CRI/S/28/87

IN THE
HIGH COURT OF LESOTHO

In the
matter between

REX

and

LEBONA
TSABO

THABANG
MOJAKISANE

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. KHEOLA on the 30th day of
November, 1987.

The
accused were convicted by a third class magistrate at Thaba-Tseka of
the offences of housebreaking with intent to steal and
theft, rape
and malicious injury to property. They had pleaded guilty to all the
charges and were committed to the High Court for
sentence in terms of
section 293 of the Criminal Procedure and Evidence Act. 1981.

The
outline of the facts by the public prosecutor were that on the 27th
September, 1987 one 'Mamphasane Ranooe was sleeping in her
house with
'Mathuso Ralethola together with three of their children. During the
night they heard footsteps of a person coming towards
the window and
opened it. 'Mamphasane closed the window and went back to her bed.
After a long time the door was struck with a
hard object and was
broken. Two men entered, one of them went to 'Mamphasane and kicked
her on the chest. He ordered them not to
make a noise and to light
lamp. 'Mathuso complied and lit a lamp. It was after the lamp was In
that the complainants saw that the
intruders were the two accused who
were strangers to them.

2

The
accused ordered the complainants to give them money if they wanted to
live. When 'Mathuso told them that they did not have any
money the
accused threatened to kill them immediately. She then asked her
daughter, 'Mampolai, to take out her last M20-00 from
the wardrobe
and to give it to the accused. She complied and gave the money to the
accused.

After the
money was given to them the accused went to the wardrobe and took out
the following articles 5 blankets, 2 pairs of trousers,
1
dessert-spoon set, 7 glasses, 1 sugar pot, 4 cassettes, 1 knife, a
raincoat, some underwear, a pair of boots, socks and a bag
containing
money amounting to M526-00. After that the accused down and helped
themselves to the food that was in the pots.

Having
filled their stomachs the accused told 'Mamphasane that they wanted
to have sexual intercourse with her. One of them took
out a brown
knife from his pocket and cut' 'Mamphasane's panty with it. She
protested and asked them what they wanted since they
had taken her
property. The accused ignored her protest and raped her in turns,
while one of them was raping her the other one
was pointing a knife
at her neck. They ravished her in full view of 'Mathuso and the
children, the oldest of whom was only fourteen
years old. After they
had satisfied their lust the accused took the property listed above
and prepared to leave.

Before
they left they took all documents they had found in the wardrobe
including two passports belonging to 'Mamphasane and 'Matnusa
and put
them back into the wardrope before setting them on fire with sole
intention of injuring the complainants in their property.
The
documents and the wardrobe were damaged. Thereafter the accused took
property aforesaid and left.

3

The
complainants immediately raised alarm and villagers came The matter
was reported to the police and a search for the accused
was launched.
They were arrested at Thaba-Tseka bus stop where they were preparing
to board a bus to Maseru. All the stolen property
was recovered
except one blanket and M116-80 of the stolen money, the rest
(M409-20) was recovered. The accused gave the police
a brown Knife
which was identified by 'Mamphasane as the one with which accused cut
her panty on the previous night.

The
doctor who examined 'Mamphasane found the following injured a little
wound on the right upperarm and a scratch on the right
forcar He
formed the opinion that the complainant had been raped.

The
accused admitted the facts stated by the Crown and the learned
magistrate convicted them accordingly.

At the
hearing of this case at the High Court the accused were represented
by Mr. Monyako who submitted that according to his instructions
the
accused claim that they pleaded guilty because they did not
understand what was happening in the court a quo. I am satisfide.

that they understood what was happening because the proceedings were
conducted in Sesotho Language which they understood very well.

The first
stage is that they were found in possession of the stolen goods. They
were taken to the magistrate's court and a charge
sheet was read and
explained to them. They pleaded guilty to all the charges. A summary
of the facts of the case was given. They
were there whether or not
they admitted the facts. The answer was in the affirmative.

I confirm
the conviction on all counts.

4

In
mitigation of sentence Mr. Monyako submitted that the accused are
first offenders and that they were drunk when they committed
the
offences. He asked the Court to take into account that the offences
were committed at the same time. The offences committed
by the
accused are not only serious but the manner in which they were
committed is an aggravating factor. They raped the complainant
in
full view of her own children. They are beasts and have to be treated
as such. In count I I am of the opinion

that they
ought to have been charged with housebreaking with intent to rob and
robbery because the assaults preceding the taking
of the goods make
the offence robbery and not theft.

SENTENCE Count I Nine (9) months' imprisonment

Count 2, Four (4) years' imprisonment.

Count 3 M120 or 3 months' imprisonment. Sentences to run
concurrently.

J .L.
KHEOLA

JUDGE

30th
November, 1987.

For Crown
Mr. Mokhobo

For
Defence Mr. Monyako.