IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

VS

TLALA
LESIBANA

Review
Case No. 293/2005 CR 146 /2005

Review
Order No. 22/2005 In the Maseru District

REVIEW
ORDER 10th NOVEMBER, 2005

This case
was send to the High Court on automatic review.

The
accused appeared before the First Class Magistrate Court for Thaba
Tseka district on the 2/11 /05.

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He was
charged with the offence of having contravened Section 3(2) of the
Sexual Offences Act No. 3 of 2003.

He was on
that day, ultimately convicted and sentenced to ten (10) years
imprisonment without an option of a fine.

I must
mention at the on set that as usual, the court before whom the
accused was charged has not invoked the Provisions of Section
30(1)
and (2) of the said Sexual Offences Act No. 3 of 2003.

This is
so despite the numerous orders for Magistrate's court to do so.

The said
provisions of Section 30(1) and (2) of this Act are mandatory but the
Magistrates' Court ignore same as if they are none
existent.

The said
Section 30(1) and (2) of this Act provides for the Compulsory Human
Immunodeficiency Virus (HIV) Test

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whenever
a person is charged with a Sexual Act involving the insertion of a
sexual organ into other person's organ or anus. No reasons
have been
furnished by the learned magistrate as to why the said test has not
been carried out.

Briefly
the facts are that on the day in question, the 4th March 2004, the
complainant (Pwl) was from Liphokoaneng to her home at
Ponts'eng
village at about or around 8 pm. She heard the accused who called out
her name.

She
identified the accused by his voice. Accused eventually caught up
with her.

They
walked along and as they were walking accused proposed love from her.

This was
not the first time that he did so. Pwl declined/refused to accept his
proposal.

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As they
walked, the accused suddenly held her and felled her down. He then
removed her panties, and his own trousers and forcefully
had sexual
intercourse with her.

The
complainant cried out, raised an alarm but to no avail.

After the
accused had satisfied his lust, the complainant stood up and left for
her home. Along the way there, Pwl met certain ladies,
who have
however not been called to testify in this trial. They asked Pwl why
she was crying and she told them about her encounter
with the
accused.

Pwl
ultimately reported the incident to her husband (Pw2) on arrival at
her home. They both had the matter reported to the Thaba
Tseka police
who then referred her to a medical doctor for examination and
treatment.

Having
examined the complainant, the medical doctor compiled exhibit A, -
medical report as to his observations or findings.

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Exhibit A
shows that spermatozoa was seen in vaginal swab, and also that the
complainant had been raped. Also that Pwl was breast
feeding.

The crown
called three witnesses to proof its case against the accused.

The
accused has not really challenged the crown evidence adduced herein
against him as being the person who has committed this inhuman,

degrading act upon the complainant.

He
repeated that he was in love with Pwl, which fact is not a defence at
all in cases of this nature.

This
court has no reason to doubt the evidence adduced by the crown herein
against the accused and also that he has been positively
identified
as the one who has committed a Sexual Offence upon the complainant in
the circumstances herein described.

5

In
conclusion it must be mentioned that even though the Provisions of
Section 30(1) and (2) of this Act have been completely ignored
there
is no prejudice occasioned to the accused with regard to the sentence
herein imposed.

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

Conviction
and sentence are confirmed.

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

M. MAHASE
(MRS)

ACTING
JUDGE

COPY: All
Chief Magistrates

All Magistrates

Magistrate Thaba Tseka

All Public Prosecutors

O/C Police Thaba Tseka

O/C Prison Thaba Tseka

CID - Thaba Tseka

Director of Public Prosecutions

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