IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

Vs

MAKAU
KALAKE

Review
Case No.104/2005 CR/2289/2004

Review
Order No.7/2005 Maseru District

Review
Order 12th April. 2005.

The
accused in this case, a 45 years old man, appeared before the Maseru
Magistrate charged with the crime of contravening section
8 (1) of
the sexual offences Act No.3 of 2003. The allegations showed that the
accused had on the 18th October, 2004 committed
the unlawful act
against one Tebello Thabaneng, an 8 year old girl, by putting or
inserting his penis between the girl's thighs.

The
accused after he had been duly advised of his rights to legal
representation and the effect of tendering a plea of guilty, pleaded

guilty to the charge. It had been explained to him, as shown on the
record, that even a plea of guilty would still attract a sentence.

After an
outline of facts by the Public Prosecutor, the accused was
accordingly found guilty as charged. It was in mitigation of
sentence
that the accused told the magistrate that he developed some mental
problems after he had lost both his parents. His wife
also deserted
him leaving him with a child who stays at Thaba-Bosiu. He had also
shown that he worked as a shepherd.

Before
passing sentence, the magistrate had ordered, after making his own
observations that the accused was an unstable person and
inconsistent
in his speech and logic, that he be taken for a medical examination.
The Psychiatrist had requested that accused's
relative be present
during the examination but no such relative could be available. The
accused himself had also shown that he
had no relatives. So that it
had not been possible for the doctor to comply with that order of
Court, hence the magistrate sentencing
the accused to 8 years
imprisonment in the absence of any Psychiatrist's report.

I still
consider that the magistrate hastened to give his sentence in the
absence of the Psychiatrist report. The accused mentioned
that he was
working at Mojalefa's, the chiefs place. His employer might have

3

been the
option in the absence of a relative to accompany the accused to the
doctor. He may have lived with the accused for quite
some time to be
able to explain his behaviour. Considering the type of offence
committed by the accused, the congestion in prison
cells and the
spread of Hiv/Aids in prison, the report might help in directing the
accused to the appropriate place or passing
an appropriate sentence.

On
review, the sentence is set aside and in the meantime, the magistrate
asked to do all that is in his powers possible to obtain
a
Psychiatrist report. The mental state of an accused person is very
important in passing sentence. The sentence will be passed
a fresh
after obtaining the report and I must be informed of the report and
the fresh sentence.

1. M.
   HLAJOANE
   

   
   

JUDGE

CC: The
Magistrate –

Maseru
Chief Magistrate

O/C
Police - Maseru

O/C
Prisons - Maseru

CID
Headquarters –

Maseru
Director of Prisons Director of Public Prosecutions