IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

VS

MZOAKE
CHALALISA

Review
Case No. 198/2005 CR 1306/2005

Review
Order No. 20/2005 In the Maseru District

REVIEW
ORDER 3rd NOVEMBER, 2005

This case
has been send to the High Court on automatic review.

The
accused appeared before the Maseru Magistrates Court on the 26th June
2005. He was charged with the offence of having contravened
Section
8(1) of the Sexual Offences Act No.3 of2003.

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The
complainant is a young girl who resides at Tsoapo-le-bolila in
Maseru.

The
alleged offence is said to have occurred thereat upon or about the
26th June 2005.

The
accused was convicted on his own plea on the 29th June 2005.

He was
sentenced to eight (8) years imprisonment without an option of a
fine.

Briefly
the facts are that the complainant was, on the 26/6/2005 playing with
other children. That one Mofolo came to where the
said children were
playing. He called the complainant out saying one Palesa was calling
her (complainant) to some place which Mofolo
told complainant about.

Complainant
left the other children and went to where Mofolo said Palesa was.

On
arrival thereat she did not find Palesa. She instead found the
accused.

2

The
complainant tried to turn back presumably to rejoin other children.

However
the accused held her and pulled her away from the village beating her
with fists.

Once they
were out of sight of everybody, the accused felled the complainant
down, undressed her and forcefully had sexual intercourse
with her.
Accused was wearing a condom.

The
complainant tried to cry but the accused prevented her from doing so
by covering her mouth - (N.B. It has not been disclosed
how exactly
he did that).

When
complainant left that place she went straight to her grandmother and
reported about this incident.

Accused
was later taken to the police by his own mother.

The
complainant was also taken to a medical doctor where the medical
report, exhibit A was compiled after the medical doctor had
examined
her.

Accused
was subsequently given a charge by the police after due caution.

3

Exhibit A
shows among others that "no spermatozoa seen". Also that
"she has been raped but no spermtozoa seen".

This
court has no reason to doubt the crown evidence that the accused has
been positively identified as being the person who has
raped the
complainant.

The
absence or presence of the spermatozoa is no longer an issue in cases
of this nature.

Section
21(2) of the Sexual Offences Act No.3 of 2003 prohibits the court
before which the accused appears in a charge of sexual
offence from
drawing any adverse inference only from the fact that no semen or
vaginal fluid was found on any part of the body
of the complainant
during an examination by a medical doctor or any other person.

In other
words, it is enough that there is evidence showing beyond a
reasonable doubt that the accused is the one who has committed
a
sexual offence upon the complainant.

The
complainant herein is said to have been aged 14 years when the
alleged sexual act was committed upon her.

The
complainant is there fore a child in Terms of the Provisions of
Section 2(a) of this Act - See heading interpretation.

4

The
accused has therefore been correctly charged and convicted in terms
of the provisions of the said Act.

The only
problem with the proceedings herein is that the court, including
police and prosecutors have completely ignored the Provisions
of
Section 30 (1) (2) and (3) of this Act.

This
court has said time and again that it is imperative and mandatory
that the Compulsory Human Immunodeficiency Virus (HIV) Test
be
carried out as the law requires. This warning has, in many cases
fallen on deaf ears, for reasons not known to this court.

This
court fails to understand why it is that the said provisions of this
Act are ignored even though the costs for the test shall
be borne by
the crown.

The
Subordinate Courts/Magistrate's Court are creatures of statute and
they should comply with all the relevant Statutory Provisions
which
bind them.

Be that
as it may, this court has come to the conclusion that the above shown
omission has not caused any prejudice to the accused.

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The
proceedings are accordingly certified as being in accordance with
real and substantial justice.

Conviction
and sentence are both confirmed.

The
accused should be informed of the result of the review.

M. MAHASE
(MRS)

ACTING
JUDGE

COPY: All
Chief Magistrates

All Magistrates

Magistrate Maseru

All Public Prosecutors

O/C Police Maseru

O/C Prison Maseru

CID - Maseru

Director of Public Prosecutions

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