CRI/A/38/83

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

AUPA KALI
Appellant

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. Acting Chief Justice, Mr.Justice M.P. Mofokeng on the
15th day of August 1983

The
appellant Aupa Kali, aged 22 years of age, was charged with the
offence of rape it being alleged that upon or about the 11th
day of
July 1982 and at or near Thabaneng in the district of Mafeteng he
wrongfully unlawfully and intentionally had unlawful sexual

intercourse with one 'Matebalo Tsemane, (hereinafter referred to as
the complainant). He pleaded not guilty to the charge but was
found
guilty and was sentenced to 18 months imprisonment plus six strokes.
The appellant appealed to this Court on the following
grounds

1. the
   judgment is against the weight of evidence and is unsupported
   thereby;

   
   

2. Magistrate
   erred in rejecting Doctor's evidence without giving strong reasons
   therefore;

   
   

3. Magistrate
   erred in giving credibility to (the) unsupported evidence of the
   complainant;

   
   

4. Magistrate
   erred in rejecting accused's story which could have been reasonably
   true;

   
   

5. If
   the court had not therefore misdirected itself on the evidence of
   the complainant, the court would have found that the Crown
   had not
   proved its case beyond reasonable doubt."

   
   

The
evidence was briefly to the effect that the complainant had attended
a function called a Disco and it was

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during
the said dance that the accused made some sexual approaches or
innuendoes to her. She, together with others left (and this
is not
clear whether it was towards morning or midnight as the evidence of
the Crown witnesses is conflicting). She was going to
her in-laws'
place and she is apparently newly married to her husband being one of
the many Basotho men employed in the Republic
of South Africa. When
she passed

near the
place where tractors are kept somebody called her she did not stop
but continued to walk. Then somebody caught hold of
her and she tried
to free herself in the manner that women will do. It emerges from the
evidence of the Crown witnesses who were
with her that the expression
they used indicated that they thought these two people were lovers,
i.e. the manner in which the whole
episode was carried out. It is
from this point that we heard the word of the complainant against
that of the accused.

The
complainant deposes that the accused then assaulted her by kicking
her, beating her with fists on the face and throwing her
on to the
ground and forcefully having sexual intercourse with her. It was
during the cross-examination of the complainant that
the defence
counsel made a startling admission which he said the accused would
make, namely, that the accused would say he did
have intercourse with
the complainant but it was not at the spot as described by the
complainant but near the St. John's Church,
However, the complainant
says the place where the sexual intercourse took place was near the
home of some person known to her.
As she puts it "next to
Malejane's home". She tried to scream, shout but nobody came out
and the accused having satisfied
his lust, got up and promised her
that he was going to spend the whole night with her. He dragged her a
distance of about 3½
miles away to his home, she was
struggling all along and when they got to the place where the accused
slept they found a man sleeping
in the kitchen. This man asked the
accused with whom he was and the accused replied rather cheekly,
"Whom did you want me
to bring?" It was at this time that
the accused passed on to another room and left the complainant in the
kitchen warming
herself next to the stove.

3

Accused
then came and dragged the complainant into the bedroom where
apparently he had intercourse with her and later, whilst the
accused
had fallen asleep, she managed to escape and made report to various
people and reported the matter to the Police Station
where she was
accompanied by a policewoman to her home Just to change her clothes
and not to wash and went for medical examination.
This must have been
in the morning because there is evidence that she was accommodated
elsewhere after her escape except to solicit
help.

The
doctor who gave the evidence had this to say in her report: the
laboratory findings, there were no sperms found in the vagina;

smears, there was no evidence of recent intercourse; uterus was not
of the pregnant woman; there was some blood discharge the cause
of
the blood could have been infection or the doctor's examination as
she says this was not a menstrual blood and she says sperms
can
remain in the vagina for forty hours if the victim does not wash
herself. There was no cross-examination of the doctor whatever.

It is
trite law that in cases of this nature the Court has to be extremely
careful before it can convict an accused person. It is
quite obvious
from the reading of the record that the learned Magistrate did not
warn himself against the danger of convicting
in such cases. As was
said by Watermeyer in Rex v W, 1949(3) SA 772 at 780 :

"In rape cases, for instance, the established and proper
practice is not to require that the complainant's evidence be
corroborated
before a conviction is competent. But what is required
is that the trier of fact should have clearly in mind that these
cases of
sexual assaults require special treatment, that charges of
the kind are generally difficult to disprove, and that various
considerations
may lead to their being falsely laid".

and some
of these considerations were stated by Schreiner,J.A. in R. v
Rautenbach, 1949(1) SA 135 at 144-145 at 143 :

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"It is not only the risk of conscious fabrication that must be
guarded against, there is also the danger that a frightened
woman
especially if inclined to hysteria, may imagine things that happened
which did not happen".

It is
strange that nobody came out of the house a few paces from where the
first sexual intercourse is alleged to have taken place.
It is also
strange that the complainant did not appeal to this man whom she
found in the kitchen that here is the accused assaulting
her and
appeal for a help. She did nothing of the sort.

There is
also the doctor's evidence that there were no signs of any recent
intercourse having taken place. It is not improbable
therefore, that
there was a love affair as the appellant suggested in his evidence
and the complainant, hearing that there would
be questions asked in
the morning either by her in-laws or her husband, thought of the
story to either of them. It is instructive
that it has repeatedly
been stated that the position of the complainant in rape cases should
be carefully scrutinized, almost on
the same par as that of an
accomplice. It should be approached, as I said earlier, with the
greatest caution and this I find lacking
in the judicial officer’s
approach.

The
appellant's story was quite simple. It was that he hired a vehicle
wherein the complainant was conveyed to his home in accordance
with
the agreement and there they were going to have sex. At first the
complainant told him that she was having her menstrual period
but he
did not believe the story and when he got home she insisted that she
did and no intercourse too place. He was rather embarrassed
by the
admission made by his counsel and when he was asked why his counsel
had made such he said, well he said his counsel sucked
that from his
(counsel's)own thumb literally.

Anyway,
the explanation which the appellant gave, and if the proper test be
applied, can it reasonably possibly be true and if it
can reasonably
possibly be true that is the

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test it
has to satisfy and in the circumstances it has satisfied that test.

In my
view the appellant did not commit the crime of rape. There is
however, undisputed evidence of assault on the complainant.
Her word
in this respect is corroborated by that of the doctor. The appellant
ought to have been found guilty of assault common
by the Court a quo.
It is a competent verdict on a charge of rape. It is accordingly so
ordered.

The
appellant is sentenced to pay a fine of R25.00 or in default of
payment to undergo imprisonment for a period of twenty-five
(25) days
from the date of this Judgment.

ACTING
CHIEF JUSTICE

15th
August, 1983

For
Appellant : Mr. T.Mda

For
Respondent. Mrs. Bosiu