HIGH COURT OF LESOTHO
BY THE HONURABLE MRS. JUSTICE KJ. GUNI ON THE 4™ DAY OF TUNE,
CHARGES-----------------------Rape and Attempted Murder.
Who commits a crime of rape----------------how?----------------
Attempted Murder-----------when does a person commit attempted
Identity of the Accused-----------------------
Inferences to be drawn----------------------when to draw
accused is charged with two counts. In the first count the accused is
charged with the crime of rape. It is alleged that on
the 18th day of
November,2001 at LEFIKENG HA MOHALINYANE, in the district of
MOHAEES'HOEK, the accused did intentionally have an
intercourse with MPHO SESINYI an adult mosotho female aged
thirty-five (35) years, without her consent and did
the crime of RAPE.
second count, it is alleged that at the same date, place and time as
in the first count, the accused unlawfully and intentionally
assaulted MPHO SESINYI by stabbing her thirty times all over her
body-with an okapi knife. As the accused stabbed the complainant
her neck, the accused told the complainant that he is certainly
killing her by cutting her throat and did thereby commit the
facts of this case it will be seen that these two offences were
committed at the one and the same time to the one and the
victim. For the complainant it never rained but poured torrentially
that night. She found herself besieged with the attacks
in such a vicious manner. As the crowning of that attack the
complainant's body was violated. This added an insult
to the injury.
these charges the accused has pleaded not guilty. His defence is a
total denial of all the allegations against him. He pleads
He claims he was nowhere near the scene of the alleged crimes. These
crimes having been committed in the middle of the
night, the accused
claims that he was in his bed and fast asleep at the time of the
commission of the alleged offences.
DEFINITION AND DESCRIPTION OF THE CRIME OF RAPE
Rape:? Who commits a crime of Rape?
"Rape consists in a male having unlawful and intentional sexual
intercourse with a female without her consent". C R SNYMAN
CRIMINAL IAW - Third Edition, page 424. RVK 19.58 (3) SA 420 (A)
421F. Another renowned learned author JRL MILTON, in his invaluable
works on SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE, Volume II (Common
law Crimes) third edition, page 439, defines rape as follows
" Rape consists in unlawful intentional sexual intercourse with
a woman without her consent". In this jurisdiction, as
stands, only the man can commit a crime of rape. According to
Honourable M.P. Mofokeng J. (as he then was, may his soul
pence) in his CRIMINAL IAW AND PROCEDURE
CASKS "the crime of rape consists of the intentional unlawful
intercourse with a woman or a girl without her consent",
396 also see REX V SIMON SEALA, 1976 LLR 241. These common law
authorities show that the crime of rape can only be committed
the female. The common law position in England is precisely to this
very point. In BLACKSTONE'S CRIMINAL PRACTICE 1998,
edited by Peter
Murphy it is shown that" a crime of rape is committed by a man
who has sexual intercourse with a female without
This accused is a mosotho male of 19 years of age, as shown in the
indictment. The complainant is a female .
DESCRIPTION OF THE CRIME OF ATTEMPTED MURDER ATTEMPED MURDER: Simply
speaking it is a murder which is not complete. One of the
the crime of murder is missing. The actions of the accused person
went well beyond the mere preparations into the implementation
resolve. R V NLDOVU 1921 AD 485-495. By his conduct the accused
applied very severe force when punching with a sharp object
knife, thirty or so, holes all over the complainant's body, (refer to
medical report - EXHIBIT A and the evidence of Dr.
these numerous holes all over her body the complainant lost a lot of
blood. The villagers noticed that she was most likely
going to die
from loss of too much blood if she is not taken to the hospital to
receive medical treatment timeously. Therefore
she was hurried to the
hospital. By expressing his intent to kill her by cutting her throat
and actually stabbing her neck the
accused manifested his resolve to
kill her. Viewed from the outside, the accused person's actions bear
unequivocal testimony to
a firm resolve to commit the crime of
murder. R V SOFIANOS 1945 A.D 809. The accused did have full control
over every requirement,
essential for the commission of the crime of
murder. The accused by his actions, satisfied all the requirements of
of the crime of murder. "The accused had not
missed his target It can be said he hit the bull's eye. He had done
to kill his victim. His resolve had been fully
implemented. Pure misfortune on his part but a glimpse of luck on the
part of his
victim brought about the failure. It is the outside
intervention which stopped the victim from dying. MPHO SESINYFS will
to live coupled with the medical treatment received by her
timeously saved her life. The accused's actions and intentions were
intact thwarted by the complainant's love for life. She hang on her
dear life tenaciously - saving not only her own life but also
her intended killer.
those circumstances, if" death had occurred would definitely be
expected to pay the ultimate prize.
OF THE CASE
complainant - MPHO SESINYI was asleep in her one roomed and flat
roofed house on the 18th November, 2001. She was awakened by
at her door. She enquired as to who was knocking. The response came
in a female tones, may be still not fully awake - the
thought the person knocking is one of her neighbours who usually
comes to her place to borrow 20 litres containers
for the purpose of
fetching water that they used for the initiation ceremony. These
incidents happened during the period of such
complainant - thinking that she had over slept and therefore was
late, jumped off her bed. Put on the light and
proceeded to the door
which she opened to let in the person who knocked. She discovered,
that contrary to her initial impression
it was not a woman. It was in
fact a man who was wearing a blue and white blanket, over the green
overalls and was wearing white
gumboots with red soles. When the
complainant opened the door the light fell on that man who
immediately covered his lace with
the blanket - denying the
complainant an opportunity to see his face. He immediately stabbed
the complainant with a knife repeatedly.
struggle ensued. He kicked the lamp which fell and went out. He
continued stabbing the complainant indiscriminately all over
complainant screamed - crying for help as she struggled to defend
herself. As she cried she was calling out the names of her
neighbours. During the struggle complainant grabbed hold of the knife
by its handle. She felt and recognized it as an okapi knife.
fought over the possession of the said knife. The attacker had
grabbed hold of the blade in order to wrest it out of the
complainant's hand. The attacker successfully pulled that knife out
of the complainant's hand. He resumed his vicious stabbing in
same indiscriminate manner. He stuck the knife at the neck of the
complainant who felt that she was being killed. She asked
attacker why he was so cruelly killing her. The reply was " I am
certainly killing you by cutting your throat" or
words to that
effect. The struggle and the assault upon the complainant had been
going on for too long - she estimated the time
to have been between
30 minutes and one hour. Complainant was exhausted. She had been
weakened by the loss of too much blood because
of so many open stab
wounds which must have been bleeding profusely as she struggled to
defend herself. Dr. Mosenene in her evidence
told the court that
complainant was an obsess
The light or straggle with her attacker must have been strenuous and
tiring. She was finally forced to fall to the ground.
no longer able to successfully fight him off. Her panties were
forthwith removed by her assailant. She was left wearing
then raped. As the rapist laid on top of her he possibly soaked in
her blood his own overalls and blanket because it appears
he did not
remove them. He just jumped on top of her. When the rapist has had
his satisfaction he got up and left her. She heard
her door open and
shut. She heard that the key was being turned in order to lock the
door. She heard the key fall as he walked
away. As the evidence
unfolds it turned out that this was not the key but that machine or
tool used for repairing locks or breaking
time the attack commenced the complainant raised the alarm. At the
same time she tried to defend herself. She was so tired
she could no
longer raise herself from the floor. She was unable to stand up. She
laid there and kept calling for help. Pw3 heard
the woman cries-
calling her name. She woke up her son who was asleep with her in her
perhaps one roomed house also. She asked
her son to listen and
identify the voice. She thought it was that of the
The boy confirmed Pw3's suspicions that the voice was that of the
the boy to wake up and come outside of the house with her to listen
further in order to ascertain if it is correct it
complainant's voice. They came out of their house. They continued the
cries and calls for help, as being made by the complainant
together with her son proceeded to another neighbour's house -
nearest the complainant's - that of one ALICE. Pw3 knocked at
door waking her up. When Alice responded Pw3 asked her if she hears
or heard the complainant's cries lor help. Alice said
she heard but
was afraid to go out in the dark. Pw3 asked Alice to wake up and come
along with them. Alice woke up her two children;-
14 years old girl
and 10 years old boy. The two ladies and the three children proceeded
to the complainant's house. On their arrival
thereat they knocked at
her door. She responded to their knocking. They asked her what was
the matter. She pointed out that she
had been stabbed with the knife
and has been raped by an unknown man. They asked her to let them into
her house. She told them
that she has been locked in by her attacker.
The two ladies scrumbled around in an effort to open the door. Pw3
lock with the key still stuck in the key hole. She unlocked the door
and opened it She saw near the door a tool or machine
repairing door locks or breaking them.
entered. They asked the complainant to put oil the light. The
complainant did not know where the lamp was because it was kicked
her attacker at the very beginning of the assault upon her person. It
was about 03.00 a.m. So they still needed artificial light
properly inside the house. Alice retuned to her home where she
Fetched a candle and matches. They put on the light.
sight! They found the complainant lying in a pool of blood. She was
covered in blood all over her body. There were blood
everywhere in that house. She had wounds all over her body. She was
wearing only a t-shiit whose colour could not be determined
it was covered completely with blood. (The person who struggled with
the complainant and caused those many wounds on her,
must also have
stains of her blood which appears to be even-where in that house.)
The first people to arrive at the scene of the
crime, could not see a
particular injury as the whole body looked like one big injury -with
blood everywhere. It would appear that
there was no part of her body
not injured. At this sorry sight, the two women cried out loud. Their
cries raised the alarm.
ran, shouting, crying and raising alarm as she went about waking up
the fellow villagers in the neighbourhood to come, see
and to help.
The first few men who arrived at the scene were also horrified by
what they saw. NTATE REENTSENG suggested that this
is the case (or
the police whom he was going to call there and then. He took the
motor vehicle to go to the nearest police post
- the MOHALK'SHOKK
police were on patrol in that area. They had camped not very far from
the place where NTATK REENTSENG went with a motor vehicle. NTATK
BETHUEL said that if they wait for the police the complainant
lost too much blood already and was still bleeding will not be alive
when the police arrive. He suggested that another
motor vehicle be
found in order to take the complainant to the hospital. Pw3 and other
woman were assisting the complainant to
go into the motor vehicle
when the police arrived together with STATE REENTSENG. The chief of
the village and many other villagers
had gathered there by this time.
DESCRIPTION OF THE ATTACKER - HOW HE MAY BE
complainant was asked if she could identify her attacker: Although
she did not see his face and therefore could not identify
pointed out that he was wearing a blue and white blanket, green
overalls, white gumboots with red soles. The complainant
villagers that they (herself and her attacker) fought over the
possession of the knife which this attacker was using to
She held the handle and the attacker held the blade. In that
tuck-of-war she feared, that her attacker might have sustained
injury in the palm of his hand as he pulled that knife out of her
hand. The complainant was driven by the police to MOHALK'SHOEK
Mosenene testified before this court.
lime she had been a medical general practitioner for four(4) years.
During that period of four years she had never ever come
case like this one - our complainant in this case. It was about
0.5.00 a.m. when the complainant was admitted at MOHALES'HOEK
HOSPITAL. This doctor
this patient for lour hours. According to Dr. Mosenene her main
concern was to save the patient's life.
many open wounds which needed stitching up. The Doctor was doing that
for the greater part of her engagement with this patient.
were big enough to allow the doctor's whole hand to go into them. The
patient had approximately thirty (30) wounds.
There were wounds on
the head, face, arms, chest, breasts, abdomen and thighs. She had a
wound where her mandible bone was exposed.
The skin had peeled off
and was overlapping on her face. Parodic gland was cut.
complainant was admitted on the 18th November, 2001 at MOHALEASHOEK
HOSPITAL. She was discharged on the 29th November, 2001.
discharged because the hospital was not able to offer her any further
help. She was still ill. She sought medical help
elsewhere. At first
she brought herself to QUEEN ELIZABETH II HOSPITAL. She saw two
consultants. They could not see exactly what
was wrong with her. The
water was oozing out of the wound on her head. Her left hand is
paralised. She was advised to buy a soft
toy which she should
constantly keep pressing inside her left hand. Her cousin who works
at UNIVERSITUS HOSPITAL in Bloemfontein
asked the complainant how she
was getting on.
discovered that the complainant cannot infact get useful and
corrective medical help in LESOTHO, she invited her to UNIVERSITUS
HOSPITAL.Bloemfontein. Complainant was admitted there on the 7th
December, 2001. She was operated on her head. The water that was
continuously oozing out of that wound on her head, was stopped. Nine
days after that operation she was discharged and kept going
ups regularly from December 2001 up to April 2002. What remains is
the permanent disability to use the left hand.
COMMENCEMENT OF THE SEARCH FOR THE ATTACKER
complainant had given the full description of the attire of her
attacker. In addition the village men expected to hud the man
injury in the palm of his hand because the complainant told them that
they fought over the possession of his weapon - okapi
information, the chief instructed the men there present to follow the
(spoor) - tracks over the morning dew from the complainant's
they lead, just may he, they might find the man fitting the
description given by the complainant.
village men complied - among them there was Pw4 MOLATO SELLO - who
had been awakened by Alice and given that horrifying report
she had seen and heard at the complainant's place. On his arrival at
the complainant's house Pw4 had just peeped through
the window - saw
some women busy trying to help the complainant who according to him
was pretty bad. She was covered in blood.
He had suggested that they
search to see where the blood comes from - with a view to apply first
aid to stop the bleeding. He discovered
that there were wounds all
over her body including her neck. That is why he went to ask the
business person in the village to release
her motor vehicle to take
the complainant to the hospital. The complainant was put on board of
the motor vehicle.
village men followed the spoor from the complainant's house. It took
them up to Ha Mokhele - (at KHOTLA - village court. The
broken many people were walking about - making many and mingled
spoors at this point. As fate will have it. this spoor
near the accused person's home which is in the vicinity of "KHOTLA".
I here was still no suspect. According
to Pw2 -
KHOTSO 'NEKO, the men following the spoor met at this point with men
from that village - coming there to "KHOTIA".
instructed the "whistle" of the village to call all the men
of the village to "KHOTIA".
where some men had already gathered. The accused's father was already
up and out in the veld with his animals on the mountain.
He heard the
(all. He saw a crowd of men at "KHOTLA". HE came down to
"KHOTIA". He learnt from one of those
men already gathered
there that the complainant has been stabbed and raped by an unknown
man. He was told that it has been decided
that the search should be
conducted in order to find the complainant's attacker who had been
described in his attire as the complainant
conclusion reached by following the foot prints from the
complainant's place, was not useful. It was therefore decided that
search be extended to the examination or inspection of all men's
right hands to look for injuries which the complainant said
found in the palm of the hand of her attacker.
present there at "KHOTLA" produced their hands for
inspection. Pw 1- inspected them. He went from one man to the
in a line. When he arrived at this accused be noticed that he had two
fresh cuts so fresh they were still bleeding. He asked
him how he
came by those cuts. The
said he sustained those cuts at the time he was cutting vegetables.
That very evening meal was according to the accused's
and cooked by his wife - the accused's mother.
his own father - there present, remarked how come the accused who has
a wile, two sisters and a mother was cutting vegetables.
deal was made of this discovery. Pw4 went on with the examination of
the remaining men. He had indicated to the accused
that he might come
back to him. Pw4 found no other man with any kind of injury and he
returned to the accused.
accused's father remarked before every ullage men there present that
the items of the clothing which the complainant is said
to have seen
and recognized worn by her attacker just prior to the commencement of
the attack, were hanging on the wash line at
his home. They have just
been washed. Accused's lather with some of the men went to his home
to collect them - according to IV4.
the blue and white blanket and
green overalls were taken from the accused person's home wash line
and brought to the court - (KHOTIAL)
Although washed, those village
men noticed blood stains which have not completely washed off.
village men, together with the accused and his wet clothes went to
complainant's place. There the accused was asked if he is
the man who
attacked, stabbed and raped the complainant. He denied that he was
that man. The police arrived, they were handed the
report was made. Police asked (he accused. In the presence of those
village men accused persisted in his denial. The
police took the
accused away. The village men dispersed.
thereafter the accused took the police in the company of chief
THEKISO MOKHELE, to his home. The chief informed the
parents about the purpose of their visit. The accused although
married with one child, he is still living with
his parents. He is
still their dependant The police were led into a six roomed house. In
the bedroom which is described as the
girl's room by accused and his
parents, the police found under the bed the while gumboots with
redsoles. They were wet-dipping
water mixed with blood, according to
the chief They took the said gumboots and left. The chief was dropped
on the way as the police,
accused and the wet recently washed items
of clothing went to MOHALE'SHOEK .
police came back again, within a short space of time, picked the
chief and returned to the accused's residence. There the accused
them into the kitchen. He indicated to the police that the okapi
knife is in the cupboard inside a glass dish. It was found
indicated and taken away by the police.
accused is adamant that he is not the man who attacked, stabbed and
raped the complainant. He claims that at the time the attacker
the complainant's house he was at his house asleep alone in his
bedroom because his wife was away. The accused and his wife
a hut near this six roomed house on the same premises. He considers
that he has an air tight ALIBI. The complainant has
that she cannot identify her attacker. She did not know who her
attacker was. She could only identify the items
of clothing that she
has described. Mind you, the accused and the complainant are fellow
villagers. They therefore know each other.
The accused attended the
school where the complainant is a teacher although complainant never
taught him as he was not in her class.
There are no eye witnesses.
The cover of darkness, |the attack being carried out in the middle of
the night at one (1) or two (2)
a.m. in such early morning hours,I
afforded the perpetrator an opportunity of not being likely to have
anyone to witness what he
did. At that time everyone is asleep in
her bed. He kicked off the light - putting it off. He had covered his
face. Therefore even his victims could not see him.
evidence that is likely to connect this accused with the commission
of these crimes is circumstantial. The blanket and the
the property of the accused. The white gumboots are nobody's
properly. The knife is the property of the accused's
parents have no idea who owns that pair of white gumboots with
redsoles. The accused admits that he washed his overalls
that morning of the 18th November, 2001.
accused still lives with his parents and he is their dependant. It is
his father who still maintains and supports him. He buys
food and everything he needs. It is his lather who bought him that
green overalls recently. He had come with it from
the mines where he
works. On the 18th November, 2001 it was the very first time the
accused wore these overalls. The accused said
he washed the clothes
because they were dirty. This is a good reason tor washing anybody's
clothes. What sort of dirt was on those
clothes. There are witnesses
who testified before this court who know what kind of dirt
those clothes. The while gumboots were wet and water mixed with blood
was dripping from them, its the chief - Pw4 observed.
mother and father are adamant that those gumboots are not their
son's. They also testified to the effect that they do not belong
any of their daughters in whose bedroom they were found.
police and the chief did not bring those gumboots to the accused
person's home. It is the accused who led the police into that
Are they likely to be the ones worn by that unknown man who attacked,
stabbed and raped the complainant:? Perhaps, may be
not but taken
together with the blue and white blanket and green overalls they are
found at the same premises, the home of this
accused. All of these
items had just been washed that morning. The two cuts - fresh and
bleeding were found in the palm of his
hand. These lends substance to
the suspicion that these items of clothing must be the very ones worn
by the man who attacked the
complainant. At the time the accused was
asked how and when did he sustain the injury he claimed he was
cutting vegetables. That
excuse held no water before the village folk
which investigated the incident. The accused person's father by
expressing doubt regarding
the truthfulness of his excuse, that he
was cutting vegetables threw spanners in his works. They had no
problem to accept that
the blood stains on the black
he was wearing there at 'KHOTLA' were old and that he is correct when
he claims it came from RAMOSENTI'S sheep which he
ago. Every witness had no difficulty to concede that those particular
blood stains on his black gumboots were
old - stale - not as fresh as
the cuts in his hand.
be conspiracy against this accused by those witnesses who say they
noticed those fresh and bleeding cuts in his right
though the accused's mother claimed she particularly asked the
accused to cut vegetables on that very day she did not say she
certainly that the accused cut himself that day. The accused claims
he cut himself long time ago and those cuts were old.
This is not
true. Pw4 told this court that those cuts were fresh. The counsel lor
the accused when cross examining Pw4 he did not
put it to that
witness that the cuts in the accused's hands were old, why? May be he
had not yet received instructions to that
effect. So that the witness
was left uncontradicted. He was not given an opportunity to deal with
this new defence that there was
only one cut and an old one - not
It is the
duty of the cross-examiner to challenge the evidence and give the
witness an opportunity to deal with the issue before
he could be
described as a liar. BOESAK (3) SA 200 at pages 381-393, 39.5. So
IV4's evidence cannot be rejected as a lie now. Therefore,
if it is
not a lie, the accused's evidence contrary to that must be untrue.
INFERENCES TO BE DRAWN - WHEN TO DRAW THEM.
accused must be that man who attacked, stabbed and raped the
complainant. All the circumstances point at no one but him - that
this accused is that man, is the only reasonable inference that can
be drawn from those established facts. REX V BLOM 1939 AD 188.
inferences are drawn only from the established facts. The inferences
to be drawn from such established facts must be the only
possible inferences REX V BLOM (Supra).
accused and his father are the only men who reside on the premises
where the items of clothing described by the complainant
as the ones
worn by her attacker were found. The accused was wearing that blanket
and that overalls on the night in question. The
accused admitted that
he washed them because they were dirty. The overalls were new as
shown by his lather in his evidence. He
recently bought them in the Republic of South Africa. He had come
with them for him on that occasion.
been present at home on leave from the Republic of South Africa for
three days. It was established that the accused wore
for the very first time on the 18th November, 2001.
Pw5 observed two fresh cuts in the right hand of the accused. The
cuts were so fresh they were still bleeding. Can it
inferred that the two fresh cuts in the accused's right hand were
caused by his knife as he and the complainant fought
over its control
and possession during that attack? When cutting vegetables, the
person who is doing so does not hold the blade
of the knife in the
palm of his hand.
accused after the close of the crown case, claimed in his evidence,
when he testified on his own behalf, that he cut his hand
not when he
chopped the vegetables but after chopping the vegetables when he
clasped the knife in order to close and keep it. He
he performed that maneuver in the witness' box here with the same
knife. Holding the knife by its handle the accused
tried to force the
blade to the hand by pressing the said blade against
witness stand but failed to dose it. He said he could not for fear of
was likely to cut as court observed during the demonstration carried
out by the accused in court was his fingers which were
handle that was inside the palm of his hand.
it can be inferred that the injury inside the palm of his hand was
not caused when cutting vegetables or when closing
the knife at the
end of the process. An adverse inference may be drawn not only from
the failure to give an explanation but also
from giving a false
explanation REX V BLOM 1939 AD 188.
items of clothing described by the complainant as those worn by her
attacker, were found on the accused person's premises.
and overalls were admitted as his own property.
they washed so early in the morning? There is nothing wrong with that
per se. The fact that those items of clothing were
the ones described
by the victim, changes what is normal to something extraordinary.
Despite the wash,
witness stand hut failed to close it. He said he could not for fear
of cutting himself.
was likely to cut as court observed during the demonstration carried
out by the accused in court was his lingers which were
handle that was inside the palm of his hand.
it can he inferred that the injury inside the palm of his hand was
not caused when cutting vegetables or when closing
the knife at the
end of the process. An adverse inference may be drawn not only from
the failure to give an explanation but also
from giving a false
explanation REX V BLOM 1939 AD 188.
they washed so early in the morning:? There is nothing wrong with
that per se. The fact that those items of clothing were
described by the victim, changes what is normal to something
extraordinary. Despite the wash.
blood were not completely removed. The village men still observed the
same blood stains unsuccessfully washed off. The
white gumboots with
red soles were found in the girl's bedroom. They may not be the
accused's property but he was wearing them
together with his own
green overalls and blue and white blanket. All these items together
with the okapi knife were indicated by
this accused to the police who
found them at his home.
accused's father today claims that he also had an injury in his right
hand. His son hangs his hope on this false allegation
by his father.
The hand examiner at KHOTLA saw no other man with injury in his hand
except this accused. The chief and other witnesses
testified to that
effect, no suggestion was made to any of those crown witnesses that
there was yet another man with injuries in
his right hand. I have no
difficulty to reject the allegation by the accused's father that he
also had an injury in his hand.
items of clothing are still together under the accused person's
control at his own home. The identity of the accused is
by these circumstances. HE IS THEREFORE FOUND GUILTY AS CHARGED ON
violating the complainant, the accused got up and left her in the
pool of blood to die. She heard the accused walk to the
heard her door open and shut presumably behind the accused. She heard
the rattling of the lock and key. She made another
is, her attacker is locking her in the house. She heard the quick
footsteps going away.
commencement of this quick march the complainant heard some object
drop to the ground. She again thought that must be her
evidence led has shown that assumption to be wrong. The object which
was found by Pw3 -having fallen by the door, was
a de\ice used to
repair or break the locks. The key was found by Pw3 and Alice still
stuck in its keyhole.
armed with this lock breaking or repairing device, the accused was on
a mission to commit a mischief that night. He was
prepared and ready
with his weapons e.g the keybreaking device, the knife etc.
his time, energy and skill, the accused on arrival at the
complainant's place, decided to knock and ask to be allowed in
than engaging in time and energy consuming process of breaking in.
Why was he so desperate to
hook or crook the complainant's house that night? When knocking at
the complainant's door the accused disguised his male
speaking in soft female tones - convincing the complainant that the
person at her door is one of her neighbours. This
neighbourhood of single women - Pw3, ALICE and the complainant.
complainant may have committed an error - grave error or an act of
terribly dangerous stupidity, by opening her door that night.
certainly she committed no crime. She was attacked by the defence
counsel, when cross-examined as though she has committed
by opening her door or that she got what she asked for. I must hasten
to add that the counsel retreated and withdrew
the question with
those unfortunate connotations immediately upon my intervention.
that the accused was already armed with a tool to break-in if he was
not allowed takes the seriousness of the offences
committed to a
higher level. He was not just prowling around, ready to pounce on an
unsuspecting victim, he set out to create those
circumstances which presented him with the victim. He premeditated
and planned his actions to the last detail. The
accused selected his
victim carefully. He chose this obsess, clearly unhealthy person
whose resistance would not be much nor prolonged.
The complainant, by
is just a "push over". She lives alone. This offered the
accused an opportunity which he seized with open
arms to cany out his
plen to its finality successfully uninterrupted.
accused took the advantage of the cover of darkness. Most criminals
operate under the cover of darkness. The accused moved his
deep into the middle of the night when everyone is expected to he
fast asleep. This was still to ensure that there is
no possibility of
being seen by passers-by. It must have been about 02.00 a.m. because
according to Pw3 they arrived at the complainant's
place at about
03.00 a.m. in response to the complainant's cry of help.
to the complainant, the struggle or fighting between her and the
accused went on for an estimated duration of (30) thirty
one hour. 1 hat is why I have come to the conclusion that these
offences were committed at the time commonly referred
to as "the
witching hour". He was doing what can be properly described as
evil deeds in that quite dark night.
accused has demonstrated total lack of respect for other people and
their rights. He consciously and deliberately set out to
capital offences -rape and murder. The accused has only been denied
his wish, desire or resolve
murder by the complainant's lo\e for life. The accused was certain
that he had killed the complainant by cutting her throat.
complainant simple refused to die. She hang tenaciously onto her dear
life until she successfully obtained an appropriate medical
actions, the complainant saved her life and that of her intended
killer. Compare and contrast both of your actions with regard
life. The accused took every step in his resolution to put an end to
the complainant's life, well aware that if caught, brought
and convicted, he just might pay the ultimate penalty - SECTION 297
(1) (a)(1)) CRIMINAL PROCEDURE AND EVIDENCE ACT
provides : "(I) Subject to sub-section (2) or (3), sentence of
death by hanging
be passed by the High Court upon an accused convicted before it or
by it of murder and
be passed by the High Court upon an accused convicted before it or
by it of u cason or rape " The complainant did everything
her power to save both their lives despite there being no guarantee
that the- killer will also he killed. Often the murderers
with murder. This statutory provision cited above has been filed and
It is now
partly repealed by SEXUAL OFFENCE ACT 2002. But in this case the law
that applies is the one which was in Force at the
time these crimes
murder charge this accused has been saved by the complainant's
refusal to die. The accused had done everything possible
to carry out
his resolve to kill the complainant.
including this court, has done everything to save tills accused from
the consequences of his actions. Here in Lesotho
developed and poor everyone has fundamental Human Rights and Freedoms
enshrined in THE CONSTITUTION OF LESOTHO. The
courts insist on and
enforce those human rights when the man is charged with heinous
offence. There is no free medical aid. There
is no law or binding
decision of the court for anyone to be provided with free medical
treatment even to safe life. Questions arose
in my mind when I read
"KINGDOM OF LESOTHO PARLIAMENT DEBATES OF THE NATIONAL ASSEMBLY
- DAILY HANSARD -OFFICIAL REPORT OF
THE SIXTH MEETING - FIRST SESSION
OF SIXTH PARLIAMENT -Thursday, 22nd April, 2001".
undoubtedly accept that we should have the criminal justice system
second to none. This should be within our means which can only
the extent of our priorities. What is the order of our priorities?
Take a look at the annual budget.
does the government spent most money? How? By doing what? The
Honourable Minister of Health DR. M. PHOOKO in his speech in
parliament - ( refer to in the above tiled HANSARD), told the house
that in 2003 there were one hundred and fifty nine (15*)) neonatal
foetus death. There were twenty six (26) maternal death. It is common
knowledge that many mothers and babies die at -MALIAKO LEROTHOLI
MATERNITY UNIT of QUEEN ELIZABETH II HOSPITAL. The causes of deaths
are various but the common denominator is lack of funds. For
these causes are set out at page 14 of the said HANSARD as:-
of skill or expertise
of appropriate equipment
of sufficient numbers of doctors and nurses To take care of the
the courts if a rapist is not provided with the expert legal advise
about his rights, he is without further trouble or fuss,
an acquittal irrespective of the convincing evidence against him.
LETSABA V REX C OF
A no.2 of
2003 and the authorities therein cited. The rapists are allowed to go
back into the communities now with full knowledge
that the law is on
their side. They are the only people whose human rights must be
protected and enforced under any circumstances.
abiding citizen have fundamental human rights which warrant
protection or enforcement? The criminals who have offended against
the crown must be provided with expert legal advise or services.
Those at hospitals are allowed to lose their lives rather than
provided with medical expertise. This is a curious situation. Arc our
priorities in good order. Be that as it may.
of rape is very prevalent presently. According to DR. MOSENENE, the
doctor who treated this complainant and examined her
allegation of rape, she examines per week at least four or more women
or girls who have been raped. This is only
there at MOHALESHOEK
HOSPITAL. What about the other hospitals all over the country? There
are ten districts. Disregarding the population
distribution let us assume that the number of women and girls raped
per week is the same all over the districts. Times
that by the ten
districts. In all forty (40) women or girls are raped in Lesotho per
week. In Republic of South Africa the media
is the rape capital of the world. Every second a woman or girl child
is raped. Lesotho is coining hot on heels behind
the Republic of
South Africa. We are eager to catch up - no wonder HIV/AIDS infection
is running like the veld lire on a windy
day in our region.
lack expertise and modern technological equipments there is no
telling if the victims of rape have been sentenced to sure
their rapists. The rapists are nevertheless still treated with
extreme leniency. They are not removed from the society.
be removed from the society for its protection from your actions. But
still it is not a permanent removal. This accused
will be removed for
a while. Perhaps while in prison he may learn to respect other people
and their rights.
term of imprisonment that you are going to receive is going to be
considerably reduced by those blessings bestowed upon
you by the
circumstances of this case. You were a young man at the age of 19
years when you commuted these offences. To the village
every grown up woman of the village is according to the custom and
tradition "'Me"-translated mother-'M'e MPHO
is your mother. Why did you attack your mother?
you rape your mother? A well brought up MOSOTHO CHILD will not do any
wrong in the presence of his or her mother. Let alone
do the wrong
against his or her mother infront of her. When your counsel indicated
that you are ostracized by the community and
no one comes to see you
in prison because of the crimes you have committed it is because of
that custom and tradition against which
you have offended. In
consideration to that you will get yet another reduction of the
sentence you deserve.
consideration which will reduce the severity of the sentence which
you deserve even further is your illness - epilepsy.
You do not claim
that it caused you to do what you did. You complain that you have had
frequent attacks while in prison. You still
receive the same medical
attention presently in prison as you received when you were at home.
counsel pointed out that you have no opportunity to buy yourself
decent clothes. Since you were dependant on your parents,
now the tax
payer will assist your parents to maintain and support you. When on
remand you were using your clothes. Now as a convicted
will be provided with clothes by the prison authorities at the
expenses of the tax payer.
you want to go to help your son. You do not tell the court what you
want to do for him. You did not tell us what you did
for him in the
past Evidence showed this court that you arc total dependant of your
parents. Your lather did everything for you.
he was at home on leave he is the one who went out with the cattle to
graze at the veld. Your mother said in your father's
absence she has
hired a herdboy. What good are you then to your son? You are not a
good role model.
SENTENCED ON THE MUST COUNT TO FORTY (40) YEARS IMPRISONMENT AND
SECOND COUNT TWENTY (20) YEARS IMPRISONMENT. BOTH SENTENCES
CONCURRENTLY -COMMENCING FROM THE 18th NOVEMBER, 2001.
: Mr. Loko
: Ms. Lesupi
Defence : Mr. Mokaloba
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