CRI/S/7/2005
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
VRS
TUMELO MOSOTHO
RULING
Delivered by the Honourable Acting Judge Mrs. Mahase On the 26th September 2005
This case was prosecuted at Thaba Tseka Magistrate's Court before a magistrate of the second class
The accused is aged 20 years. The accused was charged with the crime of having Contravened Section 3(2) of Sexual Offences Act No.3 of 2003. He was convicted on his own plea of guilty.
Briefly the facts are that the complainant, a girl aged 17 years whose name is 'Mathoane Ralenkoane was from school. She was in the company of other girls to wit, Lineo Piti, 'Mamokati Majara and Khetsi Kokoana.
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Along their way home, they met the accused who was known to all of them.
The accused then held the complainant and pulled her out of the path. This was done in the presence of the other girls. They left the accused and the complainant there.
Afterwards, when the others had disappeared from the accused and the complainant, the accused pulled 'Mathoane to a maize field. Once there, the accused felled the complainant down, undressed her panty and had sexual intercourse with her without her consent.
The complainant later left for her home wherein she reported the incident to her mother. She in turn had the matter reported to the police at Mantsonyane Police Station. The police then referred her to St. James Mission for examination and treatment. This was done and exhibit "A" was compiled subsequent thereto.
One No. 114334 Tpr. Litlama and other of his colleagues investigated this case.
Having found accused not at his home, they ordered that he (accused) should be informed to report at the police station.
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He duly complied and reported himself to Trp. Litlama. He then gave him a charge aforementioned. Following conviction the matter was send for sentencing to the High Court.
It has already been indicated that the accused was convicted on his plea of guilty.
The accused was not represented by a lawyer.
There is no indication on the court record that Tpr. Litlama identified himself to accused nor that he cautioned the accused when the accused met him at the police charge office in Mants'onyane.
The facts as recorded show that Tpr. Litlama "introduced himself to accused, he demanded an explanation which was unsatisfactory. He then gave him the charge aforementioned".
The said Tpr. Litlama should not only have introduced himself to the accused. He should have identified himself to accused and then caution the accused thereby explaining to him (accused) his rights to a lawyer, to remain silent, and to the consequence should accused opt to make an explanation.
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It is an irregularity that such a caution was not offered to the suspect. This irregularity alone calls for the acquittal of the accused herein.
When counsel herein appeared before this court on the 19/9/2005 Mr. Molapo who appeared on behalf of the accused argued that the accused was not represented by a lawyer.
He argued that the accused is an unsophisticated person who knew nothing about court procedures.
That the magistrate did indeed habour a feeling that the accused had a reasonable defence. He submitted that on these two grounds alone, the accused should have been allowed time to secure services of a lawyer to professionally defend him in this case, due regard being had to the severe punishment prescribed under the provisions of the Act which the accused is alleged to have contravened.
He further argued that the summary of evidence and the facts outlined herein by the crown amount to insufficient evidence. As such a reasonable court properly advised should not have convicted upon it.
He submitted that all the evidence adduced herein is based upon the word of the complainant against that of the accused.
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This he says constituted prejudice in the defence of the accused.
The crown and accused have both filed their heads of argument wherein they have made out their respective cases for and against the application in question.
However, Ms Khoboko who represented the Crown, conceded that the accused has not had a fair trial and she felt that the matter should be sent back to start de novo before a different magistrate with competent jurisdiction.
This being the position, this court felt no need to prolong the arguments and it accordingly orderd that:-
The proceedings herein be and are set aside as being irregular.
That the record herein be send back to the Thaba Tseka Magistrate Court.
That the matter be prosecuted or start de novo before another magistrate with competent jurisdiction.
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N.B. Such a magistrate should have appropriate penal jurisdiction to try this case as envisaged by the penal section of the Act under which the accused is charged.
The accused should be liberated from prison forthwith. He should also be informed of this order.
The case is to be prosecuted de novo as ordered before the end of October 2005.
Registrar is to inform the court about (5) above in due course.
M. MAHASE (MRS)
ACTING JUDGE
For Crown - Ms. Khoboko
For Accused - Mr. Molapo
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