IN THE HIGH COURT OF LESOTHO In the matter
v NGAKA MASUPHA
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
1st day of August, 1989.
This matter came to the High Court on automatic review.
The accused stood charged before the Subordinate Court
with the crime of rape.
He pleaded not guilty but was convicted as charged and
sentenced to five years1 imprisonment.
The reviewing Judge was of the opinion that the sentence
was manifestly in dequate.
Consequently the accused was given an opportunity to
secure services of a legal representative and was given a forewarning
why, in the event that the conviction was confirmed, the
sentence should not be appreciably enhanced.
The facts reveal that a 58 year old 'Matholang Masupha
the mother of the accused has a house at Qefata where she and the
is her last born stay. They use separate beddings for
During the evening of August 8th 1988 the complainant
'Matholang prepared the bedding for herself after the
two had had their evening meal.
The complainant got under her blankets. The accused
inquired of her
"Hey you woman come and prepare the bedding for me.
The complainant astonished by the accused's conduct
asked "Since when am I supposed to prepare the bedding for you?"
the accused uttered the threat that she' might find
that the time would be too late when she intended complying with the
order. He also
threatened to scald the complainant with water from a
burning primus stove; and said that he wanted to make a record. On
about his behaviour the accused said he wanted to make
Then the complainant stood up and proceeded to make the
bedding as ordered by the accused. The accused poured water on the
She cried. She appealed to him to stop doing so.
The accused took out a knife and said he was going to
finish off the complainant. Then he ordered her to come so that they
indulge in sexual intercourse. She hesitated but the accused
wrestled with her, tripped her, and as she fell he then forcibly had
sex with her. Having sated and slaked his ravenous urge or shall I
say his libidinous appetite, he threatened to kill her to ensure
she did not tell other people about this incident.
The complainant finding that there was no way she could
escape imminent death decided to truckle to her tormentor's demands;
an undertaking not to report to anybody. Consequently she
and the accused had sex till the following morning. The accused kept
mother a virtual prisoner in the house by fastening the door with
wire when he went out.
It was through sheer cryptic communication and secret
devices that she gave a sign to a child who happened to be around at
to come to her. Tactfully applying the same secret method
she managed to order this child to call one Letsema to her rescue.
and others went looking for the accused who was brought
before the chief; and when questioned about his mother's complaint
him, he asked that he be pardoned. The complainant testified
that the accused does not drink beer but smokes dagga.
No evidence of his having smoked dagga that day was
The form of cross-examination that the accused subjected
his mother to was nothing short of adding insult to her injured
personality. For instance :-
"Did I have sexual intercourse with you - ? Yes,
What is that - ?
That you had sexual intercourse with me. With what - ?
You undressed me and inserted your penis into my
In Review Cases 75 and 81 of 1988 Rex vs Jankie andRex vs Khauta respectively (unreported) reference was made
to R vs Billam & Others (1936) ALL E.R. 985 (CA) at 987 etseq namely that
"For rape committed by an adult without
anyaggravating or mitigating features, a figureof five years
should be taken as the startingpoint in a contested case ?"
Where rape is committed
"by a person who is in a position of
responsibility towards the victim, or by a person
who holds her captive the starting
point should be eight years."
"........ He represented a more than ordinary
danger; ......... a sentence of 15 years or more may be appropriate."
"Where the defendant's behaviour has manifested
perverted ....... tendencies or gross personality
......... a life sentence will not be
The crime should be treated as -aggravated by any of the
following factors :
".(1) Violence is used over and above the force
necessary to commit rape.
A' weapon is used to frighten or wound thevictim.
The rape is repeated.
(8) The effect oh the victim, whether physical or
is of special seriousness."
The accused has raped His mother. He" used a knife
to frighten her. He applied hot water to her body to cause her alarm
subject her to indignity. He locked her up in the cause making
her a virtual captive. He had sex with her against her will for a
good part of the night. He did not plead guilty; of course he was not
obliged not to. But above at p. 988 shows that
"The extra distress which giving evidence can cause
to a victim means that a plea of guilty, perhaps more so than in
should normally result in some reduction from what would
otherwise be appropriate sentence. The amount of such reduction will
course depend on all circumstances, including the likelihood of a
finding of not guilty had the matter been contested."
See also Review Case No. 127/68 R vs Nalana
The accused has shorn his mother of all her dignity
Apart from the initial trauma suffered during the sexual act, the
process of reporting to the chief and the police added
to the victim's distress. But the
cross-examination in Court by her son about gave thecoping-stone to the exposure of her nakedness.
Rape is bad enough when committed by a stranger. It
would be worse if committed by a relative; for an element of incest
It becomes more than a thousand fold disgusting and
nauseating when committed by a son on his own mother who ordinarily
up to that self same son for protection against all forms
of violence to her. It becomes difficult to express in words the
of this offence when committed by the son on the mother.
Suffice it then to say it evokes in one an utmost sense of revulsion.
Why then the learned magistrate treated this type of
case as if it is a run of the mill type escapes me.
In CRI/S/10/88 R vs Qhosheka (unreported) p. 3
this Court indicated that the Subordinate Courts are at large to
commit for sentence to High Court cases which
fall beyond their
sentencing powers. See Section 293(1) of the Criminal. Procedure
and Evidence Act of 1981.
Mr. Moorosi submitted that the accused's habitual
smoking of dagga might have impaired his reason. But I am told by
the accused that he is a
builder. As such it would seem dangerous for
him to negotiate heights to which buildings usually go if dagga
smoking can be said
to have somehow impaired his mental or even
physical being. In any case no evidence of such empairment was
adduced. Hence my rejection
of this submission.
In Criminal Review Order 10/88 R vs Morie
(unreported) at p. 5 it was indicated that magistrates would do well
to heed the guidelines set out in Jankie and Khauta
above.The last paragraph thereof clearly shows that cases of
aggravated rape should be committed for sentence to this Court.
In CRI/REV/572/88 Rex vs Griffith Lehana
(unreported) at p. 1, this Court observed that a sentence of five
years' imprisonment was imposed persuant to the Revision of Penalties
(Amendment) Order of 1988 in respect of which the learned magistrate
appeared to have been of the view that no higher than the minimum
sentence prescribed can in any circumstances be imposed.
This court in response to this apparent view
nonetheless reacted by saying
"My reading of this Order does not convey an
instruction that irrespective of varying degrees of reprehensibility
in the commission
of rape a judicial officer has conscientiously
discharged his or her function as a trier of fact once he has
confined himself to
imposing the minimum sentence outlined for the
offence in that order."
These words in quotations apply with equal force in the
instant review case.
For the sake of emphasis I need only point out that at
page 2 of Lehana above it was stated that because it is not
every magistrate who has sufficient jurisdiction to mete out suitable
sentences in the
varying degrees of reprehensibility in rape cases
the learned Chief Justice in Jankie and Khauta above
"In passing sentence I would once more impress upon
all magistrates the gravity of the offence of rape. I have set out
in Billam in extenso above for their guidance.
Obviously it is desirable that only Magistrates of the rank of
Resident Magistrate or above
should try cases of rape. This is not
possible of course in some districts. In any event the provisions of
the Criminal Procedure
and Evidence Act 1981 are available to a
magistrate, and where in any particular case those provisions are
applicable, he must commit the accused to the High Court forsentence if his sentencing powers are inadequate."
It is only for the sake of stressing the point that I
wish to quote liberally from Lehana at p. 4
"The trauma or stigma of rape to the victim or such
an act is as dehumanising as it is penetrating. In fact no amount of
can parallel its debilitating effect on the victim's
psychological well-being. It thoroughly corrodes whatever dignity
Will the magistrates charged with the responsibility of
sentencing rapists once more take note.
The sentence imposed by the court below is set aside.
The verdict is confirmed.
The accused is sentenced to 9 years' imprisonment.
J U D G E. 1st August, 1989.
For Crown : Miss Nku For Defence : Mr. Moorosi.
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