HIGH COURT OF LESOTHO
matter between :-
by Hon. Justice M.L. Lehohla on the 20th day of August, 2001
June 2001, this court acting in terms of section 328 of our CP&E
directed the Registrar to set the above appeal before it as soon as
actual minute appearing on the Judge's file reads:
"Registrar please set the matter down as soon as possible
appellant is in custody."
further gave the Registrar a directive as follows:
"Ask 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 found to be proper and correct."
appeal was accordingly set down for 08-08-2001 but only heard the
following day owing to the fact that Miss Nku who initially was to
appear for the Crown was held before another Judge in a criminal
09-08-2001 Miss Dlangamandla replaced Miss Nku for the crown while
Mr.Makotoko appeared for the appellant.
appellant was charged with the crime of rape for having heard sexual
intercourse with Lebohang Mphuthi without her consent, or in the
ALTERNATIVE the accused was charged with contravention of section 3
(1) of Proclamation 14/4 3 (sic) as amended - (Women and Girls
"in that upon or about the period between 1st June, 1998 and the
30th day of October, 1998 and the 30th day of October 1998 and at
Hlotse Reserve in the district of Leribe, the said accused did
unlawfully and intentionally have unlawful sexual intercourse with
Lebohang Mphuthi who was 15 years
the record does not show that any amendment was effected to the year
number of the Proclamation in point it seems to me that the correct
Proclamation dealing with "Women and Girls' protection" is
Proclamation 14 of 1949 as opposed to Proclamation 14/43 appearing in
the alternative indictment.
3(1) of Proclamation 14 of 1949 provides that:
"Any person who has unlawful carnal connection with a girl under
the age of sixteen years or who commits with a girl under that age
immoral or indecent acts or who solicits or entices a girl under that
age to the commission of such acts, shall be guilty of an offence and
being convicted thereof shall be liable, at the discretion of Court,
to a fine not exceeding one thousand rands or to imprisonment for any
term not exceeding six years."
conviction and sentence the appellant duly filed his notice of appeal
based on the following grounds:
Learned Magistrate erred in law in convicting the appellant on the
strength of the uncorroborated evidence of the complainant which
evidence did not even have the necessary safe-guards.
Learned Magistrate erred in law in convicting the accused on
circumstantial evidence which point (sic) out to various conclusions
which are not consistent with the guilt of the Accused/Appellant.
Learned Magistrate erred in assuming facts which are not sustained
by the evidence and basing her judgment upon them.
sentence imposed by the court is too harsh taking the particular
circumstances of the case into consideration
indicted in the main charge is alleged to have taken place during the
period, dates and the place set out in the alternative charge.
appellant aged at the time 48 years, pleaded not guilty in the court
below but was convicted and sentenced to two years' imprisonment by
that court presided over by then Resident Magistrate Mrs Nthunya.
evidence led in brief, in a rather prolonged proceeding in the court
below revealed that the complainant was born on 15-04-1983 and that
during the period covered by the incident she was barely 15 years old
according to PWl's evidence and her Mother 'Manoha PW4.
complainant was at that time attending school at St. Saviours in
Leribe doing standard VI. Her way to school lay fairly close to the
when the complainant's school had gone on a trip to Tsikoane, she met
the appellant who scraped an immediate acquaintance with her,
engaging her in small talk about whether she knows him, and that he
knew her parents and her sibling, including that he had often seen
her go past his house. The young girl's interest having been thus
aroused by the glib use of a foxy old man's tongue it was no
difficult matter for him to ask her to come to his house on her way
to school, and she easily obliged.
engaged her in small talk again in the house, asking her what class
she was in and having thus thoroughly gained her confidence by
manipulating her he asked her to come via his home again on her way
to school the following morning. She complied. The little girl
testified before the Resident Magistrate that nothing happened that
day and the appellant asked her to go home.
morning the appellant opened his curtain, beckoned to PW1 to come to
his house and told her that whenever she saw the curtain open at his
place she should come there. An additional development to the liaison
occurring between PWl and the appellant was that on subsequent
occasions when PW1 had responded positively to the curtain signal and
gone to the appellant's home on her way to school is that she would
be favoured with either M20.00 or M10.00. It was never disclosed to
her why these sums of money kept on being given to her by the
of significance and therefore one that should not be lost sight of is
complainant told the Court below that "--------He [The
appellant] told me to go
long as the curtain was open even if he did not call me."
If up to
this stage the reason for this has been obscure to PW1 it was soon to
be clarified by subsequent events which took place as stated by the
complainant at page 3 of her evidence, namely:
"Then one day I went there without him calling me. He had sex
with me that day and gave me M10.00."
witness went further to indicate that then sex would take place
between her and the appellant twice or three times a week. Each time
she would receive some money given to her by the appellant who would
then have sex with her in the bedroom of the appellant's big house
consisting of several rooms including a kitchen. However the
complainant knew only the bedroom and kitchen.
complainant went on to testify in the Court below that around October
1998 as the class VII pupils were writing their examinations she went
to the appellant's place in the morning and he gave her a R5.00 coin.
As she went out the door, her mother entered the gate and the
complainant gave her the R5.00 coin.
complainant and her mother went into the house where the mother
confronted the appellant after eliciting from PW1 in the presence of
the appellant what had been going on between the complainant and the
appellant. The highlights
had been going on between the complainant and the appellant was that
they had previously been engaging in sexual intercourse and that the
appellant was in the habit of giving the complainant sums of money
each time sex was to take place. It so happens that on this last
occasion sex did not take place.
appellant's reaction to this damning indictment by the complainant's
mother was a speechless bowing of his head. This conduct which is
alleged by the complainant to have been portrayed by the appellant is
so reminiscent of the vital aspects of Jacobs vs Henning 1927 TPD 324
cited at page 571 of The South African Law of Evidence 4th Ed. by
Hoffmann and Zeffertt that it bears reproduction as follows:
"However, as Van den Heever has pointed out, a court which has
believed the plaintiff's evidence will seldom have much difficulty in
unearthing some item of corroborative evidence. In L vs M
corroboration was found in the fact that the parties had been seeing
a great deal of each other, and in Jacobs vs Henning the plaintiff
was confirmed by evidence that the defendant said nothing when the
girl's father taxed him with being the course of her pregnancy."
remarks of the Court in Jacobs above with regard to the fact that the
defendant when thus confronted merely lowered his head and said
nothing were that no matter how unassertive a man might be, when
confronted with the charge thus laid to him if it was false, he would
react in a manner that showed his rejection of it as a sign of his
utter indignation towards what he regards as a false accusation.
could fittingly be expected of the appellant's reaction in the
instant case. But all the evidence led showed that he did none of the
things a man might do when his conduct is projected as being
consistent with a woman's story and inconsistent with his innocence.
when asked by the complaint's mother what he was to say to the fact
that PW1 said he would give her money, have sex with her and say to
her not to tell anyone all this the court below was told that "he
raised his hands and said that thing should remain between the two of
This is a
further factor which shows that the appellant must have realised that
the sordid saga of his implausible act could not bear any further
scrutiny. Thus he preferred it to remain concealed.
when confronted by the police the appellant denied ever giving the
complainant any Ml0.00.
cross-examination PW1 was taxed about the structure of the house and
relative aspects of its rooms. I think that although
cross-examination in this respect was somewhat excessive it
nonetheless helped show that the complainant had been inside the
house of the appellant. It also helped turn the purpose of the
cross-examiner's persistence on its head in that while at page 15 it
was suggested to PW1 as follows:-
"[Accused] would further say you used to go to his place to
Makhooane] in the morning and then go to school---------?
I went to his place only to see him. I never went there to fetch
anyone and I never saw that person"
18 the cross-examiner to my bewilderment put it to PW1 as follows:-
"You have never been into this house at all and this is why you
are not familiar with its set-up? I did not end in the kitchen but I
never came into these rooms."
mind it becomes plain that the cross-examiner by at once suggesting
that PW1 had gone to the appellant's place for whatever purpose and
in the same breath suggesting that she had never been to that place,
is projecting his client's instruction as blowing hot and cold. From
this instance it becomes easy to see why the appellant declined to
give evidence in his defence. Of course I am keenly aware that an
accused bears no onus to prove his innocence. It is the crown which
bears the onus to prove an accused's guilt beyond reasonable doubt
throughout. But where there is prima facie evidence against the
accused, he declines discharging the evidential burden at his own
position is well stated in the invaluable works of S.E. Van der Merwe
et al styled EVIDENCE at page 417 as follows:-
"The State will have established a prima facie case; an
evidential burden (or duty to adduce evidence to combat a prima facie
by his opponent—) will have come into existence i.e. it will
have shifted, or been transferred, to the accused. In other words, a
risk of failure will have been cast upon him. The onus still rests on
the State; but, if the risk of losing is not to turn into the
actuality of losing, the accused will have the duty to adduce
evidence, if he wishes to be acquitted, so that, at the end of the
case the court is left with a reasonable doubt--------."
appears that the story cast on crown witnesses as what the appellant
would tell the court was flawed by falsity throughout.
told on behalf of the appellant that she denied knowledge of the
appellant at the lady D.S.'s office. It turned out that PW1 was
present before the D.S. accompanied by her parents while the
appellant was also present. My reading of the record does not even
remotely suggest that PW1 denied that she knew the appellant while at
the D.S.'s office. It was never put to D.S. to confirm that PW1 ever
said she didn't know the appellant while at the D.S.'s office.
further false suggestion placed before PW1 on behalf of the appellant
was that PW1 was given the R5.00 coin in order to deliver it to
Mamello a relative of the appellant allegedly staying with him and
allegedly attending school with PW1.
testimony by both PW1 and the Principal of St. Saviours School in
Leribe PW8 Mabafokeng Sengoai indicated that there is nobody fitting
the name and description of Mamello Makhooane in that school. The
learned magistrate in the court below was entitled to reject this
false suggestion and in the process ask herself
motive for this false trail that the defence was bent on letting her
obvious reason would be she was thus being led astray because the
defence had something sinister and implausible to hide. Could it have
been merely the unwarranted invitation of a minor to come to his
house for purposes only of being treated to the appellant's largesse?
I think not. As the unrebutted evidence of PW1 showed it was sex.
becomes immediately curious also why the appellant would decide not
to hand the money direct to the spurious Mamello who stays with him
and rather give it to PW1 to deliver it to her.
proved by means of school registers that there never was or had been
a child named Mamello Makhooane at her school. It is the quality of
PW2's truthfulness that she was not cross-examined on questions which
had lavishly been heaped on PW1 in an attempt to show her in worse
light than she could have been. Why indeed could she have denied the
knowledge of a school mate Mamello if there was in fact any such
character whom she frequently came to see at the appellant's home?
The attempts by the defence to cast PW1 in the mould of a liar have
in my view had a detrimental effect by boomeranging on the party
seeking to benefit therefrom.
consistency with which the appellant gave PW1 the money established a
pattern of conduct that he indulged in to induce the impressionable
minor less than a third his age at the time to have sex with him. He
was cunning in his scheme to
a measure of confidence that the minor should repose on him such that
when he suggested to her not to tell anybody of the implausible and
shameful secret going on between him and the minor girl he almost
succeeded but for the fact that the timing of the minor's mother
finding her daughter in the situation in which she was i.e. in the
appellant's yard, having been in the appellant's house, alone with
him and carrying an unaccountable R5.00 coin from him left the minor
no option but to make a clean breast of her evil secrets to her
mother and tell all that had been going on behind the scenes aided
hitherto to survive under a well kept cloak of secrecy.
Mamajara Lehloenya's evidence went to show that the appellant is her
coworker and her Junior employed as a Town Clerk in the Hlotse
Township while she was a District Secretary in the Leribe District of
which Hlotse Township is a part.
October 1998 the appellant came to her office saying that there was a
woman wishing to see her on a complaint that the appellant had been
giving her daughter PW1 sums of money in the amounts of M5.00 or
appellant and PW4 the woman who was coming to the D.S. to complain
came into PW2's office. It is in there that PW4 charged that the
appellant had turned her daughter into his wife by having sex with
her. The appellant is said to have denied this charge. He however
stated that he used to give money to PW1 because
friends with the appellant's niece who stayed with him. The court
however at this stage knows on credible evidence that the so-called
niece was the product of the appellant's fertile imagination. Be it
remembered that the niece is the same girl who it was said would be
handed the money by PW1 who obtained it from the appellant for the
purpose. The same niece would be none other than Mamello Makhooane
concerning whom credible evidence showed was non-existent except
perhaps as a being of reason in the appellant's mind. In short much
as the appellant wished it to be believed that Mamello was at school
together with the complainant school records proved him a liar in the
first flight in this regard.
although to the police as shown above the appellant is to have denied
giving PW1 any Ml0.00 however the statement of PW2 at page 21 of the
record is not denied that "Accused informed me that he used to
give the child those amounts of money because she was friends with
his niece who stayed with them."
phrase he used to give the child those amounts betrays a continued
pattern of practice. Thus this uncontroverted statement puts it
beyond doubt that the appellant did not give PW1 only R5.00. PW2 was
not cross-examined on the statement that the appellant used to give
the child these amounts of money. The learned magistrate was
perfectly entitled to believe PW2 on that. Why then should the
appellant deny to the police that he gave the child M10.00 yet he
says nothing before court when PW2 shows he admitted giving the child
sums and sums of money? The lie in this inconsistency is consistent
later had PW1 to confront with the appellant. Her story was at
with that of the appellant. The Subordinate Court could thus be
scarcely faulted for accepting the only version that was presented to
it being that of the Crown and rejecting the hope entertained by the
appellant that in the face of his fanciful defences the court might
just be duped into confirming his innocence.
defence made much of the fact that the appellant was not charged
disciplinarily for misconduct. But I think this effort was a grasping
at the straws of a drowning man because his boss had unequivocally
advised PW4 in the appellant's presence to lodge a complaint with the
police. This was done and a charge immediately laid against the
Mphuthing corroborated PWl's story that at times they walked together
to school as they attended the same school. PW3 is aged a year
younger than PW1.
testified that at times the appellant would call for PWl to call
round his house. PWl would wait for PW3. Then after a few minutes'
wait PW3 would see PW1 emerge with some money. Sometimes in the
amount of Ml0.00. At other times in the amount of M20.00. It was
thanks to PW3 that PW4 got to learn of what was taking place between
her daughter and the appellant. Like a dutiful parent she took
immediate steps and dismantled the aura of secrecy the appellant had
cunningly hemmed around PW4's daughter. Of course PWl never told PW3
what she was consistently being given the money for. To that extent
the secret was kept away even from PWl's relative who was her
age-mate and school- mate.
cross-examination PW3 was awakened into an embarrassing yet false
recognition that the money was given to PW1 to give to Mamello.
Embarrassing because even though false PW3 was not in a position to
deny it. Thus even though PW3 couldn't deny it her failure so to do
did not and could not make the statement that the appellant was said
to be going to make true. The text goes:
"Accused would tell this court that he used to give money to
your aunt so that she gives it to Mamello. Can you deny —? I
cannot deny." See page27 of the record.
italicized the phrase in the above quotation and sought to
under-score particularly the phrase he used to give as a further
illustration that the appellant's instruction to his counsel could
never have been consistent for it should be recalled that it became
necessary for the astute prosecutor in re-examination in the court
below at page 19 to put the question as follows:
"Was it the first time accused gave you money when he gave you
No" because an attempt had been made to either deny that other
sums of money i.e. M20.00 and M10.00 had been given before or to
water down any such previous gifts.
attempt was made by the defence to make it appear as if the appellant
took the complainant to be much older than she was.
31 at the cross-examination of PW4 the complainant's mother it was
put to her and the text goes as follows:
"How old did you say your daughter was —?
She was born in May, 1983.
Accused would tell this court that according to his observation,
your daughter seems to be born in 1980-?
defence being tried to be raised by raising this question has serious
defects of its own quality. First it stands in oblique conflict with
the appellant's attitude that he never slept with the complainant.
For it suggests that while on the one hand he denies having ever
slept with her on the other it suggests that if the appellant slept
with her then he hopes to be acquitted of the charges he faces
because the complainant was above the magical and decisive age of 16
laid down by the statute.
refer to the relevant section of the statute which the appellant
seems to rely on albeit lamely, I should point out that the
examination carried out by the doctor on PW1 showed that she had had
sex the previous day. This did not come from PW1's evidence but from
the doctor. PW1 had indicated that she had last slept with the
appellant long before she received R5.00. But from the doctor's
evidence it appears on that day the complainant had had sex. The
conclusion is that the complainant had had sex with someone other
than the accused. Moreover the medical evidence had shown that PW1 at
the time of the examination on 30-10-98 had been sexually active.
However PW1 said she had been sexually active with the appellant.
coming to the relevant section of the Proclamation on Women and
Girls1 Protection one finds it is stated in Proc 14/49 section 3 (2)
"---------------------------Provided that it shall be a
to any charge under this section if it shall be made to appear to the
Court before which the charge is brought- (a) that the girl at the
time of the commission of the offence was a prostitute, that the
person so charged was at the said time under the age of twenty-one
years and that it was the first occasion on which he was so charged;"
italicized the word prostitute because it is the nearest in meaning
to the criticism levelled at the complainant that she was sexually
active and had slept with at least one other male than the appellant.
While the undeniable fact of the complainant fitting the description
of the word prostitute raises the appellant's prospects of acquittal
I am afraid that he should lose on the swings what he has made on the
round abouts. He loses because while admittedly it appears the girl
was, to put it bluntly a prostitute, I cannot see how a man of his
age i.e. 48 at the time could accommodate himself within the confines
of the age below 21 years specified in the statute if his defence
were to succeed. Thus even though the girl was sexually active at the
time covered by the charge the accused in order to succeed should
show that he himself was under the age of 21 years at the time.
(c) provides as follows:
"That the girl or the person in whose charge she was, deceived
the person so charged into believing that she was over the age of
sixteen years at the said time."
shows that neither the complainant nor her mother PW4 who is the
person in whose charge PW1 was, deceived the appellant into believing
that PW1 was over sixteen years of age. The appellant merely contents
himself with a question put from the bar that as far as he could
observe the complainant seemed to have been born in 1980. One would
have wished to know the basis of his observation and the impression
that PW1 seemed to have been born in 1980. Since there is no such
basis it stands to reason that this observation merits rejection on
the score of absurdity.
Makotoko for the appellant charged that the complainant could not
have been a reliable witness inasmuch as she did not confide to the
court that she had had sex with someone other than the appellant.
Much as it is regretful that this was not in PWl's evidence- in -
chief the fact of the matter is that she was being led by a
prosecutor who could be relied upon to know what he/she was doing
inasmuch as he or she on examination of statements within his/her
possession decided that the relevant evidence would be adduced on
behalf of the Crown by the doctor who testified and gave evidence
which, inferentially speaking, showed that although PW1 had had sex
over the previous 24 hours preceding examination conducted it must
have been with someone else than the appellant because in her own
evidence PW1 excluded the appellant from such possibility. That this
was the case does not absolve the appellant from his own brand of
sexual activity carried on earlier, more especially as indicated by
section 3(1) (a) which affords protection of under aged females not
just in name only but truly in fact.
that the defence sought to be raised had a high degree of falsity
touching unnecessarily even on manure that PW1 was supposed to buy,
the lot of the Appellant. See page 31.
Makotoko demurred at the fact that the crown while at once admitting
in their heads that the learned magistrate exercised her discretion
judicially when passing the sentence she gave, surprisingly submit
that the sentence is too light. I most heartily share with Mr.
Makotoko his bewilderment regarding this apparent contradiction in
terms and resultant fit of misapprehension on the part of the crown.
Logic and common sense cannot countenance need for interference by an
appellate court if indeed the discretion was judicially exercised by
the magistrate when passing sentence because sentencing is primarily
in the trial court's discretion.
Makotoko further took the crown to task by pointing out that the
learned magistrate seems to have excluded any conviction relating to
unlawful sexual intercourse but in the process has failed to say of
which of the four other sets of alternatives specified in section 3
(1) i.e. commission of (a) immoral or (b) indecent acts; or [a man
who] (c) solicits or (d) entices " a girl under 16 years of age
to the commission of such acts."
here Mr. Makotoko has a point that is in form only valid but not so
this because the charge is of rape in the main and breach of section
3 (1) in the alternative. The final verdict is guilty as charged. The
complaint is directed at the cloudy reasoning by the learned
magistrate where she said at page 55
"Although the direct evidence of what actually transpired in
that house was that PW1 was not corroborated in so far as it related
to sexual intercourse being (sic) taken place between herself and
accused on various occasions, circumstances show that something
unusual was taking place in that house. Something that accused was
prepared to pay for."
Makotoko accordingly submitted that the appellant was convicted of
"something unusual" and which is not any of the
alternatives set out in the statute or referred to in my judgement
above. I accept this criticism and would hasten to say the magistrate
here committed an irregularity.
the tenor of reliable evidence indicated in my view that sex indeed
took place and because the law could not countenance such an
absurdity as to conclude that the court convicted a person of
something that is not covered by the statute I would read "guilty
as charged" to mean guilty in respect of what is specified in
the section in question.
the appellant couldn't be found guilty under both the main and the
alternative charges at once he should be discharged from the offence
appearing in the main charge
evidence showed that sex took place between PW1 and the appellant.
There was evidence of use of money to induce sex to take place. There
was opportunity for sex to take place. There is an oblique suggestion
that it took place
the appellant according to his observation the complainant seemed to
have been born in 1980.
reading of the record places PW1 in the category of credible
witnesses involved in sordid acts. Otherwise if her style of life
should be allowed to prejudice her testimony in all cases as
unreliable on that account therefore as good as false, no prostitute
need bother laying complaints of rape before the police because
courts of law would invariably acquit the culprits. Her sordid acts
ought not to have blinded the court below to PWl's evidence i.e. that
sex was going on between her and the appellant on an ongoing basis.
Under age girls tempted by money to engage in illicit sexual acts and
sex workers who are sexually molested must enjoy the protection
afforded to them under the law.
buttress the point that it is hot the reasoning but the verdict that
can legitimately be appealed against I wish to rely on CIV/T/598/95
Masupha Ephraim Sole vs LHDA (unreported) by Ramodibedi J who said at
"I should like to say at once that the appeal by the Applicant
has largely been based on the mistaken premise that an appeal lies
against findings in a judgement yet in law an appeal only lies
against a judgement or order and not against findings."
same judgement is cited the authority of C of A (CIV) No 10. Of 1998
'Mathato Tabea Lefosa vs 'Maneo Doris Ntsoaki Mooki & ors
(unreported) at p.5 as follows:
"It needs to be said immediately that in several respects, this
appeal proceeds on the mistaken premise that the appeal competently
lies against findings in a judgement. This is not so. It is trite
that an appeal only lies against a judgement or order in the sense
analysed in Dickson and Anor vs. Fisher's Executors 1914 AD 424 at
427 and Holland vs Deysel 1970 (1) SA 90 (A) at 92 C -
93.------------------Thus if a party considers that orders have been
granted for the wrong reason, or even more generally, that there are
certain findings made in the course of a Judgement to which the party
objects, it has no entitlement on that basis alone to institute an
appeal. The crisp test is: did the court err in making the orders
which it granted? "There can be an appeal only against the
substantive order made by a court not against the reasons for
judgment. (Administrator, Cape vs Ntshdwagela 1990 (1) SA 705 (a) at
715 per Nicholas AJA)"
have gone to great lengths to treat of this aspect of the matter, it
was not seriously relied on as one of the grounds of appeal as it is
not set out among them. It only arose in arguments as a sudden query
against what it was actually that the court below convicted the
take solace in the provisions of our CP&E Act No 7 of 1981
to this effect:
case of any appeal against a conviction or sentence, which has not
been dismissed summarily under section 327, the
Court in its appellate jurisdiction, without prejudice to the
exercise by the High Court of its power under section 73 of the
Subordinate Proclamation 1938 or under section 8 of the High Court
Act 1978 [may]
such judgement 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."
(2) rams the point home by providing that:
"Notwithstanding that the High Court is of the opinion that any
point raised might be decided in favour of the accused, no conviction
or sentence shall be set aside or altered by reason of any
irregularity or defect in the record or proceedings unless it appears
to the court of appeal that a failure of justice has resulted
Makotoko argued that the evidence of PW1 was not corroborated and
that because there were no safeguards it ought to have been rejected
and the appellant acquitted.
court has repeatedly drawn attention to Velakathi vs Regina case No
56 of 1984 (unreported) at page 5 by the Swazi Court of Appeal
consisting of Maisels P, and Isaacs AJA where Hannah J in delivering
the judgement concurred in by the other honourable appeal court
judges who also served in Lesotho said:
"There is no rule of law requiring corroboration of the
complainants 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 fact that the complainant is a minor rules out the
question of consent.
keeping with Velakathi above T.T. vs Rex 1971-73 LLR 266 at 268 an
graciously submitted to me by learned counsel for the appellant,
albeit for a different consideration, is authority for the view that:
"The cautionary rule does not require that the trier of fact
should be told or should warn himself that there must always be
corroboration in these cases."
learned Smit JA sitting with Schreiner P and Maisels JA concluded at
page 270 with concurrence of other members of the court that:
"In view of all this evidence implicating the appellant, the
magistrate was perfectly justified in accepting the evidence of the
complainant and rejecting that of the appellant. This court is
satisfied that, notwithstanding the magistrate's failure to warn
himself of the special dangers inherent in the evidence of children
and victims of sexual assaults, there has been no miscarriage of
justice and that court, if it had properly warned itself, would
inevitably have convicted."
I have no
doubt that these remarks can be aptly adapted to the instant
situation. Consequently I find that the appellant is guilty of
breaching Provisions of Proclamation 14/49 section 3 (1) as charged.
regard to sentence in rape cases this court has repeatedly drawn
attention to guidelines outlined in R vs Billam & Ors  1
ALL ER 985 (C.A.) at pp 987-8
it is stated that
"------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."
vs R above the learned Smit JA said "The sentence of four years'
imprisonment imposed by the High Court is in the circumstances not
the remarks made by this court regarding sentencing in rape cases is
that with benefit of hindsight and experience gathered through the
passage of years it appears that protection of rape victims warrants
higher sentences than has hitherto been the case.
Cases 71 and 81 of 1988 Rex vs Neo Janki and Rantjana Khauta the
words of Cullinan CJ. as he then was are all the more comforting. In
CRI/REV/51/200 Rex vs Tseliso Phatsoane (unreported) at page 8 this
court in reference to Review cases 71&81 of 19.88 said :
"I said guidelines were proposed in those cases. I could do no
more than implore those charged with the administration of criminal
justice to keep those guidelines in mind when contemplating
imposition of suitable sentences in cases involving rape or sexual
CRI/REV/572/88 Griffith Lehana (unreported) at page 5 the sentence of
8 years' imprisonment was substituted for that of 5 years'
CRI/A/10/2000 Mashongoane vs Rex the court set aside the suspended
portion of six years' imprisonment. Reliance was heavily reposed on
Cullinan C.J.'s approach in REV/127/88 Rex vs Khotso Nalana where for
attempted rape 5 years' imprisonment was substituted for the 18
months' imprisonment imposed by the court below.
instant case the appellant, for his repeated sordid acts committed
against a minor, should count himself lucky that the maximum
prescribed by this antiquated law is only six years' imprisonment.
time the penalty in this statute were enhanced to keep abreast of the
advance made in imposing penalties under the common law.
acknowledged with appreciation that the Hon. Ismael Mahomed till
recently the President of our Appeal Court imposed 15 years'
imprisonment on a rapist in South Africa where the Hon. Mahomed was
Chief Justice before his sudden death (God bless his soul).
said this I would set aside the sentence imposed by the subordinate
court and impose 6 years' imprisonment in place thereof.
It is so
Appellant: Mr. Makotoko
: Miss Dlangamandla & Miss Ntelane
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