CRI/A/33/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

LETUKA
LETHALA Appellant

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 14th day of July, 1982

The
appellant (hereafter referred to as the accused) was charged in the
Subordinate Court of Qacha's Nek with the crime of rape
it being
alleged that upon or about 6th February 1982 and at or near White
Hill he wrongfully, unlawfully and intentionally have
unlawful sexual
inter­course with Mothebe Tontsi (hereinafter referred to as the
complainant) a girl of 14 years of age without
her consent. He
pleaded not guilty but was found guilty under Section 3(1) of
Proclamation 14 of 1949.

2

The
accused met the complainant and other girls who had come from
gathering wood. He spoke as a person who was in-charge of the
forest
from which the wood was gathered. He then sent away the smaller girls
and left the complainant and Thakane Tontsi (P.W.2).
He first
attempted to act obscenely to Thakane Tontsi but she made great noise
and ran away. Accused then turned to the complainant,
who was by then
terribly frightened, and had intercourse with her. She was heard
crying. When the complainant joined the rest of
the group she made a
report to them. This complaint was repeated to Mapea and Moshoanae.
The complainant was then examined by village
women and her private
parts were found to be inflamed. Medical examination confirmed that
there had been penetration into the complainant's
virgin. In his
defence the accused did not deny meeting the complainant but denies
that he had sexual intercourse with her. The
accused did not advance
his course at all. All he succeeded in doing was to ask real
embarrasing questions of the complainant such
as why he was not
called when the village women were examining the complainant.

Section
3(1) reads, in part :

"3(1) Any person who has unlawful carnal connection with a girl
under the

age of sixteen years ......... shallbe guilty of an offence and being
convicted thereof shall be liable at the discretion of the
court, to
a fine not exceeding one thousand rand (maluti) or to imprisonment to
any term not exceeding six years."

3

There has
been no evidence led to establish the true age of the complainant.
The learned magistrate, in the absence of such evidence,
did not
estimate the complainant's age as he was entitled in terms of Sec.
340 of the Criminal Procedure and Evidence Act 8 of
1981. (See Rex v
Mokechane, 1976 L.L.R. 16). The only evidence on record is the
complainant's hearsay evidence. This type of evidence
is not
acceptable where the accused is likely to meet such a heavy sentence.
The accused cannot, in my view, be found anywhere
on record, that it
was explained to him (unrepresented as he was) that he stood to be
found guilty in terms of the above-quoted
section. (Makhasane v Rex,
1979 L.L.R.). However, there is evidence that the complainant was
raped and the accused should be found
guilty as charged i.e. of rape.

In the
result the verdict that the accused is guilty under Sec. 3(1) of
Proclamation 14 of 1949 is set aside and is substituted
by the one of
guilty of rape.

I
personally feel that the sentence imposed by the learned magistrate
is extremely lenient. The effect of what the accused has done
to the
complainant will remain with her for life. The psychological damage
is extreme. Even though the accused has not appealed
against the
severity of his sentence, there is authority in this Court to the
effect that where an accused notes an appeal, against
conviction, he
also stand the risk of

4

his
sentence being increased. (Matia and Another v Rex, 1979 L.L.R.). The
accused was sentenced to one (1) year's imprisonment.
This is totally
inadequate. The crime he has committed is a very serious and its
psychological effects will be severe and lasting.
The courts have
repeatedly warned against the commission of this offence. The
complainant is but a child to have been so sexually
treated. The
sentence imposed by the learned magistrate is set aside and is
substituted therefor by the following :

"Two years imprisonment."

JUDGE .

For the
Appellant. In person

For the
Respondent: Mr. Khauoe.