CRI/A/108/86 IN THE HIGH
COURT OF LESOTHO
In the Appeal of :
MORIANA HLAO Appellant
vR E X Respondent
J U D G M E N T
Delivered by the Hon. Mr. justice B.K. Molai. on the
24th day of March. 1987.
The appellant, a 35 years old taxi driver, was charged
with and convicted of rape before a magistrate with Second . Class
the allegations that on or about 31st August, 1986 and at
or near Ha Ranko in the district of Mafsteng he unlawfully and
had sexual intercourse with Lydia Lenko, a 15 years old
girl without her consent. A sentence of M250 plus 12 months
When the charge was put to him, the appellant had
pleaded guilty and the provisions of S. 240(1)(b) of the Criminal
Procedure and Evidence Act, 1981 were invoked.
The facts, and these were admitted as correct by the
appellant, disclosed that on the late evening of 31st August, 1986,
a 15 years old school girl, was returning from school
when she embarked on the taxi driven by the appellant There were no
in the taxi basides the conductor. When the taxi came to
her bus stop the complainant did not alight. After it had passed the
stop the appellant stopped the taxi and proposed (love) to
the complainant. At that stage the conductor went out leaving the
appellant and the complainant alone in the taxi.
The appellant then pulled off complainant's panties and
started having sexual intercourse with her. The sexual intercourse
without complainant's consent. It was not until the
2/ following day
following day, 1st September, 1986, that the complainant
On arrival at home, complainant's parents questioned her
as to where she had been and in reply she reported that the appellant
been raping her. The matter was first reported to the village
headman and then to the police who referred complainant to a medical
doctor for examination.
It was only on 2nd September, 1986 that the medical
doctor examined her and made a report that complainant had facial
a swollen eye and two(2) scratches, The hymen was torn
but no vaginal smears could be detected as the examination was made
after the alleged incident. The medical doctor formed the
opinion that recent intercourse had taken place. On 2nd September,
the appellant was arrested, cautioned and charged as aforesaid.
The appeal was initially against both conviction and
sentence on the grounds that in the circumstances of the case the
should have entered a plea of not guilty, the age of
the complainant was not proved. The statement of facts given by
prosecutor in support of the charge differed from the
medical evidence in material respects and the sentence was excessive.
When the matter came for argument Dr. Tsotsi who
repre-sented the appellant in this matter told the court that the
sentence was withdrawn and the question of the
complainant's age abandoned.
According to the record of proceedings whan, on
1986, ha appeared before the trial court, the charge
and explained to the Appellant who then pleaded
being so, the trial magistrate had no alternative but
plea of guilty.
What the appellant is having in mind is, perhaps, that
after he had given his reply to the question whether or not he
facts as outlined by the public prosecutor, the trial
magistrate should have altered the "plea of guilty"
to that of "not guilty". In my view the magistrate could do
so only if the appellant's reply
was that he did not admit the
3/ facts as
facts as; outlined by the public prosecutor. Where the
appellant had as in the present case catagorically told the court
admitted the facts as outlined by the/public
prosecutor, the trial magistrate could not, in my view
plea of guilty to that of not guilty.
In the circumstances of, this case there is, therefore,
no substance in the ground of appeal that the magistrate should have
a plea of not guilty.
In outlining the facts in his possession, the public
prosecutor stated that had he not pleaded guilty to the
charge he would have adduced evidence to show that the
had had sexual intercourse with the complainant.
The medical report would also show that the doctor who
examined the complainant on 2nd September, 1986 formed
the opinion that sexual intercourse had in fact recently taken place.
granted, I am unable to apprehend how the appellant can, under
the 3rd ground of appeal; seriously con-tend that the statement of
facts given by the public prosecutor in support of the charge
differed from the medical evidence in material respects. Indeed was
told in argument that the appellant himself did not dispute that he
had had sexual intercourse with the complainant. In my view
there is no sub-stance in the 3rd ground of appeal which must also
Having accepted that the appellant did have
sexual-inter-course,with the complainant* the salient question was
whether or not it was
with her consent.I have given serious,con-:
sideration to the. facts that when the taxi came to her bus stop the
not alight; after the, taxi had passed the bus stop
the appellant stopped it and proposed (love) to the complainant;
when she returned
home on the fol-lowing, day,1st, September, 1986 it
was only in reply to a question by her parents that complainant
the appellant had raped her.
Regard being had to all. these facts, it may well be
said, at the time the sexual,intercourse,too(('place, the complainant
appellant were lovers.; But can it be concluded,from the fact
that at the time it took place,the appellant and the complainant were
lovers, that the sexual intercourse was with
4/ the latter's.....
the letter's consent - I can envisage a situation where
a girl falls In love with a man but refuses to have sexual
him- The conclusion would in my view be a
According to the facts outlined by the public prosecutor
and,indeed; admitted by the appellant himself the sexual intercourse
place without the consent of the complainant. There is no good
reason, in my view, why the trial court should have rejected the fact
admitted by the appellant that the sexual intercourse did take place
without the complainant's consent. Assuming the correctness
view I have taken on this point; it must be accepted that the answer
to the question whether or not sexual intercourse took
place with the
consent of the complainant is in the negative.
Although the appeal against the sentence was
withdrawnit was pointed out in argument that the sentence Imposed
bythe learned trial magistrate was irregular in that the
appellantwas to pay a fine and serve a term of imprisonment. It
is,however, to be observed that 5.62(2) of the Subordinate.
CourtsProclamation No. 58 of 1938 empowered the trial magistrate
topunish the appellant by both payment of a fine and a term
The Section reads :
"(2) Any person convicted of any offence may be
punished by both such fine and such imprisonment or
by both such imprisonment and such whipping, but an offender shall
the same offence be punished both by fine and by whipping."
If the appellant does not pay the fine, the magistrate
may decide on the legality of substituting corporal punishment for
of a fine. i am not convinced,therefore, that the sentence
imposed by the trial magistrate is irregular.
For the foregoing reasons, I come to the conclusion that
this appeal ought not to succeed and it is' accordingly dis-missed.
JUDGE 24th March, 1987.
For Appellant : Mr. TSptsi For Crown : Miss Nku.
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