IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

V

TOPOLLO
MOHALE

Review
Case No 65/2005 CR 167/2003

Review
Order No 03/2005 In Mohale's Hoek District

REVIEW
ORDER 21st MARCH 2005

In this
case accused is charged with contravention of section 8(1) of the
Sexual Offences Act No 3 of 2003. In that upon the 30
th day of April
2003 and at or near Ha Tlali in the district of Mohale's Hoek, the
accused did unlawfully and intentionally commit
an unlawful sexual
act with Thato Mohale a female aged 18 years to wit: he inserted his
penis into Thato's vagina and did thereby
commit an offence.

When I
saw that the complainant was 18 years old I asked myself why the
allegation of lack of consent was missing. Only children
are deemed
by law to have not consented to a sexual act.

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This was
most surprising because the complainant Thato was 18 years old.
Consequently she was not a child within the meaning of
the Sexual
Offences Act of 2003. In that Act section 2 states that a child is a
person below the age of 16 years. For commercial
sexual exploitation
of children a person below 18 years is child. The complainant does
not fit within the provisions of section
8(1) which is meant for
sexual offenses against children.

For
convenience I will call sexual intercourse without the consent of the
victim rape. The reason is that in the record it has been
called
rape. The other reason is that in Lesotho, it is still called rape by
all people.

The
defect in the charge sheet is not the only problem in this case.
Complainant was taken before a doctor after seven days from
the date
of the sexual act without good reasons Although section 20 (1) and
(2) of the Sexual Offences Act provide that a delay
in taking action
and absence of the accused's semen in the victim are not fatal to the
charge, these factor taken along with other
facts sometimes cannot be
ignored. Each case depends on its circumstances. She had washed
herself several times and the medical
evidence was of no value,
because other minor injuries could have healed.

2

Indeed if
there was a struggle even on the accused valuable evidence could be
obtained if he was arrested immediately after the
sexual act. In any
event accused admitted the sexual act. Furthermore after several days
it is possible penetration could have
occurred later after the event,
perpetrated by someone else.

It was
common cause that this was not the first time that accused and the
complainant had sexual intercourse. The complainant told
the court
below that she had previously been raped very many times by the
accused - and she had told her mother of these rapes
but her mother
had done nothing about these reports. This was very unusual, because
mothers are expected to be and are often protectors
of their
children.

On that
day at midday the first attempt by the accused to rape her had failed
because she had locked herself in the house. When
accused opened the
window and got into the house she escaped through the bedroom window
screamed calling people standing at Pooane's
home. At that time
accused was standing at the gate of the complainant's home. Accused
must have left because she went back to
her home to cook.

3

Accused
came back in the afternoon, she again ran into the house and locked
the door, accused entered the house through the window.
Accused
caught her by her waist when she again tried to escape but accused
caught her by the waist and had sexual intercourse with
her on the
floor. When her uncle Lithakong Mohale arrived she reported what
accused had done to her.

The
complainant says she was taken to the chief where accused conceded he
had sexual intercourse with her by force. The complainant
was taken
to the hospital by 'Manthabiseng Mohale, but she was not examined by
a doctor. She went back home where she had been
advised to get the
chiefs letter. Three days later her uncle Lithakong took her to the
doctor where she was examined and a doctor
filled a medical form.

The
complainant said she had had sexual intercourse with the accused
against her consent so many times before that she could not
remember.
Accused cross-examined the complainant who told the court that she
kept quiet when the accused had sexual intercourse
with her although
she did no like what the accused was doing. The complainant said kept
quiet because she was tired of fighting
she had no strength.

4

The
second witness was Lithakong Mohale who told the court that on that
day when the complainant was unhappy, she asked for a reason.
The
complainant then told him she had been raped. Lithakong went to
details of what the complainant told him. He did not refer
to the
occasion that 'Manthabiseng took that complainant to hospital and did
not find the doctor. Lithakong had said he took the
complainant to
the doctor the following day. Lithakong did not confirm the
complainant evidence that accused had admitted forcibly
having sexual
intercourse with her without her consent. Accused had only admitted
the sexual intercourse. The investigating Trooper
Hlaoli confirmed in
answer to the accused's question that accused had said they were
lovers and that they were at the complainant's
home.

Accused's
evidence in his defence was to the effect that sexual intercourse
took place by consent. It was not the first time accused
said he was
complainant's lover. In cross-examination accused said he did not
know why complainant claimed she was raped.

It should
be noted that in modern times - even a constant sexual partner or
even a wife can be raped if sexual intercourse takes
place without
her consent. The fact that accused said the complainant was his lover
does not

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exonerate
the accused from rape if complainant was unwilling that day. The
reason is that among crimes:-

"Rape is rare in being a crime where the state of mind of the
victim is important, in evidential terms, her disposition may
be
relevant to the question of whether or not she consented. Cross and
Tapper On Evidence 9th Edition page 313.

It is
therefore a risk to have sexual intercourse with a woman without
making sure of her consent. Consent can be inferred from
surrounding
facts and circumstances.

In the
past there was an evidentiary requirement that a complainant's
evidence corroborated. Court's in this region gradually moved
away
from this position. By 1992 inSvM 1992 SACR 182, it was being said
the cautionary is not a rule of law but an admonition for
cautions
application of common sense. This practice has undergone a
considerable change in that in sexual offences corroboration
of a
victim's evidence is no more a mandatory requirement. The victim's
evidence for purposes of credibility is treated like that
of any
witness. Nevertheless the courts still have to treat it with the
cautionary discretion like that of any single witness.

6

The trial
court did not evaluate the evidence with care. It was not even aware
that the accused was a single witness. The court's
approach does not
show the court was aware that it had to caution itself against
convicting on the evidence of a single witness.
If it does not state
it has cautioned itself, its approach to the evidence must show that
it approached and evaluated the evidence
cautiously. The court is
only entitled to convict unless it is satisfied that the evidence of
a single witness is satisfactory
in all material respects. In such
cases, therefore, the function of corroboration is to satisfy caution
rather than a mandatory
rule. - Hoffman and Zeffertt The South
African Law of Evidence 4'' Edition page 567.

In this
case the complainant's evidence about whether accused admitted the
rape before the chief is contradicted by Lithakong Mohale.
There is
also conflict about the taking of the complainant to a doctor.
Lithakong Mohale says the complainant was taken after one
day while
the complainant says she was taken three days after the day she
returned from hospital with Manthabiseng Mohale without
seeing a
doctor.

The
evidence of any person who might have been at Pooane's home when the
complainant screamed and called people should have been
sought unless

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there
were no people around. The complainant did not say whether there were
people or not, consequently the trial court should have
taken this
fact into account. The fact that the complainant was taken to the
hospital by 'Manthabiseng Mohale when a doctor was
not available is
also relevant. Lithakong Mohale does not even refer to it. The
Magistrate should have assessed the evidence along
with the fact that
there was a delay of seven days before the matter was referred to the
police and only then the complainant was
taken to a doctor. During
that time there was no apparent desire by Lithakong Mohale to the
police - a fact he did not wish to
deal with in court. Taken with the
fact that the mother is alleged to have been told about the
complainants previous rapes, the
court should have taken this into
account in assessing the whole evidence.

While
hearsay is not admissible evidence the evidence of relatives showing
when and how the complainant was made is relevant and
acceptable, to
establish when a rape or sexual offence complaint was made as soon as
practicable.

"The
practice of proving an early complaint to negative consent was so
deeply established in law that it survived the hearsay
rule."-
Hoffman and Zeffert the South African Law of Evidence 4lh Edition
page 118.

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The
sequence of events that followed the complaint as testified to by
Lithakong Mohale and the complainant lacks consistency. In
other
words where the complainant could be corroborated she is not
corroborated. Hoffmann and Zeffert in The South African Law
of
Evidence 4" Edition page 579 say the following about the need to
approach the single evidence of the complainant in sexual
offences:-

"Experience has shown that it is very dangerous to rely upon the
uncorroborated evidence of the complainant unless there is
some other
factor reducing the risk of wrong conviction in cases which involve
the sexual element - a view that is of concern to

feminists........The cautionary rule is not an inflexible rule of
evidence, but a practice, tested by time and experience, that
is
aimed at a possible injustice to the innocent."

The law
now says the evidence of Sexual Offence complainant should no more be
treated like that of an accomplice but rather like
that of any single
witness. Section 18 of the Sexual Offences Act of 2003 has not
abolition the caution with which the court must
approach the evidence
of a single witness. What section 18 has abolished is the "special
caution on the basis that the accused
is charged with that offence"
of a sexual nature. This "special caution" like the now
abolished mandatory corroboration
and unreal because

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rapes
often occur in secret, where no corroboration was possible. To insist
on "special caution" was treating sexual offences

differently from other offences was to put victims of crime of Sexual
Crimes at a disadvantage thereby making it unjustiably easy
for
sexual offenders to escape conviction.

In this
case there are other factors pertinent to the offence. The
complainant told the court the accused after accused had satisfied

his lust merely said "bye bye." That may have humiliated
and hurt the complainant and led to the laying of a charge of
rape or
unlawful sexual intercourse out of spite or revenge. While section 20
says the courts may "not draw any adverse inference
only from
the length of delay between the commission of the sexual act and the
laying of the complainant." I have underlined
the word only to
show that this factor of delay can be taken into account along with
other factors.

In the
light of the fact that accused was charged under section 8(1) which
is the wrong section of the Sexual offences Act 2003
and the failure
to analyse the evidence with care I find the accused suffered real
and substantial injustice. Consequently:-

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Conviction
and sentence are quashed and the release of the accused is ordered.

W.C.M.
MAQUTU

JUDGE

Copy:
Chief Magistrates

The Magistrate - Mohale's Hoek

Director of Public Prosecutions

O/C Police - Mohale's Hoek

O/C Prisons - Mohale's hoek

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