R v Tlhabeli (CRI/A/8/2003 )

Case No: 
CRI/A/8/2003
Media Neutral Citation: 
[2003] LSHC 76
Judgment Date: 
7 July, 2003

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CRI/A/8/2003

IN THE HIGH COURT OF LESOTHO


In the Appeal of:

LETUKA TLHABELI Appellant

and

REX Respondent


JUDGMENT


The record of proceedings, in this appeal, was placed before me, in my chambers, to peruse and consider whether sufficient grounds for interfering existed and the matter should, therefore, be enrolled.


The appellant herein appealed against the conviction and sentence of the Subordinate Court of Mafeteng. On 14th June 1999, he appeared before the court and pleaded guilty to a charge of rape, it being alleged that on or about 2nd February 1999 and at or near ha Mothokho, in the district of Mafeteng, he unlawfully and intentionally had sexual intercourse with Itumeleng Sekete, a girl aged 16 years old, without her consent.


The facts (and these were admitted as correct by the appellant) disclosed by the public prosecutor, in the outline of the evidence he had in his possession, were that, the complainant, a student at Mount Oliphant


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High School, was, on 2nd February 1999, returning home from her school. When she was at a place called ha Mothokho, the complainant met the appellant who proposed love to, and asked, her to accompany him to a place called Khilibiting or ha Ramathaleha. The complainant refused. There upon the appellant caught hold of the complainant, pulled her to a spot away from the road where he forcefully fell her to the ground and removed her underwear before proceeding to have full sexual intercourse with her. Although the complainant was raising an alarm when all that was happening, nobody came to her rescue. Having satisfied his lust, the appellant stood up and walked away, leaving the complainant behind. Thereafter, the complainant continued on her way home where she reported the incident to her mother.


The complainant's mother reported the matter to the local chief and the police who in turn referred the complainant to Mafeteng Government hospital for examination by a medical doctor. The medical examination revealed, inter alia, the existence of spermatozoa and some whitish discharge from the complainant's vagina. That was, in the opinion of the medical doctor, suggestive of recent sexual intercourse.


On 11th June 1999, the appellant surrendered himself at Thabana-Morena police post. After he had been duly cautioned by Tpr. Mopeli, one of the investigators in this case, the appellant gave him an explanation following which he was charged with the crime of rape, as aforesaid.


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The court considered the above evidence, which was not contradicted, and, on 14th June 1999, found the appellant guilty of rape, as charged. He was sentenced to serve a term of six (6) years imprisonment. The appeal was noted on 12th July 1999, on the grounds that the appellant's plea was not voluntarily made inasmuch as he had been tortured by the police who forced him to plead guilty and the sentence was so harsh that it induced a sense of shock.


In terms of the provisions of rule 62 (1)(a) of the Subordinate Court Rules 1996, the appellant had fourteen (14) days, from the date of his conviction, within which to lodge an appeal. The rule reads, in part:


"62 (1 )(a) A convicted person desiring to appeal against any conviction, sentence or order in a criminal case shall. within fourteen days after the date of conviction, sentence or order in question lodge with the clerk of the court a notice of appeal in writing in which he shall set out clearly and specifically the ground, whether of fact or law or both fact and law, on which the appeal is based:........"

(My underlining)


I have underscored the word "shall" in the above cited rule, 62 (1)(a) of the Subordinate Court Rules 1996 to indicate my view that the provisions thereof are mandatary. Assuming the correctness of the evidence that he was convicted and sentenced on 14th June 1999, the appellant had, therefore, time until 28th June 1999 to lodge his appeal. He, however, did not lodge the appeal until 12th July 1999 i.e. some 14 days after the time


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within which he was, in law, allowed to lodge the appeal had expired. The appeal was out of time and could not, therefore, be entertained. The appellant's ground of appeal that he had been tortured by the police who forced him to tender a plea of guilty could not be supported by the evidence which the appellant himself accepted as correct. The sentence of 6 years imprisonment did not, in the circumstances of this case, induce a sense of shock. On the contrary, it sinned on the side of leniency regard being had to the seriousness of the offence against which the appellant was convicted.


In the result, I consider that there are no sufficient grounds for interfering, in this matter. There is, therefore, no need to enroll the appeal which is accordingly dismissed summarily in terms of the provisions of section 327 of the Criminal Procedure and Evidence Act. 1981. The section reads:


"327. If an appeal against a conviction or sentence from a subordinate court has been duly noted, the court of appeal, on perusing the record of the case, including the appellant's statement setting out the grounds upon which the appeal is based, and any due notice of amendment thereof, and any further document that may have duly become part of the record, may if it considered that there is no sufficient ground for interfering, dismiss the appeal summarily."


B.K. MOLAI

JUDGE


7th July, 2003