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CRI/A/36/91

IN HIGH
COURT OF LESOTHO

In the
Appeal of:

MOLUPI
PITI 1st Appellant

MOFEREFERE
PITI 2nd Appellant

vs

REX

JUDGMENT

Delivered
by the Hon. Mr. Justice W.C.M. Maqutu Acting Judge on the 17th day of
March 1994,

This
appeal was heard in the absence of the Appellants because Mr. Phafane
who noted the appeal said he had not been instructed
in the appeal.

It seemed
the appellants who were not legally represented at the trial had not
been informed of the date of hearing of the appeal.

The
Appellants were convicted of rape in 1989. They applied for bail
pending appeal and it was granted.

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Mr.
Thetsane for the Crown did not support conviction. The Court decided
to proceed with this appeal in the absence of the Appellants
because
the case was an old one. The Appellants were convicted in December,
1989 but their appeal came before the High Court in
1991.

The
Appellants identification in the dark was highly unsatisfactory more
particularly because stones were thrown around when the
complainant
was waylaid by several people. The identification of the Appellants
was made all the more unsatisfactory because they
had not known the
accused before that day.

Only one
witness the complainant was the identifying witness. That being the
case, the cautionary rule was applicable. Furthermore
this being a
case involving a sexual offence there is another tradition of
treating such a case with caution. See R. v. W 1949(3)
SA 772 AD. As
already stated, the rape had occurred in the dark. Three men were
involved one of whom had a knife to overcome complainant's
resistance
with the threat of stabbing her with a knife.

It will
be observed that cautionary rule is a matter of practice that has
been constantly followed

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as if it
is a rule of law. See Malefetsane Phala Mabope and Others V. Rex C.
of A (CRI) No, 5 of 1986 (unreported). Some form of
corroboration
becomes necessary to reduce the risk of wrong conviction unless after
due caution the trial court is satisfied that
the merits of the
single witness, her evidence is clear and satisfactory in every
material respect. Where there is corroboration,
the Court can check
one witness's evidence against that of others. Even where some
elements of some of the witnesses' evidence
are not very
satisfactory, by cross-checking, the court can gain the assurance
that an innocent person is not being convicted.
With a single witness
this is not possible.

It will
be noted that Broom J.P. in R. v. Abdoorham 1954(3) SA 163 or page
165E rejected the cautionary rule of R, v. Mokoena 1932
OPD 79 his
view being :

"The court is entitled to convict on the evidence of a single
witness, if it is satisfied beyond reasonable doubt that such

evidence is true. The Court may be satisfied that a witness is
speaking the truth notwithstanding that he is in some respects an

unsatisfactory witness."

After
making this observation Broom J.P. proceeded to set aside the
conviction because the single witness: