R v Makhabane (Review Case No. 162/2004 CR. NO. 210/2004 Review Order No. 15/2004)

Media Neutral Citation: 
[2004] LSHC 105
Judgment Date: 
31 August, 2004


Review Case No. 162/2004 CR. NO. 210/2004

Review Order No. 15/2004


In the matter between:




In Thaba Tseka District


31st August 2004

This matter has been brought before me on automatic review. The Accused has been charged with contravention of Sexual Offences Act 3/2003 (the Act)

When the charge against Accused was read on 30th June 2004 he pleaded not guilty. He was subsequently convicted after the evidence of four Crown witnesses was led, together with the evidence of the Accused himself in his defence and two other witnesses on his behalf. Eventually the Accused was sentenced to eight years imprisonment without option of a fine.

I am worried about what transpired after conviction and before mitigation


and sentence. It is this that the learned magistrate recorded namely that the Public Prosecutor had filed no report on Accused's HIV/AIDS status. Perhaps it is useful to quote the relevant section of the Act which is section 30. It says:

"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.

  1. The blood substance referred to in subsection (1) shall be tested for Human Immunodeficiency Virus infection and the results shall be disclosed by the medical practitioner to the accused and the complainant only.

  1. The costs for the test referred to in subsection (2) shall be borne by the Crown.

  1. Where a conviction is secured, the results of the test done pursuant to subsection (3) shall be tendered in evidence for the purposes of sentence.

  1. Any person -

    1. who unreasonably hinders or obstructs the taking of the blood substance; or

    1. who. other than the accused or victim, discloses the test results before the sentencing phase of the court proceedings, commits an offence and is liable on conviction to a fine not exceeding M20.000 or to imprisonment for a period not exceeding one year or both.." (My emphasis)

The results referred to in section 30 (2) are hereinafter referred to as the status report. While noting that the filing of such a report in mandatory (compulsory) in


terms of section 30 of the Act, the learned magistrate states that he had on two previous occasions remanded the matter in an effort to afford the prosecution the opportunity to have the Accused examined for the purpose of filing the status report. He says regrettably that such a report has not been forthcoming. He further


"I will in the spirit of "speedy trials" go ahead and sentence the accused as if he is HIV negative."

I find this worrisome for the following reasons:

Firstly, the Court has not been informed of that which prevents the public prosecutor from filing the status report, or if the magistrate has been told of any hindrance or difficulty the magistrate, this he has not stated. It is in those circumstances, in my view, that the decision to condone filing of the status report became irregular.

If the learned magistrate had been minded, as it seems he was. that the status report be given then he had made an order of Court which called for cogent reasons as to why it had not been complied with by the public prosecutor. He could not just easily change his lawful order without a good explanation.


The second aspect which causes concern on my part is that this section 30 of the Act was enacted by the legislature with all the seriousness that underpins what the learned magistrate himself comments on or remarks about in his sentence where he says:

"Sexual Offence Act of 2003 was made purposely by the legislature of Lesotho to combat the overwhelming abuse of particularly women. This happens in an era in which the HIV/AIDS epidemic has brought an untold sorrow to mankind. This sorrow is worse than the sorrow that was brought by second world wars to mankind. It is in this spirit that sexual offences must be awarded heavy sentences........".

The learned magistrate was obviously being aware and frank about public policy, sentiments and values which underpinned the Act. Then he should have gone further. See the discussion of the role of public policy in interpretation of statutes in Interpretation of Statutes, G E Devenish. First Edition, at pages 276-277. The legislature could not therefore intend that which is harsh unjust or unreasonable bearing in mind the policy of the Act as interpreted by the learned magistrate. See also Interpretation of Statutes (supra) at pages 161-163.

The learned magistrate then closes the issue of the status report by saying: I repeat:

"I will in the spirit of "speedy trial" go ahead and sentence the accused


as if he was HIV negative." I suppose it was meant to Speedy Trial Act No. 9 of 2002.

The learned magistrate obviously did not insist on the report or examination of the Accused at the slightest of interruptions. Perhaps I am being unkind. I have to be where no explanation is brought forth for the inability to bring the status report.

In the way the learned magistrate acted the spirit of the Speedy Trial Act is interposed by way of a defence or impediment, a reason on an interpretation which is not articulated. Perhaps there is conflict or some kind of impossibility but I see none where the learned magistrate was for all intents and purposes dealing with the matter with speed and diligence save for the problems of the status report. On no principle of interpretation in my opinion would the learned magistrate change his stance. He had correctly originated an order much in line with the principles of the Act in section 30, which can only have been enacted with intention to promote the public good. He ought to have persisted.

I say the matter was being dealt with with all the good speed because having charged the Accused on the 30th June 2004 he was sentenced on 25th July 2004. There had been no concern about "speedy" prosecution nor "speedy" resolution of the matter at all. I will not go further than that. Neither should I investigate any aspects of the spirit of the Speedy Trial Act except to say that in accordance with


the spirit of the latter Act the matter was dealt with "within a reasonable time ........" Finding succour (as the learned magistrate did) in the Speedy Trial Act was accordingly being impertinent to a serious policy principle.

I do not accept a situation where in effect the clear policy of the Act, in section 30, is being frustrated by inaction or omission of the public prosecutor in the instant case, in the face of a legitimate order by the learned magistrate. The order was that a medical examination be done and a status report be filed. It is furthermore a relevant issue and it is questionable why the learned magistrate did not put his foot down when his order was not being complied with. This is unacceptable.

The section 30 (4) of the Act is clear indication that the status report shall impinge on sentence. If it should, all the more of a reason why it cannot be forgone without a good reason. Perhaps such a report would not change the sentence as it has presently been given but all that is required in the Act is that the report must be considered. I believe that this should have been demonstrated by the learned magistrate by consistently adopting the status report as he is bound by law. If not, in my opinion, the aspect of the sentence with regard to failure to file the status report becomes an irregularity.


In my view a bad precedent will result if the policy of the Act can be frustrated in the way this has been done. There are several examples where well intended policies of laws have been jettison for one reason or another. One example is the requirement to fixing of bail deposits by magistrates in Motor Vehicle Act 2000 and with regard to fixing of minimum sentences in some recent statutes.

The order that I make is that the Accused be tested, and section 30(2) of the Act be complied with except that the complainant will be properly counselled before being informed of the results. If she chooses not to know the results her wishes will be complied with. In any event the result of the test will be sent to me. I will deal with the matter on strictly confidential basis. All I crave for is that the policy of the Act be complied with so that the status report has accordingly to be part of the consideration of the sentence. This will be done by the reviewing Court.

T Monapathi


Copy: O/C Central Prison

Director of Prisons

O/C Prisons Thaba Tseka

O/C Police Thaba Tseka

Director of Public Prosecutions

C.I.D. Maseru

All Magistrates

All Public Prosecutors