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CRI/REV/40/00

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

REX

VS

TSOKOLO
RANTHO

Review
Case No. 40/2000 C.R. No. 5/2000

Review
Order No. 9/2001 In Berea District

JUDGMENT

Delivered
by Hon. Mr. Justice M.L. Lehohla on 15th day of June, 2000

The
accused appeared before a Magistrate charged with the Crime of rape;
it being alleged by the crown that he had unlawful sexual intercourse
with 'Malika Baso, a female/girl of about 15 years without her
consent.

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The
accused pleaded not guilty to that charge. The crown led evidence
consisting of the complainant and several others and at the end of
the day the accused who didn't give any evidence was convicted and
sentenced to four (4) years' imprisonment. It is against this
background that when the record came before the High Court on
automatic review, the court directed the Registrar of this court,
that is after it had perused the papers before it, to send the record
to the magistrate for reproduction in type of sufficient copies to
cover the court and the parties and that the Registrar should also
write a letter to the accused inviting him to say why on the date
this matter shall have been set down the sentence shall not be
enhanced appreciably in the event that conviction is confirmed. This
was way back on the 22/03/2000.

The
record was duly dispatched to this court, and because of the
accused's plea that he would love to have the record; in fact it does
appear that the accused didn't receive the record which I had wanted
him to receive in good time nor did he receive the letter, conveying
the Court's intimations to him as a result when the matter came
before me on the 15/06/2000. It was only then that he received these
two (2) things. At that stage he was again advised by this court to
secure himself services of a lawyer if he wished to have one, and the
court is pleased to see today which is the 15th - the matter was
postponed to the 15th - that he has availed himself of services of
Mr.

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Lesuthu
of the Legal Aid Section.

Today the
court has had benefit of argument from both counsel and their
submissions. The crown maintains that the accused's trial was
properly conducted and that he was advised as to the desirability of
securing himself a lawyer even at the stage of the magistrate's
court, and that he decided to conduct the case himself.

At that
stage the complainant who was under age gave her evidence to the
court below and emphasised that she was never in love with the
accused and that this incident befell her on her way from or to the
well where her mother had sent her to fetch water - this was at
around 5 pm of the date in question which was 19/12/99. She said that
she met with the accused who requested to have sex with her but she
declined. Then the accused started to beat her up and her efforts to
try and defend herself were to no avail such that in the process when
she was being interfered with and pushed around, she got hold of the
accused's blanket which got torn and she hung to the torn piece of
the blanket which she showed to her mother at a later stage. The
magistrate was shown this, as it was produced.

The
accused makes no explanation anywhere about how this came about. The

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accused
put to the complainant that they were in love but she denied this. He
further

vehemently
put to her that sex was by consent but she denied that. Mr. Lesuthu
on his part indicates that the proceeding is an irregularity and in
support of that he made a number of submissions one of which is that
the magistrate doesn't show if there was an interpreter or not, and
that the doctor didn't give any evidence but only handed in the
record of his findings, and that in respect of the word hymen which
seems to be one of the things that he examined he has written married
and that because of this and other things this case is a fit one for
retrial. But here we are concerned with a case of rape. In the
celebrated phrase of justice Hannah in the Court of Appeal sitting in
Swaziland in Velakathi vs Regina A/56/84 (unreported) it is indicated
that "there is no rule of law requiring corroboration of the
complainant's evidence in a case such as the present one but there is
the well established cautionary rule of practice in regard to
complainants in sexual cases, in terms of which a trial court must
warn itself of the danger inherent in their evidence and accordingly
should look for corroboration of all the essential elements of the
offence.

Thus in a
case of rape the trial court should look for corroboration of the
evidence of intercourse itself the lack of consent and the identity
of the alleged

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offender.
If any or all of these elements are uncorroborated the court must
warn itself of the danger of convicting, and in such circumstances it
will only convict if acceptable and reliable evidence exists to show
that the complainant is a credible and trustworthy witness ".

As far as
I can see and as far as the evidence reveals there is no mistake in
identity of the accused by the complainant. That's point number 1.
Point number 2 there is no denial that sexual intercourse took place:
so the occurrence of sexual intercourse is common cause.

So now,
the only difference comes to where the accused says he is in love
with the complainant and that sexual intercourse was by consent. But
now convincing evidence led before the magistrate who accepted that
evidence shows that there was no such love affair.

Now the
false question put to the complainant will at the end of the day
strengthen an inference of guilt on the part of the person who puts
it. Of course the accused was not obliged to give any evidence but
the evidence of the complainant to the effect that there was no love
affair between her and the accused remained

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unrebutted.
The accused bears no onus to prove his innocence but where, as in the
present case, he makes an assertion that he was in love with the
complainant then he owes some duty of explanation, not to prove
anything, but an explanation of how then the complainant could have
behaved in the manner in which she did if in fact there was such a
love affair and how did the blanket belonging to the accused get to
her and part of it torn away in a manner that doesn't express
passionate willingness on the part of parties who engage in that type
of thing.

For those
reasons I find that the accused was properly convicted, and that
there is no need for any retrial.

Now
coming to sentence, time and again this court has gone out of its way
to quote endlessly the case of R vs Billam and others [1986] 1- ALL
ER 985 at 987 to 988, and this case is repeatedly quoted this way as
it gives very useful guidelines in sentencing in rape cases. In that
case Lord Lane C.J. said, "there are however many reported
decisions of the court which give an indication of what current
practice ought to be and it may be useful to summarise their general
effect". After suggesting that for rape committed by an adult
without any mitigating or aggravating features a figure of five (5)
years should be taken as a starting point, and that in a

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contested
case the starting point should be 8 years the learned Chief Justice
proceeded

as
follows: The crime should in any event be treated as aggravated by
any of the following factors:-

1. violence
   is used over and above the force necessary to commit the rape.
   

   
   

2. a
   weapon is used to frighten or wound the victim.
   

   
   

3. the
   rape is repeated.

   
   

Taking
that at age 20 the accused was just on the boarder-line between being
a young man and an adult, and where if the rape was committed without
being accompanied by any mitigating or aggravating features as stated
above, five (5) years would have been sufficient.

In the
instant case the complainant who was believed by the learned
magistrate indicated that she was beaten up by the accused. So
violence was an element over and above the force necessary to commit
rape.

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The
learned Chief Justice referred to earlier, said in all such instances
as

enumerated
above the sentence should substantially be higher than the figure
suggested as the starting point of five (5) years.

As stated
earlier at letter (H) on page 987 of R vs Billam, the learned Chief
Justice indicated that" the variable factors in cases of rape
are so numerous that it is difficult to lay down guidelines as to the
proper length of sentence in terms of years. That aspect of the
problem was not considered in R vs Roberts. There are however many
reported decisions of the court which give an indication of what
current practice ought to be and it may be useful to summarise their
general effect".

I have
already indicated that the learned Chief Justice indicated that where
rape is committed by an adult without aggravating or mitigating
features the figure of five (5) years is advised as the starting
point, and that where rape is committed by two (2) or more men acting
together or by a man who has broken into or otherwise gained access
to a place where the victim is living or by a person who is in
position of responsibility towards the victim or by a person who
abducts the victim and holds her captive, the starting point should
be eight (8) years, where violence is used over and above force
necessary to commit rape the starting point is eight (8) years again.

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At the
top of the scale comes the defendant who has carried out what might
be described as a campaign of rape committing the crime on a number
of different women or girls. He represents more than ordinary danger
and a sentence of fifteen (15) years or more maybe appropriate.

I have
earlier indicated that we live in dangerous days of the scourge of
HIV/ AIDS and Ms Maqutu has made her forceful/powerful submission in
that regard and I firmly believe that females are entitled to
protection against people who are inclined to forcefully enter
females without their consent and thereby communicate to them a
disease which is tantamount to a death warrant to the victim.

I see
that the learned magistrate has taken into account the personal
circumstances of the accused. She has indicated that he was
relatively a young man and that he has no previous convictions, and
also that according to the learned magistrate this warranted the
sentence that she imposed or he imposed. But it appears that the
magistrate leaned far too much in the direction of leniency and in
the process over looked the judgments of this court which have been
given from time to time or the question of the nauseating aspect of
crime known as rape.

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I find
that the four (4) years' imprisonment imposed by the learned
magistrate was indeed derisive. In confirming the conviction I set
aside the four (4) years' imprisonment imposed by the learned
magistrate and in place thereof impose a sentence of (8) years'
imprisonment. That's the sentence of this court.

M.L
LEHOHLA

JUDGE

15th
JUNE, 2000

For
Crown: Miss Maqutu

For
Defence : Mr. Lesuthu

copy :
Magistrate - Berea

O/C Police - Berea

O/C Prison - Berea

O/C - Central Prison

CID - Police Headquarters

Director of Prisons

Director of Public Prosecutions