CRI/A/19/2001

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MOTLALEPULA
CHELE APPLICANT

VS

REX
RESPONDENT

JUDGEMENT

Delivered
by the Honourable Mrs Justice K.J. GUNI On the 13th March, 2002.

The
appellant in this matter was charged and convicted of the crime of
rape by the subordinate court-sitting in MASERU and sentenced to five
years imprisonment. He has appealled against conviction on the
following grounds:-

1. The
   Learned Magistrate erred in ruling that there was a case to answer
   by the accused when the crown had not established a prima facie case
   in respect of every element of the crime with which appellant
   charged.

   
   

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2. The
   Learned Magistrate erred in concluding that the complainant did not
   raise alarm because she was ashamed.

   
   

3. The
   Learned Magistrate erred in overlooking or neglecting the evidence
   that there were several opportunities in which the complainant could
   have raised the alarm but failed to do so.

   
   

4. The
   Learned Magistrate erred in overlooking or neglecting the fact that
   the complainant's evidence that she was strangled and her arm
   twisted was not corroborated by either any other witness who was
   informed of the act or the medical report.

   
   

5. The
   Learned Magistrate erred in disregarding the evidence that P.W.2 was
   not allowed access into the house when she came back from her home
   and that she neither met the complainant on the only way to her home
   or hear any kind of struggle in the house.

   
   

6. The
   Learned Magistrate erred in admitting in toto and caution the
   uncorroborated evidence of the complainant as to the absence of
   consent and penetration.

   
   

The
history of facts of this case are as follows. On the night of 24th
January 2001 at about 7 p.m. the appellant came into the
complainant's house. He entered the house through the kitchen door.
He found the little boy of 13 years of age therein. He asked him
about the whereabouts of the complainant. The little boy indicated to
him the complainant is in the sitting room. She was at that time
reading her bible. The appellant enquired from

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her what
part she is reading in her bible. Perhaps she indicated. The
appellant remarked to the effect that the believers such as that
complainant cheat or are cheated by the bible or some such nonsense.
He quoted a verse from the bible where it is said "ask and you
will be given." Was he preparing the ground for his mission? The
answer will emerge as the facts unfold. The complainant nevertheless
endeavoured to explain to him what the quoted extract from the bible
meant. Because she had pots on the cooker still cooking their super,
she went into the kitchen. She invited the appellant to come along.
She might have genuinely felt the urge to engage the appellant in
this bible discussion. The appellant did not take up the invitation
immediately. The complainant peeped through from the kitchen and saw
the appellant standing. He appeared shocked or bewildered to the
complainant. When she noticed his reluctance to come into the kitchen
and the fact that it was getting late at night, the complainant asked
the appellant to leave and suggested that they could continue the
discussion the next day. He refused to leave. He remained therein
until the

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super was
served. That 13 years old boy took his plate of food after he was
served, to his bed and ate while sitting on his bedding. When he
finished his super he got into his blankets and therein he remained,
ready to sleep.

The
appellant took his time to eat. According to the evidence of both PW1
AND 2, the appellant eat so slowly that the two got fed up of waiting
for him to finish. They were lying inside their blankets on their
beds. The complainant told the appellant to go because she was really
tired and needed to retire. The appellant, standing by the door,
slammed shut it infront of him while he remained inside. Although he
was hidden behind the fridge his head peered above the fridge. The
child informed the complainant who was almost asleep that the
appellant is still inside the house. The complainant woke up and got
off the bed. She proceeded towards the appellant. Seeing her come the
appellant actually went out and shut the door behind him this time.
The complainant still proceeded to the door to ascertain that it was
shut and locked as it banged.

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Having
satisfied herself that the door was well secured she returned to her
bed after putting off the lights. They slept.

She was
later that same night awakened. She heard some movements coming from
the living room. When she peered from her bedroom she saw the
appellant in the passage. She told him to get out. She approached
him. She might have been angry because she told the court that she
pushed him. She asked him what had he come for. He answered that he
was visiting her, as he has always wanted her. He grabbed hold of her
and tried to push her towards her other bedroom. She resisted. She
pushed him and he fell. She then ran away and hit herself in the
bathroom. The appellant got up and went to her bedroom which she used
that night. He came out and switched off the light in the passage. He
entered the bathroom still searching for her. He found her and
grabbed hold of her. The struggle ensued. She loosened his grip and
escaped. She ran out of her house. The appellant gave a chase. She
fell. He then caught up with her and grabbed hold of her by her neck

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strangling
or choking her. He pulled her back into the house. Once inside the
house he pushed her onto the bed in the other bedroom. He was
scolding and/or insulting her. He called her "satan". He
complained that she pushed and fell him and not give him a vagina.
They struggled. The complainant was trying to loosen his grip. He was
as they struggled also removing her pants, which she was struggling
to keep on her. He pinned her down. The complainant was getting
tired. The appellant must have been gaining the upper hand. The
appellant succeeded to remove her pants.

Realising
that she was tired and the appellant was gaining the upper hand in
the struggle the complainant suggested that he should go home to
fetch condoms. He did not. He had sexual intercourse with her without
her consent and without the condom. The complainant had an added
worry of being infected with HIV Aids virus. While being so violated
she thought the suggestion to go and fetch condoms could appeal to
him and that he might leave for his home.

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While
raping her, the complainant noticed that the appellant was naked. She
did not notice him remove his pair of trousers and underpants. This
might just give an indication of how fears was the struggle leading
to the actual act of rape. The struggle continued and eventually the
complainant succeeded to push the appellant off. He fell down. The
complainant got up and ran out again. This time she hid by the toilet
outside her house. After some time she saw the appellant come out of
her house fully dressed up. He walked passed her by the toilet. She
heard him claim to himself that he will again have sex with her. He
did not see the complainant standing by the toilet as he walked
passed her. The complainant ran back into her house. She discovered
that that child was no longer there. Apparently she does not know
when and how the child left her house. She then ran to that child's
home to find it. When she knocked at the door of the child's home
there was no response. She returned to her house where she closed
both the

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sitting
room and kitchen doors which she found still opened. She slept.

At about
04.30 hours she got up and went to the child's home to check again.
She met the child's brother who reported to her about the presence
there of the child. The brother also pointed out to her that the
child has given a report to him about what had happened last night.
The complainant then went to make a report about the rape to one of
her neighbours who advised her to go and report the matter to the
police. The complainant decided to go to the headman first before
going to the police. This is the normal procedure.

At the
headman's place the complainant related the events of the night to
the headman in the presence of the appellant who has been there
together with her. The headman indicated to the complainant that he
(the headman) is being brought into the love affair matter and
apparently not prepared to assist the complainant. The quarrel
between the headman and the complainant arose as a result. The
altercation between them

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attracted
attention of the neighbours of the headman. One.of those neighbours
came to enquire about the quarrel. The complainant report once again
what had happened between her and the appellant. The headman's
neighbour asked the appellant if what is being related is true. The
appellant admitted that he raped the complainant. This man asked the
appellant why he did that. In an apparent attempt to justify his
action the appellant claimed that the complainant is his lover.
Whereupon this man asked him further if at all it is necessary to
rape one's lover. The appellant seemingly having run out of answers,
told that man that he should not ask him that. This man pointed out
to the appellant that as long as he is there at the chie'f place he
will be asked such questions. It is common .-practice in village
courts for all the villagers present thereat to take part in the
investigation and determination of the matter before that court. It
would appear from the exchange of questions and answers at that
village court the appellant had been nursing the sexual desires for
the complainant over a long period unknown to this complainant. She
recalled that he

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proposed
love some time back but she was not interested and she even went
further to tell the appellant's wife about that proposal. The
complainant was not aware that the appellant is secretly in love with
her. He seemed to have harboured in his heart the love or hate to get
her one day. He claimed to have been in love with her since the time
she lived in two rooms in the heigbourhood. The complainant extended
those two rooms into a big house in which she was raped more than
seven years ago. This is how long the appellant claims he has been in
love with the complainant.

The
complainant, who did not hide her dissatisfaction regarding the
manner in which the headman handled her case asked him to refer her
to the senior chief. Pretending to relent from his position of none
interference in ""private love affair" the headman
told her that he will bring the referal letter to her that evening.
He did not. The complainant proceeded to the senior chief-PW4 without
the referral letter from the headman.

To

After
receiving the complaint, the chief asked the complainant to return
the next day. The following day the appellant who must have been
called by the chief was present when the complainant related the case
of rape against him before the chief. As previously before the
headman the appellant persisted in his admission of having raped the
complainant and justifying it on the grounds that they (he and the
complainant) are lovers. It is obvious the chief - PW4 did not buy
the appellant's story. She referred the matter to the police who
arrested and charged the appellant with the crime of rape. He was
convicted of rape. He has appealled against this conviction.

The
effect of the grounds of appeal is a negation of lack of consent. The
complainant is accused of failing to raise the alarm. Is it
obligatory to raise an alarm? Which Law compels the victim to raise
alarm? She was raped in her own house in the middle of the night. She
was chocked or strangled when she called that little boy who sleeps
at her house. She was asleep

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when this
intruder awakened her. Everyone must have similarly been asleep in
their homes. Whom could she call for help at that ungodly hour of the
night? There is no law which compels the victim of rape to raise
alarm. Raising of alarm mere indicates or proves lack of consent.
Lack of consent to sexual intercourse can be sufficiently proved by
some other ways. For example the victim's evidence that she said "no"
to sex.

Another
reason is that she had succeeded previously to push and fell the
appellant. That must have given her confidence that she can defend
herself. Although the appellant did not appear drunk. He smelt
alcohol. That might have confirmed the complainant's believe that she
can manage to get rid of that drunk from her home. She hid herself in
the bathroom with the belief that failing to find her, the appellant
will leave for his own home. The learned magistrate properly accepted
as reasonable the reasons the complainant gave for getting no help
from inside or outside her home that night.

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The
appellant, being a man was much stronger than nearly half a century
old woman. She could not sustain a protracted struggle. The alcohol
may have been taken by the appellant only to help him summon some
dutch courage in order to attack the complainant. Evidence shows that
he did not appear drunk but only smelt alcohol in his breath at close
quarters as they struggled with the complainant.

There is
evidence that sexual intercourse did in fact occur between the
complainant and the appellant. True there is no medical evidence to
support that the appellant and complainant had sex. It could have
been helpful but medical evidence is not the only competent evidence
on which the court could rely for its finding that rape has been
committed. Where there is other evidence such as evidence of eye
witnesses, the accused being such a witness by his admission, the
court may still convict in the absence of medical evidence: There is
evidence of the complainant. There is evidence of the appellant that
sexual intercourse did take place between the complainant and the

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appellant.
( MOKHELE MOTSEPE and KELEBONE LETHOBA V Rex CRI/A/434/96
(unreported) at page 6 of cyclostyled record by LEHOHLA J.)

The
complainant is further accused of failing to report the crime at the
first opportunity. The complainant woke up at 4.30 hours, the morning
of the night she was raped. She went to report the rape to her
neighbour. This is an old woman who since 1983 has never had any sex
with a man. She is devout Christian. She is embarrassed and ashamed.
The violation by the rapist is very dehumanising. That is why of all
the crimes against the person, rape is the most unreported. The
complainant must have summoned all the power within her system to get
courage to go and report to her neighbour - PW3. Most of the time
rape victims are inhibited by the feeling of shame to publicise the
fact of rape. The learned magistrate properly found that the report
was made at the first opportunity PW3 was the first adult the
complainant met that morning. She specifically went to her to make
that rape report.

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The
cultural influence makes some people shy or reluctant to use certain
words. The vulgarity of the language used by the appellant was
intended to insult and hurt the complainant. Calling her "satan"
and asking her stupid questions like, why does she fell him down and
not give him a vagina; that he has always wanted her and that she
will give him the vagina merely shows the extend of his contempt for
her. He has no respect for himself or anyone. The complainant and the
police are accused of being unsure when they used words indicating
the likely charge as attempted rape or indecent assault. In sesotho a
word used is "Peto" for rape. "Tlhekefetso" for
attempted rape. The use of those words does not prejudice the
appellant because he has at all time admitted raping the complainant.
He understood exactly what he meant when he admitted raping her
because she was refusing to have sex with him. The choice of words
preferred by the appellant throughout, e.g. at the headman's place,
at the chief's place and before the police clearly show the court
that he understood perfectly the charge he was facing. It

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may have
been the attitude of the police initially to charge the appellant
with an attempted rape or indecent assault. The investigations and
the appellant's discussions disclosed an offence of rape. He was
charged with rape. He admitted raping the complainant. There is no
ambiguity.

CONCLUSION:

This is a
proper case for a counter appeal against sentence. Law office is
always caught napping. The perusal of the record clearly showed that
the appellant was correctly convicted. But comparing the sentence
with the present trend of sentencing in similar cases, this one was
out of step. There are aggravating features:

1. Appellant
   was uninvited guest. But nevertheless he was entertained - served
   with the super. He abused complainant's hospitality.

   
   

2. He
   ignored appeals from the complainant to leave the house because it
   was late and they (complainant & the child were already under
   the blanket & ready to retire for the night.

   
   

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3. He
   pretended to be gone while in fact he was still in the house. He
   slammed the door in front of him & hid behind the fridge. This
   is an indication of premeditation and deceit.

   
   

4. He
   was already by that action - torturing his victim He exhausted her
   with anxiety. He attacked the complainant under the cover of
   darkness. He took advantage of dealing with some old woman who was
   half-asleep and tired.

   
   

5. Most
   of all, he returned to the complainant's house in the middle of the
   night when everyone must be fast asleep.

   
   

Order:-

The
appellant was properly convicted

The
conviction and sentence are confirmed.

The
appeal must fail and it is dismissed.

K.J. GUNI

JUDGE

For
applicant - Mr. Thulo

For
Respondent - Ms. Maqutu

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