CRI/REV/65/90

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

KHITIONE
MPELI

JUDGMENT
ON REVIEW

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 18th day of May 1990.

You were
brought before this Court because it was felt that in the event that
the conviction is found to be proper,then the sentence
that was
imposed by the court below was inadequate. It was for this reason
that the Court went out of its way to ensure that you
were
represented because it was a serious charge that you were faced with
in the court below.

Today I
have had the opportunity therefore to hear submissions by both
counsel - that is counsel for the Crown and your own counsel.

Mr.
Mdhluli for the Crown tells me that the Crown supports the
conviction, and further submits that the sentence of five (5) years

is manifestly inadequate.

It was
raised on your behalf that there was no proper identification of the
person who was seen committing the crime at the scene.
It was said
that the witnesses who saw the person who committed the crime only
had a flitting glimpse at the culprit. It was however
submitted on
your behalf – in

2

reaction
to questions put by the Court that you happened, of course, to be
around the vicinity and that it was at day time. The
Crown properly
or rightly,therefore,submitted that you were well-known by P.W.1 -
the complainant - and P.W.3 - the old lady who
interrupted you in the
act.

You did
in the court below, in putting the questions to the complainant,
suggest to her that you were in love with her. Of course
she denied
that. She is a girl of hardly sixteen years. I am told that she is
mentally retarded. Your age is given as forty-five
(45). Even looking
at it from a purely speculative point of view, it doesn't make sense
that a young girl of that age who is even
mentally retarded could
fall in love with you apart from the fact that she denies that as
false.

The
Doctor who examined the complainant, albeit the following day, showed
that there were sperms in her vagina. The eye-witness
indicated and
the complainant herself said that she was bleeding from her private
parts and this was not the following day when
she was seen by the
doctor but immediately after the act. That is if we were to assume
that in her endeavour to falsely implicate
you she slept with another
man in order to ensure that there were sperms in her vagina which she
would purvey to the doctor who
later examined her. But credible
evidence shows that immediately after you stepped off her where you
had topped her, she stood
up, and she was unable to walk; and she was
not able to speak because - and the doctor found this for a fact
-that her throat was
interfered with. She indicated that she was not
able to shout because of the pressure you had applied on her neck.

For these
reasons, I have no doubt in my mind that the Court below properly
found you guilty as charged.

Regarding
sentence, it has been submitted on your behalf that the rape was not
repeated and that it was not a full sexual intercourse,
because it
was interrupted by one

3

of the
Crown witnesses. To my mind, the fact that there was an interruption
is irrelevant because the sperms were found in the victim.
There were
also bruises which are consistent with the crime of rape. The hymen
was torn.

It was
also advanced as a point in your favour that you are a first
offender; and that no weapon was used in the perpetration of
the
crime. Reliance was reposed on Rex vs Billan & Others (1986) ALL
E.R.-a case by Lord Lane where the learned Judge gave
guidelines as
to the appropriate sentences to be imposed in cases of this nature.

While I
accept as the true state of the law which was laid down by Lord Lane
in that case as submitted by your counsel, I cannot
overlook the fact
that tremendous pressure was applied to the neck of the complainant.
I cannot also overlook the point which is
set out in that Honourable
Judge's Judgment that it saves a complainant a lot of unnecessary
trauma if she is not called upon to
give evidence because there is a
contest. Also, I cannot overlook the fact that in the same case, the
Judge drew attention to the
fact that a complainant is spared a lot
of unnecessary trauma if an accused person pleads guilty, instead of
having to go through
the process of being cross-examined in the court
of law, thus adding to her trauma.

It
doesn't stand you in good stead that your wife has left you. The
complainant is not responsible for that. The act itself was
sordid
and done to a person who,to all intents and purposes,is shown here as
an imbecile or somebody of a deficient mental condition.

Having
said all these, I find that the sentence that was imposed by the
court below was extremely inadequate. The minimum sentence
I am going
to impose on you then is that you go to gaol for eight (8) years. Of
course it has got to be understood that I am setting
aside the
sentence imposed by the court below.

JUDGE

18th May
1990

For Crown
: Mr. Mdhluli

For
Defence: Mr. Putsoane