Lephoto, you know why you are here?
No, I was told that I was wanted here at the High Court
You must have received a letter didn't you............?
(intervenes) It is there.
:............telling you that you should come to the High Court on a
matter is going to be heard to tell the court why in the event that
you were properly convicted the sentence should not be
you have got two options. If you feel that you were not properly
convicted then it is for you to persuade the Court
to that effect. In
other words persuade me that you should be freed meaning that you
were found guilty wrongly. So that is the
first option you've got to
persuade this Court that you were improperly found guilty. Next
option is that even if you were properly
convicted in the Court below
then this Court should not - that is this High Court should not - try
to enhance the sentence. You
can use either of them.
Accd : I
found that the lower court found me guilty and yet I was not guilty.
(intervenes) , No no carry on tell me more.
the girl said I raped her, and yet I explained that I was in love
girl and that 26th day of June I didn't sleep with her, and again it
that she had sought for evidence.
What do you mean by that?
Acc : She
sought evidence to the effect that I slept with her, and the
informed by her that I had sexual intercourse with her. I was told to
Medical Doctor's Report, the Medical Doctor's Report denied to the
was not raped. And the blood stain that was on her was her
all My Lord.
H.L. : OK
Thank you. Yes Mr Rantsane, please talk in such a way that the
is able to tell that man what you are saying.
(Mr Rantsane) Thank you My Lord. My Lord as far as this case is
I'm convinced that the conviction was proper
first like to address this aspect raised by the accused namely that
the complainant was or is his lover like he has said.
It is true that
during cross examination at the lower court the accused tried to
bring about this issue saying that he had proposed
love to the
complainant sometime, some years ago before the date where the
complainant alleged she was raped, that was sometime
about in 1995.
What page is that?
is page 3 of the record My Lord. But this complainant denied saying
that the accused ever proposed love to her and I would
like to say
that My Lord this point falls away that the complainant and the
accused were in love it is point which he never established
at all. I
would like to go on to this point in which the accused says he did
not sleep with the complainant on the 26th July, 1998
which -no; it
was on the 27th June 1999 where the accused denied sleeping with the
complainant on that day. H.L. : What year is
C.C. : It
is this very year My Lord. The accused alleges or contends that Crown
witnesses were told by the complainant that she
had been raped by
this accused person. Now I would like to say that there is evidence
on record which shows that in fact this accused
person did rape the
complainant. First, I would like to comment on the evidence of the
complainant herself who was the first witness
for the crown. And who
is the one who says that she was raped by the accused. She says she
joined the accused who was in the company
of his two other friends
and that those two friends of his namely Mohale and Setlabocha, left
the accused with the complainant,
and that when they were only two of
them the accused raped her. Now I would like to show that the
complainant went on to say that
after that had happened he left and
went and as he left from the place where she was being
she had left her shoes there, she says that the back of her jacket
had some grass on it. She went on to say that these shoes
were brought by the accused himself, so looking at this facts one
cannot conceive how this could have happened, the complainant's
being left, complainant going home on foot, the jacket with grass on
the back without violence having been perpetrated on
Lord I would say this witness has to be believed and again I would
like to say that during cross-examination there is
nowhere where the
accused sought to suggest reasons which could lead to the complainant
falsely implicating him. From the record
it is clear that the
complainant, the accused as well as the other two friends of the
accused were well-known to the complainant
so much so that we can say
they were on good terms that's why the complainant even pleaded with
accused and his company to wait
for her. Again there is one witness
for the crown who is Lucy Thulo who was PW2, she said the complainant
did arrive and when she
looked at her she says she saw some dry grass
on the back of her jacket and that she was not wearing any shoes. Now
again it appears that she was told this immediately
after that incident had happened, so much so that it cannot be said
took a long time hiding this matter and then surely
came out with it after a very long time.
My Lord, there is also evidence here in the record which shows that
the complainant had some bruises on one of her thighs,
complainant said it happened when she was being tripped and as she
fell down, now things such as this could not have happened
case where the complainant had consented to what the accused was
doing on her.
finally like to comment on the evidence of the medical doctor, he was
PW5 Dr Wilson Mahlabula. He says he examined the complainant.
goes on to say if a patient had been namely the complainant if the
complainant had been raped.........(inaudible)......of
penetration be there in the form of bruises.
on however to say that the complainant was bleeding not from an
injury but possibly from a menstrual period, I would like
to draw the
attention of the court to what appears here on record. The doctor
says, the complainant was bleeding but not from an
that as far as he was concerned he did not observe any injury on the
complainant. He says the complainant was bleeding
possibly from a
menstrual period. Possibly I wish to underline that word "possibly".
Here the doctor in his evidence
did not deny My Lord that the
complainant was raped, he never said no, there has never been any
would like to say My Lord that the totality of evidence in this
record starting from the complainant herself up to the last
shows that this accused person in fact did rape this complainant. I
would therefore My Lord submit that conviction in this
case of the
accused person was proper and in order My Lord. Thank you My Lord.
Well it's a pity now you have to go it piecemeal like this because
you just went on to address only the first option that
I put to him.
That didn't deny him the second option which is the main one
actually. So I think I have got to call him upon to
aspect of the matter, perhaps as well as what we have just wasted
Lephoto, I had told you that you have those two options but it
appears that perhaps by mistake you felt that the only one available
to you is the one that you addressed. But you are perfectly entitled
to address me on the second option. It is actually the main
the court felt you should address now if what you have said has been
rejected why shouldn't sentence be enhanced. You
were given three
years why shouldn't it go above that?
Accd : My
Lord my appeal is that it shouldn't be raised because through the
had mentioned it was found that I was irresponsible.
How old are you?
Accd : I
am 22 years old.
What do you do for a living?
acc : I'm
am employed as herdboy.
H.L. : OK
thank you. Now what do you say about sentence Mr. Rantsane. You
address it perhaps because Lephoto the accused didn't address it.
CC. : I
have observed My Lord that this accused person has been sentenced to
a term of imprisonment of 3 years. My Lord I would
first submit and
surely so My Lord that it's a very serious crime. It is true My Lord
that sentence is usually a matter for, a
matter to be decided by a
Trial Court. But in this case My Lord, looking at the nature of crime
which this accused person has committed
I consider that this sentence
was too lenient My Lord and My Lord I would say it's so low so much
so that it is a kind of sentence
which even has or can have a
tendency to bring the administration of justice into disrepute My
Lord. And My Lord this will encourage
people to take the law into
their own hands, and it is true My Lord that in the sentences that
courts of Law impose there has to
be an element of mercy but in this
case this sentence was just too lenient.
My Lord I would say that is all that I would say.
Yes Lephoto you have just heard what has been said about the sentence
what is your reply to that?
Accd : I
hear My Lord that it is very lenient but in fact I didn't have sexual
intercourse with the girl.
Yes but man you see she told the Magistrate who believed her that she
shouted for you to let her go of her hand and that
then it happened
that somebody else heard her utter the same words "Let go of me"
you heard that somebody who confirmed
her story to that effect that
"oh well yes she did say let go of me"? Now I see the
Magistrate believed her because now
she had that support, because she
said despite her pleas you didn't let go of her and then she went to
the first house immediately
to report this thing to the first two
persons. I suppose one of them didn't accompany her to where she
wanted to go and report.
When she failed she went to the next
possible place of help. So you see the Magistrate believed those
Yes My Lord. H.L. : Anything else? Accd : No My Lord.
case i.e. Criminal Review the accused Letsolakobo Lephoto was charged
with a crime of Rape it being alleged that on or about
27th day of
June, 1999, and at or near Mr. Moorosi in the District of Quthing, he
did intentionally have unlawful sexual intercourse
with one 'Makubutu
Motemekoane, an adult female of about 22 years without her consent
and did thereby commit a crime of rape. To
that charge the accused is
recorded as having pleaded not guilty and as a result the Crown
sought to establish its case by calling
witnesses led by the
complainant herself as a first witness.
the lower court that on the day in question she saw the accused in
the company of others and asked them to wait for her
as she was going
to Mt Moorosi(lying ahead) where they were going ahead of her, but
that they didn't wait for her but kept on going
until she saw them by
the river and that it was in the evening. She called again for the
accused and his company to wait for her,
and at that time they did.
They went along. Accused's company were Mohale and Setlabocha. Then
the accused and one of them went
ahead, leaving the complainant with
went through some tree plantation, the complainant was surprised by
the emergence from behind her and that other of the
accused and one
Mohale. The two caught up with the complainant and Setlabocha and
then the accused mockingly remarked of Setlabocha
reprimanding him how he could come along with a woman all that way
without sleeping with her and then Mohale and Setlabocha
this remark. This was now after sunset and it was beginning to be
dark. It was perhaps well being encouraged by this
state of affairs
that the accused grabbed hold of the complainant's hand, and the
complainant protested saying that he should let
go of her, but he
refused to pay heed to the complainant's pleas. She struggled and
continued telling him to let go of her, but
the accused said "I
won't let go of you until I have slept with you".
complainant tried but in vain to free herself, and the other two had
gone ahead and slid out of view at that time. It was while
was going on that the accused used force that felled the complainant
to the ground injuring her on her thigh as this happened.
This is the
incident that is accountable for the bruise that she sustained on one
of her thighs. She says that the bruise was actually
caused by her
falling on a stone and that the accused was still holding on to her
when this happened.
accused pulled off the complainant's panty and inserted his penis
into complainant's front passage and started having sex with
effecting undulating movements in the process. The complainant was
trying even then, in her struggle, to free herself but
it is said, was holding her hand. Thereafter he rose and said he
didn't care whether the complainant was going home
or to her aunt's.
shows that she ultimately got to a her home where she in fact shows
that the first person she came across she related this
story to. But
that person declined to accompany her to the police. Only the next or
second one obliged.
somehow a delay in taking her to the doctor. Evidence corroborating
the question of the complainant shouting for the accused
to let go of
her is supplied by one of the men who went ahead of the two and one
cannot fault the Magistrate for having believed
the Crown witnesses
to that effect. There is also the evidence relating to the grass that
had stuck onto the complainant's jacket.
There is also the question
of shoes which were brought later to the home of the complainant by
the accused himself. All these couldn't
have happened unless force of
some sort had been used against the complainant or, at least against
her freedom of movement.
It is a
matter of no surprise that the complainant was shouting for the trio
to wait for her. The fact is that she and the accused
other. From what the record is suggesting she, the accused and those
two others appear to be all fellow villagers. She
reposed her trust
in them as co-villagers. And it is this type of trust that was
a lot of camaraderie between the complainant and the accused. For
instance the accused in his cross-examination made a
jest of the fact
that the complainant said the others should come and see the
accused's erect penis. The accused in his cross-examination
seem to suggest that what the complainanat was saying to that effect
was a lie. On the contrary it appears as if the accused
was trying as, the learned Magistrate correctly noted, to show the
complainant's character in rather bad light i.e.
as somebody who is
of loose morals; and perhaps hopefully; that if he succeeded then,
even if he raped her or had sex with her
it couldn't really have
mattered because in his view sleeping with a prostitute against her
will doesn't amount to anything unlawful
doctor gave evidence of course which did not support the commission
of rape, but it is not the business of a doctor to make
determination whether rape
place. The doctor's evidence taken along with the other evidence can
show or give a suggestion whether rape could have taken
doctor is not a court of law. The determination that rape took place
is a matter for the court taking along all other
often happened that the doctor's evidence becomes useless where a
complainant, a victim of rape, goes for medical attention
long a time has passed and when all tell-tale traces of even ordinary
consensual let alone forceful sexual intercourse
can no longer be
picked up. But that has never necessarily resulted with the culprit
being freed on just that score. The culprit
would only be discharged
if other evidence too is weak and unreliable.
coming to the law, I wish to refer to the case which came for review
before this very court. This was Criminal Review 572 of
(CRI/REV/572/88) Rex vs Griffiths Lehana (unreported) and dated 13th
day of February 1989. In that case at page 2, this Court
the remarks of Lord Lane C.J. cited from his decision in R vs Billam
and Others  1 ALL ER 985 at 987 to 988,
where his Lordship said
'There are however many reported decisions of the court which give an
indication of what current practice ought to be and it may
to summarise their general effect."
suggesting that for rape committed by an adult without any mitigating
features, a figure of five years should be taken as the starting
point in a contested case that learned Chief Justice
"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".
such incidents the sentence should substantially be higher than the
figure suggested as the starting point of five years.
I will come
back and address that point again more fully.
has observed that during the address by the crown in the instant
case, in the court below, the public prosecutor suggested
doctor had established that rape had taken place and had associated
the blood seen, with the commission of rape. But as
the accused even
now indicates the doctor didn't support that at all. I agree with the
accused on that.
inclined to think that the prosecutor in the court below was moved in
direction by over-anxiety to seek corroboration but happily the
learned Magistrate was not influenced by that.
position in law regarding corroboration has ben most aptly and most
fruitfully stated in a Court of Appeal decision sitting
in the case of Velakathi vs Regina Case No. 56 of 1984 (unreported)
at page 5. I hope all prosecutors will bear this
in mind when dealing with rape cases. The learned Judge of Appeal
"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 the essential elements of the
Thus in a case of rape the trial court should look for corroboration
of the evidence of intercourse itself; the lack of consent
identity of the alleged offender. If any or all of these elements are
uncorroborated the court must worn itself of the
danger of convicting
and in such circumstances it will only convict if acceptable and
reliable evidence exists to show that the
complainant is a credible
and trustworthy witness".
instant case putting oneself in the shoes of the learned Magistrate
who presided over this matter one finds that the Magistrate
was in no
doubt about the trustworthiness and reliability of the witness who
gave evidence of rape itself. So this aspect of the
matter falls four
square within the guidelines or the parameters
in Velakathi where, I repeat, the court will only convict if
acceptable and reliable evidence exists to show that the complainant
is a credible and trustworthy witness. Such is the situation even if
the elements are uncorroborated.
the instant case there is no mistake as to the identity of the
accused. The accused and the complainant came from the same
her evidence proved acceptable and reliable. The thrust of the
evidence as a whole shows that the complainant, as I said,
credible and trustworthy witness who braved even the attempts to mock
the quality of her morals by accepting the accused's
questions put to
her as long as they contained the truth even if in the process her
morals were revealed as not anything to boast
me, the accused denies that he had sexual intercourse with the
complainant but the Magistrate indicated in a well thought
judgment that with his line of cross-examination the court saw in the
accused a man who is not denying sexual intercourse,
Magistrate saw in the accused a man who is merely saying it was not
done without the consent of the complainant. So one
would be entitled
to say that the denials by the accused of his liability in the
commission of this crime amount to nothing.
the accused, as rightly pointed out by Mr Rantsane for the crown,
suggested that because he was in love with the complainant
intercourse that took place even in the face of the fact that it was
patently without her consent could not amount to
rape. I can only say
there are ways in which adolescent males can express love for their
girlfriends, but rape is not one of them.
accused didn't give evidence in the court below. But of course his
cross-examination was very good if one could say that. It
focussed and to the point. But as I have indicated on the facts of
the case and the approach that the Magistrate adopted
it seems that
perfectly sound and common sense solution was afforded this
particular case. So it is quite unrealistic under these
to have regard to the realms of conjecture when there is ready at
hand material that furnishes.......rational.....solution
problem. See S. vs Mlambo 1957(4) SA 727 A.D. at 738 letter E by
Malan J.A. Now going back to R vs Billam; at letter H on
page 987, it
is said :
"The variable factors in cases of rape are so numerous that it
is difficult to lay down guidelines as to the proper length
sentence in terms of years. That aspect of the problem was not
considered in R. v Roberts. There are, however, many reported
decisions of the court which gave an indication of what current
practice ought to be and it may be useful to summarise their general
For rape committed by an adult without any aggravating or mitigating
features, a figure of five years should be taken as the stating
in a contested case. Where a rape is committed by two or more men
acting together, or by a man who has broken into or otherwise
access to a place where the victim is living, or by a person who is
in a position of responsibility towards the victim,
or by a person
who abducts the victim and holds her captive, the starting point
should be eight years.
At the top of the scale comes the defendant who has carried out what
might be described as a campaign of rape, committing the crime
number of different women or girls. He represents a more than
ordinary danger and a sentence of 15 years or more may be
about all these, the Court has to take into account the question of
the extra distress which giving evidence can cause
to a victim. The
fact that the victim may be considered to have exposed herself to
danger by acting imprudently for instance by
accepting a lift in a
car from a stranger is not a mitigating factor and the victim's
previous sexual experience is equally irrelevant.
fact that this woman kept on saying the black one, [I don't know what
this black one actually meant] or that she had stayed
with the black
one meaning perhaps another boyfriend or whatever should not be taken
as an invitation for anybody to have had her
of the law is such that even a prostitute is protected by the law
rape against forceful entry into her. Having said this I find that
you were properly convicted by the court below and
appreciably higher sentence - regard being had to the fact that there
was that injury on the thigh of the complainant and
the fact that you
were in a more or less position of trust as far as she was concerned
having come from the same village and taking
into account the trauma
that she must have felt as it was getting darker and darker in the
forest -sentence is called for.
in dangerous days of the scourge of H.I.V. Aids and females are
entitled to protection against people who are inclined to
enter females without their consent and thereby communicate to them a
disease which is tantamount to a death sentence
to the victim. I have
already indicated what the starting points are. In the circumstances
I find that the Magistrate's sentence
was almost derisive from the
view point of its lightness. These cases which I have referred to
have been circulated on a number
of occasions way back in 1989. For
instance there is also this unreported case of Rex vs Selepe Kao
Criminal Review 245/89.
It is for
this reason that one finds that the Magisrates are not doing their
work properly if they fail to impose a minimum of five
rape. Anything below five years is really derisive for a rape case.
aside the three years' sentence imposed by the court below and
substitute in its place 9 years' imprisonment. This sentence
start from the time when the Magistrate imposed his own sentence.
: Mr Rantsane
Defence : In Person.
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