CRI/S/10/2005

IN THE HIGH COURT OP LESOTHO

In matter between:

REX

V

PASEKA JANKI

RULING

Delivered by the Honourable Acting Judge M. Mahase On the 9th September, 2005

This case has been send to the High Court for sentence. It was tried before a second class magistrate in Mohale's hoek.

The accused had appeared before the Mohale's hoek Magistrate Court on a charge of having contravened the provisions of Section 8(1) of the Sexual Offences Act No. 3 of 2003.

The alleged offence is said to have occurred upon or about the 30th April 2005.

The learned magistrate found the accused guilty as charged on the 3rd May 2005. The learned magistrate, having found that

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the sentence befitting the crime deserves a harsher sentence, sent the case to the High Court for it to sentence the accused.

FACTS

Briefly the facts herein are that on the day in question, the complainant who was aged 5 years was playing with one Tenjioe aged 7 years.

The accused who was aged 18 years arrived thereat where the complainant was playing with another girl. He gave sweets to the said children.

Accused then demanded that Tenjioe should take off her panties. She refused to do so.

The accused then turned to the complainant and ordered her to take off her panties. She complied with that request.

The accused then went on top of her trying to have sexual intercourse with the complainant.

The complainant cried. The accused threatened to cut off her throat if she continued to cry.

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Fortunately for the complainant, the accused did not manage to penetrate her private parts.

This is corroborated by the medical report - exhibit A herein.

The complainant did however sustained some skin abrasion on the perineum. Her vagina and anus were according to the medical doctor's observation still interact.

The incident was reported to one " M'e 'Makhotso and ultimately to the police, who in turn referred the complainant to a medical doctor for examination and treatment.

Accused was later arrested and charged accordingly.

It may be appropriate to mention at this juncture, that it has increasingly come to the notice of this court that the provisions of Section 30(1) of the Sexual offences Act No.3 of 2003 are, in most cases that come before this court, are ignored by the magistrates court who try the sexual offences cases.

These provisions of this Act are mandatory and have to be complied with to the letter.

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The accused was not legally represented when he was convicted in the magistrate's court in Mohale's hoek.

When, on the 14/6/2005, this case was placed before me, I ordered that the Registrar should get a lawyer to represent the accused herein.

Mr. Makholela duly appeared before me and he argued the case on behalf of the accused; Ms. Khoboko appeared on behalf of the crown.

I am most indebted to both counsel for their assistance to court. It enabled the court to make a decision herein.

Mr. Makholela who appeared on behalf of the accused raised three issues to be determined by this court; namely:

1. Did the learned magistrate in the court aquo have jurisdiction to entertain this matter?

It is the defence's submission that the learned magistrate, being a second class magistrate did not have jurisdiction to entertain this case in the first place.

The reason being that her penal jurisdiction is not beyond eight years.

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Reliance in support of this argument was placed on the provisions /terms of Section 4(a) (i) and (e) of the Subordinate Courts (Amendment) Act No.6 of 1998. Under the sub-heading; "Jurisdiction in the matter of punishment" Section 4 provided that Section 61 of the Principal Law is amended (i) by deleting paragraphs (a) to (f) and substituting the following paragraphs.

"........(e) Subordinate court of the second class, a fine of M 16,000.00 and imprisonment for a period of 8 years ..........".

It is the submission of Mr. Makholela who appeared on behalf of the accused herein that it has in the past been held by this court that where there is no power to punish there can be no power to try.

The court was referred, to among others, the case of M. Mabea and Another V Magistrate Butha Buthe LLR - LD 1993 -1994 page 123. It is his submission that since the learned magistrate dealt with this matter well-knowing that it was beyond her jurisdiction, she wrongfully and/or incorrectly assumed that she can invoke Section 31 of the Sexual Offences Act No. 3 of 2000.

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Section 31(2) of this Act reads as follows:-

"Where the appropriate penalty is beyond the ceiling of penal powers of the trial court, it shall, after conviction, send the case to the High Court for sentence".

The reading and interpretation of this sub-section is clear and on the face of it poses no problems. However, regard being had to the case of M. Mabea and Another V. Magistrate Butha Buthe (supra) it would appear that Mr. Makholela's argument in this regard holds water.

In Mabea case (supra) the learned trial magistrate had tried a case of robbery. This he did even though the defence lawyer for the accused had objected on the grounds that, the learned magistrate lacked jurisdiction to try a case of robbery.

The matter went to the High Court on appeal wherein the High Court per Cullinan C. J. (as he then was) declared the proceedings a nullity and set them aside.

It ordered that the applicants be tried de novo before the Chief Magistrate.

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The High Court held that:

"Further it is trite that if there is no power to punish, then there is no power to try- That being so, in the present case the minimum sentence of 10 years imprisonment is prescribed in respect of the offence alleged to have been committed by the applicants. The learned trial magistrate then lacked jurisdiction to try such offence as the prescribed sentence was beyond his penal powers". (My underlining)

In the case now before this court the accused person should have been dealt with under the provisions of Section 32 (a) (iii). The prescribed penalty under this Section is "Imprisonment for a period of not less than ten years".

The learned magistrate who presided over this case is a second class magistrate having penal jurisdiction of eight years only. She therefore had no power to punish. So also she had no power to try.

The learned magistrate had no jurisdiction to entertain this matter as she did not have sentencing powers extending beyond eight years. She ought not to have tried it at all.

This I say with greatest respect to the learned magistrate.

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This court has realized that the charge sheet as is presently framed is problematic in that it has not been shown that Section 8(1) should be read together with any penalty section see Semano Monyane V Rex CRI/A/2000 p3. Had this been done the learned magistrate would have probably realized that the penal jurisdiction conferred upon her was not extending beyond eight years. It is always important to do that so that the presiding officer can be in a position to decide whether or not he/she can try a case placed before court.

It is also clear that the provisions of Section 31(2) of the Sexual Offences Act No. 3 of 2003 are contrary to that High Court Judgement of Mabea (supra) that if there is no power to punish, then there is no power to try.

The Oxford English Dictionary describes the word "appropriate" to mean (1) suitable; proper (2) assigned to a particular person.

Therefore the best interpretation for Section 31(2) of this Act would be that the particular magistrate in question should first have minimum penalty. This is so according to Mabea's case (supra) and despite the provisions of Section 293(1) of the Criminal Procedure and Evidence Act.

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For the foregoing reasons this court has come to the conclusion that the learned magistrate who tried this case had no power to try it because her penal jurisdiction did not exceed eight (8) years.

The proceedings in the court a quo are accordingly set aside as being irregular for want of jurisdiction.

The matter is remitted back to start de novo before a magistrate with competent jurisdiction.

The accused is to be liberated from prison forthwith. He should be informed about this order.

The case is to be prosecuted de novo during the month of November 2005.

The Magistrate Court in Mohale's hoek should give progress report herein to the office of the Registrar.

M. MAHASE (MRS)

ACTING JUDGE

For Crown - Mrs Khoboko

For Defence - Mr Makholela

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