CRI/A/72/83

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

KHETHISA
MANAMA MOLAPO Applicant

V

THE
DIRECTOR OF PUBLIC PROSECUTIONS Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 15th October. 1984.

On 17th
June, 1983 the Applicant was convicted of rape and sentenced to 2
years' imprisonment by the Resident Magistrate of Leribe,
He appealed
to the High Court against both his conviction and sentence. The
appeal was however, dismissed on 6th August, 1984.
The applicant has
now filed an application in which he seeks an order of this Court
granting him leave to appeal to the Court of
Appeal, admitting him to
bail pending the outcome of his appeal and/or alternative relief.

In his
founding affidavit the applicant avers, inter alia, that there are
reasonable prospects of success in his appeal. The Court
of Appeal
may take a different view from the High Court and uphold the appeal.
The Director of Public Prosecutions opposes the
application, and
avers in his answering

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affidavit,
that the appeal has no prospects of success. It is unlikely,
therefore, that the Court of Appeal will interfer with the
decision
of the High Court.

The
detailed facts of this case are contained in my judgment in
CRI/A/72/83 dated 10th October, 1984 and I do not propose to go
over
them again. Surfice it to say the trial magistrate before whom all
witnesses appeared and testified accepted complainant's
corroborated
evidence that before the applicant had sexual intercourse with her
she was physically assaulted and injured. The magistrate
accepted her
evidence that complainant did not consent to sexual intercourse but
for fear of sustaining further injuries decided
to submit and offer
no resistence. That could not be construed as consent.

It is
worth nothing that at his Criminal trial the applicant was charged
together with two other persons who, according to complainant's

evidence, also had sexual intercourse with her without her consent.
Applicant's co-accused were however acquitted and discharged
at the
end of the trial. It was contented in argument that that was an
indication that the trial magistrate regarded the complainant
as an
unreliable witness whose evidence should not, therefore, have been
accepted on other aspects, particularly that she had not
consented to
sexual intercourse with the applicant. I was unable to agree with
that argument for it was clear from his judgment
that the trial
magistrate took the view that in order that a conviction on a charge
of rape

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might be
sustained it was necessary that complainant's evidence should be
corroborated. That did not mean that even where it had
been
corroborated complainant's evidence could not be accepted and used to
sustain a conviction.

It was
further argued that complainant's story that she did not consent to
sexual intercourse with the applicant was inconsistant
with
undisputed fact that applicant had undressed to have sex with her. A
rapist would never undress for fear of being caught in
his unlawful
act, so the argument went.

It
should, however, not be forgotten that, according to the evidence
accepted by the trial Court, after she had been physically
assaulted
and injured complainant decided to submit and offer no resistance to
sexual intercourse for fear of her life. If for
the reason she had
advanced the complainant was submitting and offering no resistance to
sexual intercourse I find nothing unreasonable
in that the applicant
could have relaxed and undressed to have sexual intercourse with her.

In my
view there are no prospects of success in the appeal and for that
reason I have no alternative but to refuse leave for further
appeal.
It follows that the application to admit the applicant on bail
pending the outcome of his appeal to the Court of Appeal

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must
likewise be refused and I accordingly order.

JUDGE.

15th
October, 1984.

For the
Appellant : Mr. Unterhaulter

For the
Respondent : Mrs. Bosiu