CRI/S/8/81
IN THE HIGH COURT OF LESOTHO
In the Matter of :
REX
v
CHECHE McPHERSON
JUDGMENT
Delivered by the Horu Mr. Justice F.X. Rooney
on the 2nd day of November, 1981.
Mr. Kabatsi for the Crown
Mr. Modisana for the Defendant
On the 20th February, 1981 the accused appeared
before a Subordinate Court of the Third Class at Mohale's
Hoek charged with a contravention of sec. 3(1) of the
Women and Girls Protection Proclamation 1949. The
particulars of the charge alleged that on the 11th December,
1980 the accused "solicited or enticed Lisebo Manyanye a
girl under 16 years of age to commit, and did commit,
immoral or indecent acts upon the said Lisebo Manyanye
by exposing his private parts to the said girl, removing
her panties throwing her on the bed, placing himself on
top of her and inviting her to have unlawful sexual
intercourse with him."
These particulars if proved in evidence would have
established a case against the accused of indecent assault
at common law. It was in any event a serious allegation
involving a young girl of tender age. Such a case should
never have been brought before a magistrate with limited
jurisdiction. In her judgment the magistrate said
"This case was put before the Resident
Magistrate in this district but due to some
reasons beyond his control, he recused himself
from presiding over it, as a result it was put
before me for hearing even though it seemed
serious."
2/ I could not  

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I could not agree more. If the Resident Magistrate
recused himself then another magistrate of suitable rank
should have been sent to Mohale's Hoek in order to deal
with this case.
The magistrate found the accused guilty as charged
and having listened to his plea in mitigation committed
him for sentence by the High Court. At the same time she
ordered that the accused should not leave the Mohale's Hoek
district and imposed other conditions upon him. This was
intended to allow the accused bail pending sentence without
formally releasing him on bail. Subsequently, for
some reason unknown to me, the accused was arrested on or
about the 25th August and confined at Maseru Central
Prison.
On the 25th February the sentencing magistrate
produced a document entitled "Reasons for Judgment" which
in the absence of any appeal she was not obliged to do.
Indeed it could be argued that once she had committed the
accused to this Court for sentence she was functus officio.
It would have been more appropriate if she had given her reasons
before conviction. She concluded her judgment with
these words
"The matter seems very strange and serious.
I therefore came to decide that accused
needs a more serious punishment even though
he is a first offender. This is the reason why
I committed him for sentence by the High Court
since my jurisdiction does not allow me to
impose what I would say is a deterent punishment."
This remark is dated 25th February, 1981.
In the case of Joseph Maqaphalla & Another v. Rex
1971/73 L.L.R. at 39 at 40 Maisels J.A. said:
"It may not be the invariable practice in
Lesotho for a magistrate when committing
a person for sentence in the High Court
under section 288A to give his reasons for
convicting the accused but it is clearly in
the interests of justice that this should be
done. We think therefore that the practice
should be laid down that, when a magistrate
acts under section 288A, he should give reasons
for convicting the accused and that these
reasons should form part of the record in the
case. Apart from the assistance that would be
rendered to the High Court, and in appropriate
cases to the Court of Appeal, it should be
borne in mind that the accused ought, for his
own purposes, to have these reasons available
to him."

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In view of the above I am satisfied to accept
the reasons for judgment as part of the record. As
the magistrate has recorded her reasons for committing
the accused to this Court for sentence the provisions of
Section 288A(1) of the Criminal Procedure and Evidence
Proclamation have been substatially complied with and
this Court is properly seised of the matter.
In terms of Section 288B (3) of the Proclamation,
this Court is required to inquire into the circumstances
of the case and, if satisfied from the record of the
accused's guilt it shall proceed as if such person had pleaded
guilty before this Court in respect of the offence for
which he has been committed or make an alternative order
as contemplated by the section. The accused was not
represented in the subordinate court. In the course
of the present proceedings Mr. Modisana submitted that
the conviction is not in order because a great deal of
hearsay evidence was admitted in the magistrate's court
which should properly have been excluded.
Evidence that the complainant in a sexual case made
a complaint soon after the alleged offence and the terms
of that complaint are admissible to show the consistency
of the complainant's evidence and the absence of consent.
A complaint may be proved in a prosecution for unlawful
sexual intercourse with a girl under 16 (R. v. Ellis
1936 SWA 10). To be admissible the complaint must have
been made "at the first opportunity after the offence
which reasonably offers itself" (Ridley J.A. in R.v.
Osborne (1905) 1KB 551 at 561
The complainant in her evidence having described
what was done to her by the accused said :
"I kept on shouting until at last he decided
to leave me and opened the door for me.
I went out running still crying, I took my
panty and ran away with it      
Palesa was standing near the door of our
room which is room 5 while accused's room
is room 3. Palesa was facing towards us
since she heard all these shouts. I went
to my mother's room. Palesa asked me what
I was crying for. I was still crying by
then. Palesa then went to 'Mats'epo's
place to report the matter. My panty was
4/ still in my  

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still in my hand by then. 'Mats'epo came and
asked me what I was crying for. She took me to
her room and asked me what happened, I related
everything to her just as I have already stated
before Court. She said we should wait for my
mother to come. My mother came in at about
6.00 p.m. the same day. I heard that 'Mats'epo
had already related the same story to her.
When PW.1 arrived at home I was in the kitchen.
I reported the matter to my mother. She was
already calling me and asking me as to what had
occurred. She was in her bed room. I related
to her all of what I have just said before Court."
Palesa is the elder sister of the complainant.
Both 'Mats'epo and the girl's mother 'Mamosito
both gave evidence as to the nature of the complaint
made separately to them by the complainant.
Hoffman "South African Law of Evidence" 2nd Edition
24 states
"It was settled in R. v. Lillyman (1896)
2QB 167, that the terms of the complaint
may be proved as well as the fact that
it was made, but the court emphasized
that the contents of the complaint could
not be used as independent evidence of
the acts alleged."
That being the case no useful purpose can be
served by the admission in evidence of more than one
complaint. Nor would it be correct in my view for any
other than the first complaint to be admitted in evidence.
The complainant herself did not say that she said anything
to her elder sister whom she met immediately after the
occurrence she described.
Palesa gave the following evidence :
"After a short while I heard a scream from
nearby and heard that it was (PW.2) (the com-
plainant) who was screaming but I did not know
where she screamed from. When appearing by the
door of our room I saw PW.2 come out from
accused's room. She was holding her panty with the
hand. She was still crying, I went to her and
asked her why she was crying. We went to our
room. She related to me that accused called her
to his room by the time she was going to throw
away dust. And that accused asked her to take
a saucepan and take out the mealie pap in there
and prepare his food. While she continued
preparing food she heard the door being locked
5/ she went on  

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she went on to state that accused took her
into his bedroom and took off her panty".
This above was the first complaint made after the
occurrence and it was admissible in evidence to show
that the complainant was being consistent. The difficulty
in this case arises from the fact that the complainant's
own evidence, if accepted, went far beyond what she told
Palesa. If she is to be believed the accused actually
raped her. There is therefore no consistency between
what she told the Court and what she told Palesa, The
evidence of her mother (PW. 1) and 'Mats'epo (PW.4) as
to the nature of the complaints made to them was not
admissible. I take note of the fact that both these
complaints were consistent with the evidence of rape
given by the complainant in Court.
It is clear from the reasons for judgment given
by the magistrate that she accepted the evidence of
the complainant to the effect that the accused had
unlawful sexual intercourse with her without her
consent, although the accused was not charged with
rape or even indecent assault. The magistrate went on
to discuss the question of penetration as if that were
material to the case before her.
Although the magistrate did not address herself
to the necessisty for corroboration at all, she accepted
the testmony of 'Mats'epo (PW.4) that she heard the
accused say to the complainant after the event "You
should come again tomorrow and I would do to you the
same thing and you will no more feel any pain" as
confirmation of the case in the absence of any evidence
given by the accused denying that he said any such
thing. The magistrate also accepted the evidence of
Palesa that she saw the complainant with her panty in her
hand and regarded this as indicative that whatever was
done to her did not please her. However, consent was not
an issue. Section 3(1) is designed to protect girls
under the age of 16 years from sexual abuse.
The accused is a school teacher aged 29. He told
the Court that he was drinking beer that day and that
he returned to the place where he lived at 3.35 p.m. in
6/ a drunken .....

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a drunken condition. He met the complainant and asked
her for some food. She brought him a kind of barley-
broth. The accused did not like this food. He went to
his bedroom where he slept. He did not know anything
about the allegation made against him until the following
day. He told his wife that he was being accused of rape,
which he denied. His wife wanted him to discuss matters
with the complainant's mother with the view to a
settlement. Subsequently 'Mamosito told him that his
wife had agreed that the matter should be withdrawn
from the court and that he should pay compensation. He
refused to accept this, despite the urgings of his wife.
No incriminating information was extracted from the
accused in cross-examination.
The only other matter raised at the trial is that
Palesa gave evidence to the effect that when the
accused came home, he made improper (but not indecent)
advances to her which she repulsed. The relevance of
this evidence is doubtful and it was not alluded to by
the magistrate.
It can be said that the manner in which this
case was presented by the prosecution was in some
respects unfair in that inadmissible and irrelevant
evidence was presented to the court. I am of opinion
that my duty in terms of Section 288B of the Proclamation
is to exercise Revisonary rather than Appellate Powers
in this Court. There was evidence that the accused
and the complainant were in a bedroom and that the
complainant was heard shouting and that she subsequently
emerged carrying her panty. She made a complaint to
her elder sister to the effect that the accused had
just removed them. He was later heard to threaten the
complainant with a repetition of what had occurred.
As against this the accused's denials and the statement
that he was drunk were rightly rejected. I am satisfied
that the accused was properly convicted of the offence
with which he was charged.
If the magistrate had not treated this case as
if it were one of rape (which it was not) she had
7/ sufficient....

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sufficient jurisdiction to punish the accused in an
adequate manner. She need not have sent him to this
Court for sentence at all. This Court has now to consider
what is an appropriate sentence in all the circumstances.
The statute provides that a person guilty of an offence
under Section 3(1) shall be liable to a fine not exceeding
M1,000 or to imprisonment for any term not exceeding 6
years. Whatever may have been the position in 1949,
the fine referred to bears little relation to the 6 years
imprisonment when considered in today's monetary terms.
The section is a wide one and it prohibits a number of
different activities which may be viewed with varying
degrees of seriousness. To have sexual intercourse
with a young girl is one thing, while to entice her to
commit some minor indecency is another. The only thing
which was properly proved against the accused was that
he removed the girl's panty. That was the substance
of her first complaint. It was undoubtedly an inexcuseable
act for a man of the age and position of the accused. It
calls into question his fitness to be placed in charge
of young people. On the other hand he is a first
offender and is entitled to some consideration on that
account.
As a general rule I do not regard fines as a proper
punishment in sexual cases. The protection of young
women deserves something more by way of a deterrent.
On the other hand the accused in this case has had this
matter hanging over him for a considerable length of
time. If he had been brought before a subordinate
court with adequate powers to deal with him, he would
be free of the affair by this time.
In all the circumstances I have decided upon a
compromise designed to ensure that the seriousness of
his conduct is brought home to the accused and that will
require him to behave himself in future.
The accused is sentenced
(a)     to pay a fine of M150 or 6 months' imprisonment
in default and
(b)     is sentenced to 6 months imprisonment the
whole of which sentence is suspended for
three years on condition that he is not
8/ convicted of ......

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convicted of rape, indecent assault or any
offence contrary to the Women and Girls
Protection Proclamation 1949 committed
during the period of the suspension of the
sentence.
F.X. ROONEY
JUDGE

2nd November, 1981.
Attorney for the Crown : Law Office.