IN THE HIGH COURT OF
LESOTHO

In the matter between:

REX

V

MONAKOE TAOLANA

Review Case No.6/07 In Maseru District

C.R. No.1929/06 Review Order No.2/2007

REVIEW ORDER
21/03/07

This case is before me for automatic review.
The
accused, a 38 years old man, appeared before a magistrate
with
second class powers, charged with the offence of
contravening
Section 8(1) of Sexual Offences Act, 2003, it
being alleged that
on or about 1^st November 2006 and at or
near Tsautse,
Qoaling, in the district of Maseru, he committed
an unlawful
sexual act with his seven (7) years old daughter,
Mosa Taolana, by
inserting his penis into her vagina.

When it was put to him, the accused pleaded guilty to

the charge. The public
prosecutor accepted the plea of guilty
tendered by the accused
person and the provisions of Section
240 (1) (b) of the Criminal
Procedure and Evidence Act
1981 were invoked. The section reads in
part:-
“240 (1) If a person charged with any offence before
any
court pleads guilty to that offence or to an offence of
which
he might be found guilty on that charge, and the
prosecutor
accepts that plea, the court may –

(a) .

(b) if it is a Subordinate Court, and the
prosecutor
states the facts disclosed by the evidence in
his
possession, the court shall, after recording such
facts,
ask the person whether he admits them, and
if he does, bring in a
verdict without hearing any
evidence.”

The facts (and these were admitted as correct by
the
accused) outlined by the public prosecutor were that if
the
accused had not pleaded guilty to the charge, the crown
would
have called witnesses to testify that the complainant,
Mosa
Taolana, is seven (7) years old. Her parents are the
accused
person and his wife, ‘M’amosa Taolana.

On 1^st November 2006, ‘M’amosa Taolana
left home for a

place called Ha Thamae,
leaving the complainant at home with
the accused. On the afternoon
of the same day, the
complainant was playing with other children
whilst the
accused was drinking home-made beer at the house of
one
‘M’atseko. Later on the afternoon of the same day,
the
accused returned to his house and on arrival called
the
complainant into his bedroom where he ordered her to get
on
the bed. The accused then removed complainant’s panties.
He
too removed his trousers, got on top of the complainant
and
inserted his penis into her vagina. When the complainant
started
screaming, the accused covered her mouth to stop her
from
screaming or making noise. Thereafter the accused put
on his
trousers and went out of the bed-room leaving the
complainant
crying therein.

Later on, the complainant also went out of the house
to
play with other children outside. She then noticed that
the
accused had returned to the beer drinking house of ‘M’atseko.

When later on that day, 1^st November 2006,
her mother
returned home, the complainant reported to her what
the
accused had done to her (complainant). Complainant’s
mother
‘M’amosa Taolana, then questioned the accused about
what he
had allegedly done to the complainant. In reply, the
accused asked
for forgiveness and said he had been possessed
by an evil spirit
he did not know.

‘M’amosa
Taolana then called a neighbour, by the name
of ‘Mefa Ntobo,
with whom she examined the child, Mosa
Taolana. Their findings
were that the child’s vagina had been
torn, some sperms could be
detected and there was offensive
smell.

On the following day, 2^nd November 2006,
‘M’amosa
Taolana reported the incident at Thamae Police
Station, in
Maseru, where she and the complainant were given a
medical
form and referred to Queen Elizabeth II hospital. At
the
hospital, the complainant was medically examined by a
doctor
who compiled a report by completing the medical form.
The
medical report was handed in evidence and marked exh.1
(sic).

According to “exh.1” the complainant was examined
by
the medical doctor two (2) days after the alleged rape
had
occurred. No vaginal smear was taken for it was too late.
No
bleeding was detected; the examination was normal except
that
there was redness around the vagina; and the vagina was
open as an
indication of the possibility of penetration.

It is worth mentioning that although, in his outline of
the
facts, the public prosecutor said the evidence would
have
shown that, on 2^nd November 2006, the complainant
and her

mother went to Thamae
Police Station from where they were
given the medical form and
referred to the hospital, “exh.1”
shows that the medical form
bears the police date rubber
stamp impression of 6^th
November 2006 thus suggesting that
it was given out by the police
on that date and not on 2^nd
November 2006. Again,
although the outline of the facts says
the complainant was
examined by a medical doctor on 2^nd
November 2006, the
medical report (exh.1) bears the hospital
date stamp impression of
10^th November 2006 thus suggesting
that the date on
which the complainant was medically
examined was 10^th
November 2006 and not 2^nd November
2006 as the outline
of the facts would like the court to believe.

Be that as if may, in his outline of the facts of
the
evidence he had in his possession, the public
prosecutor
continued to tell the trial court that if the accused
had not
pleaded guilty, Sgt. Posholi would have been called as
a
witness to testify that he was a member of the Lesotho
Mounted
Police Service. On 7^th November 2006, he received
a
certain report following which he immediately
mounted
investigations. On 9^th November 2006, the
accused was
brought to him (Sgt. Posholi) by some police officers.
He
introduced himself to the accused and demanded an
explanation
from him. According to him, Sgt. Posholi found
the accused’s
explanation unsatisfactory. He therefore,
cautioned and charged
the accused as aforesaid.

The trial court
considered the evidence outlined by the
public prosecutor and
found the accused guilty as charged. A
sentence of five (5) years
imprisonment, with no option of a
fine, was imposed.

On the basis of the evidence outlined by the
public
prosecutor and admitted as correct by the accused, I have
no
quarrel with the verdict of “guilty as charged” returned by
the
trial court. I, however, have difficulty with the sentence of
five
(5) years imprisonment imposed by the court.

It is significant to bear in mind that the accused
was
charged and convicted with contravention of Section 8 (1)
of
Sexual Offences Act 2003 which section is under Part III of
the
Act. The section reads:-
“8 (1). A person, who
commits a sexual act with a
child, commits an offence.”

As for the definition of “child”, see Section 2 of
Sexual
Offences Act, 2003. The section reads, in part:-
“2.
In this Act, unless the context otherwise requires

“child”
means

(a) for the purpose of Part III a person who is
below
the age of 16 years; and

(b) .”

The accused, a 38 years old man, admittedly had
sexual
intercourse with the complainant who was, at the time,
a
seven (7) years old girl and, therefore, a child.

In passing the sentence of five years imprisonment,
on
the accused, the trial court took the view that the
sentence
was permissible under Section 31 of Sexual Offences
Act
2003. The section provides, in part:-
“31 (1). Save
for the Central and Local Courts, the

sentences under Section 32 shall apply and be
enforced
by all courts unless extenuating
circumstances or the proper
consideration of
the individual circumstances of the accused
or
lawful intimate relations between the
perpetrator and the
victim dictate otherwise.
(2) .”

With all due respect to the learned trial
magistrate’s
view, I am unable to agree that the sentence of
five years
imprisonment is permissible under Section 31 of Sexual

Offences Act, 2003. On
the contrary, the section clearly
stipulates that “save for the
Central and Local Courts, the
sentences under Section 32 shall
apply and be enforced by all
courts ”

In my view, the only occasion, where a sentence of
five
years imprisonment is permissible, is where the
offence
committed by the accused is that of exposure or display
of
genital organs to another person - see Section 32 (b) (i)
which
provides, in part:-
“32. .

2. 
   .

   
   

3. 
   .

   
   

(i) Where the offence committed is exposure
or
display of genital organs by one person
to another, to
imprisonment for a period
of not less than five years.

In the instant case, the offence committed by
the
accused is not that of exposure or display of genital organs
to
another person. The sentence prescribed under Section 32
(b)
(i) of Sexual Offences Act 2003 cannot, therefore,
apply.
Instead, the offence committed by the accused
is
contravention of Section 8 (1) of Sexual Offences Act 2003

which is the offence
under Part III of the Act. That being the
case, the sentence that
applies is clearly the minimum
sentence prescribed under Section
32 (a) (vi) of Sexual
Offences Act 2003. The section reads, in
part:-
“32. .

(a) .

(vi) Where the offence is committed under
Part
III, IV and V by a person who is 18
years or above, to
imprisonment for a
period of not less than 10 years.”

As it has been stated, earlier in the judgment, the
trial
magistrate before whom the accused was tried, had
only
second class powers. The trial magistrate had, therefore,
no
jurisdiction to impose upon the accused the penalty
prescribed
under Section 32 (a) (vi) of the Sexual Offences Act
2003 which
penalty was clearly beyond the ceiling of the trial
magistrate’s
penal powers. The only course open to the trial
court, in the
circumstances, was to invoke the provisions of
Subsection (2) of
Section 31 of Sexual Offences Act 2003. The
Subsection reads:-
“31
(2). Where the appropriate penalty is beyond the
ceiling of
penal powers of the trial court, it
shall, after conviction, send
the case to the

High Court for
sentence.”
In the light of the aforesaid, the following orders
are
made, on review:-
1. The verdict of “guilty as
charged”, returned by the
trial magistrate, is confirmed as
being in
accordance with real and substantial justice.

2. 
   The sentence of five (5) years imprisonment
   imposed
   by the trial magistrate is, however, set
   aside; and

   
   

3. 
   The proceedings are returned to the trial
   magistrate
   who, for want of penal jurisdiction, should cause
   the
   accused to appear before the court and commit
   him, in terms of
   the provisions of Sections 293 (1)
   and 294 (2) of the Criminal
   Procedure and Evidence
   Act, 1981, for sentence by the High Court.

   
   

B.K. MOLAI

JUDGE

21/03/07

Copy: The Director of Public Prosecutions

All Chief Magistrates

All Magistrates

All Public Prosecutors

The Magistrate - Maseru

The Director of Prisons

O/C Police - Maseru

O/C Central Prison - Maseru

CID Headquarters - Maseru