1

CRI/A/1/2000

IN THE HIGH COURT OF LESOTHO In the Appeal of:

MOSHE MONTSUOE Appellant

vs
REX Respondent

JUDGMENT

Delivered by the Hon. Mr Justice M L Lehohla on the 16^th
day of May, 2000

The appellant had initially appealed to this Court only
against sentence of five years' imprisonment imposed by the learned
Magistrate
in the Subordinate Court Maseru.

When the record was placed before the High Court I gave
the following directives on 20-03-2000 :

Registrar : Please place on roll as well as doing the
following : 1. Please inform the appellant to come prepared to
argue
either in person or

2

through his counsel why in the event of the conviction
being confirmed, sentence should not be appreciably enhanced. Copy
this information
to the Crown.

2. I see that the typed scripts contain neither the
notice of appeal nor grounds thereof.

Will you therefore speedily photo-copy those and have
them attached to all copies (and to judge's too) which will be used
by all parties
before dispatching records to them.

3. Will you inquire from the Registry and report to me
why there was the delay between the arrival of this record on
19-01-2000 at
the High Court and its eventual placement before me on
17-03-2000.

The unacceptable and intolerable situation to be
gathered and read from the difference between the two dates
immediately above i.e.
19-01-2000 and 17-03-2000 is that in the event
that the appellant who is now serving term and is not on bail be
acquitted he has
been held and detained unlawfully by the bureaucracy
for no less than two months - a period sanctioned by no judicial
officer!

This Court has previously pointed at the importance of
observing provisions of sections 327 and 329(1) of the Criminal
Procedure and
Evidence Act 7 of 1981 and the practical implications
of these sections as given effect to in Seholoholo vs R 1985-

3 1989 LAC 21 at p.28.

Section 327 indicates that a judge is at large to
dismiss an appeal summarily if he considers that it has no merits.
This presupposes
that he would have had consideration of the matter
at hand before it could even be set down for hearing. This in turn
presupposes
that should the matter be set down for hearing it surely
should be at the behest and direction of the judge before whom the
record
would have been placed not for purposes of the matter being
heard in open court at that stage but for purposes of the judge's
determination
whether the matter is to be summarily dismissed or set
down for hearing in due course.

Section 329(1) as a development on what factors may have
ensued in applying provisions of section 327 provides that:

"In case of any appeal against conviction or
sentence, which has not been dismissed summarily under section 327,
the High Court
in its appellate jurisdiction, without prejudice to
the exercise by the High Court of its power under section 73 of the
Subordinate
Courts Proclamation 1938 or under section 8 of the High
Court Act 1978 -

[may]

1. 
   confirm the Judgment of the Court below

   
   

2. 
   order the judgment to be set aside

   
   

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3. 
   give such judgment as ought to have been given at the
   trial, or impose such punishment (whether more or less severe than
   or of a
   different nature from the punishment imposed at the trial);
   or

   
   

4. 
   make such order as justice requires".

   
   

The Appeal Court in Seholoholo at p.28 said :

"It was conceded by counsel for the Crown, and
correctly so, that the Judge a quo had erred in increasing the
sentence from 12
months to 2 years without first warning the
appellant of his intention so to do, and without affording him an
opportunity of addressing
argument on the point whether it should be
so increased".

I may interpose here and say such opportunity would
scarcely be afforded if the record is placed before the judge for
purposes of
hearing the matter that is already set down for hearing
within a week or so, thus denying the judge the opportunity to
exercise his
powers provided in terms of section 327 above. It is
therefore wrong to place the appeal record before a judge for hearing
instead
of placing it for exercise of his power to determine whether
to summarily dismiss the appeal, without involving parties to the
litigation,
or to order matter to be placed on the roll with such
directives as he feels justice requires, such as for instance that
the appellant
be warned of possible increase of sentence etc.

To come back to the salutary remarks of the Court of
Appeal at p.28 : Aaron J. A. proceeded as follows ;

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"Strictly speaking, therefore, the increase of
sentence by the Judge a quo must be set aside. However, at the outset
of the argument
in this Court, the appellant's counsel was advised
that this Court also considered the sentence imposed by the
Magistrate as being
too light, and invited him to address argument as
to why sentence should not be increased by this Court".

In the result the Court of Appeal in dismissing the
appeal against conviction said

" The order made by Molai J on 15^th
June, 1984, in which he

increased the sentence, is set aside, but this Court
sets aside the sentence of 12 months' imprisonment imposed by the
Magistrate,
and increases it to 2 years' imprisonment".

Thus the Court of Appeal highlighted the importance of
forewarning the appellant in terms of section 327 should the High
Court contemplate
increasing sentence. This I, stress, the High Court
can only properly achieve while in Chambers, by issuing appropriate
directives
to the Registrar.

So much then for the foregoing; and to return to the
charge.

The appellant was convicted of rape and sentenced to
five years' imprisonment. He had pleaded not guilty to a charge which
stated
that

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"The accused is charged with the offence of rape in
that on or about 13th May, 1997 and at or near Lithoteng in the
Maseru district
he did unlawfully and intentionally have sexual
intercourse with one Likeleli Rasethuntsa a female adult aged 45
years without her
consent".

The appellant in the instant appeal sought leave to
amend his notice and include appeal against conviction in his notice
of appeal
which had originally consisted of appeal against sentence
only. There being no objection by the Crown leave was granted.

In his amended Notice of Appeal the appellant says he
appeals against both conviction and sentence on the following grounds
:

1. 
   The learned Magistrate misdirected herself by failing
   to ventilate equally the circumstances surrounding the coercion on
   the complainant.

   
   

2. 
   The learned Magistrate erred and misdirected herself by
   failing to evaluate evidence so as to exclude any possible inference
   of
   consent on the part of the complainant.

   
   

3. 
   The learned Magistrate erred and misdirected herself by
   failing to apply equal consideration to the evidence of relationship
   of
   witnesses for contestants. She considered only relationships
   and bias of appellant's witness.

   
   

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(4) The learned Magistrate erred and misdirected herself
in failing to apply the Rules of circumstantial evidence which give
rise
to decision by inference. See cases.

ON SENTENCE

The appellant is aggrieved that:

1. 
   the sentence is severe, gives no option of a fine yet
   it is cruelly punitive and induces a sense of shock thereby
   justifying an
   intervention by this Court.

   
   

2. 
   The learned Magistrate has failed to consider the
   submissions made in mitigation

   
   

3. 
   The conclusion reached in conviction is not proved
   beyond reasonable doubt and as such may have trappings of
   miscarriage of justice.

   
   

4. 
   The evidence adduced leaves room for a possibility of
   doubt on the events of the day and the past relationship of parties.

   
   

Mr Hlaoli Counsel for the appellant accordingly pleaded
that sentence be not increased in the event of appeal against
conviction being
dismissed on the grounds that:

1. 
   the appellant is a first offender

   
   

2. 
   both parties had been drinking liquor which might have
   influenced their

   
   

8 normal character and behaviour

3. 
   the appellant has dependants who shall suffer on his
   loss of employment

   
   

4. 
   the complainant is not innocent person of vulnerable
   disposition.

   
   

The summary of the evidence by the Court below is that
the complainant, an employee of the UNDP, works as a secretary in
that organisation.
She is a mother of two children aged 23 and 20
respectively.

The complainant knows the appellant and had known him
previously when the two used to be neighbours. At the time the
appellant was
a tenant at Hlabi's residence; occupying (the
'ma-line').

On 13^th May 1997 the complainant returned
from work and decided to put on fresh clothes before leaving her
house for her sister's house to
meet Mr Thabo Leponesa the car
repairer there.

The place has a restaurant and also sells beer. The
complainant saw Mr Leponesa and the appellant conversing next to the
beer counter.
This was at around 8 p.m. when the complainant
interrupted their conversation and spoke to Mr Leponesa.

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Apparently the appellant also wanted to talk to Mr
Leponesa and an uneventful exchange more in the nature of jest than
anything took
place between the complainant and the appellant. The
appellant left and the complainant and Mr Leponesa shifted to some
corner where
they remained drinking. The complainant was drinking a
quart of hansa.

At closing time the bar lady suggested that as the
complainant and the appellant were going in the same direction she
shouldn't worry
as the appellant would escort her.

The complainant asked the appellant to buy her beer. He
complied. The complainant was quick to tell the Court below that by
this act
she didn't suggest that the appellant would get anything in
return.

She told the Court below that there is no love affair
between her and the appellant. However long in the distant past the
appellant
had once said he loved her.

The appellant accompanied the complainant out of the
bar. When they were about to reach the spot that marks a separation
of ways to
their respective homes, the

10 complainant says the appellant told her that he
wanted her to go and sleep at his house, and leave in the morning.
The complainant
protested saying she would do no such thing and told
the appellant that he should go to his home while she was going to
hers.

There and then he grabbed her by the wrist fiercely and
firmly saying also "you are going to my house with me
neighbour".
The complainant says there was nothing playful in
the appellant when uttering these words. Her protests fell on deaf
ears.

The complainant failed to free herself. She said that
the appellant dragged her into Mokitimi's yard. She tried to free
herself but
fell down; and as she decided to stay put on the ground
the appellant fetched her a slap and ordered her to stand up. The
appellant
ignored her protests and questions why he was hitting her;
and lifted her.

She said her face was caught in the wire and got torn as
the appellant forced her through the fence. He dragged her towards
his door.
At this time she says she had only one shoe on.

The complainant told the Court below that the appellant
forced her into his house. He forced her past the kitchen into the
bedroom
where a young boy of about

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17 was sleeping on the ground. He ordered the boy to go
and sleep in the kitchen. The appellant gave her rough treatment
culminating
in his cocking a firearm at her. She says this is an
AK-47. As she shouted and cried the young boy came and tried to stop
the appellant
from assaulting and harassing the complainant. She
tried to seize this moment to escape through the window but found it
had burglar-proofing
while the door was locked.

The appellant came at her grabbed her roughly and told
her she would eventually oblige. He threw her on the bed, removed her
panties,
warned her against making too much noise as she was
shouting; and having overpowered her inserted his penis into her
front passage
without her consent and thereby raped her.

Under cross examination it was suggested that sex was by
consent, and that the only reason she got rough-handling from the
appellant
was that she protested against some love affair the
appellant had with the complainant's relative Lineo. This the
complainant denied
vehemently.

Indeed PW8 Dr Tsolo testified that on examining the
complainant's vagina she

12 found that there were scars or scratches on the
perineum. She was able to establish that the complainant had had sex
with a male
shortly prior to the examination.

She testified that the complainant had a scar below the
left eye as well as on the forehead.

This would tend to corroborate the complainant's story
that the flesh of her face caught on the wire as she was forced
through the
fence by the appellant. If I may go further, this would
have no bearing on the assault he meted as a result of the protest
imagined
by the appellant that the complainant raised against the
love affair between her relative Lineo and the appellant. It has none
whatsoever
because such assault, if at all relevant to Lineo affair,
occurred inside the house and not before the sexual act which
according
to the appellant went off without an incident, - the cause
of his assault on the complainant coming only afterwards when she is
supposed
to call him names including dubbing him a satan. The tear
caused by the fence, on credible evidence, occurred before the
parties
proceeded into the house.

The Crown in the Court below also called witnesses who
indicated that they heard the shouts and cries from the appellant's
house on
the relevant night and times

13 but give different explanations for their failure to
intervene. The 17 year old appears to have been suborned by someone
to deny
hearing the shouts and noises heard by neighbours some
distance away. His evidence was properly rejected by the Court below.

In relating his story in the Court below the appellant
said he had been in love with the complainant for approximately two
years and
that they used to frequent the restaurant in question a
number of times beyond count and that especially when his wife was
away like
in the instant occasion the complainant would spend the
night at his house and leave the next day at early dawn i.e. about 4
a.m.
after nights of sex and passion.

The appellant testified that after drinking their liquor
he and the complainant left for his home. A couple of metres from the
restaurant
the complainant complained about the appellant
double-crossing her with her close relative Lineo. This apparently
passed without
an incident.

He went further to show that about 10 metres away from a
shop, he and the complainant went past a night-watchman. This stage
of
the journey in my view

14 appears to coincide with the period in the
complainant's evidence when shortly afterwards she says she protested
vigorously and
loudly against accompanying the appellant to his own
home.

Indeed it appears to me that the main purpose of the
appellant making mention of this nightwatchman albeit so late in the
day in the
proceedings is to give a lie to the allegation by the
complainant that she was crying out for if she was, then this
nightwatchman
would have heard and come to intervene or indeed to
give evidence to support the complainant's claim.

However the mistake the appellant is making when raising
this important issue so late in the proceeding is that because of its
sheer
importance, and if true at all, it ought to have been put to
the complainant; but it was not. The appellant's lame excuse for
failure
to have had it put to the complainant is simply that he
forgot to have it put. Under such circumstances the law is clear. The
raising
of this important issue so late is a last minute fabrication
and afterthought which should be rejected on the score of inanity.
Not
only so; but because in this respect the appellant seems to have
had a clear motive to lie because he must have had something to
hide,
the Court is at large to utilise this unsavoury attitude as
strengthening the case for the Crown.

15 I accept the Crown's submission therefore that the
appellant's grievance that the court a quo erred in rejecting his
evidence in
toto is baseless because nohow could that court regard it
as reasonably possibly true because :

1. 
   while at page 10 of the record a question put on behalf
   of the appellant to the complainant was that the accused would tell
   the
   court that he proposed love to Lineo and that the complainant
   didn't like this, at page 51 the appellant said it was true he was
   in love with Lineo and the complainant was aware of the relationship

   
   

2. 
   while at page 11 it was stated by his counsel the
   appellant said he would bring evidence to show the complainant and
   he were in
   love none was forthcoming as it turned out.

   
   

(c) while at page 13 it is stated by his counsel that
the accused will tell court that it is true he clapped the
complainant and beat
her or that he gave her a punch in the eye
because she was calling him names i.e. satan and insulting him, at
page 51 (last line)
the appellant emphatically says "I never hit
her with my fists"

(d) while at page 16 the appellant through questions put
on his behalf by his counsel admits going with four soldiers to the
complainant's
place; and further says no soldier said that the
appellant had said he had beaten and raped the complainant; however
in his entire
evidence the appellant makes no mention at all of ever
going to the complainant's house with the soldiers. In this respect
then
the

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complainant's statement as to what the soldiers said
concerning the appellant should stand; namely that the soldiers
accompanying
the appellant came to ask for pardon for their friend
Montsuoe.

(e) A question of great importance as to what the state
of the appellant's mind was should not be overlooked with regard to
his approaching
PW3 Posholi Rasethuntsa the complainant's son.

PW3 shows that after he learnt of the rape of his mother
by the appellant he met up with him and the appellant tendered
apologies
to him. It is questionable if the appellant didn't rape the
mother that he should feel the need to apologise to the son.

PW3 accepted as a fact that the appellant had raped his
mother. The question raised at page 26 suggests that the appellant
had come
to apologise to PW3 for something different from what PW3
took him to be apologising for. The pretence by the appellant that
PW3
must have understood him wrongly for he only had gone to
apologise for the fact that the love affair had come to the surface,
is
exploded by the clear indication at p.53 that the appellant had
reason to suspect that the question of rape and not just the
existence
of a love affair had been made known to PW3.

At p.53 the appellant thus is unable any longer to keep
up the pretence he projected earlier that PW3 understood him wrongly,
for
now in his own

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words the appellant is recorded as having said " what
I mean by our things have been exposed I mean that our affair has
been
exposed in a bad way such that she was now claiming me to have
raped her "

(f) The question of the stage when the jacket belonging
to the appellant tore is of vital importance. The appellant said it
tore before
the duo got into the house. But the complainant says it
tore when they were already inside the house and before sex.

Apart from the fact that the appellant said nothing to
rebut this crucial piece of evidence, it falls to the Court to rule
on the
proven facts at what stage and in what circumstances the
jacket tore.

Taking into consideration that the appellant would have
the Court believe that the jacket tore over the Lineo issue it was
indeed
pertinent that he should have put it to the complainant that
the jacket tore over the Lineo issue and not, as claimed by the
complainant,
over the fact that the appellant was forcing her while
already in the house to eventual sex.

While the Court is busy trying to resolve these two
contrary versions a third one is introduced on behalf of the
appellant in head
2 paragraph 2 line 3 of the appellant's

18 heads of argument that the jacket got torn after sex.

Now given that the appellant made much capital of the
fact that he and the complainant had undressed to the point of nudity
in order
to enjoy their sex freely, and that the complainant caused
the quarrel by raising the Lineo issue after sex, could he then be
wishing
to be understood to suggest that during the middle of the
night and amidst this quarrel he picked up the leather jacket from
where
he said he had placed it nicely before sex, and wore it such
that the complainant tore it during this violent encounter after
sex!!

This in my view is another factor which necessitates the
rejection of the appellant's story on the one hand and calls into
play on
the other hand an entertainment of an inference that he says
this because he has something to hide. Because this is inconsistent
with innocence it necessarily strengthens the case for the Crown.

Mr Hlaoli argued that the factors raised in Blom vs Rex
1939 AD 188 at 202-3 have not been considered by the learned
Magistrate in
this case. In my view such factors would arise if the
case in point is based totally on circumstantial evidence. But this
instant
one is not because direct evidence is supplied by PW1 the
complainant.

19 In Velakathi vs Regina Case No.56 of 1984
(unreported) at page 5 The Swazi

Court
of Appeal said :

"There is no rule of law requiring corroboration of
the complainant's evidence in a case such as the present one. But
there is
a well established cautionary rule of practice in regard to
complainants in sexual cases in terms of which a trial court must
warn
itself of the dangers in their evidence; and accordingly should
look for corroboration of all essential elements of the offence.

Thus in a case of rape the trial court should look for
corroboration of the evidence of intercourse itself; the lack of
consent and
the identity of the alleged offender. If any one of these
elements are uncorroborated the court must warn itself of the danger
of
convicting and in the circumstances it will only convict if
acceptable and reliable evidence exists to show that the complainant
is a credible and trustworthy witness".

In the instant case the element of identity of the
appellant has been satisfied. The element of sex taking place is
common cause.

What is in issue is if sex was with consent. Immediately
when the question of injuries that the complainant sustained arises,
the
question of consent becomes vitiated. It becomes even more and
more vitiated to the point of extinction when the story given by the
appellant is inconsistent with innocence. In this regard the fact
that he lied on a number of important issues strengthens the case
for
the Crown.

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The Court has found that the complainant's story
as supported by the encounter the appellant had with PW3 provides
sufficient facts
which are inconsistent with the appellant's
innocence.

The Court has looked with care to ensure that relevant
caution was exercised by the Court below to avoid "inherent
danger".

Circumstances in which inherent danger is avoided appear
to be all present in the instant case.

I can only distil some of them by reference to S vs
Snyman 1968(2) SA 582 AD at 585 E where they were neatly set out by
Holmes J.A.
They are :

1. 
   Corroboration of the complainant in a respect
   implicating the accused.

   
   

2. 
   Absence of gainsaying evidence by him.

   
   

3. 
   (A finding as to) his mendacity as a witness.

   
   

The appellant's sorry state falls neatly into the three
categories set out above. The fact among others that the complainant
had no
longer a shoe on one of her

21 feet when she got into the appellant's house satifies
point (1) in that the shoe was discovered the next day along the path
where
the complainant was forced to tread by the appellant. Nohow
could the shoe have fallen if the duo proceeded peacefully to the
appellant's
home.

Point (2) is satisfied among others, by the fact that
the appellant failed to bring evidence to prove the love affair.

Point (3) is satisfied by the fact, among others, that
he lied that the sexual intercourse was with consent. He lied that he
was in
love with the complainant.

It was suggested that the five year imprisonment term
was severe in the light of the fact that the Magistrate did not even
consider
imposing a fine.

My reaction is that in all my experience both before
going on the Bench while serving in the High Court and when on the
Bench proper
- this spans a period of no less than twenty eight years
-I have not come across a case of rape where a fine was imposed
instead
of a custodial punishment. Besides, as long ago as 13^th
February, 1989 in CR1/REV/572/88 Rex vs Lehana Griffith (unreported)
at p.2 this Court

22 referred to R vs Billam & Others (1986)2 ALL ER
985(C.A.) regarding sentencing in rape cases; and cited Lord Lane
C.J.'s guidelines
at pp 987-8 as follows :

"There are however, many reported decisions of the
court which give indication of what current practice ought to be and
may be
useful to summarise their general effect".

The Learned L.C.J. proceeded

" For rape committed by an adult without
any mitigating or aggravating features, a figure of five years
should be taken
as the starting point in an uncontested case".

He further said :

"The crime should in any event be treated as
aggravated by any of the following factors :

1. 
   violence is used over and above the force necessary to
   commit the rape;

   
   

2. 
   a weapon is used to frighten or wound the victim;

   
   

3. 
   the rape is repeated.

   
   

In either one or all the above categories 'the sentence
should be substantially higher than the figure suggested as a
starting point'".

The case of the instant appellant falls neatly within
the first two of the above despicable categories. That it should be
suggested
that the learned Magistrate should have imposed a fine when
the sentence he imposed seems to have been out of all proportion with
the horrendous aggravation reflected, astonished me. That I in turn,

23 turn, and almost more than ten years after hearkening
to the message that lenity of sentencing does not give sufficient
protection
and comfort to the victims of rape, should be asked to
intervene in this case appears to demand of the law to turn logic on
its head.

Mr Hlaoli took issue that the complainant did not report
to anybody in the neighbourhood of ma-line (an ever-congested
dwelling complex).
The record in my view shows that she tried the
door closest to the appellant's but the door was not let open to her
because there
was nobody inside. The complainant's attempt to do what
the law requires of her being foiled by events beyond her control
cannot
properly be regarded as proof that she was not raped. Moreover
it is the appellant himself who furnished the information that the
complainant knocked next door after leaving his house. Surely it
cannot be entertained that she went knocking there for purposes
of
going to inquire after the health of the occupants there!

The Court in this case while rejecting the appellant's
defences and evidence as false takes a serious view of the fact that
the appellant
even threatened the complainant with a firearm during
the struggle that culminated in her getting exhausted and thus
succumbing to
rape.

24 I need hardly refer to intoxication in rape cases
because as far as I am concerned the court below dealt satisfactorily
with that
aspect of the matter.

1 take a dimmer view of the appellant's sordid act in
the light of the fact that the rape followed what amounted to a
kidnap.

The appellant is sentenced to (9) nine years'
imprisonment less 2 months.

JUDGE
16^th May, 2000

For Appellant: Mr Hlaoli

For Respondent: Miss Dlangamandla