HIGH COURT OF LESOTHO
Case No. 159/2005 CR 1546/2001
Order No. 13/2005 In Maseru District
ORDER 12th JULY, 2005
has been send to the High Court on automatic review from the court of
the Resident Magistrate in Maseru.
accused was charged with having committed the crime of rape upon a
four (4) years old girl, one 'Mampele Ts oene.
accused had, on the 29th September 2001 pleaded not guilty to the
however eventually found guilty as charged by the learned Resident
Magistrate (1st Respondent). He was then sentenced to
years imprisonment without an option of a fine.
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
Maseru, the said accused did unlawfully and intentionally have
unlawful sexual intercourse with one 'Mampele Ts oene a 4 year
girl who was incapable of consenting".
offence was committed before the coming into operation/into being of
the Sexual offences Act, No.3 of 2003.
the facts are as follows :-
day in question, the complainant and her elder sister (PW3) were from
a shop when they were called to the home of the accused
accused then send Pw3 to call for him one Tapotsa. Pw3 left to look
for and call the said Tapotsa. She left the complainant
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.
arrival into that house, she saw the complainant getting off/down
from the bed of the accused.
realized that the accused was wiping the complainant with a T. Shirt
(skipper) around her private parts. She also realized
complainant was crying.
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.
Pw3 nor the accused uttered a word to each other at that time.
away the complainant and they both went to one "Mateboho Ts
oene. The complainant was still crying. This incident
reported to 'Mateboho who was in the company of one other lady,
the complainant had been sent to the shop by Pw4. Eventually, the
complainant was examined by the elderly ladies at the
request of the
ladies were Pwl - 'Mabokaako Ts'oene, 'Mamolapo Ts'iame and
'Mathesele (Pw2). The complainant cried throughout this examination.
complainant was later taken to the Roma Police Charge Office where
the incident was reported and eventually she went to see
doctor. She was examined at St. Joseph's Hospital by a medical
doctor, who then compiled a medical report, exhibit A.
reads, "Young child hymen not really intact".
worth noting that the complainant was examined by a medical doctor on
the day that this incident occurred. The medical doctor,
see no spermatozoa upon her.
of the crown evidence is inconsistent with that of the crown
witnesses referred to earlier; namely Pwl, Pw2, Pw3 and Pw4.
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.
court has noted that the impression given to court about contents of
exhibit A is not correct. The Public Prosecutor did inform
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
doctor has written that the hymen was not really intact, then that
would mean something else. It would probably be that the
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.
complainant has not been called to testify. The record of proceedings
reads as follows with regard to this issue, (I quote):
"It was further agreed by all concerned that the victim was then
too young to adduce evidence and hence the court's ruling
evidence to be left out".
ruling does not appear anywhere in the record of proceedings now
particular issue is being mentioned for the first time in the written
judgment of the learned Magistrate.
nothing on the record of proceedings showing the basis upon which
this decision was based. In other words, the decision
was arrived at
irregular and was highly prejudicial to the accused.
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
was not a competent witness, in which case if she was not, then she
would not be compelled to testify.
should have been done moreso because the issue of the identity of the
accused as a perpetrator of this crime has been determined
learned Magistrate only on the basis of a single witness's (Pw3)
aged only six years when she testified in this trial. The learned
Magistrate has not cautioned himself against the dangers
of evidence by child witnesses has been extensively dealt with by the
learned authors in their book "The South African
Evidence, 4th Edition", at pages 375 to 377.
to them it is the duty of a presiding Magistrate to inquire whether a
young child tendered as a witness understands the
religious sanction of an oath.
case of R v Banda 1951 (3) S. A. 158, Schreiner JA had this to say:
"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".
are agreed that there is no fixed age at which children become
competent witnesses. All that matters is for the presiding
to inquire into a child's understanding of the oath. (My underlining)
issue can only be determined by holding a trial within a trial. No
such trial was held in the instant case being reviewed.
prejudiced the accused who had no opportunity to cross examined the
accused who was then conducting his own defence may not have known
nor appreciated the Consequences he was faced with when he
gave his consent that the complainant be not called to testify.
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.
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
authority was cited by the crown to support the decision that the
young child complainant be not called to testify.
on the reading of this record of proceedings, the accused was
prejudiced in other respects. For instance, on the 19/9/2002,
warrant for his arrest was issued and executed under very dubious
circumstances. There was no return of service to proof that
of summons upon the accused had in fact been actually effected upon
a quo only relied and acted on the unsworn statement of one officer
from the office of Mr. Putsoane that there was actual
summons upon the accused.
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
information does not appear anywhere in the record of proceedings now
being reviewed nor is there anything showing formal proof
of that summons upon the accused.
case, this being a criminal trial, that summons had to be served upon
the accused personally.
also is no indication on the court record showing whether or not the
accused was given a chance to explain himself and his
attend court on the 7th June 2002.
accused should have been heard in this regard before he was committed
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
agrees with the Public Prosecutor to leave out her evidence".
this is inadmissible hearsay evidence. The maker of that statement
has not been disclosed. Neither did he/she make it under
note with concern that neither the accused nor his lawyer were
involved in anyway in this agreement. There is nothing on
record showing their involvement in this regard.
illustration of prejudice to the accused is clearly demonstrated by
the following words of the learned Magistrate on the
"............ 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
until the 06/05/05 when either Mr Putsoane, another lawyer or the
accused himself will make a plea in mitigation prior
sentenced". (My underlining.)
greatest respect to the learned magistrate the said statement is
highly prejudicial to the accused.
being punished for the unexplained absence of his lawyer in court.
There is no indication on record showing that the accused
anything to do with the absence of his lawyer in court. Neither was
he asked to say anything in this regard.
not least, when the case was postponed on the 19/12/02 the accused
had applied that he be allowed time to
defence witness, one Sesioane Makepe, who was then not in court.
when the trial resumed following the High Court Order that this case
be prosecuted to finality by the learned magistrate,
witness was not called.
has been said about that witness by the defence lawyer nor the
accused. There is nothing on record showing that the accused
his mind about calling this witness to testify in his defence.
Accused should have been given an opportunity to say whether
he was still desirous of having that witness testify in his defence.
constituted prejudice in the defence of the accused.
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.
application, His Lordship, the Honourable Mr Justice S. N. Peete had
issued an interim court order that (among others) the
should show cause, if any why:
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
applicant shall not be liberated from prison pending the same
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".
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
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.
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.
of the applicant's application in CIV/APN/181/2005
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
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
It is the
applicant's contention that the recalling of the 1st respondent to
the magistracy by letter from the Chief
- Central was improper and unlawful even on the existence of the
order of the High Court to the effect that the proceeding
1546/2001 which were being reviewed by the High Court; be send back
to the Magistrate's Court for finality by and before
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
words, the issue to be determined is whether the 1st respondent
after, his contract of employment as a magistrate was not
the Judicial Service commission, could there after exercise powers of
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
5 (1) of that same order provides that:-
to Section 5 of the Judicial Service Commission Act, 1983 the King
may, in consultation with the Judicial Service
persons to be magistrates or acting magistrates of the classes
specified in sub-section 3.
3 provides that magistrates shall be of the following classes:-
Class Magistrate and
common cause that when the 1st respondent was re-called by the Chief
Magistrate to come and preside over this case CR 1546/2001
finality, the Judicial Service Commission was never involved. All
that was done by the Chief Magistrate -Central was to write
to the 1st respondent asking him
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).
common cause that the order of His Lordship Mr Justice Teele A.J. (as
he then was) had been superceded by the retirement of
respondent from the civil service as a magistrate.
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
the order in CIV/APN/583/2002 did not entitle the 1st respondent to
be recalled without following the procedure laid down
appointment of magistrates in the Judicial Service Commission Act No.
7 of 1983 and that in the Subordinate Courts Order
court is aware that the two statutes referred to above do not make
provision for recall of a retired magistrate or reappointment
such a person.
and I say this with the greatest respect, nobody has been empowered
to recall any such magistrate for whatever reasons
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
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.)
designate a class to the re-appointed magistrate.
important that this should be done because magistrates have different
jurisdictions depending on what class one has been designated.
instant case no such class was designated to the 1st respondent when
recalled by the Chief Magistrate.
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
to/from the magistracy.
appointment, removal etc. of magistrates is a prerogative of the
Judicial Service Commission only. No other body is charged
performance of such duty.
the purported exercise of the powers of the magistrate by the 1st
respondent, after being recalled by the Chief Magistrate
over this case to finality was
null and void ab initio. The validity of the whole of the proceedings
herein has therefore been rendered a nullity because
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
real and substantial Justice. Conviction and sentence were set aside.
accordingly also ordered that accused be released from prison
forthwith; and that the case should start de novo before another
magistrate with competent jurisdiction.
JUDGE OF THE HIGH COURT
All Chief Magistrates
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Maseru All Public Prosecutors
O/C Police Maseru
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CID - Maseru
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