HIGH COURT OF LESOTHO
Case No.6/07 In Maseru District
1929/06 Review Order No.2/2007
is before me for automatic review. The accused, a 38 years old man,
appeared before a magistrate with second class powers?
the offence of contravening Section 8(1) of Sexual Offences Act,
2003, it being alleged that on or about 1st 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
Taolana, by inserting his penis into her vagina.
was put to him, the accused pleaded guilty to the charge. The public
prosecutor accepted the plea of guilty
by the accused person and the provisions of Section 240 (1) (b) of
the Criminal Procedure and Evidence Act 1981
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
found guilty on that charge, and the prosecutor accepts that plea,
the court may -
(b) if it is a Subordinate Court, and the prosecutor states the facts
disclosed by the evidence in his possession, the court shall,
recording such facts, ask the person whether he admits them, and if
he does, bring in a verdict without hearing any evidence."
(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.
November 2006, 'M'amosa Taolana left home for a place called Ha
Thamae, leaving the complainant at home with
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
complainant into his bedroom where he ordered her to get on the bed.
The accused then removed complainant's panties. He too
trousers, got on top of the complainant and inserted his penis into
her vagina. When the complainant started screaming,
covered her mouth to stop her from screaming or making noise.
Thereafter the accused put on his trousers and went out
bed-room leaving the complainant crying therein.
the complainant also went out of the house to play with other
children outside. She then noticed that the accused had
the beer drinking house of 'M'atseko.
later on that day, 1st November 2006, her mother returned home, the
complainant reported to her what the accused had done to
(complainant). Complainant's mother 'M'amosa Taolana, then questioned
the accused about what he had allegedly done to the complainant.
reply, the accused asked for forgiveness and said he had been
possessed by an evil spirit he did not know.
Taolana then called a neighbour, by the name of 'Mefa Ntobo, with
whom she examined the child, Mosa Taolana. Their findings
the child's vagina had been torn, some sperms could be detected and
there was offensive smell.
following day, 2nd November 2006, 'M'amosa Taolana reported the
incident at Thamae Police Station, in Maseru, where she and
complainant were given a medical form and referred to Queen Elizabeth
II hospital. At the hospital, the complainant was medically
by a doctor who compiled a report by completing the medical form. The
medical report was handed in evidence and marked
exh. 1 (sic).
to "exh.l" the complainant was examined by the medical
doctor two (2) days after the alleged rape had occurred.
smear was taken for it was too late. No bleeding was detected; the
examination was normal except that there was redness
vagina; and the vagina was open as an indication of the possibility
worth mentioning that although, in his outline of the facts, the
public prosecutor said the evidence would have shown that,
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.l"
that the medical form bears the police date rubber stamp impression
of 6th November 2006 thus suggesting that it was given
out by the
police on that date and not on 2nd November 2006. Again, although the
outline of the facts says the complainant was
examined by a medical
doctor on 2nd November 2006, the medical report (exh.l) bears the
hospital date stamp impression of 10th
November 2006 thus suggesting
that the date on which the complainant was medically examined was
10th November 2006 and not 2nd
November 2006 as the outline of the
facts would like the court to believe.
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 7th November 2006, he received a
certain report following which he immediately
On 9th 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.
cautioned and charged the accused as aforesaid.
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.
basis of the evidence outlined by the public prosecutor and admitted
as correct by the accused, I have no quarrel with the
"guilty as charged" returned by the trial court. I,
however, have difficulty with the sentence of five (5)
imprisonment imposed by the court.
significant to bear in mind that the accused was charged and
convicted with contravention of Section 8 (1) of Sexual Offences
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
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 -.
the purpose of Part III a person who is below the age of 16 years;
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.
passing the sentence of five years imprisonment, on the accused, the
trial court took the view that the sentence was permissible
Section 31 of Sexual Offences Act 2003. The section provides, in
"31 (1). Save for the Central and Local Courts, the sentences
under Section 32 shall apply and be enforced by all courts
extenuating circumstances or the proper consideration of the
individual circumstances of the accused or lawful intimate
between the perpetrator and the victim dictate otherwise.
With all due respect to the learned trial magistrate's view, I am
unable to agree that the sentence of five years imprisonment
permissible under Section 31 of Sexual Offences Act, 2003. On the
contrary, the section clearly
that "save for the Central and Local Courts, the sentences under
Section 32 shall apply and be enforced by all courts-----"
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:-
(i) Where the offence committed is exposure or display of genital
organs by one person to another, to imprisonment for a period
less than five years.
instant case, the offence committed by the accused is not that of
exposure or display of genital organs to another person.
prescribed under Section 32 (b) (i) of Sexual Offences Act 2003
cannot, therefore, apply. Instead, the offence committed
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,
applies is clearly the minimum sentence prescribed under Section 32
(a) (vi) of Sexual Offences Act 2003. The section reads,
(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
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.
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 he
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
"31 (2). Where the appropriate penalty is beyond the ceiling of
penal powers of the trial court, it shall, after conviction,
case to the High Court for sentence."
light of the aforesaid, the following orders are made, on review: -
verdict of "guilty as charged", returned by the trial
magistrate, is confirmed as being in accordance with real
sentence of five (5) years imprisonment imposed by the trial
magistrate is, however, set aside; and
proceedings are returned to the trial magistrate who, for want of
penal jurisdiction, should cause the accused to appear before
court and commit him, in terms of the provisions of Sections 293 (1)
and 294 (2) of the Criminal Procedure and Evidence Act,
sentence by the High Court.
The Director of Public Prosecutions
All Chief Magistrates
All Public Prosecutors
The Magistrate - Maseru
The Director of Prisons
O/C Police - Maseru
O/C Central Prison - Maseru
CID Headquarters - Maseru
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