IN THE HIGH COURT OF LESOTHO

In the matter between:

REX

V

MOHAU MAKEPE

Review Case No. 159/2005 CR 1546/2001

Review Order No. 13/2005 In Maseru District

REVIEW ORDER 12th JULY, 2005

This case has been send to the High Court on automatic review from the court of the Resident Magistrate in Maseru.

The accused was charged with having committed the crime of rape upon a four (4) years old girl, one 'Mampele Ts oene.

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The accused had, on the 29th September 2001 pleaded not guilty to the charge.

He was however eventually found guilty as charged by the learned Resident Magistrate (1st Respondent). He was then sentenced to fifteen (15) years imprisonment without an option of a fine.

The charge sheet reads as follows:

"The accused is charged with the offence of rape in that upon (or about) the 7th day of October 1999 and at or near Ngope-Ts'oeu in Maseru, the said accused did unlawfully and intentionally have unlawful sexual intercourse with one 'Mampele Ts oene a 4 year old girl who was incapable of consenting".

The said offence was committed before the coming into operation/into being of the Sexual offences Act, No.3 of 2003.

Briefly the facts are as follows :-

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On the day in question, the complainant and her elder sister (PW3) were from a shop when they were called to the home of the accused by the accused.

The accused then send Pw3 to call for him one Tapotsa. Pw3 left to look for and call the said Tapotsa. She left the complainant behind with the accused.

Later Pw3 went back to the accused's home to inform him that she has not found Tapotsa. In other words she went into the accused's home to report about the outcome of her errand.

On arrival into that house, she saw the complainant getting off/down from the bed of the accused.

She also realized that the accused was wiping the complainant with a T. Shirt (skipper) around her private parts. She also realized that the complainant was crying.

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She also saw that the accused was putting on his trousers, and at that time too the crying complainant was putting back her shoes on her feet.

Neither Pw3 nor the accused uttered a word to each other at that time.

Pw3 took away the complainant and they both went to one "Mateboho Ts oene. The complainant was still crying. This incident was then reported to 'Mateboho who was in the company of one other lady, Meriam (Pw4).

Pw3 and the complainant had been sent to the shop by Pw4. Eventually, the complainant was examined by the elderly ladies at the request of the chief.

Those ladies were Pwl - 'Mabokaako Ts'oene, 'Mamolapo Ts'iame and 'Mathesele (Pw2). The complainant cried throughout this examination.

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The complainant was later taken to the Roma Police Charge Office where the incident was reported and eventually she went to see a medical doctor. She was examined at St. Joseph's Hospital by a medical doctor, who then compiled a medical report, exhibit A.

Exhibit A reads, "Young child hymen not really intact".

It is worth noting that the complainant was examined by a medical doctor on the day that this incident occurred. The medical doctor, did however, see no spermatozoa upon her.

This part of the crown evidence is inconsistent with that of the crown witnesses referred to earlier; namely Pwl, Pw2, Pw3 and Pw4. These ladies had examined the complainant immediately or shortly after the incident had occurred. They all told the court that they saw sperms or something like mucus on the complainant's area around her private parts. They, however, are not consistent and are contradictory as to the exact spot(s) where that substance was seen.

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This court has noted that the impression given to court about contents of exhibit A is not correct. The Public Prosecutor did inform the court that the report indicated that "the hymen was not present". With respect that is not so. This impression is far different from what the medical doctor has said. It would mean that the accused did actually penetrate the complainant's private parts.

If the doctor has written that the hymen was not really intact, then that would mean something else. It would probably be that the accused managed to somehow penetrate or that he only disturbed the hymen of the complainant but did not actually penetrate. It is important that court officers like Public Prosecutors should read reports carefully so as not to confuse issues.

The complainant has not been called to testify. The record of proceedings reads as follows with regard to this issue, (I quote):

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"It was further agreed by all concerned that the victim was then too young to adduce evidence and hence the court's ruling for her evidence to be left out".

This ruling does not appear anywhere in the record of proceedings now being reviewed.

This particular issue is being mentioned for the first time in the written judgment of the learned Magistrate.

There is nothing on the record of proceedings showing the basis upon which this decision was based. In other words, the decision was arrived at in abstract.

This is irregular and was highly prejudicial to the accused.

A trial within a trial should have been held so that the court could have been in a position to determine whether or not the complainant understood the nature of the oath or admonition. It should have made a finding based on evidence that the

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complainant was not a competent witness, in which case if she was not, then she would not be compelled to testify.

This should have been done moreso because the issue of the identity of the accused as a perpetrator of this crime has been determined by the learned Magistrate only on the basis of a single witness's (Pw3) circumstantial evidence.

Pw3 was aged only six years when she testified in this trial. The learned Magistrate has not cautioned himself against the dangers inherent in her testimony.

The issue of evidence by child witnesses has been extensively dealt with by the learned authors in their book "The South African Law of Evidence, 4th Edition", at pages 375 to 377.

According to them it is the duty of a presiding Magistrate to inquire whether a young child tendered as a witness understands the meaning and religious sanction of an oath.

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In the case of R v Banda 1951 (3) S. A. 158, Schreiner JA had this to say: (I quote)

"A child may not understand the nature or recognize the obligation of an oath or affirmation and yet may appear to the court to be more than ordinarily intelligent, observant and honest".

Authorities are agreed that there is no fixed age at which children become competent witnesses. All that matters is for the presiding Magistrate to inquire into a child's understanding of the oath. (My underlining)

This issue can only be determined by holding a trial within a trial. No such trial was held in the instant case being reviewed. This has prejudiced the accused who had no opportunity to cross examined the complainant.

The accused who was then conducting his own defence may not have known nor appreciated the Consequences he was faced with when he allegedly gave his consent that the complainant be not called to testify.

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There is nothing on the record of proceedings showing that the accused was informed or advised of the danger in proceeding as he did without the complainant having testified.

To the extend that the young child witness was never called to testify and the trial within a trial was never held to determine whether or not the said young child understood the nature and recognizes the obligation of an oath or affirmation, there was prejudice suffered by the accused.

No authority was cited by the crown to support the decision that the young child complainant be not called to testify.

Indeed, on the reading of this record of proceedings, the accused was prejudiced in other respects. For instance, on the 19/9/2002, a warrant for his arrest was issued and executed under very dubious circumstances. There was no return of service to proof that service of summons upon the accused had in fact been actually effected upon him.

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The court a quo only relied and acted on the unsworn statement of one officer from the office of Mr. Putsoane that there was actual service of summons upon the accused.

The record of proceedings read in this regard as follows: (I quote) :-

"...........there is reliable information that accused got summons through Mr. Putsoane's office by Mr. Koloko of Mr. Putsoane's office".

This information does not appear anywhere in the record of proceedings now being reviewed nor is there anything showing formal proof of service of that summons upon the accused.

In any case, this being a criminal trial, that summons had to be served upon the accused personally.

There also is no indication on the court record showing whether or not the accused was given a chance to explain himself and his default to attend court on the 7th June 2002.

The accused should have been heard in this regard before he was committed to jail.

Also and most prejudicially to the accused, the learned Magistrate has recorded that: (I quote):-

"On 22/10/02, all parties are before court plus the victim who is reported to fear accused ever since the allegation of rape started. At the sight of the accused before court complainant turns back and hides her face between her mother's breasts so the court agrees with the Public Prosecutor to leave out her evidence".

Surely this is inadmissible hearsay evidence. The maker of that statement has not been disclosed. Neither did he/she make it under oath.

I also note with concern that neither the accused nor his lawyer were involved in anyway in this agreement. There is nothing on the court record showing their involvement in this regard.

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A further illustration of prejudice to the accused is clearly demonstrated by the following words of the learned Magistrate on the 03/05/05, (I quote):-

"............ Mr Putsoane is in abs for reasons unknown to this court at 10:00 am. His Secretary is also not present. To force compliance by Mr Putsoane the judgment is read and accused is found guilty as charged. His bail is cancelled. He is detained in custody until the 06/05/05 when either Mr Putsoane, another lawyer or the accused himself will make a plea in mitigation prior to being sentenced". (My underlining.)

With the greatest respect to the learned magistrate the said statement is highly prejudicial to the accused.

He was being punished for the unexplained absence of his lawyer in court. There is no indication on record showing that the accused had anything to do with the absence of his lawyer in court. Neither was he asked to say anything in this regard.

Last but not least, when the case was postponed on the 19/12/02 the accused had applied that he be allowed time to

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call his defence witness, one Sesioane Makepe, who was then not in court.

However when the trial resumed following the High Court Order that this case be prosecuted to finality by the learned magistrate, that defence witness was not called.

Nothing has been said about that witness by the defence lawyer nor the accused. There is nothing on record showing that the accused changed his mind about calling this witness to testify in his defence. Accused should have been given an opportunity to say whether or not he was still desirous of having that witness testify in his defence.

This constituted prejudice in the defence of the accused.

While this court was dealing with the present review, both counsel herein brought to the attention of this court yet another application concerning the same parties herein. That was CIV/APN/181/2005.

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In this application, His Lordship, the Honourable Mr Justice S. N. Peete had issued an interim court order that (among others) the respondents should show cause, if any why:

1. "The entire proceedings in CR 1546/2001 of Maseru Magistrate Court shall not be reviewed, corrected and set aside, as they are contrary to the order granted by this Honourable Court, staying the same in CIV/APN/181/2005".

2. "The applicant shall not be liberated from prison pending the same review".

3. "The said record of proceedings in CR 1546/01 shall not be dispatched to this Honourable Court within twenty one days of service of the order herein upon him".

Prayers 1, and 2(e) were to operate with immediate effect as interim order. This interim court order had been granted on the 20th May 2005 on urgent basis.

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The said interim court order was served upon the 1st and 2nd respondents on the 26/5/05. The said rule being returnable on the 24/5/05.

Be that as it may, when on the 26th June 2005, the 1st respondent continued with the prosecution of CR 1546/01, he was already aware of the said interim court order.

The gist of the applicant's application in CIV/APN/181/2005

is that the 1st Respondent was no longer a Magistrate when he convicted and sentenced him to 15 years imprisonment without an option of a fine in June 2005.

The argument here is premised on the fact that the 1st respondent who had been retired sometime in 2004 from the magistracy, was no longer a magistrate and as such he irregularly precided over that case to finality.

It is the applicant's contention that the recalling of the 1st respondent to the magistracy by letter from the Chief

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Magistrate - Central was improper and unlawful even on the existence of the order of the High Court to the effect that the proceeding in CR 1546/2001 which were being reviewed by the High Court; be send back to the Magistrate's Court for finality by and before the 1st respondent.

The said order on review granted by His Lordship, the Honourable Mr. Justice M.E. Teele A.J. (as he then was) had been granted after the order of this court is CIV/APN/181/2005 was issued and served upon the respondents herein.

In other words, the issue to be determined is whether the 1st respondent after, his contract of employment as a magistrate was not renewed by the Judicial Service commission, could there after exercise powers of a magistrate?

The Subordinate Court Order 1988 in part 1 states as follows:

"A magistrate means a person appointed to be a magistrate under Section 5 of the Judicial Service Commission Act No. 7 of 1983".

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Sub-section 5 (1) of that same order provides that:-

"Subject to Section 5 of the Judicial Service Commission Act, 1983 the King may, in consultation with the Judicial Service Commission, appoint persons to be magistrates or acting magistrates of the classes specified in sub-section 3.

Sub-section 3 provides that magistrates shall be of the following classes:-

1. Chief Magistrate

2. Senior Resident Magistrate

3. Resident Magistrate

4. First Class Magistrate

5. Second Class Magistrate and

6. Third Class Magistrate

It is common cause that when the 1st respondent was re-called by the Chief Magistrate to come and preside over this case CR 1546/2001 to finality, the Judicial Service Commission was never involved. All that was done by the Chief Magistrate -Central was to write a letter to the 1st respondent asking him

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to come and preside over this case to finality as had been ordered by His Lordship Mr. Justice M. E Teele A. J. (as he then was).

It is common cause that the order of His Lordship Mr Justice Teele A.J. (as he then was) had been superceded by the retirement of the 1st respondent from the civil service as a magistrate.

It was therefore incumbent that the Chief Magistrate should have notified the office of the Chief Justice about that order in CIV/APN/583/2002, so that proper procedures could have been followed for the re-engagement of the 1st respondent to preside over this case CR 1546/2002 to finality.

Indeed, the order in CIV/APN/583/2002 did not entitle the 1st respondent to be recalled without following the procedure laid down for the appointment of magistrates in the Judicial Service Commission Act No. 7 of 1983 and that in the Subordinate Courts Order 1988 .

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This court is aware that the two statutes referred to above do not make provision for recall of a retired magistrate or re­appointment of such a person.

However, and I say this with the greatest respect, nobody has been empowered to recall any such magistrate for whatever reasons without having gone through the procedure laid down in the said statutes. It is only the Judicial Service Commission which is empowered by law to appoint, discipline and remove from office such officers to whom these statutes apply.

It is only the Judicial Service Commission which should have re-appointed the 1st respondent herein in terms of Section 5 of Act No. 7 of 1983. In doing so in terms of the provisions of Section 5(3) of The Subordinate Courts' Order of 1988, such a body (J.S.C.) would designate a class to the re-appointed magistrate.

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It is important that this should be done because magistrates have different jurisdictions depending on what class one has been designated.

In the instant case no such class was designated to the 1st respondent when recalled by the Chief Magistrate.

It is therefore clear that the recalling by the Chief Magistrate of the 1st respondent to the magistracy for purposes of finalizing this case CR 1546/2001, was done contrary to the provisions of the above two statutes which regulate the appointment/removal of magistrates to/from the magistracy.

The appointment, removal etc. of magistrates is a prerogative of the Judicial Service Commission only. No other body is charged with the performance of such duty.

Consequently, the purported exercise of the powers of the magistrate by the 1st respondent, after being recalled by the Chief Magistrate to preside over this case to finality was

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unlawful, null and void ab initio. The validity of the whole of the proceedings herein has therefore been rendered a nullity because of none compliance with the procedure laid down for the appointment/reappointment of magistrates.

It is for these reasons that this court declined; on the 12th July 2005 to confirm the proceedings in CR 1546/2001 as being in accordance with real and substantial Justice. Conviction and sentence were set aside.

It was accordingly also ordered that accused be released from prison forthwith; and that the case should start de novo before another magistrate with competent jurisdiction.

M. MAHASE (MRS)

ACTING JUDGE OF THE HIGH COURT

COPY: All Chief Magistrates

All Magistrates Magistrate

Maseru All Public Prosecutors

O/C Police Maseru

O/C Prison Maseru

CID - Maseru

Director of Public Prosecutions

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