HIGH COURT OF LESOTHO
by the Hon. Mr. Justice M.L. Lehohla on the 10th day of August, 2001.
appeal has appeared several times on the roll without being heard.
8-9-2000 when it first appeared the judge who was to hear it was
unavailable hence the matter was postponed till 15-11-2000.
day the Crown was represented by Miss Mofilikoane while there was no
appearance on the side of the appellant.
appellant's name was called three times on the Public Address System
and the orderly who did so, came to report "no response" in
record of appeal reached the Judge's desk on 04-07-200 from
subordinate Court Thaba Tseka, I gave the following directive to the
Registrar of this Court i.e.
"Registrar : please place on roll and warn the appellant to come
prepared to argue in person or through his Counsel why sentence
should not be appreciably enhanced in the event that conviction is
had noticed that for a particularly aggravated form of rape the
appellant had received a somewhat light sentence which was rendered
even more ineffectual by suspending half of it to three years'
imprisonment which falls far below the starting point of five years
repeatedly made mention of in Judgements and review orders of this
Court in such cases as : CRI/REV/51/2000 Rex vs. TSELISO PHATS'OANE
(unreported); CRI/REVs/75 and 81/81 Rex vs. (1) NEO JANKI (2) KATJANA
KHAUTA (unreported) by Cullinan C.J. as he then was CRI/REV/5 72/88
GRIFFITH LEHANA (unreported) CRI/A/1/2000 MOSHE MONTSUOE vs Rex all
of which rely on Rvs. BILLAM & ORS  1 ALL ER 985 ( C A) in
respect of the guidelines suggested for sentencing in rape cases. For
a benign form of rape the starting point according to BILLAM above
should be 5 years where the accused pleads guilty. Where there are
aggravating factors the starting point is given as 8 years where use
of force beyond that necessary to accomplish rape is applied. Where
several other factors such as use of firearms or any form of weapons
are used or are threatened to be used to induce submission the
sentence should be appreciably higher than the 8 year starting point.
The same should be the case where rape is repeated or the victim is a
minor in the care or custody of the culprit.
15-11-2000 the matter was postponed to 05-02-2001 because again the
appellant did not attend court.
05-02-2001 the Court once more assembled. The appellant did not
respond to the call by the orderly to report in Court.
following note summarises the recorded minute of the day on Court's
Crown : Miss Mofilikoane
appellant: no appearance. Appellant's name called 3 times on the P.A.
system Orderly reports : no response.
Russell the Assistant Registrar informs Court that she wrote to the
appellant's Counsel informing her (i.e. Miss Ramafole) that the
matter would be heard today as well as delivering notice of hearing
to Police Thaba Tseka.
Mofilikoane assures Court that she met the appellant's Counsel and
notified her of the present date of hearing and of the Court's
concerns about non-appearance of either the appellant or his Counsel
on previous occasions."
appellant had been charged with the crime of rape of one Moleboheng
Mokebe allegedly committed on 5th July 1998 at Ha Ramokoatsi in the
Thaba Tseka District. The appellant had pleaded not guilty to the
charge and the matter went to trial. Witnesses were called, led and
cross- examined. But at the end of the day the appellant was
convicted of rape and sentenced to six years' imprisonment of which
appealed against the Subordinate Court's "Judgement" on the
learned Magistrate misdirected himself in holding that the appellant
raped complainant for the following reasons :
evidence adduced at trial did not support the conviction of rape
more especially because the other defence witnesses as well as the
Court witness supported the accused in his alibi.
grounds of appeal will be filed as soon as the record of
proceedings as well as the judgement are available."
further grounds of Appeal are as follows :-
learned Magistrate misdirected himself in finding that the Appellant
raped the complainant for the following reasons:
mere fact that the accused failed to mention that his mother was in
the shop with him is not in itself a basis for conviction on a
charge of rape (sic) the Appellant's story about his mother was
corroborated by the Court witness who was not in any way biased.
complainant's story and that of her witnesses ought to have been
treated with caution since they were her relatives and there is no
excuse whatsoever why the complainant did not raise an alarm even
when it is alleged that the Appellant ran away when PW 2 arrived, in
fact it must be pointed out that the same witness failed to answer
or say why he did not raise an alarm or chase the assailant.
Furthermore it is clear from the evidence of PW 2 that he never saw
the person who is alleged to have raped the Complainant.
learned Magistrate erred in holding that simply because the Court
witness 'Marorisang did not talk to other people except the
complainant therefore her evidence was to be dismissed as a
complainant mentioned in her evidence that she went to the shop once
to buy a candle and left before the Court witness, herself left,
(sic) It is submitted that the question which was posed by the Court
i.e. what time, and by whom was the complainant raped has not been
answered by the Crown who had to answer and proof (sic) same beyond
mere fact that the doctor concluded that penetration did occur does
not necessarily mean that the complainant was raped. The doctor's
evidence that (sic) not in any way corroborate (sic) the offence of
rape (sic) this is supported by the use of the words "it is
impossible to rule out rape."
so-called further grounds of Appeal above seem to be argumentative
and on that account tend to obscure the issues being sought to be
drawn to the Court's attention. Ground (e), where it seeks to deal
with the doctor's evidence, merely serves to obscure the point being
tried to be made.
It is of
vital importance for all practitioners charged with the important
grounds of appeal to heed the importance of maintaining brevity,
clarity and conciseness in going about that exercise. As it is now it
is impossible to see the wood for the trees in these grounds of
ground of appeal that is clear to me is the first one in the first
set of grounds which is based on the appellant's alibi.
response to this ground it is important to note that the Magistrate's
conclusion that the appellant's alibi was false is to be gathered
from the evidence the magistrate relied upon saying, according to DW
3 Makhosi Mashongoane, who supported the Crown case that "the
accused did have time [meaning I think occasion] to go out of the
shop whilst the shop was still open" see page 18 of the
clear that in going out of the shop the appellant's identifiable
features or face where not covered hence the witnesses's ability to
say they saw him.
buttress this point reliance should be reposed on the authority
submitted by Miss Mofilikoane for the Crown that in R vs. Hlongoane
1959 (3) SA 337 at 340 -41 it was said
"The legal position in regard to alibi is that there is no onus
on the accused to establish it and if it might reasonably be true he
must be acquitted. But it is important to point out that in applying
this test, the alibi does not have to be treated in
isolation...............the correct approach is to consider the alibi
in the light of the totality of the evidence in the case and the
Court's impression of the witnesses."
indeed be naive for the learned magistrate to overlook readily
available evidence which in part is firmly based on common sense that
the appellant was seen by people who knew him within the vicinity of
where the offence took place and allow himself the leisure of some
conjecture that even as the appellant was seen in point A he in fact
was in point B lying tens of miles away from point A.
the submission by the learned counsel for the Crown that the learned
magistrate has not misdirected himself in convicting the appellant of
rape. The learned magistrate didn't base himself on the failure of
the appellant to mention his mother's presence. Instead he convicted
him in the light of the evidence adduced by the complainant and other
crown witnesses. He only highlighted the disparity
between the appellant's version and that of his own witnesses to
indicate how hopeless the appellant's case was. Needless to add the
appellant's position is placed in particularly dim light by three
factors (1) absence of gainsaying evidence by him (2) a finding from
the facts that he is a liar and, (3) the medical evidence that
corroborates the act of sexual intercourse though for some obscure
reason made light of in ground (e) by the appellant as follows "it
is impossible to rule out rape."
magistrate cannot be faulted for believing the complainant's story
that the appellant raped her if he found her to be a credible and
reliable witness. Nor can he be faulted for believing PW 2's story
that the latter saw the appellant running away. The fact that PW 2
didn't raise an alarm cannot detract from the fact that the man he
saw running away was the accused. PW 2's explanation that he didn't
raise an alarm is plausible in the light of the fact that he didn't
know why the appellant was running away. PW 2 in this regard has the
credit of not falling into the temptation of falsely saying he raised
an alarm when he saw the appellant run away because he knew the
latter had just been raping the complainant. For being this honest PW
2 should rather be praised for truthness than condemned as adducing
worth bearing in mind the importance of a Swazi Court of Appeal
regard to corroboration, in Velakathi vs Regina Case No 56 of 1984
(unreported) at page 5 as follows :-
"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 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 credible and
light of the approach adopted by the learned magistrate in the court
below I find that he cannot be faulted for believing the complainant
and PW 2 whose evidence places the appellant within the vicinity of
the scene of events and inside the time frame of the occurrence
regard to sentence the rule is trite that sentence is pre-eminently a
matter for the discretion of the trial court. Thus an appeal court
cannot lightly interfere unless the discretion was not exercised
judicially. See Lebitsa & anor vs. R 1980 (2) LL R 404.
light of the desirability to send out a message to rapists as long
ago as 1988 as illustrated by JANKI and KHAUTA above that the game is
not worth the candle it would seem in halving the sentence of 6
years' imprisonment imposed by the court below the learned magistrate
has failed to heed the Superior Courts' clarion call to seriously
come to the aid of rape victims.
CRI/REV/132/97 Rex vs. Teboho Melamu this court expressed its
gratification that even in South Africa a clarion call has been
sounded to illustrate that those who indulge in rape are not to
expect any treatment with kid-gloves from
This court said :
is gratifying to note that last week the Chief Justice of South
Africa, the Honourable Ismael Mahomed, till recently the President of
our Court of Appeal, imposed a sentence that gave a clear warning to
rapists that they would be warehoused for a long time if they persist
in indulging their unwholesome lust against the will of women and
girls in that country." (the sentence imposed was 15 years'
imprisonment as against 4 or 7 years which till recently were the
message I am trying to transmit to Subordinate Courts should come
into clearer perspective in the light of the following
Phatsoane (unreported) at page 9 above is cited the case REV/127/88
Rex vs Khotso Nalana decided by Cullinan C.J. as he then was as far
back as 30th March, 1988. In contrast to sentences which till the
recent past had been imposed by Lesotho Courts for rape cases the
learned Chief Justice on review in that case set aside an 18 months'
imprisonment imposed by a Magistrate Class 1 at Butha Buthe
attempted rape and imposed 5 years' imprisonment in place thereof.
Thus if as far back as in 1988 for attempted rape the culprit
received no less than 5 years' imprisonment it would not sound right
that for rape actually committed and accomplished the culprit should
get away with an effective term of only 3 years' imprisonment which
is the balance of the 6 years whose half was suspended.
every factor into consideration I felt that the Justice of this case
required that conviction be confirmed but the suspension of the
sentence be set aside and in its place a sentence of six years'
imprisonment be imposed.
It is so
APPELLANT : NO APPEARANCE
CROWN: MISS MOFILIKOANE
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law