R v kelello (Rev. Case No. 204/03 CR160/02 Rev. Order No. 23/04 )

Media Neutral Citation: 
[2004] LSHC 129
Judgment Date: 
26 October, 2004



In the matter between:-




Review Case No. 204/03 CR160/02

Review Order No. 23/04 In Butha-Buthe District


Delivered by The Hon. Mr Justice S.N. Peete 26th October, 2004

  1. The accused, a Mosotho male adult aged 27 years of Benteke, Qholaqhoe in the district of Butha-Buthe appeared before the learned magistrate Mr Masiphole charged with the offence of indecent assault allegedly perpetrated by him upon one Retsepile Mphona, a young girl of 9 years, by putting his penis on Retsephile's thighs, on the 31st March 2002.


The accused pleaded guilty and the trial summarily proceeded under section 240 of the Criminal Procedure and Evidence Act 1981 his rights having been explained to him in full.

  1. Though the learned Magistrate's handwriting is a bit hieroglyphic, I find nothing in the record which touches on accused's sanity, yet the learned magistrate concludes abruptly by saying –

"The court finds out that the accused is insane or mentally incapacitated. "

Verdict : Guilty as charged

P.P. : Accused has no record of previous convictions."

  1. After the accused had spoken in mitigation the learned Magistrate states-

"The court had occasion to inquire into the sanity of the accused in terms of section 172 (1) of the Criminal Procedure and Evidence Act 9 of 1981 and regard being had to what transpired during the trial of the instant matter I am duly satisfied that the accused is guilty but insane "


  1. Having quoted the cited section in full he concludes by saying "this court has a discretion to commit the accused to prison pending the satisfaction of the King's pleasure or to make any other order as it deems fit. I accordingly commit the accused to prison pending the satisfaction of the King's pleasure. "

  2. Committal under section 172 is a serious order which in all probability may mean life in a mental institution. It must not be lightly resorted to unless there is convincing psychiatric evidence warranting such order. In these summary proceedings under section 240 of the Criminal Procedure and Evidence Act, the prosecutor did not allude in any manner to the accused's mental condition. Bizarre as the indecent assault may appear, the learned magistrate, without any psychiatric evidence having been procured came to the conclusion that accused was insane. Indeed Snyman - Criminal Law (1995) states at page 159.

"A court cannot reach a finding of criminal non-responsibility without hearing expert evidence by psychiatrists".


  1. I hold that the learned Magistrate committed a gross irregularity of such a magnitude that vitiates the whole proceedings. I order that conviction and committal order be set aside and the matter be tried de novo before another magistrate.



26th OCTOBER, 2004

CC: The Chief Magistrates

The Magistrate - Butha-Buthe

O/C Police - Butha-Buthe

O/C Prison

O/C Central Prison

CID Headquarters

Director of Prisons

Director of Public Prosecutions