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IN THE HIGH COURT OF LESOTHO

In the matter between:

REX

Vs

MALEFANE MOKHELE

Review Case No.79/2005 CR/347/2005

Review Order No.5/2005 Maseru District

Review Order 7th April, 2005.

The accused is charged with contravening section 8 (5) of the Sexual Offences Act No.3 of 2003. The allegations were that the accused did wrongfully, unlawfully and intentionally have sexual intercourse with one Joalane Anna Tsatsi aged 16 years without her consent.

The accused pleaded guilty to the charge and an outline of facts was made by the Public Prosecutor. The facts outlined disclosed the offence of rape and a verdict of guilty was returned after the accused

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had accepted the facts as true.

The accused being a first offender was sentenced to a term of eight years imprisonment. The Magistrate gave reasons for his sentence and in his reasons mentioned also about the epidemic disease of Hiv/Aids which is killing people in frightening numbers.

My main concern here is that it would seem that the provisions of section 30 (1) of the Act are usually being ignored. The section reads thus:

"30 (1) A person charged with a sexual act involving the insertion of a sexual organ into another person's sexual organ or anus, shall have his blood substance taken by a medical practitioner within a week of the preferment of the charge."

Perpetrators in sexual offences are never subjected to the compulsory testing as envisaged under the Act in order to bring the sentences imposed in line with the provisions of section 32 of the Act for appropriate sentences to be imposed.

May all Magistrates' Courts take note of this omission and start taking the accused for tests before the commencement of the trial in rape cases. My brother Monapathi J in Review Order No.15/2004 R v Ntlaba Eric Mosola Makhabane dated 31st August, 2004 very strongly and ably advised all Magistrates to take cognisance of the provisions of

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section 30 (1) and (4) of the sexual Offences Act as a relevant issue in assessing an appropriate sentence.

The proceedings are in this case otherwise in accordance with real and substantial justice.

1. M. HLAJOANE

JUDGE

CC: The Magistrate –

Maseru Chief Magistrate

O/C Police - Maseru

O/C Prisons - Maseru

CID Headquarters –

Maseru Director of Prisons Director of Public Prosecutions