IN THE HIGH COURT OF LESOTHO In the Appeal
PITSO RAMAILI Appellant
Delivered by the Hon Mr. Justice J.L. Kheola on the
26th day of October, 1987.
The appellant appeared before the Resident Magistrate
for the district of Mafeteng charged with the crime of rape, it being
that on the 14th April, 1987 and at or near Matsatseng in the
district of Mafeteng the said accused did unlawfully and
have unlawful sexual intercourse with Mpotseng Lota
aged 12 years who was incapable of consenting to sexual intercourse
pleaded guilty to the charge, after accepting the facts
of the case as outlined by the public prosecutor he was found guilty
and sentenced to three (3) years' imprisonment.
The appeal is against sentence only on the ground that
it is excessive and creates a sense of shock taking into account that
is a first offender. It was submitted that the learned
Resident Magistrate failed to regard as a mitigating factor that the
The facts of the case were that on the 14th April, 1987
the complainant was at her sister's home, one 'Malesole Majara. When
went to draw water the complainant went to the home of one
'Mamonono. She was going to find out from her where her other sister
staying. When she arrived there she found the appellant
and asked him where her sister was staying. The
appellant said that he would accompany her and show her the place
which is in Matsaneng
area. Instead of taking her to her sister's
place, the appellant took the complainant to his house and slept with
her for the whole
night and had sexual intercourse with her several
times during the night. On the following morning appellant's
neighbour asked the
complainant to come with her to the market to
help her sell maize. After helping her the complainant returned to
She reported to her that she slept at the
appellant's home and that he had sexual intercourse with her several
times during the
'Medical evidence confirmed that the complainant had
been sexually assaulted and that her hymen was missing. It was proved
complainant was 12 years old when the appellant "raped"
Although the appellant appeared in person at the hearing
of the appeal, Mr. Ntlhoki had lodged the appeal on his behalf
and had also filed his heads of argument before he withdrew as
attorney of recrod. He has submitted
that the sentences derives from
the incorrect legal promise postulated in the charge sheet that
complainant aged 12 years was incapable
of consenting to sexual
intercourse. At common law, it is a girl under 12 years who is
incapable of consenting to sexual intercourse.
This is an irrebutable
presumption. See R, v. Z. 1960(1) S.A. 739 (A.D.) at pp. 742,
744, Hunt-South African Criminal Law and Procedure, 1st edition, p.
The charge sheet was, therefore, defective by alleging
that the complainant was incapable of consenting to sexual
evidence before the court shows clearly that the
complainant consented to sexual intercourse and that no force
whatsoever was used.
The appellant merely asked her to remove her
panty. She complied and raised no objection.
Section 8(2),of the High Court Act 1978 provides that
when considering a Criminal appeal and notwithstanding that a point
be decided in favour of the
accused, no conviction or sentence shall be set aside or
altered by reason of any irregularity or defect in the record of
unless it appears to the High Court that a failure of
justice has in fact resulted therefrom. I am of the opinion that no
of justice has resulted from the fact that the Crown and the
trial court erroneously believed that a girl of 12 years of age is
of consenting to sexual intercourse inasmuch as having
sexual intercourse with a girl under the age of 16 years is a
in terms of section 3(1) of the Women and Girls'
Protection Proclamation Mo. 14 of 1949. Furthermore, the statutory
offence of unlawful
carnal knowledge of a girl under the age of 16
years is a competent verdict on a charge of common law rape.
I set aside the conviction and substitute it with that
of guilty of contravening section 3(1) of the Women and Girls'
No. 14 of 1949.
Regarding the appeal against sentence it seems to me
that it must succeed on the ground that the statutory offence is
less serious than the common law rape. It follows that
if the learned Resident Magistrate had not misdirected herself on the
of law stated above she would probable have imposed a sentence
lesser than the present one.
The sentence of three (3) years' imprisonment is set
aside and substituted with one of two (2) years'
The last, but by no means the least important point to
raise again is the ease with which magistrates grant bail to people
just convicted. The present case is a typical example of
this. The appellant was convicted and sentenced on the 24th
1987 on his own plea of guilty to a very serious office. On
the 8th May, 1987 the appellant filed his grounds of appeal on
only On the 3rd June, 1987 the appellant was granted bail
and paid a deposit of M100.00 with some other conditions The learned
Magistrate knew very well that even
if the sentence were reduced on appeal the appellant
could never be given the option of a fine in a rape case Then why
appellant on bail instead of allowing him to start
serving his sentence?
I am aware that there are some borderline cases in which
the magistrate may not be in a position to say positively that there
no prospects of success In cases where the accused has pleaded
guilty to a serious offence and appeals only against sentence, I
it a waste of time for the accused himself who ought to start serving
his sentence as soon as possible; the police's time is
because when the appeal is set down for hearing, the appellant must
be served with a notice of set down. Very often it
is not easy to
trace a man who has already been convicted and has, in most cases,
served a few days or weeks of his term of imprisonment.
He will try
to delay the matter as much at, he can possibly evade service. See
CRI/A/58/87 Maseko vs. Rex (unreported)
26th October, 1987.
For Appellant : Mr. Ntlhoki For Crown Mr.
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