CRI/A/35/89

CIV/APN/22790

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

TSIMANE
M. BOLIBE APPLICANT

AND

THE
MAGISTRATE (QUTHING) 1ST RESPONDENT

THE
ATTORNEY-GENERAL 2ND RESPONDENT

THE
DIRECTOR OF PUBLIC PROSECUTIONS 3RD RESPONDENT

Before
the Honourable the Chief Justice Mr. Justice B.P. Cullinan on the
20th day of May, 1990.

For the
Crown : Mr. P. Mokhobo, Crown Counsel

For the
Applicant: Mr. Z. Mda

JUDGMENT

Case
referred to: (1) R v Sesene CRI/REV/169/89 (Unreported).

The
appellant was convicted by the Magistrate's Court for the Quthing
District of rape and was sentenced to 5 years' imprisonment.

The
charge indicates that the accused was "aged about 18 years".
That should have put the learned trial Magistrate on
enquiry. Indeed,
in mitigation the accused said, "I am a youth of 18 years still
attending school at Std.7." Despite
all this the learned trial
Magistrate conducted no enquiry as to age. I have dealt with this
aspect in another review judgment
this

2

morning R
v Sesene (1), and I would refer the learned trial Magistrate's
attention thereto. As matters stand, there is an affidavit
before
this Court sworn by the accused's mother, and a baptismal certificate
exhbited thereto, which establishes that the acused
is 17 years of
age and was less than 17 years in the court below. The sentence of
imprisonment is therefore invalid. Further, the
trial was conducted
in the absence of a parent.

It is not
disputed that the accused met the 17 year old complainant after
Church on a Sunday. She was in the company of another
girl and he
with a male companion. The two couples separated going in different
directions. The complainant testified that the
accused asked her
"when am I going to accept his proposal as he proposed love to
me". She declined. They reached a stream
where he pulled her
towards a tree: they struggled, the complainant overpowering the
accused, until such time as he tripped her
and she fell. She shouted,
raising the alarm, but no one heard, whereupon the accused divested
her of her underclothing and raped
her.

She went
home and made immediate complaint to her mother. The latter testified
that her daughter was crying. She took her for medical
examination
the next day.

The
doctor recorded that he observed "no recent wounds" on the
hymen, examination was "painful", and that a
vaginal swab

3

revealed
"no spermatozoa seen". He also observed an infection in the
vaginal area. In this respect the doctor opined that,

"I can not state if the person had forced intercourse. Both the
infection and hymen indicate that intercourse has taken place

before."

The
accused testified that the complainant had agreed with him to have
intercourse, but he desisted from doing so as he suffered
from
syphilis. It was the complainant's own evidence that this was not his
first time to "propose love" to her. The fact
that she was
content to walk alone with him, indicates that they were on, at least
friendly terms. In his questioning of the complainant
he had put it
to her that he had desisted, as it was painful - presumably painful
for her. It may well be that he did not wish
to reveal the syphilis,
that is, until the court ruled that there was a case to answer.

In any
event the doctor in his evidence testified that while the
complainant's hymen and the infection showed that there had been

intercourse before, yet he could not say that there had been forced
intercourse, or even recent intercourse without force. All
that he
could say was that "intercourse has taken place before". As
to the infection, when asked, "Would it be there
for some
days?", he replied that he was not in a position to say how
long.

4

The
doctor's evidence therefore apparently indicates that the
complainant, contrary to her evidence of virginity, had had
intercourse
before. Again, there were no signs of any forced
intercourse, which signs were to be expected if the complainant's
evidence was
true.

There is
the evidence of recent complaint, which does not amount to
corroberation, but does tend to establish consistency of the

complainant's evidence. The learned Counsel for the accused M. Mda
points to the fact that complainant's mother was in bed when
the
complainant returned, no doubt later than usual, who may well have
pretended to have been raped to explain her late arrival.
There is
little on the record to support this submission. As against that,
there is no evidence of the state of the complainant's
clothing or
underclothing, or whether she bore any signs of a struggle,
particularly in view of her evidence of being strong enough
to
overpower the accused. As I see it, the mother's evidence could on
the balance be regarded as neutral.

The
doctor's evidence if anything establishes that there was no forcible
intercourse. On the contrary however, the learned trial
Magistrate
seems to have been satisfied, without any medical evidence in support
thereof, that the infection suffered by the complainant
was that
suffered by the accused, indicating 5 penetration. That I consider
was a misdirection.

In the
light of all that, corroboration was clearly necessary to a
conviction. There was none. Further the learned trial Magistrate

never once adverted to corroboration or the cautionary rule in the
matter. Indeed he observed as follows:

"Accused surprising he was again says he was not in love with
Complainant as all others have said so, but all the same says

Complainant agreed to have sexual intercourse with her this is highly
improbable, I therefore accept the victims allegation. I
find accused
guilty as charged and I accordingly find him guilty of the same."

While a
court may, in considering all of the circumstances, address itself to
probabilities, such process does not affect the standard
of proof
upon the prosecution. The above passage indicates that the standard
of proof applied by the learned trial Magistrate went
no further than
the balance of probabilities. The court cannot convict if the
accused's evidence might reasonably possibily be
true. The court can
only convict where, on the whole of the evidence, the accused's guilt
is the only reasonable inference.

I am not
satisfied that had the learned trial Magistrate

6

directed
himself as I have indicated above, he would inevitably have convicted
the accused. It would be unsafe to allow the conviction
to stand. The
finding and conviction and sentence in the court below are set aside
and the appellant is acquitted.

Delivered
at Maseru This 22nd Day of May, 1990.

B.P.
CULLINAN

CHIEF
JUSTICE