CRI/A/40/87
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
PITSO RAMAILI Appellant
V
REX Respondent
JUDGMENT
Delivered by the Hon Mr. Justice J.L. Kheola on the 26th day of October, 1987.
The appellant appeared before the Resident Magistrate for the district of Mafeteng charged with the crime of rape, it being alleged that on the 14th April, 1987 and at or near Matsatseng in the district of Mafeteng the said accused did unlawfully and intentionally have unlawful sexual intercourse with Mpotseng Lota aged 12 years who was incapable of consenting to sexual intercourse The appellant pleaded guilty to the charge, after accepting the facts of the case as outlined by the public prosecutor he was found guilty as charged and sentenced to three (3) years' imprisonment.
The appeal is against sentence only on the ground that it is excessive and creates a sense of shock taking into account that the appellant is a first offender. It was submitted that the learned Resident Magistrate failed to regard as a mitigating factor that the appellant pleaded guilty.
The facts of the case were that on the 14th April, 1987 the complainant was at her sister's home, one 'Malesole Majara. When 'Malesole went to draw water the complainant went to the home of one 'Mamonono. She was going to find out from her where her other sister was staying. When she arrived there she found the appellant
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and asked him where her sister was staying. The appellant said that he would accompany her and show her the place which is in Matsaneng area. Instead of taking her to her sister's place, the appellant took the complainant to his house and slept with her for the whole night and had sexual intercourse with her several times during the night. On the following morning appellant's neighbour asked the complainant to come with her to the market to help her sell maize. After helping her the complainant returned to 'Malesole's place. She reported to her that she slept at the appellant's home and that he had sexual intercourse with her several times during the night.
'Medical evidence confirmed that the complainant had been sexually assaulted and that her hymen was missing. It was proved that the complainant was 12 years old when the appellant "raped" her.
Although the appellant appeared in person at the hearing of the appeal, Mr. Ntlhoki had lodged the appeal on his behalf and had also filed his heads of argument before he withdrew as attorney of recrod. He has submitted that the sentences derives from the incorrect legal promise postulated in the charge sheet that complainant aged 12 years was incapable of consenting to sexual intercourse. At common law, it is a girl under 12 years who is incapable of consenting to sexual intercourse. This is an irrebutable presumption. See R, v. Z. 1960(1) S.A. 739 (A.D.) at pp. 742, 744, Hunt-South African Criminal Law and Procedure, 1st edition, p. 406.
The charge sheet was, therefore, defective by alleging that the complainant was incapable of consenting to sexual intercourse. The
evidence before the court shows clearly that the complainant consented to sexual intercourse and that no force whatsoever was used. The appellant merely asked her to remove her panty. She complied and raised no objection.
Section 8(2),of the High Court Act 1978 provides that when considering a Criminal appeal and notwithstanding that a point raised might be decided in favour of the
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accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record of proceedings, unless it appears to the High Court that a failure of justice has in fact resulted therefrom. I am of the opinion that no failure of justice has resulted from the fact that the Crown and the trial court erroneously believed that a girl of 12 years of age is incapable of consenting to sexual intercourse inasmuch as having sexual intercourse with a girl under the age of 16 years is a statutory offence in terms of section 3(1) of the Women and Girls' Protection Proclamation Mo. 14 of 1949. Furthermore, the statutory offence of unlawful carnal knowledge of a girl under the age of 16 years is a competent verdict on a charge of common law rape.
I set aside the conviction and substitute it with that of guilty of contravening section 3(1) of the Women and Girls' Proclamation No. 14 of 1949.
Regarding the appeal against sentence it seems to me that it must succeed on the ground that the statutory offence is regarded as less serious than the common law rape. It follows that if the learned Resident Magistrate had not misdirected herself on the point of law stated above she would probable have imposed a sentence lesser than the present one.
The sentence of three (3) years' imprisonment is set aside and substituted with one of two (2) years' imprisonment.
The last, but by no means the least important point to raise again is the ease with which magistrates grant bail to people they have just convicted. The present case is a typical example of this. The appellant was convicted and sentenced on the 24th April, 1987 on his own plea of guilty to a very serious office. On the 8th May, 1987 the appellant filed his grounds of appeal on sentence only On the 3rd June, 1987 the appellant was granted bail and paid a deposit of M100.00 with some other conditions The learned Resident Magistrate knew very well that even
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if the sentence were reduced on appeal the appellant could never be given the option of a fine in a rape case Then why release the appellant on bail instead of allowing him to start serving his sentence?
I am aware that there are some borderline cases in which the magistrate may not be in a position to say positively that there are no prospects of success In cases where the accused has pleaded guilty to a serious offence and appeals only against sentence, I find it a waste of time for the accused himself who ought to start serving his sentence as soon as possible; the police's time is also wasted because when the appeal is set down for hearing, the appellant must be served with a notice of set down. Very often it is not easy to trace a man who has already been convicted and has, in most cases, served a few days or weeks of his term of imprisonment. He will try to delay the matter as much at, he can possibly evade service. See CRI/A/58/87 Maseko vs. Rex (unreported)
26th October, 1987.
For Appellant : Mr. Ntlhoki
For Crown Mr. Seholoholo