HIGH COURT OF LESOTHO
Case No. 230/05 CR 1529/05
Order No. 18/05 In Maseru District
1. The accused, a male mosotho adult aged 46 years (and a private in
the Lesotho Defence Force) appeared before the Maseru Subordinate
Court Mrs Ralebese presiding in CR529/05 on the 4th August 2005
facing a charge under section 8(1) of the Sexual Offences Act No.3
2003 it being alleged that the accused on the 6th March 2005 and at
or near Ha Ratjomose in Maseru committed an unlawful sexual
wit an unlawful sexual intercourse upon one Filoe Qai a female aged
pleaded not guilty and elected to conduct his own defence.
3. Suffice it to state that the crown led the evidence of the
complainant who informed the court that she was 13 years of age
was doing standard four at school. She informed the court that on the
6th March 2005 she was at her home at Ha Ratjomose and
was reading a
book in a house in which beer was being sold; and that accused came
in and/having pushed her on to the bed, blocked
her mouth when she
asked what he was up to. He then removed her dress and panties and
thereafter "put his private parts into
mine. When he was through
he told me that if I could tell my parents he would shoot me".
4. In cross examining the complainant the accused did not dispute his
presence at complainant's home - in fact, he admitted buying
beer thereat on that day. He does not deny the sexual act. His
questions proceeded thus.
"Question: What did you do when I put my private parts in yours
....were you happy, crying or trying to free yourself?
Answer: You had put your hand on my mouth so that I could not make
Question: Were you happy or sad? Answer: I was not happy. "
5. Next called was Mofihli Morie who informed the court that on the
6th March 2005 he was at the home of Makatiso Qai and that
complainant was selling the beer to the people - her father was in
another house sick in bed. It is this witness who told the court
the accused later arrived and then started going in and out of the
6. He says the accused went into the house and when he did not
emerge, the witness went into the house to inquire whereupon on
peering inside he/saw the accused on top of the complainant.
7. After a while the complainant came out and looked in the
direction of a residence where her mother had attended a feast.
also came out and spoke to the complainant. He did not hear
what he said. He says the accused later confided in him and said when
he entered the house, the complainant raised her thighs and he got on
top of her and before he could finish the intercourse, the
complainant jumped up and rushed out of the house claiming that her
uncle was on the way.
8. He says that on the following day he informed the complainant's
mother about what he had seen.
9. In cross examination the accused did not dispute that he was on
top of the complainant with her legs apart.
10. I am convinced that even though the medical report made on the
7th march 2005 did not indicate any penetration, sexual contact
proven. The explanation by accused that he was innocently purchasing
beer and did nothing untoward rings hollow and was shown
to be false
more so he did not refute the sexual allegations made by the
complainant and P.W.2. He was rightly found guilty as
verdict of Guilty as charged having been returned, the
prosecutor informed the court that "Accused has no previous
was only when mitigating, that the accused stated:-
"May the Court have mercy as I am already serving a 15 years
jail sentence. May the Court order that this sentence run
with the one I am already serving"1
Court: "But prosecutor said you do not have previous
Prosecutor (Mrs Sekoati): I said so because this case (offence) was
committed on 06/03/05 while the one he is now serving its
was committed on 07/03/05. I thought the conviction in that case does
not qualify as the previous conviction.
Court: The previous convictions form should be filled in and
will let the High Court on review of this case decide whether that
conviction qualifies as previous convictions,."
then adjourns for 30 minutes after which the "Lesotho Previous
Conviction against PTE PHOLOSI MATELA -CR502/05 was admitted
accused (CPE S.287 (3))
14. The learned magistrate in her explicit reasoning sentenced him
to 10 years imprisonment "in order to be removed from
however did not order that the sentence of 10 years run concurrently
with that 15 years imprisonment. She took into consideration
years prison sentence in concluding that for the accused's
paedophiliac/sadistic tendencies, an imprisonment of 10 years
merited. I find it particularly distressing that these sexual acts
were committed on the same day and upon small female children.
facts in Maseru CR502/05 are briefly these:
"On the 6th March 2005 the accused called the complainant a
young girl aged 10 into a house and therein proceeded "to
sex with" her from behind and despite her screams, accused
ignored them and was found deflagrando delicto by the mother
15. The sentence of 15 years was confirmed on review by My Brother
Mofolo J on the 17th March 2005.
16. In the case of R v Matlala - 1927 TPD 411 whilst it was held
that convictions against the accused dated between his commission
his trial for an offence for which he is being sentenced are not
previous convictions for the purpose of influencing such sentence
v Malinga - 1968 (2) SA 739 in R v Nyengola - 1960 (4) SA 666 it was
held that "a previous conviction must be taken into
imposing sentence although the offence in respect of which the
accused was so convicted and sentenced was committed
the one for which he has now to be sentenced.
review the accused was sentenced to 15 years on the 8th March 2005
and on the 9th August 2005 he was sentenced to 10 years
for a sexual
act committed on the same day as in the previous conviction. Indeed
these two sexual acts ought to have been charged
as two counts in a
single charge sheet and no one understands how they got separated.
Order: I confirm conviction and sentence of 10 years and order that
the sentence run concurrently the sentence of 15
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