HIGH COURT OF LESOTHO
matter of :
the Hon. Mr. Justice M.L. Lehohla on the 25th day of February, 1991.
February 1991, this Court confirmed the verdict of guilty of rape
given by the court below, hut altered the sentence by
from five to eight years' imprisonment. Reasons were to he given
later. Here do they now follow.
accused had pleaded not guilty to a charge of rape preferred against
him in the court below where it was alleged that he had
eleven year old child named Palesa Tsekane around October 1990. The
offence is alleged to have taken place at Mekaling
in the Mohale's
complainant told the court below that she attends school. On 2nd
October 1990 she had occasion to attend a ceremony where
from a circumcision institution were singing their praises in a
nearby village. On her return to her home called Meriting
accused, a man of 31 years of age came to the complainant's home in
the absence of elderly people save only an old, blind grandfather,
and said he loved the complainant. The complainant remained silent as
this remark stunned her.
accused pulled her to a donga below the village and engaged in sexual
intercourse with the complainant. The complainant was
crying. When a
little girl of her age came in response to the alarm the accused had
completed his sordid act.
A 58 year
old lady Mamoliehi Tsikane examined the complainant immediately after
the act and noticed that there was a gooey mixture
of blood and
sperms trickling from the complainant's private parts.
sexual assault had taken place in broad daylight just after 12
accused is well known to all crown witnesses. He was seen on the
spot. He admits only engaging in horse play with the complainant
the time and place hut says it was in the company of other little
girls. There is no mistake as to the accused's identity. There
doubt that sexual intercourse took place on the complainant.
for the accused argued that the crown case is bedevilled by lack of
corroboration and absence of any indication that the
magistrate had cautioned himself.
Mdhluli who gracefully seized controls from Miss Moruthoane for the
crown stated that corroboration should not be insisted upon
matter of law, hut that as a matter of practice the court should
always warn itself of the inherent danger of acting upon
complainant in a (sexual) case. See Mayer vs Williams 1981(3) S.A.
348 at 351A to 352D.
respect of females of the complainant's age there is no need to prove
lack of consent in order to establish that rape took place
the law states that they are incapable of giving consent.
As to the
proof that inherent danger has been avoided I think it exists in the
sense that there has been corroboration of the
complainant in a
respect implicating the accused.
seen on the spot and at the time. His admitted interference with the
complainant made her cry. There is also absence of gainsaying
evidence by the accused. A finding was made about his falsehood as a
witness. He was indeed lying when he said he only engaged
play with the complainant.
been repeatedly stated that
"There is no rule of law requiring corroboration of the
complainant's evidence in a case such as the present one but there
a 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 dangers in their evidence and accordingly should
look for corroboration of all essential elements of the offence
Case No. 56/84 Dicks Vilakati vs Regina- a Swaziland Appeal Court
decision (unreported) at 5. I agree with Mr. Mdhluli's
that proof that the magistrate has warned himself need not he
supplied by the magistrate's express words when the record
shows that he has in fact warned himself.
CRI/REV/245/89 Rex vs Selepe Kao (unreported) at 10 this Court had
occasion to say
"Even though he (the magistrate) did not expressly say he had
warned himself the reasons he has advanced for believing her
the possibility that he convicted when it was not safe to do so on
account of the inherent dangers inherent in sexual cases."
I have no
doubt in my mind that the record clearly shows that reliable and
acceptable evidence existed to show that the complainant
credible and trustworthy witness on the basis of which fact the trial
court could have convicted even if factors such as
intercourse, lack of consent and identity of the offender were
should not he understood as detracting from Wentzel J.A.'s statement
in C. of A. (CRI) No. 5 of 1984 Khethisa Molapo vs
at 2 that
"It is illuminating to interpose to say the magistrate had
written in his judgment that he had treated the complainant's
evidence with caution and had warned himself of the dangers of
convicting without corro-horation."
in V vs A 1984(2) ZLR. at 140 (a Zimbabwean decision) McNally J.A.
cited with approaval the words of MacDonald A.J.P.
in R vs J. 1965
R.L.R. 501 at 503, 1966(1) S.A. (SR.AD) at 90E when he said
" the exercise of caution should not he allowed to displace the
exercise of common sense."
said all this I wish only to point out that a body of authority
exists in support of the view that rape committed in circumstances
which are aggravated should be met with severe penalties. The
question of the complainant's youthfulness is one such aggravating
factor. The trauma of being subjected not only to the act hut being
made a focal point of amusement in the courts and throughout
period of investigation cannot he overlooked.
accordingly confirmed the verdict given by the court below and
enhanced the sentence to eight years' imprisonment.
: Miss Moruthoane/Mr. Mdhluli
Defence : Mr. Fosa.
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