HIGH COURT OF LESOTHO
Case No. 204/03 CR160/02
Order No. 23/04 In Butha-Buthe District
by The Hon. Mr Justice S.N. Peete 26th October, 2004
accused, a Mosotho male adult aged 27 years of Benteke, Qholaqhoe in
the district of Butha-Buthe appeared before the learned
Mr Masiphole charged with the offence of indecent assault allegedly
perpetrated by him upon one Retsepile Mphona,
a young girl of 9
years, by putting his penis on Retsephile's thighs, on the 31st
accused pleaded guilty and the trial summarily proceeded under
section 240 of the Criminal Procedure and Evidence Act 1981 his
rights having been explained to him in full.
the learned Magistrate's handwriting is a bit hieroglyphic, I find
nothing in the record which touches on accused's sanity,
learned magistrate concludes abruptly by saying –
court finds out that the accused is insane or mentally incapacitated.
Guilty as charged
Accused has no record of previous convictions."
the accused had spoken in mitigation the learned Magistrate states-
"The court had occasion to inquire into the sanity of the
accused in terms of section 172 (1) of the Criminal Procedure and
Evidence Act 9 of 1981 and regard being had to what transpired during
the trial of the instant matter I am duly satisfied that
is guilty but insane "
quoted the cited section in full he concludes by saying "this
court has a discretion to commit the accused to prison
satisfaction of the King's pleasure or to make any other order as it
deems fit. I accordingly commit the accused
to prison pending the
satisfaction of the King's pleasure. "
under section 172 is a serious order which in all probability may
mean life in a mental institution. It must not be
to unless there is convincing psychiatric evidence warranting such
order. In these summary proceedings under
section 240 of the
Criminal Procedure and Evidence Act, the prosecutor did not allude
in any manner to the accused's mental condition.
Bizarre as the
indecent assault may appear, the learned magistrate, without any
psychiatric evidence having been procured came
to the conclusion
that accused was insane. Indeed Snyman - Criminal Law (1995) states
at page 159.
court cannot reach a finding of criminal non-responsibility without
hearing expert evidence by psychiatrists".
hold that the learned Magistrate committed a gross irregularity of
such a magnitude that vitiates the whole proceedings. I order
conviction and committal order be set aside and the matter be tried
de novo before another magistrate.
Magistrate - Butha-Buthe
Police - Butha-Buthe
of Public Prosecutions
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