Rex V Lekhanya (CRI/T/110/2022) [2023] LSHC 3 (16 March 2023)

# Rex V Lekhanya (CRI/T/110/2022) [2023] LSHC 3 (16 March 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/3/eng@2023-03-16) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/3/eng@2023-03-16) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/3/eng@2023-03-16) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/3/eng@2023-03-16) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Lekhanya \(CRI/T/110/2022\) \[2023\] LSHC 3 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/3/eng@2023-03-16) [ Download PDF (318.3 KB) ](/akn/ls/judgment/lshc/2023/3/eng@2023-03-16/source) Report a problem __ * Share * [ Download PDF (318.3 KB) ](/akn/ls/judgment/lshc/2023/3/eng@2023-03-16/source) * * * * * Report a problem __ ##### Rex V Lekhanya (CRI/T/110/2022) [2023] LSHC 3 (16 March 2023) Copy citation * __Document detail * __Related documents * __Citations 5 / - Citation Rex V Lekhanya (CRI/T/110/2022) [2023] LSHC 3 (16 March 2023) Copy Media Neutral Citation [2023] LSHC 3 Copy Hearing date 1 August 2022 Court [High Court](/judgments/LSHC/) Case number CRI/T/110/2022 Judges [Hlaele J](/judgments/all/?judges=Hlaele%20J) Judgment date 16 March 2023 * [21 March 2023](/akn/ls/judgment/lshc/2023/3/eng@2023-03-21) * [16 March 2023](/akn/ls/judgment/lshc/2023/3/eng@2023-03-16) Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT MASERU CRI/T/110****/2022** In the matter between **REX APPLICANT** **** **AND** **SEABATA LEKHANYA RESPONDENT** **Neutral Citation** : Rex v Seabata Lekhanya [[2022] LSHC 3](/akn/ls/judgment/lshc/2022/3) Cri (16 March 2023) **CORAM : HLAELE J.** **HEARD :** 01 AUGUST 2022 **DELIVERED :** 16 MARCH 2023 **SUMMARY:** ___Review of sentence on automatic review –the accused having sexually assaulted the survivor. The court not taking into consideration that the survivor’s children witnessed the act._ **_ANNOTATIONS_****:** **_CITED CASES_** : 1. S v Mahomotsa (OPD) unreported case no 29/99 (28 July 1999); 2. Moatshe v Legend Golf and Safari Resort Operations (Pty) Ltd [[2014] ZALCJHB 458](/akn/za/judgment/zalcjhb/2014/458) 3. S v Vilakazi 2012 (6) SA353 (SCA) 4. Rex v Rathakholi (Rev/Case No: 42/14- CR:50/14) [[2014] LSHC 70](/akn/ls/judgment/lshc/2014/70) (26 July 2014 5. S v Shai 2014 (1) SACR 204 **_STATETUS_** 1. High Court Rules **__** **_ARTICLES_** 1. **Pynoos R.S et al. “Children who witness Sexual Assaults.” Journal of the American Academy of child and adolescent Psychiatry. Volume 27, issue 5 p567-572** 2. Susan Estrich ‘Rape’ (1986) 95 Yale LJ 1087 at 1092 3. Sophie Khadr, Venetia Clarke, Kaye Wellings, Laia Villalta, Andrea Goddard, Jan Welch, Susan Bewley, Tami Kramer, Russell Viner. July 18, 2018 _._ “Mental and sexual health outcomes following sexual assault in adolescents: a prospective cohort study.” Published Online July 18, 2018, http://dx.doi.org/10.1016/ S2352-4642(18)30202-5 4. UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna. 2019. “United Nations Office on Drugs and Crime, namely the “Handbook for the Judiciary on Effective Criminal Justice Responses to Gender-based Violence against Women and Girls. **_JUDGMENT_** **HLAELE J** **[1]****BACKROUND** 1.1 This case came before me for automatic review after the accused was convicted after being found guilty having been charged under section 3(1) read with Section 32 of the _Sexual offences Act 2003._ He was sentenced to 8 years in jail without an option of a fine. The allegation is that the accused did unlawfully and intentionally insert his penis inside one Reitumetse Mokhaeli’s vagina against her will. **[2]****FACTS OF THE CASE** 2.1 The facts as gleaned from the judgement reveal that on the fateful day, the accused forcefully entered the premises where the complainant and her 2 children were sleeping, it being at night. He thereafter had sexual intercourse with the accused against her will in the presence of her children. The record reveals that the children were crying, and the accused had ordered the complainant to order them to stop crying. Despite the presence of the children who were up and visibly rattled by the presence of the accused in the room, he proceeded to have unconsented sexual intercourse with their mother. At 6:00 hours the following morning, the accused repeated the same act, still without the will or consent of the complainant. 2.2 The accused relied on the defence of alibi which the magistrate held was not proved in order for the court to dismiss the charges levelled against him. 2.3 As a result, the court found the accused guilty as charged and sentenced him to 8 years imprisonment, without an option of a fine. **[3]****SENTENCING IN THE COURT AQOU** 3.1 The Magistrate in delivering the judgement had this to say: Most of the statutory offences are read in conjunction with corresponding penal sanctions. However, if there are persuading mitigating factors on the side of the person, the court sometimes opt against adhering to the penal sanctions. However, in the case underhand there are no persuading mitigators for the court to deviate from the Penal Sanction enshrined in the statute, therefore the accused is sentenced to Eight (8) (sic) years imprisonment without an option of payment of a fine. It is this sentence that has been presented to me for automatic review. **[4]****SENTENCING IN SEXUAL OFFENCES- CONSIDERATIONS.** 4.1 The Sexual offences Act 2003 was clearly an intervention of the legislature to deviate from the myth that was created by the age long view of categorizing cases of sexual offences in requiring that there is the so called “Real Rape.”[1] Real rape was perceived to be a situation where a stranger waylaid a woman in a dark ally and pounced upon her unaware and proceeded to engage in unconsented sexual activity. In an attempt to quell the public’s fears, the legislature proceeded with this intervention. The Act has had a tremendous effect in changing societal views on rape. 4.2 The crime of rape or crime involving sexual acts are abound with myths and stereotyping which serves nothing but to trivialize the dire consequences of the crime of rape or the statutory version thereof (as appears in the Act). The consequences of the sexual act on those who are victims (I prefer to call them survivors) are often not visible for there are no open wounds as one would see in the crime of assault. The courts should understand better the true dynamics of an unlawful sexual act or of sexual intercourse which is without the will or consent of the survivor of the act. In turn, the courts should, in the sentencing of those found guilty of these sexual acts, take cognizance of the application of legislative protection for survivors. 4.3 Courts should deviate from the mentality displayed in the 1999 case of **_S v Mohamotse_** where the court had these unfortunate remarks to say when passing sentence: _‘_ _Although there was intercourse with each complainant more than once, this was the result of the virility of a young man still at school who had intercourse with other school pupils against their wishes, and note, school pupils who had previously been sexually active.... Where one is dealing with school pupils, and where, in addition, it appears that the two girls concerned had already had intercourse before, one really shouldn’t lose perspective, especially not in relation to the first count, which dealt with a complainant who had in any event been naughty a few days earlier and had intercourse with someone else. The injustice which she suffered in this case does not demand a usually severe sentence.**[2]**_ 4.4 The remarks intensify the “boys will be boys’’ mentality stereotyping when it comes to male criminality. It is worth noting that the South African Supreme court of appeal has since reversed the sentence in this case. 4.5 The other factor that courts should take cognizance of in dismantling the ‘real rape’ myth is associating rape with violence or physical injury. This was demonstrated in the case of **_S v_** __**_Vilakazi_******[3]**** where the court applauded the perpetrator for minimizing violence and physical injury and regarded these as mitigating factors. 4.5 If the law is an expression of society’s values and concerns, the courts through their sentences should reflect this. That is, the courts should dissociate itself with the rape myths and perceptions that are held by a certain sector of society. 4.6 A commendable judicial stance was demonstrated in the case of **_Moatshe v Legend Golf and Safari Resort Operations (Pty) Ltd**[4]**_** In this case, Snyman AJ stated that the fully suspended sentence that was handed down on man found guilty of violent rape infringed the applicant’s(survivor) right to dignity and bodily and psychological integrity. The learned judge felt it was his judicial duty to refer the matter to the Magistrates’ Commission, the National Prosecuting Authority and the Department of Justice and Correctional Services to investigate the appropriateness of the sentence that was handed down by the magistrate. 4.7 The recognition that sexual acts perpetrated against those who do not consent to their participation has the effect of affecting the psychology, emotion and integrity(dignity) of the survivor is a factor which has to be incorporated at the sentencing stage. 4.8 A study[5] has summarized the some of the most common psychological effects sexual assault victims experience include to the following listed hereunder. Feelings of shame or guilt, social isolation or withdrawal, problems sleeping, eating disorders, flashbacks or nightmares, avoidance of certain places/things related to the event, anxiety disorders, PTSD, Depression and suicidal thoughts or actions. The study goes on to confirm that most victims will experience these effects in some capacity. While many common psychological effects of sexual assault include feelings of shame, guilt, or fear, these emotions may be more fleeting and get better as time goes on. In many other cases, the effects are more severe. _The publication by the_ _United Nations Office on Drugs and Crime, namely the “Handbook for the Judiciary on Effective Criminal Justice Responses to Gender-based Violence against Women and Girls**[6]**”, encourages the courts to mete out appropriate sentences in sexual offences._ ## **4.9 In the case of Rex _v Rathakholi**[7]**_ the court commented on the need to have appropriate sentences in sexual offences cases. The court took into account the traditional mitigating factors in determining the sentence but in my view still metered out an appropriate sentence in the circumstances. ** ## **4.10 In the present case, the learned magistrate was oblivious to the long term mental and psychological effects of the accused’s act on the survivor. This is gleaned from the sentence they gave.** ## **4.11 The other most important aspect of this case that the presiding magistrate overlooked and completely ignored is the fact that at the time the unlawful sexual act was taking place, the children of the survivor were present. It is recorded that they were crying when the accused made a forced entry into the house. Later on, the same intruder was sexually molesting their mother in their presence.** ## **4.12 The psychological effects of witnessing such an act by children should not be overlooked or under estimated. It also had dire consequences on such children. In the paper titled “ _children who witness Sexual Assaults”. By the American Academy of children and adolescent Psychiatry”,**[8]** _by authors give this useful data.** ## **_“Researchers found that the children exhibited prominent post -traumatic stress disorder symptoms, disturbance in aggression and sexuality, alterations in their sense of security and vulnerability, challenged self-esteem, stress in intrafamilial and peer relationship and changes in future orientation. These reactions are similar to those of sexually abused children and indicate that child witnesses need special therapeutic attention._** ## ## **Had the learned magistrate incorporated this in their judgment, they would not have given the judgement that they did.** ## ## ## ## ## ## ## **[5] CONCLUSION** ## **It is for the reasons alluded to above that I find the sentence of 8 years inappropriate in the circumstances.** ## ## **[6] SENTENCE. ** ## **It is for this reason that I impose a sentence of 25 years without an option of a fine.** ## ## \------------------------------ **M. G. HLAELE** **JUDGE** For Crown : Adv. T. Maile For Accused: In Person ## * * * [1] _Susan Estrich ‘Rape’(1986) 95 Yale LJ 1087 at 1092_ [2] _S v Mahomotsa (OPD) unreported case no 29/99 (28 July 1999);_ _**[3]**__S v Vilakazi 2012 (6) SA353 (SCA) para 55. **See also** S v SM 2014 (1) SACR 53 (GNP) para 12; S v MM 2013 (2) SACR 292 (SCA) paras 25–6; and S v Shai 2014 (1) SACR 204 (GNP) para 22._ _**[4]**__Moatshe v Legend Golf and Safari Resort Operations (Pty) Ltd**[4]** [2014] ZALCJHB 458_ [5] _Sophie Khadr, Venetia Clarke, Kaye Wellings, Laia Villalta, Andrea Goddard, Jan Welch, Susan Bewley, Tami Kramer, Russell Viner. July 18, 2018.**“Mental and sexual health outcomes following sexual assault in adolescents: a prospective cohort study.”** Published Online July 18, 2018 http://dx.doi.org/10.1016/ S2352-4642(18)30202-5_ _**[6]**__UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna. 2019. “United Nations Office on Drugs And Crime, namely the “Handbook for the Judiciary on Effective Criminal Justice Responses to Gender-based Violence against Women and Girls.’’_ _**[7]**____Rex v Rathakholi_** _**[7]**_**_(Rev/Case No: 42/14- CR:50/14)[[2014] LSHC 70](/akn/ls/judgment/lshc/2014/70) (26 July 2014_ _);_ ## ****[8]** children who witness Sexual Assaults”. By the American Academy of children and adolescent Psychiatry”,[8]** #### __Related documents ▲ To the top >