosecutor then informed the court that the accused
had no
previous convictions. In mitigation the accused then states as
follows:-

"I do not deny this at all. May court exercise leniency. I have
a calf to compensate the complainant with"

Court:- "This is a serious kind of a case. I do not think the
powers I have will meet its seriousness. I therefore commit
accused
to the High Court for sentencing."

This was
a proper thing to do in the circumstances of this case under the
provisions of Section 293 (1) of the Criminal Procedure
and Evidence
Act of 1981. The courts worldwide view rape as a very serious offence
which manifests the crude and animalistic nature
of the offender's
conduct. Each rape case has its own particular circumstances and in
some cases, aggravating factors may exist.
Young age of the
complainant may be one of them, and the age of the accused may be
another (S. v. V. 1989 (1) SA 533). It is the
malicious taking
advantage of a young complaint to satisfy the lust of the adult
accused,

4

which
aggravates the offence. The accused has not pleaded intoxication or
any matter which influenced the ghastly conduct on a defenceless

little girl who has a result been traumatised, perhaps for her entire
life.

Rape is
indeed a capital offence under our law (section 297 (1) (b) of the
Criminal Procedure and Evidence Proclamation). The court
cannot
however sufficiently demonstrate its revulsion and displeasure at the
despicable conduct of the accused because in this
case the accused is
first offender and has pleaded guilty to the charge, and has been
awaiting sentence for about two years - this
latter fact is taken
into consideration in sentencing him. This court also takes note of
the fact that rapes of young girls by
adult males in Lesotho is
occurring of late with monotonous frequency and that stringent
punishments have to be meted out to the
perpetrators of these sordid
crimes. In Rex vs Phamotse Mafethemane -1991 - 92 LLR (Bulletin) 51,
my brother Lehohla J. appositely
observed as follows:-

"......I wish to point out that a body of authority exists in
support of the

view that rape committed in circumstances which are aggravated should
be met with severe penalties. The question of the complainants'

youthfulness is one such aggravating factor. The trauma of being
subjected to not only the act but being made focal point of
amusements
in the courts and throughout the period of investigations
cannot be overlooked."

I
associate myself with the learned remarks of Lehohla J; (see also
comments of my brother Molai J. in Rex v Nsabimana Shabani and
others
-1991 - 92 LLR 55 at 99.

5

I
therefore confirm conviction in terms of section 164 of the Criminal
Procedure and Evidence Act. The accused is again unrepresented
before
this court and in mitigation he informs the court that he has a young
wife and two children. He says he does not know what
caused him to
rape the little girl. He states that he regrets what he has done and
that it will never happen again.

I had the
good mind to sentence the accused to a rather longish term of
imprisonment in order to express the court's attitude towards
sexual
offence committed by the accused. In sentencing the accused, I have
to consider the seriousness of the offence and the particular

circumstances of the accused. It should also be borne in mind that
empirical studies have shown that long terms of imprisonment
while
protecting the society from the criminals also have the adverse
effect of criminalising them. In this case the accused who
is
illiterate cut a very remorseful picture when the court asked him why
he committed the act. He did not know, neither could he
explain the
sordid behaviour. Whilst he did not seem mentally disturbed, his
unexplained behaviour does require some investigation
in one form or
another. A term of imprisonment will certainly facilitate reform or
reflection and possibly rehabilitation.

The
accused is therefore sentenced three (3) years imprisonment - with a
recommendation that the sentence be served at Mafeteng
or Mohales'
Hoek Prison where the accused may receive rehabilitative treatment
from a psychiatrist or social worker.

S.N.
PEETE

JUDGE

For Crown
: Mr Thetsane

Accused :
In person