HIGH COURT OF LESOTHO
Appeal of :
the Hon. Mr. Justice B.K. Molai on the 3rd day of July, 1988.
appeal has already been dismissed for the following reasons.
appellant, a 43 years old man, appeared before a magistrate with
First Class powers charged with two counts viz. Rape and assault
intent to do grievous bodily harm.
disclosed by the body of the charge sheet on count 1 were that on
19th May, 1984 and at or near He Seoaholimo in the district
Thaba-Tseka, the appellant wrongfully end unlawfully had sexual
intercourse with 'Mstlhoriso Tsoana, a 24 years old married
without her consent. On count, 11 the allegations were that on 19th
May, 1984 and at or near Ha Seoaholimo in the district
he unlawfully assaulted 'Matseko Sengoara with the intention of
causing her grievious bodily harm,
he pleaded not guilty the appellant was, at the end of the trial,
found guilty as charged on both counts. He was sentenced
to 2 years
and 9 months imprisonment on count 1 and II, respectively. The appeal
was against both the convictions and sentences
on the following
The conviction was against the evidence and the weight of evidence.
The learned magistrate erred in finding that the identity of the
accused was convincingly established.
The learned magistrate erred in rejecting the evidence of the accused
on a balance of probabilities."
In as far
as it was relevant the evidence, heard by the trial court was that
adduced by P.W.1 'Matlhoriso Taoana, the complainant
in count I who
told the court that on the evening of 19th May, 1984 she was
returning home from a feast which had been held a neighbouring
village of Ha Laka in the district of Thaba-Tseka. She was in the
company of two other women namely P.W.2, 'Matseko Sengoara, who
the complainant in count.II and P.W.3 'Mathota Rasebuku.
left the place where the feast had been held P.W.1 noticed the
appellant standing at a certain kraal in the village of Ha
After they had left the village the three, women were joined by a men
lived in the same village as they did. As they were going up a
mountain slope Patsa walked fast and left the women behind
would wait for them after he had reached the top of the mountain.
Patsa had disappeared on top of the mountain the appellant, who was
well known to the,three women come along in the company
man. They were going on horse back. The appellant then offered a
"lift" to the women who, however, declined
it saying they
were three and the horses only two. There was therefore,no way the
three of them could ride on the two horses. The
appellant and his
friend laughed and rode awy till they disappeared on top of the
came to the top of the mountain the women found Patsa waiting for
them. The appellant end his companion were nowhere to
be seen. The
women joined Patsa and were walking with him to words their home when
they noticed the appellant and his friend coming
towards them. They
were then on foot and the,women did not know what had happened to
arrival to the women and Patse the appellant and his friend started
assaulting Patsa who then ran away. The appellant and his
returned to the women who also tried to run away. The appellant and
his friend caught hold of p.w.1 and P.W.2, respectively.
managed to escape and hide herself behind a rock.
to P.W.1 when he caught hold of her the appellant started whipping
her all over the body with
sjambok. He threw her to the ground and ordered Her take off her
panty. When she resisted the appellant who was on top of her
violently pulled down P.W.1's panty which broke In the process. He
also pulled down his trousers and had full sexual connection
without her consent. In the course of her struggle with the appellant
P.W.1 sustained injuries on the arms. thighs and
satisfying his lust the appellant left P.W.1 and went to his
companion who was still physically struggling with P.W.2
in. the assault on P.W.2 by whipping her with his sjambok on the
cheek, head and all over the body. Eventually the appellant
companion left and the three women continued on their way home.
In as far
as it was material the evidence of P.W.1 was corroborated by that of
P.W.Z and P.W.3. According to P.W.3 she could clearly
see what the
appellant end his friend were doing to P.W.1 and P.W.2 from the spot
where she was hidding behind the rock.
Matseliso Taona, the mother-in-law of P.W.1 told the court that on
the evening of the day in question, P.W.1 came home crying
complaining that she hod been raped by the appellant. P.W.4 saw
P.W.1's panty which was torn and had what appeared to be semen.
immediately referred P.W.1 to the chief.
P.W.2 confirmed that after they had come home they did go to the
chief's place and reported what
appellant and his friend had done to them.. They were referred to the
police and then to Paray hospital where they were examined
treated by a medical doctor.
defence did not dispute the medical reports compiled in respect of
P.W.1 and P.W.2 which reports were by consent handed from
the bar as
exhibits "A" and "B".
findings' of the medical doctor were that P.W.1 and P.W.2 had,
indeed, been assaulted and as a result sustained multiple injuries
all over their bodies. P.W.1 had in fact been raped.
be no doubt, therefore that the evidence of P.W.1 and P.W.2 confirmed
by that of P.W.3 that they had been assaulted by
the appellant who
also raped P.W.1 was corroborated by the medical evidence.'
defence the appellant called Thabang Ramone to testify on his behalf
and he himself gave evidence on oath. Their evidence
was to the
effect that on the day in question they did attend the feast at Ha
Laka. They did not, however, see the crown witnesses
at the feast.
When they left the place of the feast in the evening of that day they
both went to a cafe belonging to one Lebesa
where Thabang Ramone was
employed as a night watchman. They were at the cafe until about 7.00
p.m. when the appellant returned
to his home. They denied therefore,
that on the evening in question the appellant and another person
could have been at the place,
it was alleged ho had assaulted.P.W.2
and P.W.1 and raped the latter.
Ramone conceded, however, that because he had remained at the cafe
when the appellant returned home he could not say with
after he had left the cafe the appellant did not go to the place
where he and another person were alleged to have
assaulted P.W.1 and
P.W.2 in the manner described by the crown witnesses. His evidence
did not, therefore, support the appellant's
evidence that after he
had left the cafe he and another person did not follow the three
women on their way home and attack P.W.1
and P.W. 2 in the manner
described by P.W.1, P.W.2 and P.W.3.
magistrate before whom all witnesses appeared and testified, accepted
as the truth the testimony of P.W.1, P.W.2 and P.W.
3 that on the
evening in question the appellant assaulted P.W.2 and P.W.1 and also
raped the letter. He rejected as false the appellant's
denial on this
also worth mentioning that under cross examination the appellant
himself conceded that prior to this incident he was a known
P.W.1, P.W.2 and P.W.3. The suggestion that the three women could
have mistaken the appellant's identity had, therefore,
no basis in
the circumstances of this case. Particularly so if it were borne in
mind that the appellant actually came face to face
with these women
on the evining in question I find nothing. unreasonable in the trial
magistrate accepting as he did, the
story of the crown witnesses
and rejecting that of the defence witnesses. Indeed the. appel-lent
himself could think of no good
reasons why p.w.1, P.W,2
would falsely implicate him in this case.
that the appellant had assaulted P.W.1 and P.W.2 with a sjambok and
inflicted upon them injuries which had to be treated
hospital as evidenced by the medical reports in exhibits "A"
and "8" - it must be accepted that he
did so with the
intention of causing them grievous bodily harm. The appellant was, in
the circumstances, correctly found guilty
as charged on count II,
regards count I the evidence of P.W.1 that the appellant had sexual
intercourse with her against her consent was corroborated
and P.W.3 both of whom told the court that they saw the appellant
assaulting P.W.1 before throwing her to the ground and
lying on top
of her. The fact that as soon as she came home P.W.1 reported to both
P.W.4 and the chief of the area that the appellant
had raped her had,
in my opinion, corroborative effect for if the sexual
intercourse had taken place with her consent it was
P.W.1 would have reported it as she did. The evidence of P.W.1 that
the appellant hod had sexual intercourse with
her was, indeed,
confirmed by the medical report of the doctor who examined her at
contended in argument that the,trial magistrate had not applied the
cautionary rule in this , case. I agree that in his reasons
judgment nowhere did the trial magistrate mention that he had warned
himself against the dangers that are inherent in cases
nature. However, considering the evidence as a
there was not the slightest doubt in my mind that notwithstanding the
misdirection by the trial magistrate the evidence of
P.W.1 that she
had been raped by the appellant was sufficiently corroborated by
evidence aliunde. Any court of law, properly advising
have found the appellant guilty as charged on count 1. I was not
prepared, therefore,to disturb the verdict returned
by the trial
court on that count.
now to the question of sentence,' it has already been painted out'
earlier that the appellant himself could advance no grounds
which-he based the appeal against the sentences imposed by the trial
magistrate. The offences against which the appellant was
were serious ones,in my opinion, calling for commensurately serious
punishment. I took the view that in the circumstances
of this case it
would not be proper to interfere with the sentences imposed by the
appeal was accordingly dismissed.
Appellant : Mr. Tsotsi.
: Miss Nku.
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