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