HIGH COURT OF LESOTHO
by the Hon. Mr Justice M L Lehohla on the 16th day of May, 2000
appellant had initially appealed to this Court only against sentence
of five years' imprisonment imposed by the learned Magistrate in the
Subordinate Court Maseru.
record was placed before the High Court I gave the following
directives on 20-03-2000 :
: Please place on roll as well as doing the following :
inform the appellant to come prepared to argue either in person or
through his counsel why in the event of the conviction being
confirmed, sentence should not be appreciably enhanced. Copy this
information to the Crown.
see that the typed scripts contain neither the notice of appeal nor
Will you therefore speedily photo-copy those and have them attached
to all copies (and to judge's too) which will be used by all parties
before dispatching records to them.
you inquire from the Registry and report to me why there was the
delay between the arrival of this record on 19-01-2000 at the High
Court and its eventual placement before me on 17-03-2000.
unacceptable and intolerable situation to be gathered and read from
the difference between the two dates immediately above i.e.
19-01-2000 and 17-03-2000 is that in the event that the appellant who
is now serving term and is not on bail be acquitted he has been held
and detained unlawfully by the bureaucracy for no less than two
months - a period sanctioned by no judicial officer!
Court has previously pointed at the importance of observing
provisions of sections 327 and 329(1) of the Criminal Procedure and
Evidence Act 7 of 1981 and the practical implications of these
sections as given effect to in Seholoholo vs R 1985-
21 at p.28.
327 indicates that a judge is at large to dismiss an appeal summarily
if he considers that it has no merits. This presupposes that he would
have had consideration of the matter at hand before it could even be
set down for hearing. This in turn presupposes that should the matter
be set down for hearing it surely should be at the behest and
direction of the judge before whom the record would have been placed
not for purposes of the matter being heard in open court at that
stage but for purposes of the judge's determination whether the
matter is to be summarily dismissed or set down for hearing in due
329(1) as a development on what factors may have ensued in applying
provisions of section 327 provides that:
"In case of any appeal against conviction or sentence, which has
not been dismissed summarily under section 327, the High Court in its
appellate jurisdiction, without prejudice to the exercise by the High
Court of its power under section 73 of the Subordinate Courts
Proclamation 1938 or under section 8 of the High Court Act 1978 -
the Judgment of the Court below.............
the judgment to be set aside..........
such judgment as ought to have been given at the trial, or impose
such punishment (whether more or less severe than or of a different
nature from the punishment imposed at the trial); or
such order as justice requires".
Appeal Court in Seholoholo at p.28 said :
"It was conceded by counsel for the Crown, and correctly so,
that the Judge a quo had erred in increasing the sentence from 12
months to 2 years without first warning the appellant of his
intention so to do, and without affording him an opportunity of
addressing argument on the point whether it should be so increased".
interpose here and say such opportunity would scarcely be afforded if
the record is placed before the judge for purposes of hearing the
matter that is already set down for hearing within a week or so, thus
denying the judge the opportunity to exercise his powers provided in
terms of section 327 above. It is therefore wrong to place the appeal
record before a judge for hearing instead of placing it for exercise
of his power to determine whether to summarily dismiss the appeal,
without involving parties to the litigation, or to order matter to be
placed on the roll with such directives as he feels justice requires,
such as for instance that the appellant be warned of possible
increase of sentence etc.
back to the salutary remarks of the Court of Appeal at p.28 : Aaron
J. A. proceeded as follows ;
"Strictly speaking, therefore, the increase of sentence by the
Judge a quo must be set aside. However, at the outset of the argument
in this Court, the appellant's counsel was advised that this Court
also considered the sentence imposed by the Magistrate as being too
light, and invited him to address argument as to why sentence should
not be increased by this Court".
result the Court of Appeal in dismissing the appeal against
"........The order made by Molai J on 15th June, 1984, in which
he increased the sentence, is set aside, but this Court sets aside
the sentence of 12 months' imprisonment imposed by the Magistrate,
and increases it to 2 years' imprisonment".
Court of Appeal highlighted the importance of forewarning the
appellant in terms of section 327 should the High Court contemplate
increasing sentence. This I, stress, the High Court can only properly
achieve while in Chambers, by issuing appropriate directives to the
then for the foregoing; and to return to the charge.
appellant was convicted of rape and sentenced to five years'
imprisonment. He had pleaded not guilty to a charge which stated that
"The accused is charged with the offence of rape in that on or
about 13th May, 1997 and at or near Lithoteng in the Maseru district
he did unlawfully and intentionally have sexual intercourse with one
Likeleli Rasethuntsa a female adult aged 45 years without her
appellant in the instant appeal sought leave to amend his notice and
include appeal against conviction in his notice of appeal which had
originally consisted of appeal against sentence only. There being no
objection by the Crown leave was granted.
amended Notice of Appeal the appellant says he appeals against both
conviction and sentence on the following grounds :
learned Magistrate misdirected herself by failing to ventilate
equally the circumstances surrounding the coercion on the
learned Magistrate erred and misdirected herself by failing to
evaluate evidence so as to exclude any possible inference of
consent on the part of the complainant.
learned Magistrate erred and misdirected herself by failing to
apply equal consideration to the evidence of relationship of
witnesses for contestants. She considered only relationships and
bias of appellant's witness.
learned Magistrate erred and misdirected herself in failing to apply
the Rules of circumstantial evidence which give rise to decision by
inference. See cases.
appellant is aggrieved that:
sentence is severe, gives no option of a fine yet it is cruelly
punitive and induces a sense of shock thereby justifying an
intervention by this Court.
learned Magistrate has failed to consider the submissions made in
conclusion reached in conviction is not proved beyond reasonable
doubt and as such may have trappings of miscarriage of justice.
evidence adduced leaves room for a possibility of doubt on the
events of the day and the past relationship of parties.
Counsel for the appellant accordingly pleaded that sentence be not
increased in the event of appeal against conviction being dismissed
on the grounds that:
appellant is a first offender
parties had been drinking liquor which might have influenced their
normal character and behaviour
appellant has dependants who shall suffer on his loss of employment
complainant is not innocent person of vulnerable disposition.
summary of the evidence by the Court below is that the complainant,
an employee of the UNDP, works as a secretary in that organisation.
She is a mother of two children aged 23 and 20 respectively.
complainant knows the appellant and had known him previously when the
two used to be neighbours. At the time the appellant was a tenant at
Hlabi's residence; occupying (the 'ma-line').
May 1997 the complainant returned from work and decided to put on
fresh clothes before leaving her house for her sister's house to meet
Mr Thabo Leponesa the car repairer there.
has a restaurant and also sells beer. The complainant saw Mr Leponesa
and the appellant conversing next to the beer counter. This was at
around 8 p.m. when the complainant interrupted their conversation and
spoke to Mr Leponesa.
the appellant also wanted to talk to Mr Leponesa and an uneventful
exchange more in the nature of jest than anything took place between
the complainant and the appellant. The appellant left and the
complainant and Mr Leponesa shifted to some corner where they
remained drinking. The complainant was drinking a quart of hansa.
closing time the bar lady suggested that as the complainant and the
appellant were going in the same direction she shouldn't worry as the
appellant would escort her.
complainant asked the appellant to buy her beer. He complied. The
complainant was quick to tell the Court below that by this act she
didn't suggest that the appellant would get anything in return.
the Court below that there is no love affair between her and the
appellant. However long in the distant past the appellant had once
said he loved her.
appellant accompanied the complainant out of the bar. When they were
about to reach the spot that marks a separation of ways to their
respective homes, the
says the appellant told her that he wanted her to go and sleep at his
house, and leave in the morning. The complainant protested saying she
would do no such thing and told the appellant that he should go to
his home while she was going to hers.
then he grabbed her by the wrist fiercely and firmly saying also "you
are going to my house with me neighbour". The complainant says
there was nothing playful in the appellant when uttering these words.
Her protests fell on deaf ears.
complainant failed to free herself. She said that the appellant
dragged her into Mokitimi's yard. She tried to free herself but fell
down; and as she decided to stay put on the ground the appellant
fetched her a slap and ordered her to stand up. The appellant ignored
her protests and questions why he was hitting her; and lifted her.
her face was caught in the wire and got torn as the appellant forced
her through the fence. He dragged her towards his door. At this time
she says she had only one shoe on.
complainant told the Court below that the appellant forced her into
his house. He forced her past the kitchen into the bedroom where a
young boy of about
sleeping on the ground. He ordered the boy to go and sleep in the
kitchen. The appellant gave her rough treatment culminating in his
cocking a firearm at her. She says this is an AK-47. As she shouted
and cried the young boy came and tried to stop the appellant from
assaulting and harassing the complainant. She tried to seize this
moment to escape through the window but found it had burglar-proofing
while the door was locked.
appellant came at her grabbed her roughly and told her she would
eventually oblige. He threw her on the bed, removed her panties,
warned her against making too much noise as she was shouting; and
having overpowered her inserted his penis into her front passage
without her consent and thereby raped her.
cross examination it was suggested that sex was by consent, and that
the only reason she got rough-handling from the appellant was that
she protested against some love affair the appellant had with the
complainant's relative Lineo. This the complainant denied vehemently.
PW8 Dr Tsolo testified that on examining the complainant's vagina she
that there were scars or scratches on the perineum. She was able to
complainant had had sex with a male shortly prior to the examination.
testified that the complainant had a scar below the left eye as well
as on the forehead.
would tend to corroborate the complainant's story that the flesh of
her face caught on the wire as she was forced through the fence by
the appellant. If I may go further, this would have no bearing on the
assault he meted as a result of the protest imagined by the appellant
that the complainant raised against the love affair between her
relative Lineo and the appellant. It has none whatsoever because such
assault, if at all relevant to Lineo affair, occurred inside the
house and not before the sexual act which according to the appellant
went off without an incident, - the cause of his assault on the
complainant coming only afterwards when she is supposed to call him
names including dubbing him a satan. The tear caused by the fence, on
credible evidence, occurred before the parties proceeded into the
in the Court below also called witnesses who indicated that they
heard the shouts and cries from the appellant's house on the relevant
night and times
different explanations for their failure to intervene. The 17 year
been suborned by someone to deny hearing the shouts and noises heard
by neighbours some distance away. His evidence was properly rejected
by the Court below.
relating his story in the Court below the appellant said he had been
in love with the complainant for approximately two years and that
they used to frequent the restaurant in question a number of times
beyond count and that especially when his wife was away like in the
instant occasion the complainant would spend the night at his house
and leave the next day at early dawn i.e. about 4 a.m. after nights
of sex and passion.
appellant testified that after drinking their liquor he and the
complainant left for his home. A couple of metres from the restaurant
the complainant complained about the appellant double-crossing her
with her close relative Lineo. This apparently passed without an
further to show that about 10 metres away from a shop, he and the
complainant went past a night-watchman. This stage of the journey in
to coincide with the period in the complainant's evidence when
shortly afterwards she says she protested vigorously and loudly
against accompanying the appellant to his own home.
appears to me that the main purpose of the appellant making mention
of this nightwatchman albeit so late in the day in the proceedings is
to give a lie to the allegation by the complainant that she was
crying out for if she was, then this nightwatchman would have heard
and come to intervene or indeed to give evidence to support the
the mistake the appellant is making when raising this important issue
so late in the proceeding is that because of its sheer importance,
and if true at all, it ought to have been put to the complainant; but
it was not. The appellant's lame excuse for failure to have had it
put to the complainant is simply that he forgot to have it put. Under
such circumstances the law is clear. The raising of this important
issue so late is a last minute fabrication and afterthought which
should be rejected on the score of inanity. Not only so; but because
in this respect the appellant seems to have had a clear motive to lie
because he must have had something to hide, the Court is at large to
utilise this unsavoury attitude as strengthening the case for the
the Crown's submission therefore that the appellant's grievance that
the court a quo erred in rejecting his evidence in toto is baseless
because nohow could that court regard it as reasonably possibly true
at page 10 of the record a question put on behalf of the appellant
to the complainant was that the accused would tell the court that he
proposed love to Lineo and that the complainant didn't like this, at
page 51 the appellant said it was true he was in love with Lineo and
the complainant was aware of the relationship
at page 11 it was stated by his counsel the appellant said he would
bring evidence to show the complainant and he were in love none was
forthcoming as it turned out.
at page 13 it is stated by his counsel that the accused will tell
court that it is true he clapped the complainant and beat her or
that he gave her a punch in the eye because she was calling him
names i.e. satan and insulting him, at page 51 (last line) the
appellant emphatically says "I never hit her with my fists"
at page 16 the appellant through questions put on his behalf by his
counsel admits going with four soldiers to the complainant's place;
and further says no soldier said that the appellant had said he had
beaten and raped the complainant; however in his entire evidence the
appellant makes no mention at all of ever going to the complainant's
house with the soldiers. In this respect then the
complainant's statement as to what the soldiers said concerning the
appellant should stand; namely that the soldiers accompanying the
appellant came to ask for pardon for their friend Montsuoe.
question of great importance as to what the state of the appellant's
mind was should not be overlooked with regard to his approaching PW3
Posholi Rasethuntsa the complainant's son.
that after he learnt of the rape of his mother by the appellant he
met up with him and the appellant tendered apologies to him. It is
questionable if the appellant didn't rape the mother that he should
feel the need to apologise to the son.
accepted as a fact that the appellant had raped his mother. The
question raised at page 26 suggests that the appellant had come to
apologise to PW3 for something different from what PW3 took him to be
apologising for. The pretence by the appellant that PW3 must have
understood him wrongly for he only had gone to apologise for the fact
that the love affair had come to the surface, is exploded by the
clear indication at p.53 that the appellant had reason to suspect
that the question of rape and not just the existence of a love affair
had been made known to PW3.
the appellant thus is unable any longer to keep up the pretence he
projected earlier that PW3 understood him wrongly, for now in his own
words the appellant is recorded as having said "..........what I
mean by our things have been exposed I mean that our affair has been
exposed in a bad way such that she was now claiming me to have raped
question of the stage when the jacket belonging to the appellant
tore is of vital importance. The appellant said it tore before the
duo got into the house. But the complainant says it tore when they
were already inside the house and before sex.
from the fact that the appellant said nothing to rebut this crucial
piece of evidence, it falls to the Court to rule on the proven facts
at what stage and in what circumstances the jacket tore.
into consideration that the appellant would have the Court believe
that the jacket tore over the Lineo issue it was indeed pertinent
that he should have put it to the complainant that the jacket tore
over the Lineo issue and not, as claimed by the complainant, over the
fact that the appellant was forcing her while already in the house to
Court is busy trying to resolve these two contrary versions a third
one is introduced on behalf of the appellant in head 2 paragraph 2
line 3 of the appellant's
argument that the jacket got torn after sex.
that the appellant made much capital of the fact that he and the
complainant had undressed to the point of nudity in order to enjoy
their sex freely, and that the complainant caused the quarrel by
raising the Lineo issue after sex, could he then be wishing to be
understood to suggest that during the middle of the night and amidst
this quarrel he picked up the leather jacket from where he said he
had placed it nicely before sex, and wore it such that the
complainant tore it during this violent encounter after sex!!
my view is another factor which necessitates the rejection of the
appellant's story on the one hand and calls into play on the other
hand an entertainment of an inference that he says this because he
has something to hide. Because this is inconsistent with innocence it
necessarily strengthens the case for the Crown.
argued that the factors raised in Blom vs Rex 1939 AD 188 at 202-3
have not been considered by the learned Magistrate in this case. In
my view such factors would arise if the case in point is based
totally on circumstantial evidence. But this instant one is not
because direct evidence is supplied by PW1 the complainant.
Velakathi vs Regina Case No.56 of 1984 (unreported) at page 5 The
Appeal said :
"There is no rule of law requiring corroboration of the
complainant's evidence in a case such as the present one. But there
is a well established cautionary rule of practice in regard to
complainants in sexual cases in terms of which a trial court must
warn itself of the dangers in their evidence; and accordingly should
look for corroboration of all essential elements of the offence.
Thus in a case of rape the trial court should look for corroboration
of the evidence of intercourse itself; the lack of consent and the
identity of the alleged offender. If any one of these elements are
uncorroborated the court must warn itself of the danger of convicting
and in the circumstances it will only convict if acceptable and
reliable evidence exists to show that the complainant is a credible
and trustworthy witness".
instant case the element of identity of the appellant has been
satisfied. The element of sex taking place is common cause.
in issue is if sex was with consent. Immediately when the question of
injuries that the complainant sustained arises, the question of
consent becomes vitiated. It becomes even more and more vitiated to
the point of extinction when the story given by the appellant is
inconsistent with innocence. In this regard the fact that he lied on
a number of important issues strengthens the case for the Crown.
has found that the complainant's story as supported by the encounter
appellant had with PW3 provides sufficient facts which are
inconsistent with the appellant's innocence.
has looked with care to ensure that relevant caution was exercised by
the Court below to avoid "inherent danger".
in which inherent danger is avoided appear to be all present in the
only distil some of them by reference to S vs Snyman 1968(2) SA 582
AD at 585 E where they were neatly set out by Holmes J.A. They are :
of the complainant in a respect implicating the accused.
of gainsaying evidence by him.
finding as to) his mendacity as a witness.
appellant's sorry state falls neatly into the three categories set
out above. The fact among others that the complainant had no longer a
shoe on one of her
when she got into the appellant's house satifies point (1) in that
the shoe was discovered the next day along the path where the
complainant was forced to tread by the appellant. Nohow could the
shoe have fallen if the duo proceeded peacefully to the appellant's
is satisfied among others, by the fact that the appellant failed to
bring evidence to prove the love affair.
is satisfied by the fact, among others, that he lied that the sexual
intercourse was with consent. He lied that he was in love with the
suggested that the five year imprisonment term was severe in the
light of the fact that the Magistrate did not even consider imposing
reaction is that in all my experience both before going on the Bench
while serving in the High Court and when on the Bench proper - this
spans a period of no less than twenty eight years -I have not come
across a case of rape where a fine was imposed instead of a custodial
punishment. Besides, as long ago as 13th February, 1989 in
CR1/REV/572/88 Rex vs Lehana Griffith (unreported) at p.2 this Court
to R vs Billam & Others (1986)2 ALL ER 985(C.A.) regarding
cases; and cited Lord Lane C.J.'s guidelines at pp 987-8 as follows :
"There are however, many reported decisions of the court which
give indication of what current practice ought to be and may be
useful to summarise their general effect".
Learned L.C.J. proceeded
"......For rape committed by an adult without any mitigating or
aggravating features, a figure of five years should be taken as the
starting point in an uncontested case".
further said :
"The crime should in any event be treated as aggravated by any
of the following factors :
is used over and above the force necessary to commit the rape;
weapon is used to frighten or wound the victim;
rape is repeated.
In either one or all the above categories 'the sentence should be
substantially higher than the figure suggested as a starting point'".
of the instant appellant falls neatly within the first two of the
above despicable categories. That it should be suggested that the
learned Magistrate should have imposed a fine when the sentence he
imposed seems to have been out of all proportion with the horrendous
aggravation reflected, astonished me. That I in turn,
almost more than ten years after hearkening to the message that
lenity of sentencing does not give sufficient protection and comfort
to the victims of rape, should be asked to intervene in this case
appears to demand of the law to turn logic on its head.
took issue that the complainant did not report to anybody in the
neighbourhood of ma-line (an ever-congested dwelling complex). The
record in my view shows that she tried the door closest to the
appellant's but the door was not let open to her because there was
nobody inside. The complainant's attempt to do what the law requires
of her being foiled by events beyond her control cannot properly be
regarded as proof that she was not raped. Moreover it is the
appellant himself who furnished the information that the complainant
knocked next door after leaving his house. Surely it cannot be
entertained that she went knocking there for purposes of going to
inquire after the health of the occupants there!
in this case while rejecting the appellant's defences and evidence as
false takes a serious view of the fact that the appellant even
threatened the complainant with a firearm during the struggle that
culminated in her getting exhausted and thus succumbing to rape.
hardly refer to intoxication in rape cases because as far as I am
below dealt satisfactorily with that aspect of the matter.
1 take a
dimmer view of the appellant's sordid act in the light of the fact
that the rape followed what amounted to a kidnap.
appellant is sentenced to (9) nine years' imprisonment less 2 months.
Appellant: Mr Hlaoli
Respondent: Miss Dlangamandla
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