CRI/S/8/81 IN THE HIGH COURT OF LESOTHOIn the Matter of :REXvCHECHE McPHERSONJUDGMENTDelivered by the Horu Mr. Justice F.X. Rooneyon the 2nd day of November, 1981.Mr. Kabatsi for the CrownMr. Modisana for the DefendantOn 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
-2-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 accusedneeds a more serious punishment even thoughhe is a first offender. This is the reason whyI committed him for sentence by the High Courtsince my jurisdiction does not allow me toimpose 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."
-3-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 offencewhich reasonably offers itself" (Ridley J.A. in R.v.Osborne (1905) 1KB 551 at 561The 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 mypanty 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 was4/ still in my
-4-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 complaintmade 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 emphasizedthat 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 locked5/ she went on
-5-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. in6/ a drunken .....
-6-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 thatPalesa 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 had7/ sufficient....
-7-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 not8/ convicted of ......
-8-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.