IN THE HIGH COURT OF LESOTHO

In the matter between

REX

and

TUMELO SEBOTSA

ORDER ON REVIEW

Review
Case No. 1/2000 CR 4/2000

Review
Order No. 1/2000 In Quthing District

The accused a mosotho adult aged about 25 years of
Sixondo in the Quthing district was charged with the crime of rape in
that on the
1^st day of January 2000 at Patise Sixondo in
the Quthing district he did unlawfully and intentionally have sexual
intercourse with Kelly
Nelisa Mtabane a mosotho female aged about
eight years and thus incapable in law of consenting thereto and on
the alternative that
he had contravened the provisions of Section 3
(1) of Women and Girls' Protection Proclamation No. 14 of 1949 in
that at the aforementioned
place and date he did

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unlawfully and intentionally have sexual intercourse
with Kelly Nelisa Mtabane, a minor female aged about 8 years.

To this charge the accused pleaded guilty and after the
prosecution had outlined the facts under Section 240 of the Criminal
Procedure
and Evidence Act of 1981, he was found guilty under the
alternative charge, and was sentenced to five years imprisonment.

It is what the facts as outlined revealed which has
caused me concern. For a conviction under Section 3 of the
Proclamation sexual
intercourse must be proved as penile penetration
into the vagina. In the medical report that was handed in the medical
officer of
Quthing who examined the complainant on the 4^th
January 2000 made following remarks:-

"Abrasions around the anus and the vestibule."
"There is physical evidence that she was sodomised."
"Patient
was sodomised" "Vagina: normal"

Under our common law on unnatural sexual offences,
sexual relations between a male and a female per anum do not
constitute an offence
(Snyman - Criminal Law 3 Ed p.341; J Van der
Linden 2.7.7. If the woman is not a consenting party, intercourse
with her per anum
constitutes indecent assault. R v. M (2) SA 406 -
(where a verdict of indecent assault was substituted).

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The facts outlined point that the complainant along with
other children had been sent to buy a case of beer and that on their
way
back, the accused had intercepted her and taken her to a valley
where he molested her sexually.

I am of the view that the evidence or findings of the
medical doctor must be relied on and to do so necessarily means that
the alternative
verdict cannot stand because sexual intercourse or
vaginal penetration has not been proved. What facts point to is anal
penetration.
Section 187 of the Criminal Procedure and Evidence Act
of 1981 reads-

"(1) Any person charged with rape may be found
guilty of-

1. 
   assault with intent to commit rape; or

   
   

2. 
   indecent assault;

   
   

3. 
   assault with intent to do grievous bodily harm; or

   
   

4. 
   assault;

   
   

5. 
   the statutory offence of unlawful carnal knowledge of,
   or
   committing any immoral or indecent act with a girl of or under
   a
   specified age; or

   
   

(f)

(g)

if such be the facts proved.

The facts of this case do not indicate rape (or vaginal
penetration) but sodomy. It is competent for this court to substitute
a verdict
correct in law, namely, that of indecent assault because
sodomy cannot be committed by a man upon a woman. S. v. M 1979 (2) SA
406
(R, AD). This may appear to be an anatomical mystery to an
ordinary

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man on the street!

In the circumstances of this case, justice requires that
the conviction of rape be set aside because the facts do not prove
vaginal
penetration but an anal one. The only competent verdict is
one of indecent assault as neither rape or sodomy can be sustained.

It is ordered therefore that the verdict of rape be
aside and substituted with one of indecent assault. (S v M 1984 (4)
SA. 111 R
v Abrahams. 1918 CPD at 593).

As regards sentence, there is no reason to interfere
with sentence despite the substitution of verdicts. Sentence is
therefore confirmed.

S.N PEETE JUDGE

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