CR/405/06
IN THE HIGH COURT OF LESOTHO
Held in Mohale’s Hoek
In the matter between:
REX
Vs
CHOALEMATLA RANNAKOE RANTHITHI
SENTENCE BY THE HONOURABLE ACTING JUDGE JTM MOILOA
ON THE 16TH JANUARY, 2007
I consider it necessary to set out the facts in this case in some detail for 90 reasons that will emerge later in this judgement.
Accused appeared before the Mafeteng Magistrate on 22nd September 2006 on the main charge of contravening Section 3(2) of Act 3 of 2003 (Sexual Office Act) “in that on about 24 August 2003 and at or near Ha ‘Ngoae in the district of Mafeteng the accused did unlawfully commit sexual offence with one ‘MANTHETHI KOTELO by inserting his penis into her vagina without her consent”.
In the alternative accused was alleged to be guilty of the crime of abduction it being alleged that upon or about the 24th August 2003 and at or near Mofoka in the district of Mafeteng the accused a 24 years male did unlawfully and intentionally take and abduct ‘MATHETHI KOTELO, a 17 years old girl out of the control and against the will of ‘MAKOTELO KOTELO her mother and her lawful parent with the intention of marrying or having sexual intercourse with the said ‘MATHETHI: thus commit the crime aforesaid.”
The charges are inelegantly framed. But, fortunately, they contain all the essential elements of the offences charged, nevertheless. I issue a word of warning to prosecutors to take great care in formulating criminal charges against accused persons.
The trial of accused began on 22 September 2006. The record reflects that the Magistrate explained to the accused his rights at the trial including the fact that the accused is entitled to seek the services of a lawyer to represent him. Accused elected to represent himself.
PW1 was ‘Manthethi Kotelo who testified that at the time of the testimony she was 20 years old. She told the court that on 24 August 2003 she had taken her friend, one Lira of Ha Makhate, half way towards his home when on her return she met accused in the veld in the afternoon. She was walking alone towards home. Accused had called out her name and she had stopped and waited for him to hear what he had to say to her. On arrival accused had said to her: “I have found you to-day; I have been wanting to marry you so that you become my wife.” When she heard this PW 1 told the court that she walked away from accused without responding to him. As she walked away accused had began to assault her and took her forcibly towards a donga in the direction of Ha Mofoka. She had struggled against accused in an effort to free herself but could not free herself and escape. Accused had beaten her with a stick on her body and at her ankles causing her to fall to the ground. Accused eventually succeeded in taking her into the donga where he forcibly fell her to the ground, undressed her and raped her. PW1 (complainant) had continued to struggle with Accused on top of her and at one point managed to throw him off her and ran away in the donga naked. Her escape had been short-lived. Accused had caught up with her before long and allowed her to dress up. Accused then drove her towards Ha Mofoka where they eventually arrived at early evening.
Accused took her to the home of one Moselantja, accused sister. Accused’s sister had recognized P.W.1 and enquired from Accused why he was assaulting PW1. The reason for this enquiry was because PW1 had tried to escape and Accused had brought her back assaulting her in the process. Moselantja had protested at Accused’s assaults on PW1 whereupon Accused then had tried to assault both PW1 and Moselantja. Moselantja threatened to go to report Accused behaviour to accused’s parents whereupon Accused ran away. It was late at night by then. PW1 was taken in by Moselantja and slept with her.
The following morning Moselantja took PW1 to accused’s parents. Moselantja reported PW1’s arrival at her home with Accussed. Accuseds parents enquired from PW1 if she was inlove with Accused. She replied that she was not. PW1 infact added that Accused had raped her and forcibly brought her to his home at Ha Mofoka. Accused’s parents there and then took her back to her parents and reported to them that what they had learned from PW1 concerning her arrival at their home at Ha Mofoka. The matter was reported to the headman who in turn referred it to Mafeteng Police. PW1 was referred by police to be examined by the doctor at Mafeteng Government Hospital.
In cross-examination of PW1 Accused’s case was that PW1 was his lover and that he took her home to be his wife. He denied having applied any force or coercion on her whatsoever. This version of Accused’s was emphatically denied by PW1 however.
PW2 was Koali Ranthithi, the father of Accused. He testified that at about 5am on 25 August 2003 Moselantja arrived at his home with PW1. He testified that Moselantja reported to him what PW1 alleged Accused to had done to her. PW1 also told him what she had said Accused had done to her. On hearing all of these things, PW2 and his wife ‘Mats’epo had decided to take PW1 home to her parents immediately. PW1 and his wife handed PW1 back to her mother and explained what they had learned from PW1 concerning their son, accused. He provided transport money for his wife, PW1 and Mrs. Kotelo to travel to Mafeteng police together to report the incident.
10. Accused had no questions to put to PW2. This then was the end of the evidence taken on 22 September 2006. The case was then remanded to 25th September 2006.
11. On 25th September 2006 the case was further remanded to 3rd October 2006
12. On 3rd October 2006 the case was further remanded to 9th October.
13. On 9th October 2006 Accused informed the court that he had instructed advocate Pitso Nts’ene to represent him although to his surprise advocate Nts’ene was not before court. Accused asked for a postponement to 11 October 2006. His request was granted and
the case was remanded to 11 October 2006.
14. The case was further remanded a few times between 11/10/06 and 18/10/06 when advocate Jafeta now appeared for Accused at the resumption of the trial.
15. On 11/10/06 when advocate Jafeta took over the conduct of accused’s defence, accused struck a deal with the Crown in terms of which accused tendered a plea of guilty to the alternative charge (abduction) on condition that the main charge was dropped. The Crown accepted accused’s plea on abduction on the understanding that the main charge was withdrawn.
16. Once the plea bargaining had concluded between the Crown and the accused the public prosecutor approached the court and informed it of their plea bargain. This was confirmed by Accused’s Counsel. Accordingly accused changed his plea on the alternative charge to one of guilty. Furthermore, accused made the following admissions:-
(a) the contents of police statement of ‘Makotelo Kotelo was admitted and marked Exhibit “A”.
(b) the contents of police statement of police officer Sebapo were admitted and marked Exhibit “B”.
(c) the contents of Medical Examination report of Medical Officer for Mafeteng Government Hospital dated 25/08/03. This report was handed in and marked Exhibit “C”.
17. After the admissions outlined above the Crown closed its case. Once again Counsel for accused reminded the court that in terms of a plea bargain agreement with the Crown accused had changed his plea to one of guilty on the alternative charge (abduction). Public Prosecutor confirmed once again that he accepted accused’s plea of guilty on the alternative charge (abduction) in terms of their agreement with defence that the main charge is no longer being pursued.
18. The defence closed its case on the plea of guilty to the alternative charge. In other words no evidence was led on behalf of the defence. Understandably, this was because the crown had accepted Accused’s plea on the alternative charge. The main charge was no longer on the table as it were.
19. The Public Prosecutor then addressed the court on the evidence adduced and asked the court to convict the accused of abduction. The content of the public prosecutors address to the court was confined to the charge of abduction. No mention whatsoever was made by him of the main charge.
The defence also addressed the court and submitted that the court should convict accused of abduction in accordance with Accused’s plea to the alternative charge before court.
20. It appears from the Magistrate’s judgement that at some stage following counsels’ submissions to him confined to the alternative charge he asked both counsel to address him on the main charge. It seems to me that the learned magistrate considered that he was not bound to accept the prosecutor’s withdrawal. I pause here to observe that the magistrate here erred as the main charge had been withdrawn from him by the Crown earlier in the day when the Crown and the defence struck a deal on the plea of guilty to the alternative charge and when the Crown withdrew the main charge.
21. Both Counsel however obliged and addressed the learned magistrate on
the main charge. They both submitted that Accused should be convicted of “abduction” and not of the main charge (contravention of section 3 (2) of Act N0.3 of 2003). The Crown’s intention was clear that the main charge was withdrawn and the court was no longer seized of it.
22. Nevertheless, the learned magistrate had proceeded to convict the Accused on the main charge despite the fact that it had been withdrawn by the Crown and the Public Prosecutor had made that clear to him at the resumption of trial on 18/10/06 and during addresses by both counsels to him.
23. In David Masupha vs Rex 1974 – 75at 309 Isaacs A.J. had occasion in May1975 to consider an appeal in which appellant had been convicted of theft by a magistrate despite the fact that the prosecution had discontinued its support of the conviction of the accused on the charge at the end of the case but before judgement was delivered. Isaacs A.J. held that by section 7(2) of CP & E Proclamation, 1938, the Attorney General and his representatives had power to discontinue criminal proceedings at any stage before judgement was delivered and that a magistrate should accordingly have accepted the prosecutor’s withdrawal of the case against the appellant and acquitted him. Compare this case with Rooney J’s approach in similar circumstances in Rex vs Litsepe 1980 (1)LLR 209. I respectfully differ with Rooney J. in his approach. See also Mosolo vs Rex 1979 (2) LLR 482 (CA). I respectfully agree with the learned Isaacs AJ. Section 5 (C) of the CP & E, Act, 1981 is in similar terms to the old Section 7(2) of CP &E Proclamation 1938 except that the words “in writing” have been added in the 1981 legislation. I hold that withdrawal of a prosecution does not require any formal act with the court on the part of the prosecutor. That the Crown did not convey its withdrawal of the main charge in writing does not in my view render the decision of the Crown invalid. It is enough in my view that the decision of the Crown withdrawing the main charge was clear and unequivocal. The court was left in no doubt of this. If the court had been in any doubt of the crown’s intention then, the court in my view should have raised the issue and demanded clarity immediately. It is in my view, only to proper to deal with the issue on that basis. But in casu the court was in no doubt at all about the Crown’s decision. It is, enough that the prosecutor’s intention is made clear to the court that the Crown no longer support the charge against the accused and no longer seeks conviction on a criminal charge. No solemn act on the part of Director of Public Prosecution is needed. ---- See Willis vs Solicitor General 1926 EDL 321; R vs Sikumba 1953 (3) SA 125e.
The learned magistrate in casu seems to me to have considered himself the sole determinant of the decision whether or not the main charge against the Accused was withdrawn or not. He was wrong. It is the Director of Public Prosecutions or his representative who is solely vested with that power. As was said it is imperative that whenever the magistrate is unsure whether or not the Crown has withdrawn a charge before him, he should seek clarity on the issue from the prosecutor. In casu there couldn’t have been any doubt that the Crown had withdrawn the main charge. This was repeated several times in clear terms.
24. I accordingly set aside conviction of the accused on the main charge and confirm his conviction on the “abduction” charge to which he pleaded guilty and for which there was abundance of evidence in support of conviction on his plea.
JTM MOILOA
ACTING JUDGE
RULING ON SENTENCE
1. MITIGATION:
Accused is a first offender. He is illiterate. At the time of the offence he was hired at Complainant’s village as a herdboy. He is one of 5 children and sole breadwinner for his family. I carefully observed accused in court when I gave him opportunity to address me on his conviction and later on special/his personal circumstances. He had a disarmingly simple nature and attitude to life.
I am convinced he thought the manner in which he took complainant was the way to get married. The common law protects, and the constitution of Lesotho guarantees, fundamental right and freedom to every person in Lesotho. When I told him that it was not enough that he loved complainant, and that it was also necessary that complainant also loved him before he could marry her, he replied that complainant was also his girlfriend. But when I pointed out a number of improbabilities of this claim on his part he soon abandoned the claim. I have taken into account the simple nature and attitude of the Accused. I have taken into account
that he pleaded guilty to the charge on which he now stands convicted. I have balanced the gravity of the offence committed by
Accused on the complainant with those factors. I am very much alive to the fact that complainant’s fundamental rights to personal liberty (Sect.6) freedom from inhuman treatment (Sect.8) and her right to respect for private and family life (Sect.11) under the Constitution were breached by Accused. On the whole I believe the following sentence will adequately meet the gravity of the offence which he has committed and also meet his personal circumstances and human failing.
2. SENTENCE:
10 years imprisonment of which on half is suspended for 3 years on condition that Accused is not found guilty of abduction during the period of suspension.
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