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CRI\A\58\94

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of:

LEFA SAKA
Appellant

and

REX
Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 14th day of
February, 1995

This is
an appeal from the Magistrate's Court of Berea, it being alleged that
upon or about the 5th April 1994 at or near Ha Mokonyana
in the
district of Berea, the said Appellant, an adult male did
intentionally have unlawful sexual intercourse with Limakatso Mpoka.

This Limakatsp Mpoka being a female Mosotho of 17 years. That this
was without her consent and that the accused did, thereby commit
the
crime of rape.

The
appellant denied having had unlawful sexual intercourse with the
Complainant. But instead he has admitted having had sexual

intercourse with the consent of this girl. He therefore

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pleaded
not guilty. There has been four witnesses for the Crown in the court
a quo. It was P.W.1 Limakatso Mpoka the Complainant,
P.W.2 Tsietsi
Mpoka the girl's father, P.W.3 was Moea Tupa, and the fourth witness
was the doctor.

The
accused gave evidence in his defence. I did not think his evidence
was much useful. It did not appear to meet the real issues
that were
against him. But he was not defended. I think much of the blame can
be put at the door of the magistrate's judgment.
To start with, I
would agree with the submission that not much of sufficient analysis
was done of the evidence that was before
the Court. We do not have
anything in the way of stating what factors are in favour of the
Crown's case. Not much was placed in
the direction of indicating what
matters did not stand in the Appellant's credit. I do observe that
there is much of evidence that
constitute hearsay evidence. That came
through P.W.2, the girl's father. More specifically is the statement
that this witness testified
to as having been reported by the
Complainant. P.W. 2 and P.W.3 are said to have been eye witnesses,
but surely they should have
shed more light as to what they in fact
saw happen. This is more so because it seems to be common cause that
in fact intercourse
did take place. It means therefore the
Complainant and the Appellant were most probably found in the act. So
that there should
have been much more specific and abundant
information as to what this alleged pulling

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of and
pulling about of the girl by the boy was about, what the girl was
doing and what the boy was doing at that time. I would
agree that
there is a lot of doubt cast by the circumstances of the fact that
this lumber jacket was said to have been laid down
in an orderly
manner suggesting that there was agreement or prior arrangement. On
the other hand I do not find that there is any
strange thing in the
boy having ran away when he saw the girl's father. I think that is
natural. Again, without suggesting that
there should be conformity or
total agreement throughout, that between P.W.2 and P.W.3, there
should have been more evidence as
to what they saw and what they
heard that could sufficiently give an idea that there is truth in
what they were testifying to.
There should have been much more
information that would tally as between the two witnesses.

I would
place no value on the evidence of the doctor. I would agree with Mr.
Sakoane that his evidence is colourless so to speak.
The fact that he
examined this Complainant a few days after the event, the fact that
the doctor says that there was no hymen and
fact that the doctor does
not say that he found proof of intercourse, goes a long way to show
that his evidence has no value.

As an
appellate Court, I would normally be constrained towards commenting
about the credibility of witness because that

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area
belongs to the magistrate who tried the matter. But this is the area
in which the magistrate made no effort. He did not make
any visible
effort. It is possible that this Appellant raped the girl. As I said
in the beginning the problems of this appeal have
to do with the
attitude of the magistrate. I find that this is an unsafe case to
confirm the conviction. If the accused has in
fact raped this girl he
must consider himself very lucky. The appeal is allowed.

T.
MDNAPATHI

JUDGE

For the
Appellant : Mr. Fosa

for the
Respondent : Mr. Sakoane