R v Mokhafola (Rev. Case No. 37/2003 CR. NO. 1152/00 Rev. Order No. 3/2003)

Media Neutral Citation: 
[2003] LSHC 27
Judgment Date: 
6 March, 2003

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Review Case No. 37/2003 CR. NO. 1152/00

Review Order No. 3/2003

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU


In the matter between:-

REX

v SECHE MOKHAFOLA


In Maseru district


REVIEW ORDER (6th March, 2003)


This matter has come to me on automatic review from the Magistrate of Maseru. This Accused, a male adult of thirty years (30) of age, reputed to be a member of the Lesotho Defence Force was charged with the following two counts:-Count 1: That the said accused is charged with an unnatural offence:


"In that on or about the 24th day of June 2000 and at or near Khubetsoana in the district of Maseru. The said accused being a male person did unlawfully and intentionally and against the order of nature insert his penis and masturbate in the mouth of one Rethatbile Kotola. am/m aged 8 years and thus committed an unnatural offence."


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Quint 2 "That the said accused is charged with a crime of sodomy in that on or about the 24th day of June 2000 and at or near Khubetsoana in the district of Maseru. The said accused being a male person did unlawfully and intentionally and against the order of nature have sexual intercourse per anum with one Rethabile Kotola a Mosotho male aged 8 years and thus commit sodomy."


Ho pleaded not guilty thereto and he was convicted whereupon he was

sentenced as follows:


Count 1 18 months imprisonment with an alternative of M2000.00 fine


Count 2 2 years imprisonment with an alternative of M2000.00 fine.


Both sentences were to run consecutively. The evidence of the Crown was based

on the basis of testimony of the following:


PWl: Rethatbile Kotola, who was complainant herein. PW 2: Malineo Moluoane, who is neighbour of complainant. PW3: Alice Kotola, mother of complainant


The summary of their evidence of above witnesses is as follows: Pwl testified that he was in the house, sleeping when someone entered that house. At that lime he was alone in the house as his mother had left the house for some reason. The stranger, whom he could not see at that time because it was dark wont astride him and committed the crimes as outlined above in . He was able to run out of the house and fetch his mother and apparently when the mother,


Review Case No. 37/2003 CR. NO. 115/00

Review Order No. 3/2003

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU


In the matter between:-

REX

v

SECHE MOKHAFOLA


In Maseru district


REVIEW ORDER

(6th March, 2003)


This matter has come to me on automatic review from the Magistrate of Maseru. This Accused, a male adult of thirty years (30) of age, reputed to be a member of the Lesotho Defence Force was charged with the following two counts:- Count 1: That the said accused is charged with an unnatural offence:


"In that on or about the 24th day of June 2000 and at or near Khubetsoana in the district of Maseru. The said accused being a male person did unlawfully and intentionally and against the order of nature insert his penis and masturbate in the mouth of one Rethatbile Kotola. a m/m aged 8 years and thus committed an unnatural offence."


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one Malineo Moluoane (PW2) and PW1 re-entered the house the accused was still present.


Upon lighting a match PW 1 was able to identify the Accused. It is clear though from cross examination of PW1 by the Accused that the Accused was not unknown PW1, as he the Accused used to visit at PWl's home. Upon illuminating the house the Accused is said to have fled and left behind a sable, pair of trousers and a jacket.


The evidence of PW 2 is to the effect that when Pwl reached upon entering the house from which Pw1 had come they found the accused whom she asked what he wanted the reply which the rest of the evidence is that indeed it was said was that "Lesole le tsoile taolong"PW3's evidence corroborates that of PW2 save to say she derives having an affair whatsoever with the accused. It is worth noting that all the witnesses testified that PW1 was at that time sick with T.B. though no doctor's report was given as evidence thereof, nor was it necesary in the circumstances.


The medical report as exhibited "Exh "A" is to the effect that "sodomy is likely to have taken place". The report of No. 9961 Tpr Ramaisa (Exh "B") is to the effect that the accused identified all the items found in PWl's place as his

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upon arrest.


The learned Magistrate has done a very thorough and closely reasoned judgement which discloses that two sodomy acts of crime were committed on this complainant, Rethabile a boy of eight (8) years of age.


The learned Magistrate has not delivered reasons for his sentence which is unfortunate where foe example it is not clear whether he has taken into account the age of this complainant, the trauma and the seriousness of the offence. Nor has he justified the difference in sentences. That is why the first count was less than second when the offences were of a similar weight. Nor was there any reason stated why the two sentences were to run consecutively.


Sodomy is defined as unlawful intentional sexual intercourse "per anum" between human males. See South African Criminal Law and Procedure Vol. II JRL Milton, 248-258 at 254. While the modern jurisprudence about sodomy is now tied with the vexed principle of liberalization of attitudes on homosexuality or lesbianism between consenting adults. Sodomy remains serious, depraving and dangerous to victims. The learned author of South African Criminal Law and Procedure when speaking about punishment at page 257 deals with first offender, the need to investigate the background of offenders and says most


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relevantly quoting from the case of R v S 1956(1) SA 649 (T) 650-651 that:


" the court should not encourage the belief that depraved conduct can be embarked upon with no consequence other than that of psychiatric treatment and we feel that the public, including of course parents, will feel alarmed if no real punitive sanction attaches to such conduct, which, as in the present case, must leave its mark on the young complainants."


And furthermore:


"The Court accordingly refused to suspend the appellants sentence of four months' imprisonment saying: (in R v C 1955(2) SA 51 (T) involving young boys) "Whilst appreciating the great importance of reformative measures in this and similar types of cases, we feel that persons who have been guilty of depraved practices, particularly over so extended a period as in the present case, should not escape gaol sentences."


The learned author then concludes with this salutary statement:


"The elements of prevention and deterrence must, it is submitted, be particularly emphasized where X's conduct involves children."


I wholeheartedly agree with respect. Accordingly I viewed the sentences which were imposed on the Accused in this case as shockingly too lenient more especially when they involve, as they do, an option of a fine. I thought on that account this Court had to intervene and disturb the sentences.


1 found no reason why the aspect of psychological damage to the victims


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of acts of sodomy should not be looked at in the same way as acts of rape are, on the victims. See S v Koch 1988(1) 37(AD). It must be in the same context as seen by Lehohla J (as he then was) in the case of R v Griffith Lehahla CRI/REV/572/88 13 February 1989 at page 4, when referring to sentencing trends in other rape cases when then the present Chief Justice said:


"The trauma and the stigma of rape to the victim of such an act is dehumanizing as it is penetrating. In fact no amount of sentencing can parallel its debilitating effect on the victims psychological well-being. It thoroughly corrodes whatever dignity and self-respect she has."


As I said at the beginning there is no justification from the learned magistrate to have made the sentences to run consecutively.


The best thing to have happened to people's attitudes nowadays is that crimes such as child abuse, rape, sodomy are being reported very broadly and with fervour. Cases such as the present are likely to come up for prosecution from time to time. It is best therefore the Courts should respond accordingly and attitudes should be well positioned by imposing proper sentences.


The following sentences are therefore substituted: Count One: 5 years imprisonment without option of a fine.


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Count Two: 5 years imprisonment without option of a fine.


The sentences are to run concurrently.


T.Monapathi

Judge


Copy: Magistrate - Maseru

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