IN THE HIGH COURT OF LESOTHO
vs LETHOLA SEFALI
Review Case No.90/2000 C.R. 82/99
Review Order No.8/2001 In Qacha's Nek District
ORDER ON REVIEW
This case comes before this court on automatic review.
The accused, a boy of 23 years alleged to have raped an
80 year old woman was acquitted of rape by the learned magistrate and
found guilty of Common Assault was sentenced to pay M1,000-00
or undergo 1 year imprisonment.
The learned magistrate had accepted that while the crown
had proved some essential elements of rape against the accused, the
had failed to prove an important element namely: penetration.
The court also
appreciated that corroboration of the complaint's story
was not necessary but that in lieu of corroboration the court had to
itself before accepting complainant's story. According to the
court a quo, penetration had not been proved, such proof being
by medical evidence.
On the outset, this court takes the liberty to commend
the learned magistrate on her/his painstaking research and reasoning.
the learned magistrate finding is not in line with
current judgments in sexual offence(s) cases.
While it was complainant's evidence that accused had
threatened to kill her on a number of occasions, it was complainant's
One night the accused viz. Lethola Sefali came into the
house in which I was sleeping, stealthily; I believe he put off the
which I had left still on when I slept. When I woke up, he was
already on top of me, having already inserted his penis into my
She goes on:
I struggled but in vain as he continued thrusting back
and forth until he finished. When he pulled
out his penis, he then put/inserted his hand into my
vagina after which he then throttled me.
I went to Machabeng Government hospital where the doctor
prescribed some medication.
I had not consented to the accused inserting his penis
into my vagina.
In his cross-examination of the complainant, accused
does nothing to deny complainant's allegations against him.
Question by accused: When I came to you was it light or
Answer by Complainant: I do not know because I was
asleep when your came in. However, all that I remember is that when I
slept I had
the light on; however, when I came round I found that
there was someone on top of me and that it was dark.
I am to emphasise that accused's question suggests that
he came to the complainant. At this juncture, I am aware that the
accepted that accused was sufficiently identified and
with this finding I agree.
It is also to be emphasised that in the administration
of justice courts of law are not robots or automata simply following
- they follow precedent where facts in a given case are
similar. A court well instructed having marshalled its facts as the
magistrate has done should then proceed or to have proceeded
to ask itself whether facts in the case in which the court is seized
are similar to a given case.
In the instant case the complainant is an old lady well
nigh beyond life's expectation and it is doubtful whether those who
her would have acted as expected ordinarily. I am referring
to the fact that though she appears to have consulted a doctor it
not seem that she was examined though I doubt at her age any
doctor would be brave enough to examine her for her complaint. I do
not, however, agree with the learned magistrate that because of her
age complainant was sinile; the reason for this is that people
in their development some developing earlier than others. In any
event I have found nothing suggesting senility in her evidence.
As for corroboration of complainant's story, courts seem
to have moved
away from this. Whether or not there was penetration, I
doubt if this can only be proved by medical evidence as the court a
to imply. Has to be remembered that when allegedly
complainant was raped she was asleep and her sensory perceptions
incapable of resistance. In favour of the court a quo,
the court has found that the accused entertained necessary mens rea
Apparently no semen was observed for the reason that
complainant was not examined. But it has been said where there is no
in the vagina by accused the proposition that there was
no penetration supports the accused. However, it would seem absence
does not disprove rape and that penetration can be
'achieved without ejaculation having occurred in the vagina', (see S.
v. N., 1988
(3) S.A. 450 (AD.) At 4631. In the instant case, has to
be remembered that the complainant barring sinility which was not
was fully conscious of accused's acts and given her age and
hence experience, she could not have been wrong that ejaculation
for in her evidence implying penetration she said 'I
struggled, but in vain, as he continued thrusting back and forth
until he finished.'
Has also to be recalled that complainant was not
seriously challenged in her evidence.
As for cautionary rule with regard to sexual offences,
it is superseded, rescidivist and anachronistic and so is penetration
sense that only medical proof is the sine qua non for one can
imagine women being raped in remote outlying areas where, because of
inaccessibility to medical attention, absence of medical evidence
would make them objects of rape at will and without recourse to
law -; such a situation would be untenable to say but the least.
Indeed such an approach would be chauvinistic and an affront
feminine dignity and access to justice. Has been said 'sexual
a relationship in which personality is supremely
important ' Smith
and Hogan Criminal Law - 7th Ed. p.456. We
cannot speak of a relationship and personality between complainant
and accused for the latter can only be seen as a
assuming he is guilty.
The important element in rape is 'the defendant having
had carnal knowledge of the victim 'forcibly and against her will'
Law 424) defines rape as consisting 'in a male have
unlawful and intentional sexual intercourse with a female without her
It has been said stuprum involuntararium takes place when a
man has unlawful intercourse with a woman who is asleep, or a woman
a stupor due to drugs or a woman bereft of reason. According to
Hoexter J. in R. v. Ryperd Boesman, 1942 (1) PH H 63 (SWA) quoting
from questions in Carpzovius' Practica
Nova Rerum Criminalium, Part 2, Quaest, 69, Obs.2, in
the case of women incapacitated by sleep, drugs or mental defect,
neither violentum nor voluntarium and it would seem the
view taken is that the punishment should be less severe than for
and more severe than that for voluntarium. In the instant
case I have already said that complainant was incapacitated by sleep.
In the Boesman case above, Schreiner J.A. while
concurrng went further to state that in the ordinary kind of case the
absence of consent
is proved by the complainant's evidence that she
did not consent supported by proof that her will was overborne by
force. In the
instant case the victim was insensible owing to sleep.
In S.v. S;1971 (2) S.A. 591 (A) it was said the conduct of the woman
an important factor when it must be inferred whether she
consented or not. I am mentioning these factors not because they are
issue for the court a quo has dealt with them. They are mentioned
to clarify the law and heighten their importance.
In R. v. Jackson, 1998 (1) S.A.C.R 470 (SCA) the surgeon
could not confirm there was penetration though there were abrasions
vaginal mucosa and buttocks consistent with unlubricated
It was in Jackson's case above argued on behalf of the
appellant that the trial could had misdirected itself in 'not truly
the cautionary rule in respect of the evidence of
complainants in sexual cases and that the magistrate had paid lip
service to this.
Counsel for the state had gainsaid this arguing that
'the basis, meaning and ambit of the cautionary rule should be
that the rule, as presently applied in practice, was
discriminatory towards women (p.473) Oliver, J. (p.474) referred to
1998 (2) SA. 582 (A) at 585C - H per Holmes J.A restating
the cautionary rule as applicable, in practice, in sexual cases which
the recognition by the court of the inherent
the existence of some safeguard reducing the risk
ofwrong conviction, such as corroboration of thecomplainant
in a respect implicating the accused, orthe absence of
gainsaying evidence from him, or hismendacity as a witness/
It is to be recalled this is the basis on which the
trial court approached this case. While it may be said that Olivier
J.A. was upbeat
about the rule as to its 'raison d'etre and
justification extensive and impressive,' the learned judge quoting
from several sources
found no justification for the notion that
'women are habitually inclined to lie about being raped'
and that the empirical research 'refutes the notion that women lie
or frequently than men. or that they are intrinsically
unreliable witnesses' (pp.474-5).
In the course of his judgment, Olivier J.A had also
referred to an English Law Commission Working Paper (No. 115, 57-58)
no evidence to substantiate the cliche7 that
the danger of false accusations is likely to exist merely because of
the sexual character of the charge. A judgment by the Supreme
of California was also referred to in P. v. Rincon-Pineda (14 Cal 3rd
864) which found 'despite a detailed examination of empirical data'
it was found no evidence existed 'that complainants in sexual
arc more untruthful than complainants in other cases.' The court had
concluded that the rule was one without a foundation;
found the rule
'unwarranted by law of reason; that it discriminated against women
and denied them equal protection of the law'; 'further,
the brutalisation of rape victims by providing an unequal balance
between their rights and those of the accused' At p.475
had gone on"
'Few things may be more humiliating for a woman
than to cry rape; she is often, within certain
communities, considered to have lost her credibility; she may be seen
as unchaste and
unworthy of respect; her community may turn their
back on her; she has to undergo most harrowing cross-examination in
the intimate details of the crime are traversed ad
nauseam; she (but not the accused) may be required to reveal her
history; she may disqualify herself in the marriage
market and many husbands turn their backs on a 'soiled' wife' see
also Lord Hale's
views, see Geis; Lord Hale, witches, and rape 27
British Journal of Law and Society (1978) 90.
Rape whether on a virgin, a woman or old lady is
humiliating and there is no reason why the version of the complainant
cannot be accepted
like any other credible witness unless the
testimony is demonstrably false or self-contradictory. Lord Hale's
remarks aside, I do
not know how old people and in particular old
women are looked upon in other societies. In purely African tribal
women instead on being looked upon with honour and
respect by reason of their age often they are vilified and not taken
for any misfortunes befalling them for these befall them
either because they are 'witches' or 'sinile.'
Armstrong in his 'Evidence in rape cases in Four
Southern African countries,
11 Vol33 No.2 Journal of African Law (1989) 183 says at
'The cautionary rule in rape cases is based on the
principle that women are naturally prone to lie and to fantasise and
in sexual matters and that they are naturally vengeful
and spiteful and therefore likely to point a finger at an innocent
In the course of his thesis Armstrong rejected the
notion of women being naturally vengeful or spiteful or that the
He rejected the notion as 'misoggymistic' and enough
to be rejected out of hand. He also found the cautionary role to be
towards women and 'inappropriate in countries
committed to equal rights of men and women.' Armstrong has also
referred to 'the cautionary
rule' as 'a lingering insult on women,'
Oliver J.A. for his part at p.476 found the cautionary
rule in sexual cases to be based 'on an irrational and out-dated
which 'stereotyped complainants in sexual assault cases
in which most victims were women.
In my view, whether the victim or rape is a virgin, a
woman or an old
lady, the same approach has to be adopted by the crown
in proving the guilt of the suspect who cannot be allowed to hide
of cautionary rule on the wrong perception that in
sexual cases a complainant's evidence alone cannot be relied on or if
the court has to caution itself for evidence of women in
sexual cases is unreliable. If there is the suspicion that a victim
old her evidence cannot be relied on: it is not something that
a court can decide alone, there has to be proof. I find that the
misdirected himself in relying on the cautionary rule to
discharge the accused on the Rape charge and accordingly on review
the conviction and sentence are set aside and substituted with
the finding that 'Accused is found guilty as charged.' As to
I cannot but repeat that according to our law, rape is a
capital offence. It is not for me to inquire why it was relegated to
magistrate's court while on the statute book it remains capital
offence. Needless to say it is serious and prevalent having regard
the present Aids syndrome where, according to some, men rape infants
and old women to rid themselves of the aids scurge. Be this
may, the crime rape has always been looked upon as serious and is
assuming serious proportions because of the Aids incident.
of rape is also increasing by leaps and bounds. I am not aware that
there is formulation or any yard stick to go by but
myself I would consider Rape worse
than murder much as they are equated on the Statute
Book. A dead person is relieved of his miseries but not so a victim
of rape who
has to relive the stigma and lifes miseries associated
with rape. I also shudder to conceive the sheer humiliation of an 80
old grandmother having, against her will, intimacy with a youth
of 23 years old! To me this is an aggravating factor quite apart
any injuries the old lady may have sustained.
I am aware of the accused's youth and I have considered
this plus the fact that in retrospect he appears to have displayed a
heart. But since a deterrent is required in rape cases
particularly involving the weak and defenceless, and it is also
to send a strong message to would-be rapists, accused
having been found guilty of Rape is sentenced to 10 years
imprisonment. I was
of the view to sentence accused to 15 years
imprisonment but having regard to the length of time this review took
to reach finality
I have decided to settle for 10 years imprisonment.
The magistrate who convicted and sentenced the accused
or in his absence the magistrate in charge of the district, is to
before him and explain to him the result of these review
14 If the accused has paid fine, it is to be returned to
By Order of Court.
JUDGE 21st November, 2001.
c.c. Magistrate, Qacha's Nek O/C Prisons, Qacha's Nek
O/C Police, Qacha's Nek C.I.D. Police Headquarters Central Prisons
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