CRI/REV/245/85 IN THE HIGH COURT OF
In the matter of :
R E X v
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
19th day of September, 1989.
The accused aged 26 was charged before the Subordinate
Court, Mokhotlong, with the crime of rape.
The unlawful act is alleged to have been executed on
14th February 1989 at Bafatsana in Mokhotlong. 'Makae Kao was the
The accused pleaded not guilty to the charge. At the end
of the day he was convicted and sentenced to a term of five years'
The evidence revealed that the complainant 'Makao knows
the accused well as she and he live in the same village. The
was six months in the family way at the time of the
It was in the watches of the night and after the
complainant had put out the light when she heard dogs barking. In the
midst of all
this she heard a gentle but persistent knock on the
window to her house.
She inquired who was knocking at her window. Being
vouchsafed no reply she inquired again and simultaneously opened
and saw a man go past the window. When she advanced on
the man she recognised him as the accused.
When asked by the complainant what he wanted the accused
remained silent. The complainant suggested that the accused should go
the complainant's in-laws to say to them what he wanted.
There and then the accused grabbed hold of the
complainant, dragged her towards the lower ground. The complainant's
attempts at freeing
herself were thwarted by the accused's firm grip.
In the process the two stumbled and fell to the ground
in the forecourt. The pin which the accused was wearing gave way.
consequently fell to the ground. The pin was later
produced in court and the complainant identified it. It had been
from the scene along with a torch lid fitting the
The trial court heard evidence showing that the pin was
peculiar in two respects. First it was man made. Next it was
and known to a good number of crown witnesses
including the complainant.
A torch battery as well as the complainant's ear ring
were also collected from the scene. The complainant didn't know
battery this was.
The accused denied ever having been to the scene prior
to the picking up of the items referred to. Assuming the
ear ring was planted at the scene how could the
accused's items of property have been placed there without either his
his having previously been there?
Is it not a startling piece of coincidence that a pin
alleged to be his, and a torch lid fitting his torch and a torch
all collected from the scene.
To my mind the court below was correct in decision that
the accused's disavowal of these items of property as his was not
but was also a vain attempt aimed at dissociating himself
from the commission of the alleged crime.
It imports an element of wry humour that a pin which
ordinarily serves to bring two ends of a blanket together has in this
to link the accused with perpetration of the offence.
Likewise the parts of the torch whose function is common knowledge,
also helped throw light on the investigation of the crime.
It was argued for the accused that there hasn't been
proof of penetration. Further that medical evidence did not even show
accused was the culprit in that the medical evidence failed
to show traces of venereal disease which should have been found in
victim's private parts on account of the fact that the accused
was discharging puss from his penis owing to the venereal disease
was suffering from at the time.
This argument is flawed on the ground that the victim
did not receive medical attention there and than but after some
hours had elapsed. By then she had washed herself.
It was further argued that the learned magistrate had
not cautioned himself regard being had to the fact that this being a
offence it was necessary for him to have done so.
Indeed App. Case No. 56/84 Dicks Vilakati vs Regina - a
Swazi decision of the Court of Appeal (unreported) at p. 5 is
the view that
"There is no rule of law requiring corrobo-ration
of the complainant's evidence in a case such as the present one but
a well-established cautionary rule of practice in regard to
sexual cases in terms of which a trial court must warn
itself of the dangers in their evidence and accordingly should
corroboration of all the essential elements of the offence.
Thus, in a case of rape, the trial court should look for
of the evidence of intercourse itself, the lack of
consent alleged and the identity of the alleged offender. If any or
all of these
elements are uncorroborated the court must warn itself
of the danger of convicting and, in such circumstances, it will only
if acceptable and reliable evidence exists to show that the
complainant is a credible and trustworthy witness."
There is no mistake as to the identity of the accused.
The evidence adduced for the crown proved acceptable and reliable.
and tenor of it showed that the complainant was a credible
and trustworthy witness. The accused was shown to be a liar beyond
reasonable doubt. Thus his denials of his liability in the
commission of the crime came to nothing.
On these facts the "perfectly sound, rational,
common sense solution" to be found in the present case is that
was responsible for the perpetration of the crime, C/F
Mlambo 1957(4) 727 (A) 737D-F and it is quite unrealistic under these
to have regard to the realms of conjecture. C/F e.g. R
vs Ndhlovu 1945 AD 369 at 368; R vs Dhlumayo 1948(2) SA 671 (A) at
vs Sauls 1981(3) SA 172 (A) at 182H - 183B.
There are features pointed out in the present case that
the accused has, in my view rightly been found to have given
This is a factor which the trial court or even
this court is entitled to take into account as strengthening the
inference of guilt
of the accused from the facts set out in the
record of evidence.
In Broadhurst vs Rex 1964 AC 441 at 457 Lord Devlin
"It is very important that the jury should be
carefully directed on the effect of a conclusion, if they reach
it, that the
accused is lying. There is a natural tendency for a jury
to think that if an accused is lying, it must be because he is guilty
accordingly to convict him without more ado. It is the duty
of the judge to make it clear to them that this is not so. Save
one respect a case in which an accused gives untruthful evidence
is not different from one in which he gives no evidence
at all. In
either case the burden remains on the prosecution to prove the guilt
of the accused. But if on the proved facts two inferences
drawn about the accused's conduct or state of mind, his
untruthfulness is a factor which the jury can properly take into
as strengthening the inference of guilt. What strength it
adds depends of course on all the circumstances and especially on
there are reasons other than guilt that might account for unt
The medical evidence revealed that the complainant's
voice had gone hoarse showing that the voice box must have been
had scratches around the neck - proof enough of the
struggle that must have taken place resulting among other things in
ear ring falling off.
Much was made of the fact that the examination was
painless. It is doubtful whether this is not to be
expected of a woman whose pregnancy was due to come to
completion in three months thence.
More over it has time and again been said that unless
procured within a very short time medical evidence proves futile in
to determine rape from examination of the woman who has
had prior experience of sexual intercourse if such examination takes
after the normal life span of the sperms has elapsed - usually
some twenty four hours.
Further regard should be had to the fact that no history
of prior intimate relationship existed between
the accused and the complainant.
There is evidence that the complainant's
clothing was soiled. There is also the evidence thai:
she even passed out. There is evidence that villagers
came to her aid; drawn towards the donga where she
wasby her cry.
P.W.2 said when she approached the donga she saw someone
go past the donga.
The accused's conduct after the event cannot stand him
in any good stead at all. He said he refused to open the door to the
and messengers accompanying the chief to arrest him because he
feared they would assault him. Even though he was innocent? He
assault by the chief? The question immediately arising is
"innocent of what?" When later the following day the
were sent there the accused was nowhere to be found. Why?
It took the effort of police to run accused to earth and arrest him.
Indeed the record reveals that ...he remained silent
under cross-examination when it was pointed out to him that the
features of his
pin and its size were such that It could not have
been mistaken for any other.
His story that he had lost the lid of his torch at
Bafatsana feast amounts to nothing but an afterthought for he never
the crown witnesses concerning that when they referred to
the fact that it was found at the scene.
The accused did not gainsay P.W.5's testimony that he
saw him previously using the pin that was collected from the scene.
The question that the puss or traces of venereal
disease must have been discharged by the accused into
the complainant if he is the one who committed the sexual offence is
on the ground that the body mechanism is in constant fight
against infection or contamination by foreign bodies. Furthermore
if puss or traces of venereal disease were to be found in the
complainant's private parts, such finding would not necessarily rule
out the possibility that the complainant herself was suffering from
such disease. Argument based on this leg of the accused's case
nothing but speculative if not intended to serve as a red-herring
across the trail.
In the present case it is, I think, more productive to
withdraw from the quagmire of medico-legal theory to the firmer
ground of fact.
The magistrate was in no doubt as to the
complainant's identification of the accused. I agree with him.
In V vs A 1984 (2) Z1r at p. 140 - a
Zimbabwean decision McNally J.A. referring to Player vs
Williams 1981(3) SA 348 AD at 351 A to 352 D highlighted the
by Trengove J.A. in these words
"In summary, it was there decided that
corro-boration should not be insisted upon as a matter of law, but
that as a matter of
practice the court should always warn itself of
the inherent danger of acting upon the testimony of the complainant
in a (sexual)
In his sketchy judgment the learned magistrate seems to
have properly considered facts which were consistent with the
story and inconsistent with the innocence of the
accused. This in itself serves as a corroborative factor.
In any event Holmes J.A. in S vs. Snyman 1968 (2) SA 582
AD at 585 E set out circumstances in
-8-which the inherent danger is avoided. They are
Corroboration of the complainant in a
respectimplicating the accused.
The absence of gainsaying evidence by him.
(A finding as to) his mendacity as a witness.
Demurring application of dicta to facts in a piecemeal
and mechanical manner without taking account of the totality of the
McNally J.A. pointed out that
"It is the very danger referred to in similar
circumstances by Macdonald A.J.P. in R vs J. 1965 RLR 501 at 503,
1966(1) SA 88
(SR. AD) at 90E when he said "the exercise of
caution should not be allowed to displace the exercise of common
See S vs Snyman above at 598H
I am enamoured of McNally J.A.'s statement at p. 143
"The proper approach, it seems to me, is to look at
the totality of the surrounding circumstances and independently
facts. If it appears that a number of these facts and
circumstances point, albeit without overwhelming individual force, in
direction, then the sum of their collective force may be said, in
a proper case, to amount to corroboration sufficient to show a
balance of probability in that direction."
C.F. Mayer vs Williams above at 352s,
Although Mayer is a civil case it however has a bearing
on Lord Denning's dictum in Miller vs Minister of Pensions (1947) 2
372 at 373 where in reference to the criminal standard it
"It need not reach certainty, but it must carry a
high degree of probability. Proof beyond a reasonable doubt does not
beyond a shadow of doubt. The law would fail to protect
the community if it admitted fanciful possibilities to deflect the
If the evidence is so strong against a man
as to leave only a remote possibility inhis favour,
which can be dismissed withthe sentence 'of course it's possible
butnot in the least probable' the case isproved beyond
reasonable doubt "
As Co the accused's conduct after the offence it would
be productive to consider the words of Dunn J. in CRT. Case No.
85/86 The Queen vs Simon Musa Mphofu re: Sentence
(unreported) at p. 3 C/F S. vs X 1974 (1) SA 344 at 347H to
It is Che general experience of the courts that various
motives may exist for a complainant in a rape case other to concoct
of rape or to substitute the accused for the real
culprit. That is the underlying reason for the cautionary rule.
If; is unnecessary in this judgment to canvass such
motives save to say that one, not infrequently found, is a desire on
of a woman to conceal or explain evidence of an
extra-marital affair. Such evidence may, of of course, consist of
a sexually transmitted
disease and, while I do not suggest that that
was necessarily the position in the present case, the evidence that
would show that
the complainant was suffering from such a disease
would certainly be worthy of consideration in assessing the general
of her testimony.
Furthermore there was no suggestion that while the
sexual act was engaged in with consent initially, some disturbance or
by a third party prompted the complainant to feign a rape
charge against the accused.
Dogs had been barking because of the accused's intrusion
into the complainant's premises and the subsequent disturbance
by the accused dragging the
the complainant away. Witnesses heard this,din of
Clearly the pressure that the accused applied to the
complainant's throat made it impossible for her to shout. That her
still hoarse when she was later examined i.e. more than
forty eight hours afterwards is proof that such pressure would
make the victim lose consciousness. and or prevent her
from shouting for help. Any subsequent sexual act could not have
in with the complainant's consent.
Reasons for accepting the evidence of the complainant
advanced by the learned magistrate who though is relatively a novice
bench and therefore could not couch his judgment in terms
which would bear out the obvious, are enough in my opinion to support
the view that the accused was properly convicted as charged.
Hence on the footing that
" If any or all of these elements i.e.
(corroboration of the evidence of intercourse the lack
of consent and the identity of the offender) are uncorroborated, the
must warn itself of the danger of convicting and, in such
circumstances, it will only convict if acceptable and reliable
exists to show that the complainant is a credible and
I find that abundant evidence exists to show that
indeed the complainant was a credible and trustworthy witness on the
basis of whose
evidence the learned magistrate cannot he faulted for
having secured a conviction. Even though he did not expressly say he
himself the reasons he has advanced for believing her
exclude the possibility that he convicted when it was not safe to do
account of the dangers inherent in sexual cases. I must
however point cut that the learned magistrate erred by treating the
accused's admission of the offence in mitigation of
sentence as proof of the commission thereof.
It is significant in the learned magistrate's judgment
that a finding was made that the items of property collected at the
the one belonging to the complainant all connected the
accused with the offence and further that the accused "has not
that he had lent out these articles to anyone .I
It; is important indeed to note that in reference to a
judgment by an experienced magistrate, the learned Wentzel J.A. in C
(CRI) No. 5 of 1984 Khethi'sa Molapo vs Rex (unreportd)
at p. 2 said
"It is illuminating to interpose to say the
magistrate had written in his judgment that he had treated the
with caution and had warned himself of the
dangers of convicting without corro-
With regard to sentence it has repeatedly been pointed
out that a five year prison term is a minimum In respect of a benign
In R vs Billam and Others <1986) 1 ALL E.R. .
985 (C.A.) 987 - 988 penalties for rape are reflected and arranged in
a sliding scale of seriousness, at the
bottom of which is recommended
five years while life sentence is at "the apex of such scale
depending on the presence and the
inter-action of aggravating
factors. Our statute provides the death sentence.
In the instant case the sordidness of the rape was
aggravated by the savage pressure that was applied to the victim 's
the result that her voice went hoarse even days after the
occurrence. It is not clear whether the complainant lost
due to the rape or to the pressure applied to her
throat. But the result in my opinion was all the same because loss
-12-of consciousness terminated Che complainant's
In considering an appropriate sentence sight should not
be lost of the fact that the complainant was even pregnant.
Basotho society it is taboo to have sex with a pregnant
woman. But the serious view I take of the offence is that a woman
be subjected to such vile act during a time in her life when
any use of force on her could result in the loss of her baby or her
It is proper for me therefore to confirm the verdict but
set aside the five year prison term and in substitution thereof
of eight years.
J U D G E. 19th September, 1989.
For Crown : Miss Nku For Defence : Mr. Peete.
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