HIGH COURT OF LESOTHO
Case No. 293/2005 CR 146 /2005
Order No. 22/2005 In the Maseru District
ORDER 10th NOVEMBER, 2005
was send to the High Court on automatic review.
accused appeared before the First Class Magistrate Court for Thaba
Tseka district on the 2/11 /05.
charged with the offence of having contravened Section 3(2) of the
Sexual Offences Act No. 3 of 2003.
He was on
that day, ultimately convicted and sentenced to ten (10) years
imprisonment without an option of a fine.
mention at the on set that as usual, the court before whom the
accused was charged has not invoked the Provisions of Section
and (2) of the said Sexual Offences Act No. 3 of 2003.
so despite the numerous orders for Magistrate's court to do so.
provisions of Section 30(1) and (2) of this Act are mandatory but the
Magistrates' Court ignore same as if they are none
Section 30(1) and (2) of this Act provides for the Compulsory Human
Immunodeficiency Virus (HIV) Test
a person is charged with a Sexual Act involving the insertion of a
sexual organ into other person's organ or anus. No reasons
furnished by the learned magistrate as to why the said test has not
been carried out.
the facts are that on the day in question, the 4th March 2004, the
complainant (Pwl) was from Liphokoaneng to her home at
village at about or around 8 pm. She heard the accused who called out
identified the accused by his voice. Accused eventually caught up
walked along and as they were walking accused proposed love from her.
not the first time that he did so. Pwl declined/refused to accept his
walked, the accused suddenly held her and felled her down. He then
removed her panties, and his own trousers and forcefully
intercourse with her.
complainant cried out, raised an alarm but to no avail.
accused had satisfied his lust, the complainant stood up and left for
her home. Along the way there, Pwl met certain ladies,
however not been called to testify in this trial. They asked Pwl why
she was crying and she told them about her encounter
ultimately reported the incident to her husband (Pw2) on arrival at
her home. They both had the matter reported to the Thaba
who then referred her to a medical doctor for examination and
examined the complainant, the medical doctor compiled exhibit A, -
medical report as to his observations or findings.
shows that spermatozoa was seen in vaginal swab, and also that the
complainant had been raped. Also that Pwl was breast
called three witnesses to proof its case against the accused.
accused has not really challenged the crown evidence adduced herein
against him as being the person who has committed this inhuman,
degrading act upon the complainant.
repeated that he was in love with Pwl, which fact is not a defence at
all in cases of this nature.
court has no reason to doubt the evidence adduced by the crown herein
against the accused and also that he has been positively
as the one who has committed a Sexual Offence upon the complainant in
the circumstances herein described.
conclusion it must be mentioned that even though the Provisions of
Section 30(1) and (2) of this Act have been completely ignored
is no prejudice occasioned to the accused with regard to the sentence
proceedings are accordingly certified as being in accordance with
real and substantial justice.
and sentence are confirmed.
accused should be informed of the result of this review.
Magistrate Thaba Tseka
All Public Prosecutors
O/C Police Thaba Tseka
O/C Prison Thaba Tseka
CID - Thaba Tseka
Director of Public Prosecutions
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