CRI/APN/274/92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THABO
LENONO FIRST APPELLANT

MOELETSI
LENONO SECOND APPELLANT

V

REX
RESPONDENT

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 18th
day of October, 1992.

For the
Appellants : Mr. E. Putsoane, Legal Aid Counsel

For the
Respondent : Miss M. Mokitimi, Crown Counsel

JUDGMENT

The
appellants were convicted by the Subordinate Court for Mohale's Hoek
of rape and were each sentenced to 5 years' imprisonment.

The
evidence indicates that the appellants attended a beer party, which
was also attended by the prosecutrix. The prosecutrix testified
that
she left the party at approximately 11.00 p.m., in the company of a
male companion. The latter testified that they were attacked
by
persons throwing stones. He ran away, reporting the incident to the
prosecutrix's husband, who declined to leave his bed and
come to his
wife's aid. The prosecutrix testified that she was subsequently
attacked by the appellants and another, and was raped
by each one of
them in turn. There is no satisfactory evidence to establish that it
was

2

the
appellants who had initially thrown the stones. In any event, the
prosecutrix thereafter proceeded to her home and made complaint
in
the matter to her husband. Medical examination established that she
had suffered a number of minor injuries consistent with,
subject to
further comment, forcible sexual intercourse.

The
learned Crown Counsel Miss Mokitimi has very properly indicated that
the Crown does not support the convictions. There are a
number of
difficulties with the learned trial Magistrate's judgment. Although
it was a sexual case, at no time did he warn himself
of the danger of
convicting the appellants on the uncorroborated evidence of the
prosecutrix. At no time did he refer to corroboration,
as such. There
was corroboration to some extent in the matter of the minor injuries
suffered by the prosecutrix, but that was as
to non-consent and not
identification.

The
evidence indicates that the prosecutrix was drunk, indeed very drunk.
Secondly, the prosecutrix made her way home at 2.00 a.m.
The question
here arises as to how a rape, even a rape by four men, could have
lasted for a period of three hours, particularly
when the
prosecutrix's evidence indicates otherwise. Furthermore, while the
injuries suffered by the prosecutrix are consistent
with forcible
sexual intercourse, it cannot be said that they are inconsistent with
drunken, aggressive, but voluntary intercourse
with four men at night
in

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the open.
At no stage did the learned trial Magistrate consider the aspect that
it was possible that the prosecutrix, her morals
affected by drink,
had consented to intercourse with the appellants, and that the fact
that the intercourse had lasted for three
hours possibly pointed to
the voluntary nature thereof. The appellants in their evidence denied
any contact with the prosecutrix.
But even if they were lying, that
did not necessarily, in an embarrassing situation, amount to
corroboration.

The
learned trial Magistrate did not consider such aspects. I am not
satisfied that had he done so he would have inevitably have
convicted
the appellants. It would be unsafe therefore to allow the convictions
to stand. The appeals are allowed and the conviction
and sentences in
the court below are set aside and the appellants are acquitted.

Delivered
at Maseru This 18th Day of October, 1992.

B.P.
CULLINAN

CHIEF
JUSTICE