CRI/A/23/83

IN THE HIGH COURT OF LESOTHO
In the Appeal of
:

SEKHOBE LETSIE Appellant

v

REX Respondent

REASONS FOR JUDGMENT

Filed by the Hon. Mr, Justice B.K. Molai on the 1st
day of August, 1983.

On 30th May, 1983, I dismissed this appeal and intimated
that my reasons for the decision would be filed later. These now
follow.

The appellant pleaded not guilty to but was convicted on
a charge of rape by the magistrate court of Maseru sitting at
Semonkong,
it being alleged that on or about the 15th July, 1982 and
at or near Mokopung in the district of Maseru he unlawfully and
intentionally
had sexual intercourse with one 'Matselane Mosebi, a
girl of about 17 years of age, without her consent. A sentence of 2
years imprisonment
was imposed by the trial magistrate.The appeal was
against both the conviction and the sentence.

The facts disclosed by the evidence were that the
complainant's home was at Ha Lesua in the area of Ha Matlosa.

2/ On 15th July, 1983 ....

-2-

On 15th July, 1983, she and her mother (PW, 2) were
visitors at a place called Mokopung. They spent the night at a house
occupied
by 'Malebohang on the stand of one Tatolo.

While the complainant and her mother were sleeping in
the same house with 'Malebohang and a few other women, a certain
woman who was
carrying dresses in her hands came into the house. She
was immediately followed into the house by the Appellant and another
man.
The appellant who was the local court president in the area
inquired about the whereabouts of the owner of the place, Tatolo.
'Malebohang
informed him that Tatolo was not in and she was the only
person responsible for the place. Appellant then ordered the woman
who was
carrying dresses in her hands to leave the house and proceed
to a nearby local court. When the woman asked for permission to put
on her dress, the appellant and his companion forced her out of the
house.

Later on, the appellant and his friend returned to the
house and escorted away 'Malebohang herself and one of the women who
had been
sleeping in the same house. According to the appellant, the
women were locked up at the local court until 9.15 in the morning
when
he released them.

After some time the two men came back to the house and
ordered the complainant and another girl ('Macaola) out of the house.
When
the two girls were going out complainant's mother who was a
sickly person resisted and tried to stop them from leaving the house.
The appellant violently pushed her away and ordered the girls out.
When complainant's mother suggested to go with the girls, appellant
and his friend told her that,after all, they were going to lock up
the girls in separate rooms from hers at the local court.

3/ Although he

-3-

Although he conceded that when he visited Tatolo's place
for the third time that night he told complainant to go out of the
house,
appellant said he whispered to her so that her mother could
not hear what he was telling her and complainant's mother, in fact,
raised
no objection at all to the girls leaving the house.

It was common cause that the complainant and her mother
were seeing the appellant for the first time that night and he was a
complete
stranger to them. That being so, I found it highly
improbable that complainant's mother could have failed to demonstrate
her displeasure
and reluctance at complainant's leaving the house on
the order of the appellant, especially after the latter had been
taking away
a number of other women for undisclosed reasons. The
trial magistrate rejected as unconvicing the appellant's story and
accepted,
rightly so in my view, as more probable the crown version
that complainant's mother did resist and try to stop the girls from
leaving
the house.

Complainant's evidence further disclosed that after she
and 'Macaola had been ordered out of the house, appellant and his
friend escorted
them to the local court where the appellant forced
her into his house leaving the other girl with his companion.

Inside his house the appellant ordered the complainant
to take off her panty. When she showed reluctance and started crying,
appellant
told the complainant that that was not her mother's house.
He caught hold of the complainant, forcibly threw her on the floor,
violently
pulled off her panty when as a result its elastic band
broke, got on top of her and had full sexual intercourse with her
without
her consent.

4/ In his evidence

-4-

In his evidence the appellant told the court that after
the complainant and the other girl,'Macaola, had left the house and
were waiting
on the forecourt, he went to the former and proposed
love to her. His proposal was accepted and the complainant
willingly-agreed
to accompany him to his house at the local court
where they would have sex. He accordingly took the complainant to
his house and
had sexual intercourse with her. In the process there
was full penetration.

As proof that the complainant was, throughout, a willing
party it was argued that she did not even scream or cry aloud when
she was
taken to appellant's house at the local court and that if she
did the villegers would have heard and come to her rescue. The fact
that she did not scream was, therefore, in itself corroboration of
appellant's evidence that complainant had consented to accompany
the
appellant to his house where they would have sexual intercourse. I
had no hesitation in rejecting that argument. On the evidence
accepted by the trial court, the appellant and his friend had given
the impression that they were arresting and escorting those women
to
lock them up at the local court. I have never heard of people who
screamed and cried simply because they were being arrested
and taken
to a place where they would be locked up. The inference that because
she did not scream or cry aloud when taken to appellant's
house the
complainant was, therefore, a consenting party to a subsequent act of
sexual intercourse was, in the circumstances of this
case, a
non-sequitur.

Asked why he went about arresting women on that night
the appellant, with impunity, refused to answer that question and
told the court
that he would disclose the reasons for the arrests
only when and if he were prosecuted for arresting them. In that
event the court
could not be expected to speculate on the motive
behind appellant's

5/ unexplained series ....

-5-

unexplained series of arrests. It had to examine and
decide on the available evidence what his motive for the arrests was.
As it
will be shown in a moment after the appellant had taken the
complainant to his house and had had sexual intercourse with her, the
series of those arrests came to an end. The trial court concluded,
therefore, that on the evidence it was cleer that the motive
behind
the arrests was to strike terror in the minds of all the women who
had been sleeping in •Malebohang's house and pave the
way for an
easy access to the girls whom the appellant and his frien wanted to
abuse in the manner the appellant had done with the
complainant. In
the absence of any other reasonable explanation to the contrary, I
could find no good reason to disturb the conclusion
arrived at by the
trial court on this point.

Although the appellant contended that inside his house
he did not, as discribed by the complainant, forcibly had sexual
intercourse
with her there was unchallenged evidence accepted by the
trial court that after he had had sexual intercourse with her the
appellant
released the complainant who immediately returned to her
mother leaving behind her woolon hat. She did not even take time to
put
on her panty which she still carried in her hands when she came
back to her mother at ^!Malebohang's house. As scon as she
came to her mother, the complainant tearfully reported the ordeal she
had experienced in appellant's
house. She showed the panty to her
mother who also confirmed, in her evidence, that its elastic band was
broken.

The trial court considered the evidence and rejected as
false the appellant's contention that he did not forcibly have sexual
intercourse
with the complainant. It accepted as the truth the
prosecution evidence that the complainant was not a consenting party
and the
appellant had had sexual

6/ sexual intercourse

-6-

intercourse with her without her consent. That, in my
view, was the only reasonable conclusion to which the court a quo
could have
come on the evidence which clearly depicted the
complainant as a person who was genuinely hurt by what the appellant
had done to
her.

It was common cause that in the morning of the following
day complainant's mother reported the matter to the chief who
referred the
appellant to the police. P.W.3, W/0 Makhotla, cautioned
and charged the appellant who was put under immediate arrest.

No medical doctor was available in the area to examine
the complainant at the time and it was not until the 19th July, 1982
that she
was medically examined at Semonkong Heath Centre by a
certain Dr. Gibson, presumably a visiting doctor. As it took place
almost 4
days after the incident had occurred and naturally after the
complainant had already washed herself, the examination did not
reveal
anything of importance and the medical report (Exh A) compiled
by Dr. Gibson and handed in with the consent of the appellant was
of
little assistance (if any at all) in this case, However, in the
light of the evidence it had accepted the trial court found that
the
appellant had committed the offence against which he was charged and,
rightly so in my opinion, convicted him as aforsaid.

Coming now to the question of sentence, it must be
pointed out that Rape is a very serious offence in this country. To
convince oneself
of this fact, one has only to look at S.297 of the
Criminal Procedure and Evidence Act 1981 which provides inter alia :

"(1) subject to sub-section (2) or (3),

sentence
of death by hanging

(b) may be passed by the High Court

upon an accused convicted before

or by it of murder or rape".

(my underlingings)

7/ There can

-7-

There can be no doubt that a death penalty is a serious
sentence which the legislature in this country would not have
prescribed upon
a conviction on rape unless it took a very serious
view of this type of offence. Indeed, in a number of decisions, the
High Court
has had numerous occasions to point out that rape is a
serious crime calling for commensurately serious punish­ment. All
that
can be said, therefore, is that the appellant must consider
himself lucky to have been tried before a magistrate with First Class
powers who because of his limited jurisdiction could not, in the
circumstances of this case, have imposed a sentence exceeding 2
years
imprisonment.

I must, however, once more warn the appellant and people
of his mind that as human beings our women and girls have rights
which are
protected by the law of this land. They will not be
subjected to a treatment befitting only irrational animals. If the
warnings
of this court continue to be unheeded, I respectfully
endorse the words of Mofokeng, J. in Review Order 41/82 Rex v.
LeboneToang
Ramphobole and Mosiko Mosotho & Others that :

"In the final end all rape cases may have to be
tried in the High Court where suitable sentences may be imposed."

If anything, the sentence imposed by the trial
magistrate sinned on the side of leniency and I was not, therefore,
prepared to interfer.

In the premises, I came to the conclusion that this
appeal ought not to succeed and I accordingly dismissed it.

B.K MOLAI. Judge

1st August, 1983. For Appellant : Mr. Matlhare
For
Crown : Mrs. Bosiu.