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CRI/A/1/99

CR 319/96
(LERIBE)

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

KATLEHO
MABASO APPELLANT

and

REX
RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 30th day of April
1999

On the
30th of March 19991 allowed this appeal which had a short history. It
was that the Appellant was convicted by the magistrate's
court of
Butha. Buthe and was convicted on the 22nd July 1998. On that day he
was sentenced to a term of imprisonment of two years
without an
option of a fine.

The
Appellant was charged with the crime of rape it being alleged on the
17th August 1996 at or near Khafung in the district of
Butha Buthe,
he had

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intentionally
had an unlawful sexual intercourse with one Limakatso Shea a female
of about fourteen years without her consent. At
the time of his
sentence this Appellant was "a child" of about sixteen
years of age and was definitely below the age
of eighteen. See
section 2 of the Children Protection Act No.6 of 1980.

The
unfortunate part of the case was that it was late, after the regular
time within which he should have appealed that his Counsel
took up
the matter and applied for condonation for late noting of appeal
before the High Court. This was granted during about the
month of
September 1998. What contributed further to delay was that instead of
being ordered to file his grounds of appeal there
and then the
Appellant was asked to go back and regularly file the grounds.
Meaning that that appeal could not have been argued
with the
requisite speed. One of the problems one suspects could have been
that at the time of the hearing of condonation the Appellant
did not
attach a statement of the proposed grounds of appeal in which case
the judge granting condonation could have been inclined
to appoint a
date of hearing and allow other procedures to follow in due course.
That sending back for filing of the grounds of
appeal had the
unfortunate consequence that since September 1998 no pressure seemed
to have put by the Appellant to have the appeal
enrolled and argued.
What is significant in the delay that resulted was that the Appellant
has since July 1998 been in prison following
on the magistrate's
order on sentence which I have spoken about.

The
Appellant seemed, most wisely, to challenge only the sentence part of
the proceedings. Mr. Mathafeng has conceded that he has
found nothing
wrong with the conviction part of the proceedings and he is only
challenging the sentence. He submitted that the
Court ought to find
that the sentence imposed by the learned magistrate was expressly
forbidden as per provisions of section 26(1)
read

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with (2)
of The Children's Protection Act of 1980 in that "No child shall
be punished by imprisonment" as enacted.

Appellant's
Counsel further said the reason would be that it was apparent on the
record that the Appellant was sixteen years old
and the learned
magistrate was therefore not empowered to impose a sentence of
imprisonment. And (the magistrate) having done so,
that was contrary
to the said section of The Children's Protection Act. The matter of
the appeal was not opposed by the Crown which
was represented by
Advocate Kotele of the office of the Director of Public Prosecutions.
It is just that he submitted that the
proceedings (sentence) be
quashed and they be started de novo because the sentence was flawed.
He did not accept that this was
a case in which this Court was at
large and could itself impose a proper sentence. That is where he
(Advocate Kotele) parted ways
with Mr. Mathafeng who suggested that
there would be prejudice if the matter was to be sent back to the
magistrate and to be dealt
with de novo. The reasons advanced were
the delay that would ensue and the continuing plight of the
incarcerated Appellant.

I agreed
with Mr. Mathafeng and I was persuaded that prejudice would be caused
by the fact that the Appellant was already in prison
and having
served more than eight months already. That was unbearable and it was
such this Court was empowered to deal with the
matter itself. Having
felt so what remained for me was the proper sentence to impose. That
is any sentence other than imprisonment.
Counsel agreed in the end
that the Court was empowered to impose any punishment other than that
of imprisonment.

I imposed
a sentence under section 26(2) of the Children's Protection Act. That
is that the Appellant be sent to undergo a period
of training in an
approved

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school. I
however afterwards entertained some reservation which was caused by
the wording to be (bund in that sub-section which
that:

"A Court shall not order a child to be send to an approved
school unless the Court is satisfied that previous conduct and
to the
circumstances of the offence it is expedient for his rehabilitation
and the prevention of crime that he should undergo a
period of
training in the approved school." (My underlining)

Mr.
Mathafeng suggested that the underlined phrase meant that there must
be something of a background such as a previous conviction
that must
be considered within the meaning of "previous conduct." So
that one need not look at the circumstances of the
offence charged
alone or as a sole consideration. One must also look at that which
has been stated to be previous conduct. I felt
however that the
seriousness of the offence that is, where this was a multiple rape
and a rape in which three accused including
this Appellant
participated in order to do the several rapes that are referred to in
the Public Prosecutor's outline deserved a
sentence which I imposed.
But then I felt that the circumstances required that I should
consider the aspect of the irregular sending
of the Appellant to
prison where he was for over six months or so to the date of hearing
of the appeal.

I felt
that the Appellant should not serve this period of training in
approved school but rather that he should be released and
be freed
immediately from prison which means that the period of training is
somewhat suspended. I thought that would do justice
to this sentence
of the Appellant which had gone wrong. I said the appeal fee and
security if any should be returned to the Appellant.

T.MONAPATHI

JUDGE

30th
April 1999

For the
Appellant: Mr. Mathafeng

For the
Crown :Mr. Kotele