HIGH COURT OF LESOTHO
Case No. 189/2006 In Leribe District
Order No.19/2006 CR 650/2004
matter is before me on automatic review. On 2nd August 2005 the
accused, a 50 years old man, appeared before a Magistrate,
class powers, charged with the crime of contravening section 15 (1)
(a) of Sexual Offences Act No.34 of 2003, it being
alleged that on or
about 8th September 2004, and at, or near Phatsoe, in the district of
Leribe, he unlawfully and intentionally
committed a sexual act with
'Macheoane Moreneng, a disabled person, by inserting his penis into
her vagina. When it was put to
him, the accused pleaded not guilty to
the charge. The plea of not guilty was accordingly entered.
It may be
mentioned that the law under which people who have committed sexual
offences are charged is the sexual offences Act No.3
of 2003. In the
instant case the accused, who has allegedly committed sexual offence
is, however, charged with contravening the
provisions of Sexual
offences Act No.34 of 2003 which is, in my view, none-existent law.
Assuming the correctness of my view that
in our law there is no Act
No.34 of 2003, it stands to reason that the accused cannot be
convicted of a law that does not exist.
as it may, in support of its case, the Crown adduce the evidence of
four (4) witnesses. Maliphapang Moreneng testified as
P.W. 1 and told
the court that complainant, 'Macheoane Moreneng, was her own
daughter, born in 1983. According to P.W.1, the complainant
mentally disabled person and as a result her speech did not always
day in question (8th September 2004) P.W.1 attended women's prayer
meeting at a place called Maria Garetti and on her return
about 4:00p.m. found the complainant missing. She learnt from small
she found at home that the complainant had gone to fetch water from
the village public tap.
complainant did not return home from the public tap until sun set,
P.W.1 sent two children viz. Selloane and 'Mamorena
to go out and
look for her. They did not find her. P.W.1 then sent out
complainant's brother to go and look for her. He too failed
the complainant. As it was then getting dark, P.W.1 herself decided
to go out in search of the complainant. She was in
the company of her
two other children viz. Liphapang and Selloane. When they were next
to the home of one Matie, in the village,
P.W.1 and her party met
with the complainant. Asked where she had been, the complainant told
P.W.1 and her party that she was coming
from the village public tap.
P.W.1 and her party then returned home with the complainant.
It may be
mentioned that although she was supposed to be coming from the public
tap where she had allegedly gone to fetch water,
the complainant was
not carrying any water container, at the time P.W.1 and her party met
her, next to the home of Matie, in the
told the court that on arrival at home, she and her husband
interrogated the complainant about where she had been. In reply
complainant said she had gone to fetch water from the village tap
when the accused called her saying he wanted to send her
to the shop.
When she came to his house, instead of sending her to the shop, the
accused closed the door and told her (complainant)
to put off her
panty. After she had put off the panty, the accused "slept"
on top of her and inserted his penis into
evidence, P.W.1 told the court that she then examined the
complainant's panties and noticed a man's discharge on them. She
examined the complainant's vagina and noticed that the opening
thereof was not opened much. She, therefore, concluded that
accused had not penetrated the complainant that much. According to
P.W.1, she immediately reported the findings of her examination
her husband who was present in the house when she examined the
complainant's vagina and the panties.
told the court that after she had reported the findings of her
examination of the complainant's vagina and the panties to
proceeded to accused's home, in the village, to confront the accused
with what the complainant said he had done to her.
to P.W.1, on his return from accused's place, her husband informed
her that the accused had proposed that they should
meet at the home
of his (accused's) uncle (Tlamo), in the morning of the following
day, 9th September 2004. P.W.1 told the court
that, in the morning of
the following day, the meeting did take place at the home of Tlamo
and she reported to the meeting what
the complainant said the accused
had done to her. The accused, in turn, told the meeting that there
was no truth in what the complainant
had allegedly said he (accused)
had done to her.
evidence of P.W.1, the matter was eventually reported to the local
chief who in turn, referred it to the police. Thereafter
complainant was medically examined by a medical doctor, who compiled
a medical report which was, by consent of the parties,
from the bar, as exhibit "A" in the trial.
to Exhibit "A", the complainant, 21 years old 'Macheoane
Moreneng, was found to be a mentally retarded person.
and subjected to microscopic examination but no spermatozoa could be
detected. Her hymen was also found to be still intact
and no signs of
any assault on the complainant could be found. From those findings,
the medical doctor concluded that the complainant
had not been raped.
Moreneng testified as P.W.2 and told the court that he was 49 years
old and lived at Phatsoe, in the district of Leribe.
He knew the
accused who also lived in the same village as he (P.W.2) did.
to P.W.2, the complainant was his own daughter. The evidence of P.W.2
corroborated, in material respects, that of P.W.I
as to what happened
when the complainant came home at dusk on the day in question, 8th
September 2004. In particular P.W.2 corroborated
the evidence of
P.W.I that after the latter had reported to him the findings of her
examination of the complainant's panties and
private parts, he went
to the accused and confronted him with what the complainant had said
he (accused) had done to her.
evidence, P.W.2 told the court that, on arrival at his home from the
accused's place, he reported to P.W.1 that, on the suggestion
he and the accused went to the place of accused's uncle by the name
of Tlamo to whom the accused reported what P.W.2 said
daughter had said he (accused) had done to her. P.W.2 further
reported to P.W.1 that asked by Tlamo what his reaction
was to what
P.W.2 said the complainant had said he (accused) had done to her, the
accused replied that there was no truth in what
the complainant had
allegedly reported to her parents about him.
confirmed that after the accused's uncle (Tlamo) had said it was late
at night and suggested that they should meet in the
morning of the
following day, he (P.W.2) and the accused left Tlamo's place and
returned to their respective homes.
confirmed that, on the following day, they did return to the home of
Tlamo. After P.W.1 had reported what the complainant
had said the
accused had done to her, on 8th September 2004, the accused denied
to P.W.2, the matter was reported to the local chief who, in turn,
referred it to the police. Eventually, the complainant
by a medical doctor.
Mokaka testified as P.W.3 and told the court that he too lived at
Phatsoe, in the district of Leribe. The accused was his
evidence, P.W.3 told the court that at about 10:00p.m on the day in
question, 8th September 2004 he was asleep in his house
when he heard
a knock at the door and a person identifying himself as the accused
before court. In identifying himself the accused
told P.W.3 that he
(accused) was in the company of P.W.2 and the latter's son. The
accused further told P.W.3 that he wanted him
to listen to what P.W.2
was alleging about him (accused).
confirmed that when he asked him what his reaction was to what P.W.2
said his (P.W.2's) daughter had allegedly said he (accused)
to her, the accused said he was denying it. According to him, P.W.3
then told the accused that it was at night and he
was already in bed.
The accused and his party should, therefore, come to him in the
morning of the following day.
his wife, daughter (complainant) and son did go to P.W.3's home in
the early morning of the following day. P.W.3 then called
to a meeting at which P.W.1 reported what the complainant had
allegedly told her and P.W.2 about the accused who, however,
that there was any truth in what the complainant had reported to her
parents about him.
Tpr. Alotsi, testified that he was a member of the Lesotho Mounted
Police Service based at Leribe Police Station, in the
Leribe. Following a report concerning the present case, he and Tpr.
Molefi proceeded to a place called Levi's Nek in
the area of Phatsoe.
On arrival at Levi's Nek, they met the accused outside the village.
They identified themselves to the accused
and explained their mission
to him. Thereafter, the police officer brought the accused before the
local chief whom they asked to
release the accused to report himself
at their police station on the following day. According to P.W.4, on
the following day, the
accused did report himself to him at Leribe
police station. P.W.4 told the trial court that before he could
report himself at Leribe
police station, the accused had been asked
to give an explanation about the present case. He did give the
explanation which was,
however, unsatisfactory inasmuch as he
denied to have had sexual intercourse with the complainant.
Consequently, when the accused reported himself at Leribe Police
Station, P.W.4 gave him the charge as aforesaid.
witnesses were called to testify on behalf of the accused who,
however, himself went into the witness box and gave evidence on
in his defence. He told the court that at 10:00p.m on the day in
question, 8th September 2004, he was sleeping in his house
came and knocked at the door. He (accused) opened the door. P.W.2
entered into the house and reported what the complainant
allegedly said he (accused) had done to her. In his evidence, the
accused categorically denied that he ever had sexual intercourse
the complainant who never even came to his house on the evening of
the day in question.
important to note that the complainant herself was not called to
testify as a witness before the trial court. That was presumably
compliance with the provisions of Section 219 of the Criminal
Procedure and Evidence Act 1981. The section reads:
"219. No person appearing or proved to be afflicted with idiocy,
lunacy or inability or labouring under any imbecility of
from intoxication or otherwise whereby he is deprived of the
proper use of reason, shall be competent to give evidence while so
afflicted or disabled."
authority of the above cited section 219 of the Criminal Procedure
and Evidence Act, 1981 the complainant was, on account
disability, considered incompetent to give evidence. The trial court
relied, therefore, on what the parents of the complainant
latter had told them. That was, however, clearly hearsay and,
therefore, inadmissible evidence. In my view, the accused
be properly convicted on inadmissible hearsay evidence.
always be borne in mind that, according to the body of the charge
sheet, the accused is said to have committed the sexual
inserting his penis into the vagina of the complainant. However,
P.W.1 told the court that she had examined the complainant's
and panties. Her findings were that complainant's vagina had not been
penetrated. Although P.W.1 told the court that on
complainant's panties she noticed a man's discharge (semen) on them,
it is to be observed, however, that the panties
were not taken to the
medical doctor to examine and verify that what P.W.1 said to be a
man's discharge (semen) on them was, infact,
a man's discharge
however, common cause that the complainant herself was medically
examined by a medical doctor who compiled exh. "A".
findings of the medical doctor were that there were no signs that the
complainant had been raped, for example, there were no
signs of any
assault on her, the hymen of her vagina was still intact and the
microscopic examination of her vaginal smear revealed
In my view, if the accused had, indeed, inserted his penis into the
vagina of the complainant as P.W.1 and P.W.2
wished the trial court
to believe, the medical doctor would not have found the hymen of her
vagina still intact.
light of all the aforesaid, I am not convinced that the Crown had, on
the evidence, proved, beyond reasonable doubt, that
the accused had
committed the offence against which he stood charge, before the trial
conviction and the sentence imposed by the trial court must be set
aside. It is so ordered, on review.
All Chief Magistrates
All Magistrates Magistrate - Leribe
O/C Police - Leribe O/C Prison - Leribe
O/C - Central Prison
CID Police Headquarters
Director of Prisons
Director of Public Prosecutions
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