IN THE HIGH COURT OF LESOTHO
In the Matter of:
R E X
NDAY JEAN - CLAUDE
Delivered by the Hon. Mr. Justice B.K. Molai on the
28th day of June, 1991.
The six accused are before me on a summary charge of
rape. They have all pleaded not guilty to the charge. The facts
the body of the charge sheet are that on or about 10th
March, 1991 and at or near Victoria Hotel in the district of Maseru
acting in concert, did, one or other or all of them
unlawfully and intentionally have sexual intercourse with 'Manako
It may be mentioned from the word go that at the close
of the crown case Mr. Phoofolo who represents the accused in this
for their discharge on the ground that the evidence
adduced by the crown had failed to establish a prima facie case
for the accused to answer. The application
2/ was opoosed
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was opposed by Mr. Mdhluli counsel for the crown
in whose contention the evidence adduced by the crown did establish a
prima facie case for the accused persons to answer and it
would, therefore, not be proper for the court to discharge them at
In my view, two situations have to be distinguished
viz. the situation where an application for the discharge of an
person is made at the close of the crown case and the
situation where after the defence has closed its case the court is
determine whether or not the accused is guilty of the
offence against which he stands charged.
I am not aware of any law that compells a court of law
to deal with the question of credibility of evidence in the first
situation unless of course it could be said that the
evidence adduced by the crown was so hopeless that to decline to do
so and turn
down the application would be tantamount to asking the
accused to help built a case which the crown itself had failed to
The test to be applied in the first situation viz.
where an application for the discharge of an accused person is made
close of the crown case is that of prima facie case.
All that a court of law is expected to do in this situation is to
consider the evidence adduced by the crown and ask itself
question whether or not on the face of it such evidence
establishes a case for the accused person to answer.
3/ If the
If the answer were in the negative the court would
properly allow the application for the discharge of the accused
person. If, however,
the answer were in the affirmative the court
would be entitled to reserve the question of credibility of evidence
to the end when
the defence would have closed its case and refuse the
application for the discharge of the accused person.
I must, however, hasten to point out that where at the
close of the crown case the court turns down his application for
the accused person is not bound to go into the witness box
or call any witnesses to testify in his defence. He is entitled
tell the court that he is closing his case without leading any
evidence at all. In that eventuality the court would be bound to deal
with the question of credibility of evidence and apply the more
stringent test of proof beyond a reasonable doubt to determine
or not the accused person has committed the offence against
which he stands charged.
In the instant case there was evidence, adduced by the
crown, to the effect that on the night of the day in question, 10th
1991, the complainant was sexually assaulted by six men in a
certain room at Victoria hotel. The six accused were identified as
persons who had sexually assaulted the complainant.
I considered the evidence and came to the conclusion
that, on the face of it i.e. without going
4/ into the
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into the question of its credibility such evidence did
establish a prima facie case for the accused to answer. That
being so, the application for their discharge, at the close of the
crown case could not be properly
allowed. 1 accordingly dismissed it.
As it was perfectly entitled to do, the defence told the
court that in that event Nos. 1, 2, 3 and 6 accused would remain
close their case without testifying from the witness box.
Nos. 4 and 5 accused would, however, go into the witness box and
in their defence. Five (5) other witnesses were also called
to testify in support of the defence case.
The defence having closed its case, I shall now proceed
to deal with the question of credibility to determine whether or not
been proved beyond a reasonable doubt that the accused persons
have committed the offence against which they stand charged.
is common cause that the accused are members of a football team that
arrived in Lesotho from Burundi on Saturday, 2nd March, 1991
a soccer match against Arsenal football team of Lesotho . On their
arrival in Lesotho the members of the Burundi team were
at Victoria hotel here in Maseru. The soccer match itself was played
on the afternoon of Sunday 10th March, 1991
i.e. after the accused
and their team mates had been staying at Victoria hotel
for 8 days.
5/ It is
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It is further common cause that following their soccer
game the visitors from Burundi were, on the evening of 10th March,
to a cocktail party at Sechaba hall of Victoria
hotel by their host, Arsenal football team of Lesotho. It is also not
P.W.2 'Manako Motente, the complainant in this case is
employed as a cleaner in the housekeeping department of Victoria
As such her duties include, inter alia, providing room
service and the general cleaning, if and when required in the hotel.
At the material time she reported for duty from
3 p.m. up to 11 p.m.
In her evidence P.W.2 told the court that she was
married and had four (4) children whose ages ranged from 15 to 3
years. Her husband
worked at the mines of the Republic of South
Africa. He was last in Lesotho in January 1991. P.W.2 assured the
court that she did
not at all partake of intoxicating beverages. She
was, therefore, quite sober on the night of the day in question, 10th
P.W.2 testified that following the cocktails party that
was held in Sechaba hall in honour of the visitors from Burundi she
clean in the toilets next to the restaurant of the hotel. She
was wearing inter alia, her blue uniform overall, a panty and push-in
shoes. As she was leaving the toilets she was approached by A5 who
requested her, in the English language, to provide clean towels
According to the room-key which he showed to her A.5's
room was Number 153.
After he had told her to provide towels in his room A.5
parted with P.W.2 who then carried the tools she had been using to
the toilets, to the laundry room. From the laundry room she
went to the reception area where she left the key to the laundry room
with the Security Manager, one Thabane Mokeki, before proceeding to
room 153 on the first floor of the hotel building to collect
dirty towels. When she came to room 153, P.W.2 knocked at the door
and someone replied from inside: "come in" She opened
door and entered into the room. Inside the room there was electric
light and she clearly saw A5 seated alone on one of the two
proceeded into the bathroom, collected wet towels and went out of
room 153. She got into the elevator that carried her
down to the
reception area where she took the key to the laundry room from the
Security Manager. She went to the laundry room, deposited
towels into one of the washing machines and collected clean towels.
She returned to the reception area, left the key to
the laundry room
with the security manager and proceeded back to room 153.
It is, perhaps, necessary to mention, at this juncture,
that according to the evidence adduced before this court a burglary
place in the
7/ laundry room ...
- 7 -
laundry room of the hotel on the night in question. The
security officers had arrested the suspect and sent for the polite.
important, therefore, that as soon as the police had arrived
the security manager should be able to open the laundry room so that
they could attent to the scene of crime. That explains the reason why
P.W.2 had to leave the key to the laundry room with the security
manager every time she had to be away from the reception area.
P.W.2 went on to testify that when she came to room 153
carrying clean towels she again knocked at the door and a voice from
replied: "come in" When she opened the door P.W.2
found the room still clearly illuminated with electric lights. She
however, taken aback by finding A5 no longer alone in the room.
He was in the company of five (5) other men. Two of them were seated
on a bench-like structure which was fixed to the wall between the two
beds in that room, three on a double bed and one on a single
It has already been stated that the Burundi guests
arrived at Victoria hotel on 2nd March, 1991. They stayed there until
of 10th March, 1991. According to P.W.2 the Burundi guests
used to assemble at the foyer next to the reception of the hotel
proceeding, in a group to the restaurant for
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their meals. They were also moving freely in the hotel.
She, therefore, met them frequently as she was going about her duties
the hotel premises so that by the 10th March 1991 their faces
Were quite familiar to her. P.W.2 told the court that as they sat in
room 153 in the manner she had described A5 and his companions were
all facing in her direction. In the circumstances she had no
difficulty in seeing their faces and identifying them as the six
(6) accused now before court. She further told the court that
she had identified the accused she proceeded to the bathroom which
was also illuminated by electric light.
Whislt she was placing the large towels on the rails
P.W.2 had the occasion to look in the direction of the main room when
that the lights therein had gone out. She, however
continued placing the other towels on the rail. As she was doing so,
in the bathroom suddenly went out. She got a fright and
hurried out of the bathroom.
According to P.W.2 room 153 did not become pitch dark
when all its lights therein went off. The curtains were not drawn and
was provided by Kingsway street lights. The
illumination was, however, not sufficient to enable one to see
clearly in the room.
One could only see figures with the aid of such
9/ As she was
- 9 -
As she was hurrying out of room 153 P.W.2 found one of
the accused locking the door thereof. She tried to unlock it open but
caught hold of and strangled her by the collar of her
uniform overall. Whilst she was struggling to free herself the
came and held her by the arms and legs. She was
violently carried into the main room where she was thrown on to the
bed. Due to poor
illumination in the room she could not identify who
of the accused was holding her on the neck, arms and legs. After she
thrown on to the bed, P.W.2 felt a person rolling up her
peticoat and violently pulling out her panty whose elastic band broke
the process. One of the accused then got on top of her and
inserted his penis into her vagina. He had full sexual intercourse
When he had satisfied his lust, the first accused to
have sex with her got off P.W.2 and the other five accused then took
her. They, each of them, had full sexual intercourse with
her. According to her, P.W.2 was spread eangled on the bed all the
the accused were, in turn, having sexual intercourse with her in
room 153. Whilst the accused were thus sexually assaulting her,
was being strangled and, therefore, unable to scream loudly. She
could not feel any of the first five accused to have sex with
ejaculating. She assumed, therefore, that
10/ the accused
- 10 -
the accused were wearing condoms. However, whilst the
sixth accused to have sex with her was doing so, there was a time
when his penis
slipped out of the vagina. After he had re-inserted it
she could feel him ejaculating. P.W.2 assumed, therefore, that when
his penis into her vagina the accused was no longer
wearing a condom.
After the last accused to have sex with her had
re-inserted his penis into her vagina the other accused persons who
had been pinning
her down, on the bed, by the neck, arms and legs let
go of her and stood on the side of the bed. She was then able to
and tell, the last accused to have sex with her that
she would report the incident to the police. That accused eventually
free and went to stand with the other accused.,
According to her, as she tried to get up from the bed
P.W.2 felt pain on the neck, arms, waist, womb and vagina. She looked
shoes and panty which she found on the floor next to the bed.
She tried to put it on but could not as the panty's elastic band was
broken. She then used the panty to wipe her vagina before putting it
into one of the pocket of her uniform overall. After that she
her push-in shoes and, with some difficulty, walked out of room 153.
She was weeping as she left that room which still had
no lights on.
In her evidence, P.W.2 further told the court that from
room 153 she got into the elevator
11/ which carried ......
- 11 -
which carried her down to the reception area of the
hotel. When she got out of the elevator she was, as a result of the
had been perpetrated on her in room 153, still weeping.
Her uniform overall was torn at the neck and all over. She had also
a scratch on the right side of the neck.
The first person she met on arrival at the reception
area was the security manager, Thabane Mokeki, who immediately asked
the matter was. She explained to him what she has already
told the court. At the request of Thabane Mokeki, P.W.2 proceeded to
nearby office whilst the former went to look for Joseph Nkabani,
the duty manager of the hotel.
In the office P.W.2 found two police officers. She had
hardly entered into the office when Nkabani and Mokeki came in. In
of the two police officers and Mokeki, Nkabani asked
what it was that had allegedly happened to her. She told him what she
reported to Mokeki and repeated before this court. The
police officers then suggested that the officials of the Burundi
team should be sent for. Nkabani immediately left to fetch
them. P.W.2 remained in the office with the two police officers and
According to P.W.2 whilst they were waiting
in the office for the arrival of the Burundi officials
and Nkabani there was a time when Mokeki asked her to
and empty a dust bin. She took the dust bin and with
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some difficulty, walked to the foyer next to the hotel
reception where she was to empty it into a bigger dust bin. When she
the foyer P.M.2 noticed five (5) of the guests from Burundi
standing there. Amongst them she definitely recognised four (4) as
of the people who had sexually assaulted her in room 153. They
were accused Nos. 1,3,5 and 6. She emptied the dust bin and
returned to the office where she found Nkabani already
present. There were, however, no Burundi officials. In the presence
two police officers, Mokeki and Nkabani she reported that she
had just seen four (4) of her assailants in the foyer next to the
They all proceeded to the foyer where they found the
five Burundi guests still there. It could have been 1.00 a.m. She
Nos.1,3,5 and 6 accused as some of the people who had
sexually assaulted her in room 153 and explained that the fifth
with them was not amongst her assailants. According to
P.W.2 when she pointed them out at the foyer the four accused clearly
furious. They pointed at themselves and threw about their
hands uttering words she could not understand. No.1 accused even ran
and went up stairs in the direction towards the hotel rooms.
As she was in pains P.W.2 went to sit in the office
leaving the two police officers, Mokeki and Nkabani at the foyer.
Later on W/O
Raselo came and conveyed
13/ her in a
- 13 -
her in a police van, first to Maseru Central police
station and then to Queen Elizabeth II hospital where she was
examined by a medical
doctor. The examination was painful. After
examining her at the casualty department of the hospital the doctor
sent P.W.2 in the
company of a certain man, who apparently worked at
the hospital, to the main block of the hospital. At the main
block of the
hospital they found two ladies. The man who had been
accompanying her handed something to them. The two ladies examined it
a machine. P.W.2 and her companion then returned to the
casualty department of the hospital. On arrival some papers were
the doctor by the man who had been accompanying her
(P.W.2). Then another doctor came in. He took some documents from the
who had examined P.W.2, scribbled something thereon before
handing them to the hotel managers viz. Mokeki, Nkabani and a certain
Matsau who had apparently also arrived at the hospital. According to
her, P.W.2 returned with the managers to Victoria hotel. At
they found W/O Raselo to whom the managers handed the documents from
As she was still feeling pains P.W.2 went to sit in the
office. She emphatically denied to have met the doctor who was
the Burundi football team, on the night in
question. She denied that during their stay at the hotel there was
any love affair between
herself and the guests from Burundi.
14 / She denied .....
- 14 -
She denied that any of them ever offered her
Burundi money as a reward for sexual entertainment she had allegedly
rendered to him. She told the court that she
did not even know the
burundi currency or its value as compared to the local currency. She
denied to have ever gone to a room occupied
by any of the Burundi
guests other than in the course of her duties. I shall
return to in this judgement.
P.W.3, Thebane Mokeki, corroborated the evidence of
P.W.2 in material respects. He told the court that on the night of 10
a burglary had taken place in the laundry room of the
hotel. He and the other security officers, of whom he was the
arrested the suspect end sent for the police. In order
that he might open the laundry room as soon as the police had arrived
to the scene of crime he asked P.W.2 to leave the
Key with him whilst she was going about her duties in the hotel. He
remembered that there
was a time when P.W.2 came to him and asked for
the key to the laundry room so that she might provide
clean towels in one of the rooms occupied by the Burundi
guests. He gave her the key which she returned shortly thereafter.
P.W.2 was quite normal at the time.
After P.W.3 had parted with P.W.2 two police officers
arrived at the hotel. He took them to the laundry room where they
the scene of crime. Thereafter P.W.3 took the police
officers to the office whilst he
himself returned to his duty post at the foyer next to
the reception of the hotel.
He confirmed that at about 11.50 p.m. he was standing at
the foyer when he noticed P.W.2 emerging from the elevator clearly in
as she was Weeping hysterically unable to walk properly and
her uniform overall torn on the right side of the collar He
took P.W.2 aside and inquired what the matter was. P.W.2
told him that she had been raped by some of the Burundi guests at the
she was taking towels to their room. He then left to report the
matter to Joseph Nkabani, the duty manager at Victoria hotel. He
denied, however, the evidence of P.W.2 that when he went to look for
Joseph Nkabani he had requested her to go to the office.
Be that as it may, P.W.3 told the court that after
reporting to Nkabani he went to the office and reported to the two
who were in there According to P.W.3 it was whilst he
was still reporting to the police officers that P.W.2 came into the
He told the police officers that P.W.2 was the woman who
alleged to have been raped and she too confirmed it.
Whilst P.W.2 was still telling the police officers what
had happend to her Nkabani came into the office and inquired from her
it was true that she had been raped. She replied in the
then suggested that the matter should be suppressed as
it affected visitors of this country.
- 16 -
According to P.W.3 when she came into the office P.W.2
was no longer weaving her uniform. She was then wearing her own
When he asked her why she had changed clothes P.W.2
replied that she did not know that she was not supposed to do so. In
of P.W.3 Nkabani was not aware that P.W.2 had
difficulty in walking. In order to draw the attention of Nkabani to
that fact he asked
P.W.2 to go and empty a paper basket. She
When she returned to the office P.W.2 reported that some
of her assailants were at the reception area of the hotel. P.W.3,
and the two police officers immediately went with P.W.2 to
the reception area so that she might show them those people.
P.W.3 confirmed the evidence of P.W.2 that on arrival at
the recaption area they found five of the Burundi guests. Out of the
P.W.2 pointed Nos 1,3,5 and 6 accused as some of the people who
had raped her in room 153. When she pointed them out the four accused
became furious, touched their shirts and uttered some words he could
not follow. One of them even ran away and want up stairs. According
to P.W.3 the accused who ran up stairs was however, No6 and not No.1
accused as P.W.2 had testified.
P.W.3 went on to testify that as the two police officers
tried to talk to them the accused who had been pointed out by P.W.2
angry and clearly in a fighting mood. He decided to go to the
17/ and telephone ...
- 17 -
and telephone the charge office after which he returned
to the reception area. When he arrived there the accused left the two
officers and went in the direction towards their rooms. The
two police officers, Nkabani and P.W.3 himself returned to the office
where P.W.3 suggested that the officials of the Burundi team should
be sent for.
According to P.W.3 Nkabani went to look for them. When
the officials came the police officers explained to them that some of
players had allegedly raped a woman. One of the officials who
described himself as a. medical doctor asked where the woman alleged
to have been raped was so that he could examine her. He was, however,
told that he would not be allowed to examine the woman. A quarrel
then ensured over the issue and in the course of that quarrel one of
the police officers by the name of Polihali suggested that it
be better to phone his senior officer. P.W.3 took Polihali to the
office where he made a phone call. Shortly thereafter W/O
arrived at the hotel in the company of another police officer by the
name of Koma. After he had talked to Polihali W/O Raselo
to the Burundi doctor who insisted on being allowed to examine the
woman alleged to have been raped. He was still not
allowed to do so.
Thereafter W/O Raselo and Policeman Koma conveyed P.W.2
in a police van to the hospital for medical examination. P.W.3 also
vehicle which drove to Maseru Central charge office.
When the vehicle left the central charge office for the hospital
remained at the central charge office giving a
statement in connection with the burglary that had occurred at the
hotel. Having made
the statement P.W.3 returned to the hotel.
Later on, he and Nkabani went to the hospital. They were in the
company of the doctor
from Burundi who insisted on seeing P.W.2. At
the hospital they went to the casualty department where they found a
The doctor from Burundi told the local doctor that he
too was a medical doctor and wanted to have a private talk with her.
to P.W.3 he objected to the two doctors having a private
talk over a matter that concerned an employee of his hotel. There was
an argument over the issue as the doctor from Burundi was
demanding a private talk with the local doctor who was not prepared
acceed to the demand and P.W.3 was also insisting that it would
not do for the two doctors to hold a private talk over an issue that
affected an employee of his hotel. In the course of the argument
W/O Raselo came in and asked what it was that the doctor from
wanted at the casualty department. When the latter insisted on
examining P.W.2 W/O Raselo ordered him back to his hotel.
from Burundi complied although clearly dissatisfied for he
complained that the matter was a scandal. After they had
the hotel W/O Raselo also came there. He met the general
19/ manager .....
- 19 -
manager, Garry Webbestock, with whom they went into the
office whilst P.W.3 remained outside. Shortly thereafter the general
called and instructed him (P.W.3) to take W/O Raselo to room
153 as the latter wanted to see the occupants thereof P.W.3, P.W.3,
W/O Raselo, the general manager and the doctor from Burundi then
proceeded to room 153.
It is not clear from the evidence of P.W.3 when the
doctor from Burundi came in. In any event P.W.3 went on to tell the
when they came to room 153 the doctor from Burundi knocked
at the door, woke up the occupants thereof and told them to come to
reception area where they were wanted. Nos. 4 and 5 accused were
the people who came out of room 153. They came down to the reception
area from where they proceeded to the office. P.W.3 himself did not
go into the office.
P.W.3 further told the court that after she had returned
from the hospital P,W.2 went with him and W/O Raselo to the laundry
where she showed them her blue uniform overall and the panty
which was in one of the pockets. W/O Raselo took possession of both
the uniform overall and the panty.
The duty manager, Joseph Nkabani, gave evidence as
P.W.10 and corroborated the story of both P.W.3 and: P.W.2 except in
material respects. On the night in question he was in
the restaurant of the hotel where he received a
20/ certain report
- 20 -
certain report from one of the security officers and not
P.W.3 as the latter wanted to impress the court. He also denied the
of P.W.3 that after P.W.2 had reported to him what had
happened to her in room 153, or at any time for that matter, he ever
that the matter should be suppressed as it would scandalize
the visitors of this country.
According to P.W.10 when they were pointed out by P.W.2
at the reception area, besides throwing about their hands the four
also uttered the words: "me, no! me, no! " When he
went to look for and failed to find, the officials of the Burundi
he was in the company of a certain member of Arsenal football
team by the name of Tom who has not however, testified in this trial.
At the time the Burundi doctor eventually came to the reception
P.W.10 was standing with Tom, the two police officers, P.W.3 and
P.W.2. He denied therefore the suggestion that P.W.2 was not present.
According to P.W.10 when he came to the reception the
doctor from Burundi was angry and before anything could be said to
him by anyone
he started inquiring about the allegation that his
players had raped a woman. P.W.10 denied, therefore, the evidence of
before the doctor made the
In his evidence P.W.4, Tpr Polihali, told the court that
he had been in the police force for only two years. At about 10.40
10th March 1991 he was on duty at Maseru Central Charge
Office. He received a certain report following which he proceeded to
Hotel. He was in the company of Tpr Maluke who has, however
not been called as a witness in this trial. At the hotel they met
who handed to them a person alleged to have been arrested by
the security officers for committing burglary. P.W.3 then left them
in his office for some time. When he returned P.W.3 reported that a
woman had allegedly been raped in one of the hotel rooms.
Immediately after P.W.3 had made the report P.W.2
entered into the office. She was wearing private clothes i.e. a
floral dress and
not a uniform overall. When P.W.3 asked her whether
she had already changed the uniform P.W.2 replied in the affirmative.
entered into the office P.W.2 was weeping and obviously
walking with some difficulty. She reported to him (P.W.4) and his
that she had been raped by some of the Burundi players. At
that stage P.W.3 left the office saying he was going to call another
It is to be remembered that the evidence of P.W.2
confirmed by that of P.W.3 was that the latter went to look for
P.W.10 at the time
P.W.2 and P.W.3 met at the reception area and
according to P.W.3
22/ before .....
- 22 -
before he went to report to the police officers in the
office. I am prepared to accept as the truth the evidence of P.W.2
by P.W.3 on this point. That being so, it seems P.W.4
cannot be correct in his evidence that after P.W.2 had come into the
P.W.3 left saying he was going to call P.W.10. I reject his
story as false on this point.
In any event P.W.4 went on to tell the court that whilst
P.W.2 remained with him in the office he noticed that she had a fresh
on her neck. She said she had sustained the scratch whilst
she was being sexually assaulted by her assailants.
When he returned to the office P.W.3 was in the company
of P.W.10. On arrival P.W.10 immediately asked P.W.2 whether it was
she had been raped. She replied in the affirmative and
broke into hysterical weeping. According to P.W.4, P.W.10 then
him and his companion not to arrest the people who had
raped P.W.2 as that would scandalize the Burundi country. P.W.4,
replied that since the matter had already been reported to
him and his companion as police officers legal steps had to be taken.
Although P.W.10 denied that he ever suggested to anybody
that the rape affair should be suppressed the evidence seems to be
against him. I am inclined to believe that he did and in
23/ he was
- 23 -
he was not being honest with the court.
P.W.4 confirmed the evidence that whilst P.W.10, P.W.2
and P.W.3 were in the office, P.W.2 went to empty a paper basket at
of P.W.3. It may be mentioned that in his evidence P.W.10
denied this. I find it reasonable to accept as the truth the evidence
P.W.3 corroborated by that of P.W.2 and reject as false P.w.10's
uncorroborated version on this point.
P.W.4 further confirmed that when she returned into the
office P.W.2 reported that four of her assailants were in the foyer
the hotel reception. P.W.10, P.W.3, P.W.2, P.W.4 and his
companion then immediately proceeded to the reception area where they
five (5) men. Out of the five P.W.2 pointed out four as being
some of her assailants. He could no longer identify them as that was
the only occasion he saw the four men.
However, P.W.4 confirmed that as they were being pointed
out by P.W.2 the four men threw about their hands, held their shirts
even shook their heads. When he himself showed them his police
card telling them he was a police officer and they should come with
him the four men threw about their hands as a gesture that they were
not prepared to go with him. One of them in fact left and went
stairs. He however, returned on the way before he could get out of
his view. He was then wearing a different shirt
and holding in his hand the shirt he had been wearing
before running up the stairs.
The evidence of P.W.4 that one of the men pointed out by
P.W.2 returned on the way up the stairs is, however, not corroborated
any other witness.
He is most probably making a mistake. To that extent I
am not prepared to accept his story as the truth.
Be that as it may P.W.4 went on to tell the court that
when the four men pointed out by P.W.2 refused to obey his order that
should come with him and his companion he refrained from using
force to arrest them. To use force in the circumstances would, in
opinion of P.W.4, have caused commotion resulting in the injury of
the police , the men themselves or even some innocent guests
hotel. Rather than use force, in the circumstances, P.W.4 and his
companion returned to the office together with P.W.10,
P.W.2 herself. In the office P.W.4 telephoned his senior officer, W/O
Raselo requesting him to come to the hotel as there
was another case
besides the one of burglary.
P.W.4 confirmed that after they had returned into the
office P.W.10 went out of the office saying he was going to look for
of the Burundi team. After P.W.10 had gone out P.W.3,
P.W.4 and his companion went back to the reception area leaving P.W.2
office. Whilst they were in the foyer
25/ next to
- 25 -
next to the hotel reception P.W.10 came and reported
that he had been unable to find the officials of the Burundi team.
a group of men emerged from the elevator. Before
anybody could say anything to them one of those men, presumably the
Burundi approached P.W.4 and his companion. He asked them
to bring to him the woman alleged to have been raped so that he could
her. In reply P .W.4 told the Burundi doctor that he could
not be allowed to examine the woman.
In my view there can be no doubt from the evidence of
P.W.4 that at the time the Burundi doctor talked to him at the foyer
the hotel reception P.W.2 was not there. She had remained in
the office. His evidence is, therefore, ad idem with
that of P.W.3. Although P.W.10 has told the court that P.W.2 was, at
the time, present his evidence is not supported by the evidence
P.W.3 and P.W.4.
It is also to be remembered that in his evidence P.W.3
told the court that when they came to the reception area the
officials of the
Burundi team approached P.W.4 and his companion who
explained to them that some of their players had allegedly raped a
was only then that one of them viz. the doctor from
Burundi, started asking for the whereabouts of the woman so that he
her. The evidence of P.W.3 is, therefore, corroborative
- 26 -
P.W.4's version on this point. Their evidence is
however, contradicted by P.W.10 who, as it has been stated earlier,
told the court
that on arrival at the reception area and before
anybody had said anything to him the doctor from Burundi angrily
the woman, alleged to have been raped by some of his
players, was so that he could examine her.
Be that as it may, P.W.4 testified that Whilst he and
his party were still at the reception area with the officials of the
team W/O Raselo and Sgt. Koma arrived. He explained to them
what had happened. W/0 Raselo then talked to the doctor from Burundi
after which all the police officers returned to Maseru Central charge
office. They took with them P.W.2 and the person who had been
arrested for burglary in the laundry room of the hotel.
At the charge office W/O Raselo issued a medical form to
P.W.2 and conveyed her to the hospital. P.W.4 himself remained at the
office. However, when W/O Raselo later came back to the charge
office P.W.4 returned with him to the hotel where they met P.W.3,
the doctor from Burundi and the general manager(Garry Webbstock). W/O
Raselo demanded to see the occupants of the room in which P.W.2
allegedly been raped. According to P.W.4 whilst P.W.3, the general
manager and the doctor from Burundi went to fetch the occupants
the room in which P.W.2 had allegedly been raped he himself and W/O
Raselo remained in the office of P.W.3.
27/ This is
This is, however, slightly different from what P.W.3
told the court in as much as the latter included W/O Raselo amongst
who went to fetch the occupants of the room in which P.W.3
was alleged to have
When they returned P.W.3, the general manager and the
doctor from Burundi brought two people to the office. The doctor from
wrote down the names of the two people on a small piece of
paper and put his rubber stamp impression thereon. He handed the
of paper to W/O Raselo after which P.W.4 and the Warrant
Officer returned to the charge office.
In his testimony P.W.1, W/O Raselo told the court that
he was stationed at the Maseru Central Charge Office. He confirmed
12 midnight and 1.00 a.m. on the night of 10th March,
1991 he received a telephone report as a result of which he proceeded
hotel. He was in the company of Sgt. Koma and Tper
Chochane who was, however, not called as a witness in this trial.
They were travelling
in a police van.
On arrival at the reception area of the hotel, P.W.1
found P.W.3, P.W.4, Tpr Maluke and about three other men alleged to
be the officials
of the Burundi Football Team. He was also shown
P.W.2, the complainant in this case. She was wearing a floral dress
and clearly in
distress as she was weeping. When he and the Burundi
officials introduced each other, one of them
28/ was said
was said to be a medical doctor. The medical doctor
wanted to examine P.W.2. P.W.1 did not, however, allow him to do so
his experience that had to be done by the local doctors.
Consequently P.W.1 conveyed P.W.2 to the hospital
here in Maseru for medical examination. As P.W.2 proceeded to the
P.W.1 noticed that she was unable to walk properly.
They first went to the charge office where P.W.1 issued P.W.1 with a
form before taking her to the casualty department of Queen
Elizabeth II hospital. He handed her to the nurses and then returned
the charge office.
P.W.11, D/Sgt Koma, confirmed that he was in the company
of P.W.I when the latter went to Hotel Victoria. It was whilst he and
were at the hotel that he learned that the accused had
committed rape. He did not see the accused themselves at the hotel.
in the morning of 11th March, 1991 at about 8.30 a.m. he was
next to the building for Criminal Investigations at Maseru Central
Office when W/O Hlalele handed to him the six accused, now
before court, with an explanation that they had been pointed out by
at an identification parade as the people who had raped her at
the hotel. He himself had not seen the identification parade and he
saw the accused persons for the first time at that stage.
According to P.W.11, he then told the six accused to
enter into the nearby office. Shortly thereafter a certain gentleman
came into the office and advised P.W.11 that the accused
persons did not understand the English language. He therefore,
interpret what he (P.W.11) was going to say
to the accused. He was positive that the gentleman was
not the man who had earlier introduced himself to him and P.W.1 at
hotel as a medical doctor.
P.W.11 accepted the offer and through the
interpretation of that gentleman told the accused
persons that he was arresting them on a suspicion of having committed
a crime of
rape. The accused immediately protested their
innocence. He however, proceeded to administer the warning. It was
to the accused who then declined to say anything.
In his evidence P.W.11 told the court that he then took
the accused persons to the scene of crime at Victoria hotel. They
in the company of the gentleman who had offered to
interpret for them. At the hotel a certain lady was detailed to take
them to room
153. P.W.11 carried out a search in the room but found
nothing of interest. They then went down to the reception area from
P. W. 11, three of the accused persons and the gentleman who
was acting as the interpreter proceeded to the balcony. In the
outside the window of room 153 P.W.11 and his party found a
used condom. When he
30/ requested them
requested them to come and see the condom the accused
who had remained at the reception area refused and argued that they
be responsible for what was found outside the hotel.
P.W.11 took possession of the condom and returned to the
charge office together with the accused. The condom was handed in as
3 and part of his evidence in this trial. He told the court that
he had subsequently handed Exh 3 to L/Sgt Mohale who took it to
Forensic Science Laboratory at Makoanyane for examination. He
conceeded, however, that as room 153 was on the first floor of an
story building there were many windows of other rooms above the
room outside whose window Exh 3 was found.
Returning to his evidence P.W. 1 told the court that
after a while he went back to the casualty department to check
on how the
examination of P.W.2 was progressing. Shortly after he had
come to the casualty department P.W.I noticed the doctor from Burundi
and P.W.10 also arriving in a combi belonging to Victoria hotel.
According to P.W.1 both P.W.10 and the doctor from
Burundi came to him and said they had been to the charge office
looking for him.
They then requested him that the rape affair should
be settled or dropped as it might scandalize the Burundi country. The
from Burundi even expressed the wish to discuss
31/ the matter
- 31 -
the matter with P.W.2 herself. However, P.W.I turned
down the request made by P.W. 10 and the doctor from
Burundi. He warned the doctor from Burundi against
interfering with P.W.2. Thereafter they all left the casualty
returned to the Central charge office whilst the
combi in which P.W.10 and the doctor from Burundi were travelling
took the direction
towards Victoria hotel.
After some time P.W.1 again returned to the casualty
department to check on the progress of P.W.2. On arrival he found
that the Victoria
hotel combi was parked outside the casualty
department. When he entered into the casualty department P.W.1 found
the doctor from
Burundi, P.W.10 and P.W.3. There was an altercation
between the doctor from Burundi and one of the nurses, Mrs. Putsoane
however, not been called to testify in this trial. Whilst
the doctor from Burundi was insisting to have a private talk with the
doctor who had examined P.W.2 the nurse was refusing him
permission to do so. P.W.1 intervened by telling the doctor from
that he was exceeding his limits and ordered him to leave the
According to P.W.I after she had been examined at the
casualty department he conveyed P.W.2 back to the hotel. This is,
by the evidence of P.W.2 who, as it has been
stated earlier, told the court that from the casualty department of
32/ hospital she .....
- 32 -
hospital she returned to Victoria hotel with the hotel
managers. She was in a way corroborated by P.W.4 according to
whom after he had taken P.W.2 to the hospital P.W.1 returned alone to
the charge office from where
he accompanied him to the hotel.
In his evidence P.W.1 told the court that when he
returned to the hotel he met P.W.3. They were taken to the laundry
room by P.W.2
who showed them a blue overall and a panty as the
clothes she had been wearing at the time she was sexually assaulted
in room 153.
P.W.1 noticed that the overall was torn on the right
side of its collar, under the left armpit and had some whitish blots
lower portion of its back. The panty had some sticky substance
and its elastic band was broken.
P.W.1 took possession of both the overall and the panty.
After they had subsequently been sent to Forensic Science Laboratory
for examination he kept them in the police custody. The
overall and the panty were handed in as exhibits 1 and 2,
shall return to the evidence of P.W.1 in a moment.
Briefly stated, the evidence of P.W.7, Lt. Bulara
Khomohaka, was that he was a member of the R.L.M.P. and a qualified
attached to the Forensic Science Laboratory
Department of the Force at Makoanyane. On 13th and 14th March, 1991 a
condom and a vaginal
swab were referred to him for
- 33 -
examination by L/Sgt Mohale and Tper Maime,
respectively. On 27th March 1991 P.W.I also referred to him Exh 1 and
It is significant that Tpr Maime has not been called to
testify in this trial. Consequently it remains unclear where the
swab he referred to P.W.7 came from. However, as it has
already been pointed in this judgment the condom that Tper Mohale
to P.W.7 came from P.W.11, Sgt. Koma.
Be that as it may, P.W.7 told the court that all the
items he had received from the police officers were tested for human
At the time of the examination he made notes on the
basis of which he prepared a report which he handed in as Exh. C and
his evidence in this trial. According to Exh C the
examination of the speciments taken from Exh I, Exh 2 and the condom
the existence of human sperm cells. The examination of the
vaginal swab was, however, negative.
Returning to his evidence, P.W.1 confirmed that when he
and P.W.4 returned to Victoria hotel he also met the general manager.
Webbstock, and the doctor from Burundi. He demanded to
interrogate the occupants of room 153 in which P.W.2 had allegedly
No.4 accused and another person he no longer remember
were brought to him in the office of the general manager. He wrote
names of No.4 accused and his companion in his diary
which he had,
- 34 -
however, misplaced. As he regarded No.4 accused and his
companion as suspects P.W.1 administered the usual warning to, and
interrogating them. The doctor from Burundi was acting as
interpreter from English to accused's language and vice versa.
P.W.I had a feeling that the doctor was not correctly
interpreting and he had to stop the interrogation. As he did not
it necessary to arrest No.4 accused and his companion at
that stage P.W.1 and P.W.4 returned to the central charge office.
P.W.8, Or. Siddique testified that she was a registered
medical practitioner in Lesotho. On 10th March, 1991 she was serving
which she completed in April 1991 at Queen Elizabeth II
hospital here in Maseru. During the period of her internship she had
many patients and compiled several medical reports including
those of rape cases.
P.W.8 remembered that at about 2 a.m. on the night of 10
March, 1991 she was on duty at the casualty department of the
she was called upon to examine a patient who was a
Mosotho lady by the name of 'Manako Motente (P.W.2). As she spoke
could not understand Sesotho, the language used by P.W.2,
the doctor communicated with her through the assistance of one of the
sisters who was interpreting from the English to the Sesotho
language and vice versa,
35/ At the time
- 35 -
At the time of examination P.W.8 compiled a written
report. She learned from P.W.2 that the latter was an employee of
She was married and had given birth to four (4
children) Her husband was, at the time, living with her here in
Maseru. She had been
raped by six men whilst on duty at the hotel.
It is to be remembered that P.W.2 herself testified in
this trial and told the court, on oath, that her husband was, at the
time, not at home. He had returned to his place of work at
the mines of the Republic of South Africa. As P.W.8 was
with P.W.2 through the assistance of a nursing
sister who did not testify before this court, the possibility that
what P.W.2 said
to the doctor regarding the whereabouts of her
husband was not correctly interpreted cannot be ruled out.
Be that as it may, P.W.8 went on to testify that during
the examination of P.W.2 she noticed a fresh bruised scratch on the
side of her neck. According to P.W.2 she had sustained the
injury whilst she was being assaulted by her assailants.
She (P.W.8) assured the court that apart from the injury
on her neck the examination revealed that the physical and mental
of P.W.2 were quite normal. From the physical examination
of her patient P.W.8 could not, therefore, determine
36/ or not
- 36 -
determine whether or not sexual assault had taken place.
She, however, took P.W.2's vaginal swab and requested her to take it
hospital laboratory for testing.
It was whilst P.W.8 was waiting for the laboratory
results that some men who claimed to be the managers from Victoria
hotel came to
the casualty department of the hospital. They were in
the company of another man who introduced himself to her as a medical
for the Burundi football team. P.W.8 confirmed that the doctor
from Burundi requested her to discuss privately with him the results
of P.W.2's examination. One of the hotel managers immediately
objected to that.
According to P.W.9 the results of her patient's
examination was a confidential matter which could not properly be
disclosed to other
people. She had no knowledge that the medical
doctor from Burundi was lawfully authorised to practise as such in
Lesotho. In the
circumstances, she did not acceed to the request made
by the doctor.
When the doctor from Burundi insisted on discussing with
her the results of her patient P.W.8 had to sent for the intervention
the hospital matron who has, however, not been called as a
witness,in this trial. There was then a row as the Burundi doctor
insisted on his request. Eventually the police arrived
37/ and ordered .....
- 37 -
and ordered the Burundi doctor away from the casualty
department. In the contention of P.W.8 the request made to her by the
from Burundi was, not only unreasonable but, medically
unethical as well. I shall return
to the evidence of P.W.8 in a moment.
P.W.6, Maqhobela Majara testified to the effect that she
was the Senior Laboratory Assistant at Queen Elizabeth II hospital.
that on the night in question she was on duty when a
vaginal swab taken from a patient by the name of 'Manako Motente
referred to her laboratory for examination. The swab was
accompanied by a Microbiology Request Form of which the first part
and signed by P.W.8. She submitted the swab for
examination which revealed the existence of spermatozoa.
P.W.6 completed the second part of the Microbiology
Request Form at the time of examination after which she returned the
to P.W.8. She handed in the completed Microbiology Request Form
as Exh. "B" and part of her evidence.
Returning to her evidence P.W.8 confirmed that after she
had sent P.W.2 to the hospital laboratory with the specemen of her
swab she received back Exh "B" according to which
the result of the examination of the swab she had referred to the
for testing revealed the existence of spermatozoa.
Consequently she concluded that P.W.2
38? had had
- 38 -
had had sexual intercourse. Considering the contents of
Exh "B" in conjunction with what P.W.2 had told her P.W.8
the opinion that sexual assault could not
Because of the row that had taken place at the casualty
department P.W.8 suspected that a complaint might be lodged
examination of P.W.2. As an intern she deemed it
prudent, therefore, to show the report she had compiled to Dr. Shayo
who was, at
the time, the senior medical doctor in-charge at the
hospital. After reading it the latter assured her that according to
there was nothing wrong in the manner she had performed
the examination. He attached his signature to the report as approval
That, in my view, confirms the evidence of P.W.2 who as it
has been stated earlier, told the court that she had observed P.W.8
some papers to another doctor who then scribbled something
According to her, after Dr. Shayo had seen the report,
P.W.8 handed it over to P.W.2. She was, however, later called to the
of the hospital Superintendent and told that only her
signature as the medical doctor who had examined P.W.2 ought to have
on the report. It was improper, therefore, that the
signature of Dr. shayo who did not actually examine the patient also
on the report. She was instructed to re-write the report so
that only her signature appeared thereon. P.W.8 complied and
39/ copied the
- 39 -
copied the report verbatim on another paper leaving out
only the signature of Dr. Shayo. She assured the court that the copy
one she handed in as Exh D. and part of her evidence in this
P.W.9, Dr. Makhetha Mosotho,testified on oath and told
the court that he was the Medical Superintendent at Queen Elizabeth
He retailed that some time in March this year two police
officers came to his office carrying a medical report written
the handwriting of P.W.8 who was serving her internship
at the time. He read through the report and noticed that it bore
of two medical doctors viz. P.W.8 and Dr. Shayo, a most
senior doctor short of a specialist at the hospital. When he enquired
the two a doctor he found that the patient referred to in the
report had been examined only by P.W.8 i.e.not by Dr. Shayo who had
allegedly attached his signature thereto merely because he was the
senior doctor on call with P.W.8.
From the administrative point of view P.W.9 considered
it unacceptable for Dr. Shayo, who admittedly had not examined the
to have signed the report. Whereupon he summoned P.W.8 to
his office and instructed her to re-write the report so that only her
as the medical doctor who had examined the patient appeared
in the report. P.W.9 told the court that after P.W.8 had complied
his instructions he personally checked the copy against the
40 ensure that
- 40 -
ensure that no alterations had been made. He then
destroyed the original and gave the copy to the police. That copy was
Exh D. before
P.W.9 further assured the court that notwithstanding
the fact that she was an intern P.W.8 was qualified to examine the
in this case and judging from her report (Exh. D) she did
so to the best of her ability. The only irregularity in the report
that the medical doctor who had not examined the patient had
appended his signature thereto.
In the opinion of P.W.9 it was not permissible for a
person in the position of the medical doctor from Burundi, who was
as such in Lesotho, to perform medical functions in
this country beyond those of looking after the welfare of the members
football team. If the doctor wanted to discuss with P.W.8 the
patient the latter had examined it would have been inappropriate as
breach of professional ethics.
It is perhaps, convenient to mention, at this juncture
that the defence also called D.W.7, Dr. Maiten, a medical
specialist of many years experience in this country.
He told the court that judging from his reading of Exh D, P.W.8's
the history of her patient was rather superficial.
She apparently did not examine the clothes which her patient was
at the time of the alleged sexual assault. Apart from these
minor points of criticism D.W.7 told the court that, by
and large, the conclusion arrived at by P.W.8 could not be faulted
therefore agreed with it. He confirmed that for the reasons
already given by P.W.9 it would have been a breach of medical
for P.W.8 to discuss her patient with the doctor from
In their defence Nos. 5 and 4 accused gave evidence as
D.W.1 and D.W.2, respectively. D.W.1 conceded that during his stay at
Victoria hotel, he occupied room 153. He shared the room with one
of his team mate by the name of Milan Shabani. Following the cocktail
party that was held at Sechaba hall he and his compatriots took some
beers to their rooms intending to carry them home as the type
was not available in their country. They then proceeded to the
restaurant for dinner after which they were told to go for
at the pent house on the eighth floor of the hotel building. All the
players who had participated in the football game
on the afternoon of
10th March, 1991 attended the meeting. According to him, D.W. 1 had
participated in the game and he, therefore,
attended the meeting at
which the match of the day was discussed and analysed. They were also
advised that on their way home, the
following day, they were due to
play another game in Nairobi - Kenya. In preparation for the game
42/ should therefore......
- 42 -
should, therefore, retire to bed and get a rest.
As he was feeling very tired he immediately
to his room to sleep.
D.W.1 denied, therefore, the evidence that he ever met
P.W.2 outside the toilets next to the restaurant of the hotel
latter took towels to room 153 at his request.
As it has been stated earlier the evidence of P.W.2 that
she did take towels from the laundry and proceeded to the rooms
by the Burundi guests was, however, corroborated by P.W.3. I
am inclined to believe that P.W.2 corroborated by P.W.3 were
to the truth and in his denial D.W.1 was not being honest
with the court.
Be that as it may, D.W.1 went on to testify that as he
approached his room 153 on the way from the pent house he noticed two
in white uniform dresses leaving the room. When he entered into
the room he found P.W. 2, his room-mate Hilali and another of his
compatriots by the name of Selemani Ismali who shared room 151
with Alimasi Shabani. Hilali was seated alone on the single bed
whilst P.W.2 and Selemani were seated very close
to each other on the
double bed.. They were drinking Armstel beers and watching T.V.
Realising that Hilali and Selemani had a female visitor
D.W.1 decided to go and sleep in the latter's room 151 so as not to
43/ it must be
- 43 -
It must be borne in mind that in her evidence P.W.2 told
the court that she did not take intoxicating beverages. That being
seems unlikely that she could have been found drinking beer in
room 153 as alleged by D.W.1. It is also worth mentioning that under
her cross-examination it was put to P.W.2 that evidence would be
adduced to show that on the night of 10th March, 1991 she was seen
going to the pent house bar and asking for wine with which to mix
beer. As a follow up, the defence called D.W.5, Agnes Maime, who
testified that she was employed as a bar lady in the pent house bar
of the hotel Victoria. At about 11.15 p.m. on the night in question
she was on duty when P.W.2 came to the pent house bar and asked for a
glass of wine. She (D.W.5) gave her an empty glass. Before
could say anything to her P.W.2 started telling her that she had been
to Sechaba hall hoping to find some left overs but had
She had, therefore, come to the pent house bar so that she (D.W.5)
could quench her thirst.
According to her, D.W.5 had no personal knowledge that
P.W.2 partook of intoxicating beverages. She categorically told the
at the time P.W.2 came to the pent house bar, she did not
serve her with wine or, for that matter, any intoxicating beverages
P.W. 2 had no money with which to pay.
- 44 -
'Malerato Monyane was also called as D.W.4. In a nut
shell she told the court that she was one of the security officers
supervision of P.W.3 at hotel Victoria. At about 11 p.m. on
the night in question she was at the foyer next to the hotel
when she noticed three members of the kitchen staff viz.
Maphale, 'Matsielo and Kekeletso trying to go up the stairs that led
As Kitchen staff, the three women were not permitted to
go to the hotel rooms. D.W.4, therefore, ordered them back and they
She was definite that P.W.2 was not amongst those three
women. According to D.W.4 she had never seen P.W.2 drinking
beverages and had no personal knowledge that she
It may be mentioned that whilst D.W.4 was testifying in
chief the court was asked by the defence counsel to declare her a
witness. In my observation the witness had been answering
questions that were put to her in a straightforward manner and showed
no hostility at all. It may well be that D.W.4 was not giving the
answers that the defence counsel expected from her. That was,
no valid reason to declare D.W. 4 a hostile witness. I
accordingly turned down the request made by the defence counsel.
In my opinion the evidence of D.W.5 and 4 have failed to
elicit the support they were sought
- 45 -
to render to D.W.1's story that P.W.2 was found drinking
beer in room 153 and her claim that she did not partake of
could not, therefore, be correct. That being
so, I am prepared to accept as the truth the story of P.W.2
corroborated by P.W.3
and P.W.10, and reject as false D.W. 1's
uncorroborated version on this point.
Continuing with his evidence. D.W.1 told the court that
whilst he was sleeping in room 151 he heard a knock at the door. When
the door he found it was Selemani who had come to sleep in
his room. D.W.1, therefore, returned to his room 153. As he
it he noticed P.W.2 outside room 153. she was then writing
the number of the room on a piece of paper. When P.W.2 left the door
room 153 D.W.1 heard her uttering the word "police".
D.W.1 entered into the room and found Hilali alone. He asked him why
P.W.2 was writing down the number of their room and uttering the word
"police" as she left the door thereof. Hilali then
explained that Salemani had had sexual intercourse with P.W.2 in room
153 and paid her 200 Burundi Francs. He (Hilali) then had
intercourse with her after which P.W.2 demanded another 200 francs.
He refused to pay and told P.W.2 that the money she had
been paid by
Selemani was enough for the service she had rendered to both of them.
P.W.2 then angrily stormed out of the room.
46/ It is clear
It is clear from his evidence that the impression
D.W.1 wants to create to this court is that P.W.2 is a woman of loose
who goes about having sexual intercourse with men for money.
She had, therefore, consented to have sexual intercourse with
Selemani and Hilali in room 153 for payment. That being so, I
must say I find it quite strange, if not incredible, that P.W.2 could
have accepted or demanded her payment in the Burundi currency whose
value was, for obvious reasons, unknown to her and, in all
she would find it difficult, if not impossible to
change into the local currency. Indeed, the doctor from Burundi
testified, on behalf
of the defence,and told the court that 200
Burundi Francs was so small an amount that it would serve as nothing
but a souvenir to
P.W.2. There is no hesitation in my mind that the
impression D.W.1 is trying to create to this court is a falsehood
to deceive this court into believing that P.W.2 had
had sexual intercourse with Selemani and Hilali.
It is also worth mentioning that in the course of this
trial the court was told from the bar that the defence wished to call
Selemani and Hilali who had since returned to Burundi.
Intimidation was, however, being made to bear on the two would be
witnesses that the moment they set their feet in this country
they would be arrested. The court was for that reason requested to
consider making an order authorising
47/ the evidence ...
- 47 -
the evidence of boty Selemani and hilali to be taken on
In the first place what the court is told from the bar
cannot be regarded as evidence. Secondly there seems to be no basis
intimedation that if they were to return to Lesotho to give
evidence before this court, Selemani and Hilali would be arrested.
If they were called as defence witnesses in this case
Selemani and Hilali would either confirm the story that D.W.1 has
the court viz. that they had had sex with P.W.2 for a
reward or deny that they ever had sexual intercourse with her. If it
that Selemani and Hilali would confirm D.W.1's evidence
that they had had sexual intercourse with P.W.2 for payment the
would, in my view, be that the latter had consented to
sexual intercourse. They would, therefore, have committed no criminal
to warrant their arrest. If it were assumed that they would
testify against D.W.1's evidence i.e. deny to have had sexual
with P.W.2, Selemani and Hilali would likewise have
committed no criminal offence to warrant their arrest.
There was no suggestion that Selemani and Hilali were,
for health reasons or want of funds, unable to come and give evidence
48/ A fortiori
A fortiori no valid ground for the order that
their evidence be taken on commission. That being so, I had no
alternative but to turn down
the request for such an order. At the
close of the defence case Selemani and Hilali had not been called as
witnesses. Whatever they
were alleged to have done or said in
connection with this case remained therefore, hearsay and of no
According to D.W.I, after he had told him how P.W.2 had
left room 153 Hilali requested that they should go to the reception
verify whether she was in fact calling the police. He,
therefore, accompanied Hilali to the reception area where they
some of their compatriots and P.W.2 who was talking to P.W.3.
Whilst D.W.1 was talking to his compatriots P.W.2 who was then in the
company of two police officers approached them. None of the
co-accused were present at that time. He noticed P.W.2 pointing at
who immediately ran up the stairs. According to D.W.1 she did
not point him out but when he saw the two police officers approaching
him he believed they were going to arrest him. By using gestures or
sign language he asked P.W.2 whether he too was the one. She
used sign language and denied it. D.W.1 then left for his room in
which he found Hilali already in bed.
He denied therefore the evidence of P.W.2 that she had
pointed him and three of his co-accused as some of the people who had
her in room 153. The
49/ evidence .....
evidence of P.W.2 that she did point out four of the
accused persons at the reception area was, however, corroborated by
and P.W.10. In my view, the evidence is simply
overwhelming against D.W.1 and in his denial that P.W.2 pointed him
and three of the
co-accused at the reception area he is not being
honest with this court.
According to D.W.I after he and Hilali had returned to
room 153 they were sleeping when their team doctor came and woke them
doctor was in the company of P.W. 1 and the General Manager,
P.W.3 was not there. They went to an office next to the reception
where he and Hilali were interrogated by P.W.1. Thereafter they
returned to their room and slept.
The evidence of D.W.1 that when he and his room mate
were fetched from room 153 on the night in question the doctor from
in the company of the general manager and P.W.1 but not
P.W.3 was confirmed by the general manager, Garry Webbstock, who
as D.W.3 in this trial. He was positive that he and P.W.1
first went to the room of the doctor from Burundi who then
them to room 153.
According to D.W.3 when he first met the doctor from
Burundi in the foyer of the hotel on the night in question the latter
a row with P.W.10. Whilst P.W.10 was complaining that one
of the hotel employees had been raped by some of the people
from Burundi the doctor was unhappy with the accusation
of rape being falsely levelled against his people. D.W.3 told the
he succeeded in pacifying the two men. The doctor then
requested to go to the hospital so that he could examine the
he was an International doctor. Since the doctor was a
guest of the hotel D.W.3 acceeded to his request and authorised a
belonging to the hotel to transport him to the hospital. The
doctor from Burundi gave evidence as D.W.6 and confirmed the evidence
of D.W.1 and D.W.3 that P.W.I was in the party that went to fetch the
occupants of room 153.
It is to be remembered that according to the evidence of
P.W.3 and P.W.4 the party that went to fetch the occupants of room
not include P.W.1 who had remained in the office. Indeed,
that was confirmed by P.W.1 himself. There was, therefore, the
of three against three witnesses.
I must, however, point out that I find it quite
incredible that both P.W.1 and P.W.4, the only police officers at the
hotel at the
time, could have remained in the office while other
people, who were not police officers, went for the occupants of a
room in which
a crime, as serious as rape, had allegedly been
committed. In my view, the evidence of D.W.1, D.W.3 and D.W.6 that
P.W.1 was in the
party that went to fetch the occupants of room 153
is, in the circumstances, more senseable than the evidence of P.W.4,
P.W.1 that he
51/ was not ...
was not. I, therefore,accept as the truth the story of
D.W.1, 3 and 6 and reject as false the version of P.W.1, 3 and 4 on
The evidence of D.W.1 that the person with whom he was
fetched from room 153 was Hilali was corroborated by D.W.6 who told
that the Burundi players were so much disciplined that they
could not have changed, without permission, the rooms to which they
been allocated at the hotel. He dis-missed, therefore the
suggestion that Hilali could have changed his room with No.4 accused.
Well,in his own mouth D.W.1 who is admittedly one of the
Burundi players told the court that on the night in question he went
in room 151 which was allocated to Selemani and not to him.
I do not believe that he did so with the permission of any of the
of the Burundi team. Again if the evidence of D.W.1 were
to be believed Semelani and Hilali who were also Burundi players had
sex with P.W.2 for money in room 153. That,in my view does not
depict them as such disciplined members of the Burundi football team
as D.W.6 wants this court to believe.
D.W.2 Saidi Shabani, confirmed the evidence of D.W.1 in
material respects as to what happened after the party that was held
hall. He told the court that when they left the meeting at
the pent house he went straight to his room 453 and slept. He was
in room 153 on the night in question.
52/ It was
- 52 -
It was only after he had been sent to prison that he
learned from D.W.1 that Selemani and Hilali had had sexual
intercourse with P.W.2.
He denied, therefore the evidence of P.W.2
that he was one of the people who had sexually assaulted her in room
153. He also denied
that he was one of the two people who were
fetched from room 153 as suggested by P.W.1 and P.W.3.
As far as it is relevant the evidence of D.W.6 was to
the effect that in March this year, he was assigned by the Burundi
to travel to Lesotho with his football team. On the night
in question he was sleeping in room 354 at Victoria hotel when P.W.10
him up. It could have been between 12 midnight and 1.00 a.m. He
and P.W.10 then proceeded to the reception area where they found
P.W.2, P.W.3 and two police officers, presumably P.W.4 and Tper
Maluke. The police officers told him that some of his people had
raped a woman. He then asked the police officers for permission to
speak to the woman so that he could find out from her by whom
been raped. The police officers did not, however, grant him the
permission to speak to the woman.
D.W.6 denied that he ever wanted to examine the woman.
He could not have wanted to do so because he knew that he was not
as a medical practitioner in Lesotho. Moreover there were
no gynacological clinic and the necessary equipment at Victoria
53 As it has
As it has been stated earlier, P.W.10 told the court
that he looked for but could not find D.W.6 or any of the officials
of the Burundi
team. He denied, therefore, the evidence of D.W.6 that
he woke him where he was sleeping in his room. The evidence ofD.W.6
he came to the reception area he learned from the police
officers that his people had raped a woman is supported by P.W.3 and
If it were true that P.W.10 woke up D.W.6 from his room, it
seems to me likely that he would have informed him then about the
rape. The fact that, in his evidence, D.W.6 learned about the
rape only when he came to the police officers at the reception area
is, in my view, corroborative of P.W.10's evidence that he and
D.w6 had not met before. D.W.6 must, therefore be making an error
his suggestion that before he came to the reception area P.W.10 had
been to his room
The evidence of P.W.3, 4 and 10 that after he had come
to the reception area D.W6 did say he wanted to examine the woman
have been raped is, in a way confirmed by D.W.-3 who told
the court that when he later met him p.W.6 was still insisting that
had a right to examine the woman. It seems to me, therefore, that
P.W.3, 4 and 10, in a way corroborated by D.W.3 were testifying
the truth when they told the court that after he had come to the
reception area D.W.6 demanded to examine the woman alleged to
been raped and in his denial that he did the latter was
54/ not being ...
not being honest with the court.
In his evidence that when he came to the
reception area he found P.W.2 amongst the people who
were standing there D.W.6 was supported by P.W.10. However,
was contradicted by P.W.3, P.W.4 and, indeed, P.W.2
herself all of whom told the court that she (P.W.2) was, at the time,
in the office. Indeed P.W.2 told the court that she never set
her eyes on D.W.6 on the night of 10th March, 1991. Bearing in mind
that in her evidence P.W.2 testified that she
was, on the night in question, feeling pains as a result
of what had happened to her in room 153
it seems to me sensible that she was sitting in the
office whilst those men were standing at the reception area.
D.W.6 further testified that when the police officers
did not allow him to speak to the woman al-ledged to have been raped
somewhat angry as he felt something was being hidden from him.
After the police had left with the woman for the hospital he remained
at the foyer with P.W.10 and P.W.3. He confirmed that whilst they
were standing there D.W.3 arrived. He reported to D.W.3 what had
happened and the latter authorised a vehicle belonging to the
hotel to transport him to the hospital.
D.W.6's version of what happened at the casualty
department of the hospital is that he found P.W.8 and after
introducing himself to
her as a medical doctor
55/ the latter
- 55 -
the latter told him that she was the doctor who had
examined P.W.2. He then asked to speak to P.W.8 about the report she
concerning her examination of P.W.2. P.W.8 was
agreeeble but pointed out that she would not do so in public.
At that time P.W.3 intervened by telling P.W.8 that nothing
could be said in private since the matter was already in
hands. He in fact went to call P.W.1.
I must say I find it unbelievable that P.W.3 who
did not want P.W.8 to speak privately to D.W.6 could have went to
call P.W.I who was apparently not
in the casualty department. That,
in my view, would have afforded P.W.8 the opportunity to speak to
D.W.6 in his absence. That seems
to be exactly what P.W.3 did not
want to occur.
In any event D.W.6 told the court that as he did not
understand how P.W.3 who was not a medical doctor could prevent him
to another doctor he continued asking P.W.8 for a
private talk about the report she had made. It was then that P.W.1
came in and
wanted to beat him with his police baton. D.W.6 confirmed
that he left the casualty department and returned to the hotel. He
the evidence that he was rowdy or in any manner rude when he
spoke to P.W.8 at the casualty department.
If D.W.6 did not make a row and insist on discussing
with P.W.8 the results of the examination she had performed on her
the former wants this
56 / this court ....
- 56 -
this court to believe,I find it strange that P.W.1 who
is a police officer, P.W.8 a medical practitioner, P.W.3 and P.W.10
managers could have teamed up and said he did. I have not
doubt in my mind that P.W.3, 8 and 10 were testifying to the truth
d.W.6 was not telling the truth on this point.
Now, coming back to her evidence P.W.2 told the court
that at about 6.00 a.m. on 11 th March, 1991 she was told that she
and the Burundi
people would have to go to the central charge office.
P.W.1 then took her to an office at Maseru Central Charge Office
was handed to a certain police woman. The police woman told
her that an identification parade was to be arranged and she would be
required to go and point out her assailants if any of them were in
the parade. The police woman then went out leaving P.W.2 alone
office. According to her, P.W.2 had not seen any of the Burundi
people arriving at the central charge office.
However, after the police woman had gone out a policeman
came and called her out of the office. Outside the office P.W.2
a number of people in a line up. At the request of the
policeman she went to the line up and found that it consisted of the
from Burundi. The police woman who had been interviewing
her in the office was standing in front of them.
57/ She (the
- 57 -
She (the policewoman) told her to look at the people in
the line up and if any of her assailants were amongst them she should
them by touching. According to her, P.W.2 did look at the
people in the line up and proceeded to point out those she recognised
the ones who had sexually assaulted her in room 153 at hotel
Victoria. She recognised them by their heights and faces which were
as she had already told the court familiar to her. As she walked
along the line up she pointed out five(5) of the accused. When she
returned from the end of the line up she went to point another one.
She no longer remembered the order in which she pointed out the
accused except that No. 5 accused was the one she pointed out first.
In any event as she was pointing them out the policewoman
on a piece of paper.
P.W.5, W/O Hlalele, told the court that she had been in
the police force for 19 years. She had in the course of her career as
officer conducted several identification parades
In the morning of 11th March, 1991 she was on duty at
the Maseru Central Charge Office when P.W.1 instructed her to conduct
parade of people from Burundi as there was an
allegation that some of them had raped P.W.2 at Hotel Victoria. She
herself had not
seen either P.W.2 or any of the people from Burundi.
58/ P.W.2 was
- 58 -
P.W.2 was subsequently brought to her office and she was
the policewoman who talked to her in the office. When she asked her
she could identify her assailants P.W.2 replied in the
affirmative. P.W.5 then told P.W.2 that an identification was going
arranged and she would be required to point out her assailants
if any of them were amongst the people in the parade.
P.W.5 confirmed that she then went outside leaving P.W.2
in the office. When she came out of the office she found that the
from Burundi had arrived. From her office she and P.W.2 could
not have seen the Burundi people. After observing their heights
and attire P.W.5 went to look for some of the C.I.D.
members who had more or less the same heights complexion and attire
as the people
from Burundi. She joined them with the Burundi people
and asked them to form a line up. After she had explained to the
the line up that a woman who alleged to have been raped by
some of the people from Burundi at the hotel would1 be
called to identify her assailants P.W.5 asked whether there was any
objection to her using the English language. There was no,
She, however, asked whether they had all followed what she hod been
saying. Some of the Burundi people in the line up said
Then D.W.6 went to talk to those people after which he told her that
he had explained to them in their language what
she had been saying
and they were satisfied. He told
59/ P.W. 5 that
P.W.5 that she could then proceed with the
identification parade. When she asked whether they were satisfied
with their positions
in the line up some of the people from Burundi
changed their positions. P.W.5 then asked all the people in the line
up to write their
names on a piece of paper on the basis of which she
completed the Idendification Parade Form S.A.P. 329 which was the
used for Identification Parades. She adhered to the
contents thereof and handed in the Identification Parade Form S.A.P.
329 as Exh.
"A" and part of her evidence in this trial.
After all the people in the line up had written their
names on the piece of paper, P.W.5 sent for P.W.2. When P.W.2 came to
parade P.W.5 again told her to look at the people
in the line up and if she recognised any of her assailants amongst
them she should
identify them by touching. P.W.2 took her time to
look at the people in the line up before proceeding to point out. She
the left and proceeded to the right. She confirmed that
she was writing down the accused as P.W.2 pointed them in the
A. 1 who was in position 5 in the line up.
A. 2 in position 8
A. 3 in position 15
A. 5 in position 167
A. 6 in position 20
After she had come to the end of the line up P.W.2 went
back and pointed out A4 who was in position 12.
It is significant that according to P.W.5 when A4 was
pointed out by P.W.2 some of the Burundi people made a noise of
"Aa! Aa! NX! NX!"
P.W.5 told the court that in her observation P.W.2 was
not hesitant in pointing out the accused in the line up. She did not
it necessary to hold another identification parade. None of
the people from Burundi expressed a desire for another identification
parade. Nor did any one of them object to the manner in which she had
conducted the identification parade. After P.W.2 had identified
six accused, now before court, P.W.5 considered them as suspects. She
therefore, handed them over to P.W.1.
In their testimony D.W.1, D.W.2 and D.W.6 told the court
that on the morning of 11th March, 1991 they and their compatriots
a bus ready to go to the airport on their way home. Instead
of taking them to the airport the bus, however, went to Maseru
Charge Office. Nobody had told them that they were going to
attend an identification parade at the charge office.
Regard being had to the fact that P.W.2 had at the
reception area of hotel Victoria, pointed some people as being only
four of six
Burundi people who had sexually assaulted her in room 153
it stands to reason that two of her assailants had not yet been
It seems to me likely that the Burundi people must have
been told that they would have to go
- 51 -
for identification parade to enable the complainant to
identify the remaining two of her assailants.
By and large, D.W.1 D.W.2 and D.W.6 confirmed the
evidence of P.W.2 and P.W.5 as regards the identification parade
that was held
at the Central charge office. Although they told the
court that they were just ordered to stand in the line up D.W.1,
D.W.2 and D.W.6
conceded that thereafter P.W.5 did explain that the
reason for the line up was to enable the complainant to come and
people who had sexually assaulted her at Victoria hotel.
None of them raised any objection to his taking part in the
According to the testimony of D.W.1, D.W.2 and D.W.6 as
she pointed out the six accused at the identification parade, P.W.2
so at random i.e. without first looking carefully at all
the people in the parade. That was, however, in conflict with the
of P.W.5 and P.W.2 according to whom the latter did take
time to look at the people in the line up before proceeding to
the accused by touching each of them.
It must be borne in mind that the accused and D.W. 6
were not standing together in the line up which according to Exh "A",
consisted of 28 people. That being so, I do not believe that D.W.1,
D.W.2 and D.W.6 could have been able to see P.W.2 clearly as
pointed out each of the six accused. They are not, therefore,
in a position to tell the court with certainty
that she pointed out the accused at random. I am
inclined to believe the evidence of P.W.5, who was admittedly
standing in front of
the line up and, therefore, in a better
position to observe her as she did the pointing out that P.W.2 had
at all the people in the line up before proceeding
to identify each of the six accused by touching him.
In their evidence D.w. 1, D.W2 and D.W.6 further
testified that after she had pointed out the accused P.W.2 left. The
people in the
line up were then told by P.W.5 that another
identification parade was going to be conducted and they were free to
change their position
and clothes. Some of the people from Burundi
did so but P.W.2 never came back. That was, however, denied by P.W.5
told the court that after P.W.2 had identified the
six accused she (P.W.5) was satisfied that the parade had been
and there was no need to hold another one.
She therefore, dismissed the parade.
I am unable to see what could have prevented P.W.5 from
conducting another parade if she wanted P.W.2 to make another
as the defence witnesses clearly wish this court to
believe. The people with whom the parade was to be held were still
and P.W.2 herself could not have gone far. I am convinced
that D.W.1, D.W.2 and D.W.6 were not testifying to the truth in their
63/ had told them ...
- 63 -
had told them and the other people in the line up that
she was going to conduct another identification
parade after she had conducted the first one.
It is common cause that after P.W.2 had pointed out the
six accused the latter were handed over to the police and escorted to
office. According to them P.W.11 neither gave a charge
or said anything to D.W.1, D.W.2 and the other four accused. As it
been stated earlier this was denied by P.W.11 in whose evidence
he told the court that in the office he did give the charge of rape
and administered the warning to the accused after which they declined
to make any statement, as they were, indeed, entitled to do.
view the story of P.W.11 is more sensible than that given by D.W.1,
D.W.2 and D.W.6. I am prepared to accept it as the truth
as false the version given by D.W.1, D.W.2 and D.W.6 on this point.
Now, as it has already been pointed out earlier* the six
accused persons are charged with the crime of rape which as Cotran
put it in Rex v. Simon Seala 1976 L.L.R. 241.
"... consists of intentional unlawful intercourse
with a woman or a girl without her consent."
The essentials to be proved beyond a reasonable doubt in
the present case, are, therefore, that P.W.2
64/ had .....
had had sexual intercourse and had not consented
thereto. It is trite law that a court of law, properly advising
always approach the evidence of complainants in
sexual cases with utmost care. The reasons behind the need for this
rule have succinctly been stated by Hoffmann in his
invaluable work The South African Law of Evidence where at p.
415 the learned author has this to say on the issue:
"The bringing of the charge may have been motivated
by spite, sexual frustration or other emotional cases."
In the instant case the evidence of P.W.2 that on the
night of the day in question she had
had sexual intercourse is corroborated by P.W.8 and
P.W.6 who respectively, examined her and submitted to a test a swab
from her vagina. The examination carried out by P.W.8
considered together with the test made by P.W.6 left no doubt that
had sexual intercourse. The conclusion arrived at by the
two witnesses was indeed, confirmed by D.W.7.
The evidence of P.W.7 who examined the uniform overall
and the panty that P.W.2 had admittedly been wearing at the time of
sexual intercourse is also corroborative of the
latter's story that she had had sexual intercourse in that sperm
found on the overall and the panty. Indeed the evidence of
P.W.2 that she had had sexual intercourse in
room 153 was not disputed by the defence. On the
evidence there can be no doubt, therefore, that sexual intercourse
with P.W.2 did
take place in room 153.
The next question for consideration of the court is
whether or not the sexual intercourse took place with the consent of
was denied by P.W.2 whilst the defence contended that she
had consented to sexual intercourse with Selemani and Hilali for
I have, in the course of this judgment dealt with the
defence contention and in my view, there was no admissible evidence
it. I was fortified in that view by the fact that when she
returned from room 153 where she had had sexual intercourse P.W.2 was
weeping, her clothes were torn and she had sustained a fresh
bruised scratch on the neck. All that evidence was, in my
opinion, consistent with P.W.2's story that she had not consented to
the sexual intercourse.
There is no suggestion that whoever had sexual
intercourse with P.W.2 in room 153 was her husband and therefore
entitled to have sex
with her. Nor is there a suggestion that the
person who had sexual intercourse with P.W.2 was in any way forced to
do so. That granted,
it must be accepted that the sexual intercourse
was intentional and unlawful.
Finally the salient question is whether or
66/ whether .....
- 66 -
whether or not the accused are the persons who had
sexual intercourse with P.W.2 without her consent in room 153.
This,in my view,
pivots on the question of identification. It is
trite law that a witness may genuinely believe she/he is identifying
a person when
she/he is, in fact, making a mistake. In approaching
the question of identification caution must, therefore, be taken so
danger of mistaken identity is reduced.
In her evidence P.W.2 told the court that she had been
seeing the accused persons daily at hotel Victoria from 2nd to 10th
1991 i.e. for 8 days. Their faces were, therefore familiar to
her. I have accepted her evidence that on the night of the day in
P.W.2 saw No.5 accused when the latter came to her. next to
the toilets and asked to be provided with clean towels in room 153;
again saw No. 5 accused when she went to room 153 to collect wet
towels and found him seated alone in the room; After taking away
wet towels she returned to room 153 carrying clean towels and found
No.5 and his co-accused in the room which was brightly illuminated
with electric lights and shortly after she had been assaulted in the
manner she described P.W.2 saw and pointed out Nos 5,6,3 and
the reception area of the hotel Victoria. Later on the same morning
P.W.2 was called to an identification parade at the Central
Office where she again pointed out, from the parade consisting of 25
people from Burundi
- 67 -
and 3 people from Lesotho, Nos. 1, 3, 5 and 6 accused
together with Nos. 2 and 4 accused as the people who had sexually
her in room 153.
In my view, P.W.2 had seen and consistently pointed out
Nos. 1,3,5 and 6 so many times that the danger of a mistaken identity
reduced. Her identification of the accused had been
criticised on the ground that it was based on their facial
appearances and nothing
more. I have, however, looked at the accused
as they sat in the dock for several days. I observed nothing peculiar
about them. There
is nothing unreasonable in P.W.2 identifying the
accused by their facial appearances if she had been seeing them daily
for 8 days
as she claimed. There is no doubt in my mind that P.W.2
correctly identified No. 1,3,5 and 6 accused as some of the people
sexually assaulted her in room 153 on the night of the day in
question, 10th March, 1991.
As regards Nos. 2 and 4 I have taken into consideration
that apart from seeing them daily at the hotel and the occasion when
she saw them in room 153 in the company of the other accused P.W.2
identified them for the first time at the identification parade
at the Central Charge Office. She was in fact hesitant about the
identity of No. 4 accused whom she admittedly passed and only
out when she returned from the end of line up. Indeed, according to
the evidence of P.W.5 herself there was an outcry of
some of the
Burundi people in the line up when P.W.2 pointed out No.
4 accused as also being one of the people who had sexually assaulted
Without saying she was an outright liar it seems to me
there is a real possibility that P.W.2 may have been mistaken by
accused as one of her assailants in room 153. Likewise
I am not convinced that the danger of a mistaken identity has
reduced in respect of No. 2 accused, whom P.W.2
pointed out, for the first time as one of the people who had sexually
in room 153, at the identification parade.
In the circumstances, the question I have posted viz.
whether or not the accused are the persons who have sexually
in room 153 must properly be answered in the
affirmative in respect of Nos. 1,3, 5 and 6. I accordingly find them
guilty as charged.
I have, however, a doubt as regards Nos, 2 and 4
accused. They are given the benefit of this doubt, acquitted and
Both assessors agree
B.K. MOLAI JUDGE
28th June, 1991.
: Mr. Mdhluli and
Defendents : Mr. Phoofolo
CRI/T/27/91 - 69 -
The four accused having been convicted of rape it now
remains for the court to decide what sentence will be appropriate in
of this case.
In mitigation of the sentence the court has been invited
to consider a number of factors. They have been so eloquently
by the defence counsel that It is unnecessary for me to go
over them again, suffice it to say they have all been taken into
The court has also been told that all the accused have no
record of previous convictions. They are, therefore, first offenders
cannot be dealt with as though they were hard heartened ciminals.
Having considered all the factors raised in mitigation
of the accused's sentence it must, however, be pointed out that the
turn a blind eye to the seriousness of the offence with
which the accused persons have been convicted. Rape is a serious
commission of which calls for a commensurately serious
punishment. It deprives our women folk of one of the human rights
of choice. Women like any other rational being in a
civilised society have a right to choose with whom to have sexual
By having sexual intercourse with her 70/ without ......
without her consent the accused have denied the
complainant, in this case, her fundamental right. They have, in fact,
to the status of irrational animals.
To bring it home to the accused persons that the courts
of law will not encourage the kind of treatment they have meted out
complainant, there is a need for a sentence that will
deter them and people of their mind from a repetition of this sort of
I have been told that the Revision of Penalties
(Amendment) Order, 1988 no longer applies as it has been
repealed by the Revision of Penalties (Repeal) Order, 1991 of
11th May, 1991 which provides, in part:
"2 (1) The Revision of Penalties Procl. 1952 is
(2) Notwithstanding subsection (1):
(a) any legal proceedings pendingprior to the
commencement ofthis order may be instituted,continued or
(b) any penalty or punishment pendingprior to the
commencement of thisorder may be imposed, as if thisorder has
not been passed ".
I have underscored the word "may" in the above
cited section of the Revision of Penalties ( Repeal)0rder 1991
71/ to indicate ...
- 71 -
to indicate my view that the provisions thereof empower
the court with a discretion whether or not to impose the penalty
prescribed by the now repealed Revision of Penalties
Proclamation, 1952 i.e. following a conviction the court is no
longer bound to impose the minimum punishment but where the
circumstances warrant it
the minimum punishment can still be imposed
in proceedings that commenced prior to the coming into operation of
the Revision of Penalties (Repeal) Order, 1991.
In sentencing the accused I do not propose to base
myself on the provisions of the now repealed Revision of Penalties
(Amendment) Order,1988. I however, take into consideration that
rape is, in my view, a very serious offence calling for a
commensurately serious punishment.
In the present case it was
even aggravated by the fact that the complainant was raped not by one
but several persons. I am supported
in the view that rape is a
serious offence calling for equally serious punishment by the fact
that following a conviction of rape
this court is empowered, by the
provisions of section 297 (1) of the Criminal Procedure and
Evidence Act 1981, with a discretion to impose the ultimate
penalty of death. The section reads, in part:
"297(1) Subject to sub-section (2) or (3) sentence
of death by hanging
(b) may be passed by the HighCourt upon an accused
convictedbefore or by it of treason or
72/ In the
- 72 -
I have also been reminded of the words of the famous
English writer, Shakespear that justice is tempered with mercy. This
however, bear in mind that it is a court of law and not
mercy., As such its primary objective is to administer justice to all
alike, without fear, favour or prejudice. Where the
circumstances warrant it the court must never hesitate to impose a
is appropriate to the seriousness of the offence
against which the accused person has been convicted.
In the circumstances of this case I consider a sentence
of five (5) years imprisonment appropriate. Each of the four (4)
accordingly sentenced to serve a term of 5 years
2nd July. 1991.
For Crown : Mr. Mdhluli and
Defendant : Mr. Phoofolo.
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