CRI/A/120/92 IN THE HIGH COURT OF LESOTHO
In the matter between:
THABANG MATJATJE Appellant
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 15th day of May, 1992.
For the Appellant : Mr. E.H. Phoofolo
the Respondent : Mr. L.L. Thetsane, Senior Crown Counsel
The appellant was convicted by the Subordinate Court of
the First Class for Leribe of rape and was sentenced to 5 years'
The prosecutrix, whose husband worked in the Republic of
South Africa, testified that the appellant, a neighbour, a single
her home one evening at 7.30 p.m. He asked for some
matches and then requested her to open a tin of fish. She handed him
with which he opened the tin. He then asked her for some
porridge, which she supplied. The appellant ate the porridge and
The prosecutrix testified that when the appellant had
finished his meal he then grabbed her by the neck, and threatening
the knife, indicated his desire for her. He pushed her down
onto mattresses which lay on the ground, took off some of his
and her underclothing and raped her. Throughout the rape
the appellant kept the knife near to her neck and threatened to kill
if she raised the alarm. After he had raped her, he departed,
leaving his jacket behind, however.
The following morning the prosecutrix reported the rape
to her mother-in-law, who reported to the Chief. The prosecutrix was
by a doctor that same day. He discovered no extragenital
injury. He opined that "one cannot prove rape conclusively in
case although it was not impossible". In brief, there was
no medical evidence of any force having been used.
The prosecutrix's mother-in-law testified that her
daughter-in-law had approached her crying, complaining that "she
because of the accused", who had raped her.
Subsequently the Chief's messenger found the appellant's jacket at
home. The appellant was nowhere to be found,
however, and was subsequently found in Maputsoe, 6 kilometres away,
some two days later.
Upon being found, the appellant stated that he was in
love with the prosecutrix. His cross-examination of the
prosecutrix maintained this approach, suggesting to the prosecutrix
they were lovers, which she denied.
As the learned trial Magistrate observed and as Mr.
Thetsane submits, one would then have expected the appellant to
testify that they
were lovers and that the prosecutrix had consented
to intercourse. On the contrary, in his evidence he admitted to
having the meal
in the prosecutrix's house and then to requesting the
latter to wash his jacket, which had some bloodstains on it; the
refused, referring him to another lady, whom she named,
to do so, "as she is the one who eats my money"; as a mark
he then left the house. In cross-examination he stated
that he had had sexual intercourse with the prosecutrix "several
but nonetheless denied sexual contact on the night in
question. An inspection of the appellant's cross-examination of the
indicates that he never suggested to her that they had
had voluntary intercourse on the night in question. He went no
suggesting that they were lovers. Nonetheless, such
suggestion indicates a defence of consent. In any event, when he
spoke to one of the persons sent by the Chief he stated,
"that he is in love with P.W.1 (the prosecutrix).
He explained further that P.W.1 may have raised alarm because the
may have seen him waking up from her home."
It will be seen therefore that there was a shifting of
positions by the appellant. Mr. Phoofolo submits that the appellant
in the court below, and that it is trite that an
unrepresented accused in particular may well illogically decide not
to tell the
truth in his evidence, in fear that the truth may not
appear as attractive as a concocted story. That is undoubtedly
case. The Court nonetheless is left with the aspect
that the appellant can only be regarded, as the only reasonable
having lied under oath.
So also did the prosecutrix however. She stated
affirmatively, at the close of her evidence in chief, that since the
had never seen the appellant: "I am seeing him for
the first time to-day", she said. Under cross-examination
admitted that she had gone to see the appellant in
prison, stating that she was "intending to withdraw the case".
caused some surprise, to the extent indeed that the learned
trial Magistrate, in view of the presence in Court of the
husband, decided to continue the trial in camera, and
thereafter the prosecutrix frankly admitted to strained relations
and her husband and that the latter would not have
been pleased to hear of her visit to the prison.
That visit points to a relationship between the
prosecutrix and the appellant. That aspect is reinforced by a
number of other aspects. First of all, the prosecutrix
herself testified in chief to the fact, that at some stage, her
house had fallen down and they had stayed with the
appellant in his house, where he lived alone, some 25 paces away.
the appellant's suggestion that, in the absence of her
husband, he had "stayed with (her) inside one of the rooms of my
appellant's) house". She admitted nonetheless in
cross-examination that the appellant usually visited her in her home,
the evening, which in view of the fact that her husband worked
in South Africa, would tend to support his suggestion that they were
lovers. Further, there is the apparent familiarity in asking her,
whatever about washing his jacket, to provide him with a meal.
There is again his behaviour on the evening in question.
It is, to say the least of it, somewhat unusual for a rapist to
a meal, provided by his intended victim, before committing
the offence. There is then the unhurried deliberate actions of the
Having allegedly threatened her with a knife, and pushed
her on to a mattress, he then, in the evidence of the prosecutrix,
off his jacket and placed it on the chair, took off his
overall to waist level", divested her of her underclothing, then
himself of his lower clothing, before raping her. Mr.
Phoofolo submits that, while all this was going on, there was nothing
the prosecutrix making good her escape, or in the least
raising the alarm. Again there was nothing to
the court, because of his guilt. As Mr. Phoofolo
submitted, there was another inference to be drawn, which on the
whole of the evidence
is a reasonable inference.
While the appellant's evidence may well have weakened
his case, nonetheless at the end of the day there must have been some
in the matter and the onus rested upon the prosecution. In
this respect, on the issue of credibility, the learned trial
did not advert to the aspect that the prosecutrix had at
one point lied under oath. Neither for that matter did he examine
aspects of the evidence, to which I have referred. Suffice
it to say that I am not satisfied that had he done so, he would
have convicted the appellant.
It would be unsafe to allow the conviction to stand.
The appeal is allowed. The conviction and sentence in the court
below are set
aside and the appellant is acquitted.
at Maseru this 15th Day of May, 1992.
B.P. CULLINAN CHIEF JUSTICE
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