HIGH COURT OF LESOTHO
Case No. 142/2005 CR 47/2005
Order No. 9/2005 In Mokhotlong District
ORDER 8TH July, 2005
accused was prosecuted and convicted before the Resident Magistrate
for Mokhotlong district.
charged with having contravened Section 8 (1) of the Sexual Offences
Act No. 3 of 2003.
has been send to the High Court on automatic review. The sentence
imposed upon him is eight (8) years imprisonment. He
has not been
given an option of a fine. This was on the 29th April 2005.
accused is described as being 36 years of age, while the complainant
is aged 16 years.
the fact are that on the day in question Pwl (complainant) was
sleeping in the same house with her younger brother (age
night Pwl felt someone in her bed and that her panty was being pulled
off her by that person. She searched for matches in
order to light
the house. This she did so that she could see who it was who was in
her bed. She also touched her younger brother
to see if he was still
asleep. She noticed that her brother was still asleep. She did not
find the matches where she had earlier
person who had been pulling off her panty then pinned her down, over
came her and had sexual intercourse with her, despite her
called out her neighbour, one Mafa but at that time that stranger
left her home running and went away. Pwl then followed after
told the court further that she was able to identify her assailant
through the help of moonlight; as being one Motsamai.
went back to where she and her brother were earlier sleeping before
this strange man interrupted her.
arrival back there, she woke up her brother took him to the home of
one "Mathabiso where they slept for the night as Pwl
her assailant may come back to her home. She reported about this
incident to "Mathabiso. She did not report it
to her own brother
even though they had slept together in one house.
incident was once more reported to one 'Manthabiseng; who in turn
took Pwl to the Chief to report about same.
instructions of the Chief, one lady by the names of 'Makhoiti
Mphatsoane examined Pwl and informed the chief about her observation.
incident was reported to the police. Pwl was later referred for
treatment to a medical doctor. The medical doctor subsequently
compiled exhibit A - the medical report in respect of Pwl.
accused who was also summoned for questioning to the chiefs office
denied that he raped Pwl. It is his testimony that he has
at the home of Pwl on the day in question herein. He has throughout
the trial denied having committed this crime upon
Pwl. He also denies
that there was moonlight on the day in question. However all crown
witnesses testified that there was moonlight
on that night thereby
corroborating the evidence of Pwl on this point.
already been indicated that the Resident Magistrate has imposed a
sentence of eight (8) years imprisonment without an option
of a fine
upon the accused.
reasons for sentence the learned magistrate has among other things
alluded to the following and I quote:
"Sexual offences in this age of HIV and AIDS is a menace to the
society. Innocent victims contact this killer disease through
no doubt that the fact that Pwl and the accused are very well known
to each other is common cause. They reside in the same
the like manner so also in the fact that Pwl and accused have to
said this, I turn now to the identity of the accused by Pwl, as being
the person who has raped her. This is indeed a very
as the learned magistrate has rightly indicated in this record of
reading of the evidence adduced before the court aquo, there is no
doubt that indeed Pwl did positively identify the accused
no reasons why I should doubt that indeed Pwl identified the accused
as the person who had just raped her. Her evidence
has not been
challenged and so this court has no reason to doubt it.
learned magistrate, before whom this case was prosecuted has had the
opportunity to see the crown witnesses when they testified,
Pwl. He has had no doubt about their credibility too. This court does
not depart from that observation of the learned
court is satisfied that the accused herein has been positively
identified as the man who has committed a sexual offence upon
issue which is of concern to this court is the issue concerning the
statement of the learned magistrate with respect to
HIV and AIDS.
been alluded to in the reasons for sentence by the learned magistrate
who imposed the sentence of eight years imprisonment
option of a fine.
This is a
heavy sentence for a first offender especially in view of the fact
that there is no finding that the accused was infected
with HIV and
no indication on the court record that the provisions of Section 30
(1), (2) and (4) have been invoked by the court aquo.
therefore no evidence of any kind before the court a quo indicating
that accused has tested positive for HIV and AIDS.
under which the accused is charged makes provision for "Compulsory
Human Immunodeficiency Virus (HIV) test.
30(1) provides as follows. I quote:
"A person charged with a Sexual Act involving the insertion of a
sexual organ into another person's sexual organ or anus,
his blood substance taken by a medical practitioner within a week of
the preferment of the charge".
provides for disclosure of the results of the tested blood to the
accused and the complainant only. Sub (4), this provides
"Where a conviction is secured, the results of the test done
pursuant to Sub Section (3) shall be tendered in evidence for
purposes of sentence".
the provisions of Section 30 were invoked by the court a quo despite
the fact that it was obliged to do so within a week
of the preferment
of the charge. The court had no alternative but to have had accused's
blood so tested, but this was never done.
court is however aware that the learned Magistrate has not invoked
the provisions of Section 32 (a), (iv) even though he has
the HIV and AIDS menace in his reasons for sentence. Had he done so,
he would probably have imposed a more severe punishment
provided, if indeed accused had tested positive for HIV and AIDS
Virus. The accused has therefore not been prejudiced by
imposed herein. The learned Magistrate, has correctly invoked the
provisions of Section 32 (a), (ii). He has done
so correctly in my
view because there is evidence that the complainant resisted the
accused but, he overcame her, pinned her down
and had sexual
intercourse with her forcefully and without her consent.
2, Part I of this Act interprets: "Coercive circumstances"
as follows I quote:
circumstances" include but are not limited to any circumstances
is an application of force, whether explicit or implicit, direct or
indirect, physical or psychological against any person
clearly the application of force by the accused upon Pwl when he
committed this crime.
also describes "Sexual Act" as, and I quote "Sexual
or indirect contact with anus, breasts, penis buttocks, thighs or
vagina of one person and any other part of the body of
evidence here that the accused did insert his penis into the vagina
of Pwl and thereby committed the alleged criminal offence.
learned Magistrate has therefore correctly convicted the accused
herein as charged.
above reasons, the conviction and sentence imposed by the learned
Magistrate herein are confirmed as being in accordance
with real and
court is however greatly disturbed and not satisfied with the fact
that the provisions of Section 30 providing for compulsory
Immunodeficiency Virus (HIV) test have not been invoked.
not be a good law for various reasons, but it is mandatory and our
courts have to comply with it until when it may be challenged
court of law.
such time that the court is asked to pronounce on its legality or
constituality, it will remain in the law books to be complied
all courts and its officers.
conclusion, I should highlight this court's displeasure about exhibit
A; the medical report of Pwl. It has not helped
classify an important issue; namely the findings/observations on the
vaginal swab taken.
is shown is that the vaginal swab is incomplete. It tells the court
nothing, and one wonders what the basis of the medical
Pwl is likely to have been raped is based1 upon. The medical doctor's
findings on that vaginal swab would probably
have had an important
bearing on this case.
therefore highly imperative that medical doctors should also furnish
well written, clear and complete reports in cases of
such a report is not clear as in the instant case, the crown should
seek or insist that it be clarified by oral evidence if
JUDGE OF THE HIGH COURT
All Public Prosecutors
O/C Police Mokhotlong
O/C Prison Mokhotlong
CID - Mokhotlong
Director of Public Prosecutions
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