R v Lenyolosa (Rev. Case NO.87/2003 C.R. NO. 181/03 Rev Order NO.6 Qacha's Nek)

Media Neutral Citation: 
[2003] LSHC 69
Judgment Date: 
20 June, 2003



In the matter between:




Review Case NO.87/2003 C.R. NO. 181/03

Review Order NO.6 Qacha's Nek

ORDER ON REVIEW 20th June, 2003

The accused was charged with and convicted of the crime of INDECENT ASSAULT by the Magistrate of FIRST CLASS, sitting in the subordinate court at QACHA'S NEK. He was sentenced to two years term of imprisonment.

This case came before me on automatic review. The accused is eighteen (18) years of age. The complainant is-PWl sixteen (16)


years of age. The accused and the complainant are close relatives. They live in the same village and homestead. The accused is the complainant's uncle. The complainant was playing cards with one THABANG LETSEKANG - PW2 in the house where this complainant slept. While PW1 and 2 were playing the accused joined them in the game. Later on the accused left them. They continued playing. When he left he indicated that he was going to fetch his tobacco while PW1 and 2 were playing, PW1 indicated that she was tired and she retired to bed. At the time the accused returned the game of cards was over. THAUANG and the accused resumed the game. The complainant had fallen asleep therein. Apparently THABANG and the accused also decided to retire. They left together the house where PW1 was sleeping. The accused told PW2 that he was going to sleep in the same place with him. They agreed. Both PW2 and the accused put up together that night. In her sleep, the complainant felt the hand in her panties touching her private parts. She opened her eyes and woke up. She inquired who it was who was touching her vagina. She jumped up and dashed to the door - leaving the intruder behind. She opened the door and got out. She locked the door behind her and the intruder


still inside. She went to ask for assistance. The complainant went straight to the house where THABANG slept. She made the report to THABANG and asked him if he knows the person who was touching her vagina. THABANG did not know but both THABANG and the complainant went back to the house where the complainant had locked in the intruder who must have been the one touching her vagina. As the two approached the house, they saw accused jump out of the window of that locked house and ran away.

Before THABANG accompanied the complainant back to that locked up house where an intruder touched the complainant's private parts, they checked the place where the accused was supposed to be sleeping in that house where THABANG was sleeping. The accused was not present. When they finished playing cards the accused has gone with THABANG to sleep with him in that house.

The accused was properly convicted because he was identified by both PW1 and 2 as he jumped through the window out of that house. The accused is well known to the two witnesses who immediately before they retired for the night was in their company.


He is their uncle. At the material time he was no longer asleep where he should have been sleeping. At his trial even though he had pleaded not guilty to the charge he did not challenge the crown witnesses on material aspect of the evidence implicating him. At the close of the crown case after he had been advised of this rights, he admitted all the facts of the case as stated by the crown witnesses. He pointed out to the court that he does not deny anything said by those witnesses.

After the judgement was handed down, the public prosecutor indicated to the court that the accused has no previous conviction. In mitigation of sentence the accused persisted in his attitude that he is not denying any allegations made against him by the crown witnesses. Tins was the only thing he appeared to have said to the court at that stage before sentence. The fact that the accused had no previous convictions was the only factor considered in sentencing this accused to two years imprisonment.


There are a lot of other factors which the accused did not put before the court but which are apparent on the record. Sentencing is very difficult part in the trial of any accused. The Presiding Officer who is sentencing the accused must not succumb to the temptation of treating sentencing as a routine matter. Great attention and concentration must be paid to all factors which must be considered in mitigation and or in aggravation of sentence. Factors pertaining to the commission of the crime must be taken into consideration in mitigation and or in aggravation of sentence. For example, in our present case the accused is an uncle of the complainant. He stands in locus parentis to her. He owes her protection but instead he indecently assaulted her. He also appears to be familiar to both these children-PWl and 2 because shortly before the commission of that offence he was playing with them a game of cards. Under the cover of darkness he surreptitiously re-entered the bed room of the complainant and assaulted her. He took an advantage of the sleeping girl in private where there were no witnesses. Had the complainant not timeously awakened and had a swift brain wave to jump out and ask for help may be the worst could have happened. A lot of records


being place before judges for review are where indecent assault is an element because most cases are those of rape. The prevalence of that sort of offences calls for deterrant type of punishment. The deterrance must be two pronged. It must deter the accused himself never to repeat the same offence. Those who have like minds to commit the same offence must also be deterred. S V MTIMKULU 1971 USA 141 T, Sv KHULU 1975 2 SA 518 (N).

In the determination of an appropriate sentence and all factors come to play in an effort to ensure that the punishment fits both the criminal and the crime. In this era of great prevalence of rape and kindred offences, general deterance is of the greatest importance. A very loud and clear message must be sent to all those who consider themselves with power and right to abuse or rape girls, and women that they will be dealt with the seriousness their unlawful actions demand. BOTHATA TAOLE and Other v Rex 1971-73 LLR 43 and 45.


In criminal cases the wrong is not committed only against the complainant. It is also committed against the society. The accused must also be made to pay for his debt to the wronged society as a whole. In the determination of an appropriate sentence his record must be considered in order to establish what kind of a person he or she is. This particular accused had no record. Being the first offender he can be said to be a fallen angel. He appeared not to have transgressed in his passed. A serious attempt must be made to assist him to repend and be a law abiding citizen. He is also a young offender at the age of (18) eighteen years. He is still aminable to correction. He therefore needs a sharp, short and shocking sentence in order to knock some sense into him. R v SWANEPOEL 1945 AD 444. The accused must be given an opportunity to turn over a new leaf. The suspended sentence will remain a constant reminder that he should not repeat offending in that manner.

The conviction is confirmed. The sentence is not confirmed for the reason set out above. The magistrate had not considered any of the factors set out above. As a result he failed to exercise his


discretion judicially. The sentence is altered to two years imprisonment, one of which is suspended for a period of five years, on condition that the accused does not commit any crimes of indecent assault or rape during that period.