CRI/A/72/83 IN THE HIGH COURT OF LESOTHO
In the Application of :
KHETHISA MANAMA MOLAPO Applicant
V THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the 15th
On 17th June, 1983 the Applicant was convicted of rape
and sentenced to 2 years' imprisonment by the Resident Magistrate of
He appealed to the High Court against both his conviction
and sentence. The appeal was however, dismissed on 6th August, 1984.
The applicant has now filed an application in which he seeks an
order of this Court granting him leave to appeal to the Court of
Appeal, admitting him to bail pending the outcome of his appeal
and/or alternative relief.
In his founding affidavit the applicant avers, inter
alia, that there are reasonable prospects of success in his appeal.
of Appeal may take a different view from the High Court and
uphold the appeal. The Director of Public Prosecutions opposes the
and avers in his answering
affidavit, that the appeal has no prospects of success.
It is unlikely, therefore, that the Court of Appeal will interfer
decision of the High Court.
The detailed facts of this case are contained in my
judgment in CRI/A/72/83 dated 10th October, 1984 and I do not propose
to go over
them again. Surfice it to say the trial magistrate before
whom all witnesses appeared and testified accepted complainant's
evidence that before the applicant had sexual
intercourse with her she was physically assaulted and injured. The
her evidence that complainant did not consent to
sexual intercourse but for fear of sustaining further injuries
decided to submit
and offer no resistence. That could not be
construed as consent.
It is worth nothing that at his Criminal trial the
applicant was charged together with two other persons who, according
evidence, also had sexual intercourse with her
without her consent. Applicant's co-accused were however acquitted
at the end of the trial. It was contented in argument
that that was an indication that the trial magistrate regarded the
as an unreliable witness whose evidence should not,
therefore, have been accepted on other aspects, particularly that she
consented to sexual intercourse with the applicant. I was
unable to agree with that argument for it was clear from his judgment
the trial magistrate took the view that in order that a
conviction on a charge of rape
might be sustained it was necessary that complainant's
evidence should be corroborated. That did not mean that even where
been corroborated complainant's evidence could not be accepted
and used to sustain a conviction.
It was further argued that complainant's story that she
did not consent to sexual intercourse with the applicant was
with undisputed fact that applicant had undressed to
have sex with her. A rapist would never undress for fear of being
his unlawful act, so the argument went.
It should, however, not be forgotten that, according to
the evidence accepted by the trial Court, after she had been
and injured complainant decided to submit and
offer no resistance to sexual intercourse for fear of her life. If
for the reason she
had advanced the complainant was submitting and
offering no resistance to sexual intercourse I find nothing
unreasonable in that
the applicant could have relaxed and undressed
to have sexual intercourse with her.
In my view there are no prospects of success in the
appeal and for that reason I have no alternative but to refuse leave
appeal. It follows that the application to admit the
applicant on bail pending the outcome of his appeal to the Court of
-4-must likewise be refused and I accordingly order.
15th October, 1984.
For the Appellant : Mr. Unterhaulter For the Respondent
: Mrs. Bosiu
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