HIGH COURT OF LESOTHO
by the Honourable Acting Judge Mrs. Mahase On the 26th September 2005
was prosecuted at Thaba Tseka Magistrate's Court before a magistrate
of the second class
accused is aged 20 years. The accused was charged with the crime of
having Contravened Section 3(2) of Sexual Offences Act No.3
He was convicted on his own plea of guilty.
the facts are that the complainant, a girl aged 17 years whose name
is 'Mathoane Ralenkoane was from school. She was in
the company of
other girls to wit, Lineo Piti, 'Mamokati Majara and Khetsi Kokoana.
their way home, they met the accused who was known to all of them.
accused then held the complainant and pulled her out of the path.
This was done in the presence of the other girls. They left
accused and the complainant there.
when the others had disappeared from the accused and the complainant,
the accused pulled 'Mathoane to a maize field.
Once there, the
accused felled the complainant down, undressed her panty and had
sexual intercourse with her without her consent.
complainant later left for her home wherein she reported the incident
to her mother. She in turn had the matter reported to
the police at
Mantsonyane Police Station. The police then referred her to St. James
Mission for examination and treatment. This
was done and exhibit "A"
was compiled subsequent thereto.
114334 Tpr. Litlama and other of his colleagues investigated this
found accused not at his home, they ordered that he (accused) should
be informed to report at the police station.
complied and reported himself to Trp. Litlama. He then gave him a
charge aforementioned. Following conviction the matter
was send for
sentencing to the High Court.
already been indicated that the accused was convicted on his plea of
accused was not represented by a lawyer.
no indication on the court record that Tpr. Litlama identified
himself to accused nor that he cautioned the accused when
met him at the police charge office in Mants'onyane.
as recorded show that Tpr. Litlama "introduced himself to
accused, he demanded an explanation which was unsatisfactory.
gave him the charge aforementioned".
Tpr. Litlama should not only have introduced himself to the accused.
He should have identified himself to accused and then
accused thereby explaining to him (accused) his rights to a lawyer,
to remain silent, and to the consequence should
accused opt to make
It is an
irregularity that such a caution was not offered to the suspect. This
irregularity alone calls for the acquittal of the
counsel herein appeared before this court on the 19/9/2005 Mr. Molapo
who appeared on behalf of the accused argued that the
accused was not
represented by a lawyer.
that the accused is an unsophisticated person who knew nothing about
magistrate did indeed habour a feeling that the accused had a
reasonable defence. He submitted that on these two grounds
accused should have been allowed time to secure services of a lawyer
to professionally defend him in this case, due
regard being had to
the severe punishment prescribed under the provisions of the Act
which the accused is alleged to have contravened.
further argued that the summary of evidence and the facts outlined
herein by the crown amount to insufficient evidence. As such
reasonable court properly advised should not have convicted upon it.
submitted that all the evidence adduced herein is based upon the word
of the complainant against that of the accused.
says constituted prejudice in the defence of the accused.
and accused have both filed their heads of argument wherein they have
made out their respective cases for and against
the application in
Ms Khoboko who represented the Crown, conceded that the accused has
not had a fair trial and she felt that the matter should
be sent back
to start de novo before a different magistrate with competent
being the position, this court felt no need to prolong the arguments
and it accordingly orderd that:-
proceedings herein be and are set aside as being irregular.
the record herein be send back to the Thaba Tseka Magistrate Court.
the matter be prosecuted or start de novo before another magistrate
with competent jurisdiction.
a magistrate should have appropriate penal jurisdiction to try this
case as envisaged by the penal section of the Act
under which the
accused is charged.
accused should be liberated from prison forthwith. He should also be
informed of this order.
case is to be prosecuted de novo as ordered before the end of
is to inform the court about (5) above in due course.
- Ms. Khoboko
Accused - Mr. Molapo
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