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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