CRI/S/26/87
IN THE HIGH COURT OF LESOTHO
In the matter of
REX
v
1. TEBAIO MOKEBE
2. TSELE KHUTLANG
3 EEANG NKAJA
4 MAKHELE PURUTLA
5 MOLISE RALILOCHANE
JUDGMENT
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 24th day of November. 1987
The five accused were convicted on 31 July 1987 by a second class magistrate at Mokhotlong of the offence of rape. The accused had pleaded not guilty and they were committed to the High Court for sentence, presumably under s.293(1) of the Criminal Procedure and Evidence Act, 1981 (although the magistrate did not bother to say so)
This is a case of a gang rape by about nine men which took place after dark on the evening of Easter Sunday 19 April 1987 at Sakeng in Mokhotlong District. It is a very serious offence and, in my opinion, it should not have been placed before a junior magistrate for trial
Once again, as in so many of these cases from magistrates courts, a verdict of guilty was pronounced without any judgment or any
consideration of the evidence. When the magistrate afterwards wrote a so-called "Reasons
2
for Judgment" she wrote ten pages By then she was functus officio. Quite obviously the evidence involving five accused persons and the various legal requirements of proof in this case meant that the trial court was duty bound to give long and careful consideration and thought to the matter before delivering a verdict These arbitrary and summary verdicts in such cases are absolutely wrong and of no value and this practice must stop.
Recently, in a detailed and comprehensive judgment in R v Tankiso Setaka CRI/S/7?87, the learned Chief Justice made it very clear that magistrates must write and deliver judgments before announcing the verdict. This is what is done in the High Court and there is no good reason or excuse to exempt magistrates from what is normal procedure in this Court and indeed everywhere else.
This magistrate also followed the usual extraordinary and unhelpful habit of recording only the names of the complainant and witnesses without troubling to record any useful descriptive information about them such as age, sex, nationality and occupation. This Court on, appeal is thus unable to form any sort of picture of the complainant and witnesses involved. This information must always be obtained and recorded.
Mr. Monyako for the appellant described 'Mapaballo Toti,the complainant woman, as being aged 24 years and married with two children. This is useful information which should have been on record. It is very necessary for the court to know whether the complainant in a rape case is an adult or a minor and. indeed, the witnesses likewise
3
On the evening in question the complainant was walking from a place called Matsoaing to Liphakoeng where she had decided to spend the night because it was too late to go home. On the way she had to cross over the Sakeng bridge. She was with two other people named 'Mantja (who for some unknown reeason did not testify) and Lebina Ramootsi (P.W.4) whose sex and age are not revealed in the record.
After crossing the bridge (A.1) Mokebe approached the complainant and seized her arm. called her a prostitute, and hit her on the shoulder with a stick. The complainant struggled and protested but A.1 held on and told the other two people with her to go and leave them as he was in love with the complainant. She knew him well but was not in love with him. Even though it should have been obvious that the complainant was being assaulted and had told A.1. to leave her alone, these other two people just walked off and left her. They could have stayed and assisted her or they could have run off to fetch help. Instead they did neither.
Next A 1. called to a group of young men who had just arrived on the scene from the circumcision school and told them to have sexual intercourse with the complainant Among these teenaged boys were Nkaja (A3) Purutla (A.4), Ralilochane (A.5), Makoae (P.W.2) and Lithakong Khutlang (P.W.3). These last two were accomplices who testified for the prosecution. There was absolutely no reason why they should have obeyed A.1. and quite clearly they should have refused and given assistance to the complainant.
4
But they did not. The only assistance they gave was to A.1. and to themselves. They behaved disgracefully.
The complainant described how A.1 knocked her to the ground and the gang held her arms and feet and removed her underwear and then took turns in raping her. During this period she was crying and struggling and being constantly beaten with a stick.
She heard someone on a horse approaching and called out for help. Unfortunately for her the rider was (A.2) Tsele Khutlang. He also was well known to the complainant. As soon as A.2. discovered who she was and what was going on he eagerly joined in and, at his suggestion, they all raped her again.
When A.2 realised that the complainant was resisting he assaulted her by pulling out some of her pubic hair. The complainant asked them, "What are you doing? Do you want to kill me?" and A.2. said that as she was making a noise they should cut off her tongue. One of the boys suggested that they should let her go as they had got what they wanted from her. A.2 replied that if they allowed the complainant to go she would report them so it was better to prevent that by killing her.
Another youth suggested that they should take the complainant away from that place as other boys from the circumcision school would shortly be passing by and would see what was going on. The complainant was pulled to her feet and put on to A.2's horse and moved off with (A.1) Mokebe and (A 2) Khutlang. The rest of the group went away and took no further part in the proceedings.
5
A.1 and A.2 then took the complainant to a field near the bridge and both of them raped her again After that they threw her into the Sakeng river and she lost consciousness When she recovered she found herself back in the field and accused 1 strangled her until she became unconscious again. When she woke up the accused said that they thought she was dead. This was evidently what they had intended and it is surprising that the Crown did not consider charging these accused with the offence of attempted murder in addition
Having found that the complainant was still alive they raped her once again, at the same time the one not engaged in raping was beating her with a stick. After raping her they spread her legs and beat her with the stick on her private parts. A.1 then raped her once again and then A.2 struck a match and burned her pubic hair at the same time saying that she kept her hair too long and it was preventing them from raping her
The complainant said that they continued beating and raping her all night. Early in the morning someone approached and hearing this A.1 remarked that perhaps someone had raised an alarm and they would be found there. So they both ran away, apparently leaving the horse.
At dawn the complainant managed to crawl to Liphakoeng village as she was unable to walk. She was exhausted and very cold and wet and in considerable pain, especially from her private parts. She was badly bruised and both hands were injured
6
At the village she came to the house of 'Mamolise Moahloli (P W.5) who described the complainant as looking like a mad person in
bloodstained, soaking wet and dirty clothes and covered with scratches and bruises. 'Mamolise said that the complainant reported
what had happened to her and 'Mamolise called in neighbours to help while she went to report to the chieftainess who came to the house later on. Meanwhile the women washed the complainant, found some clothes for her, and let her rest until a military vehicle came and took her to the police station from where she was taken to the hospital where she was admitted for five days.
The medical report (exh 'A') was admitted by consent and it shows that she had extended bruises on her upper thighs and left elbow and a fractured right thumb There were lacerations around her private parts and there had been blood discharging from there. The doctor's "opinion" on the form states "rape very likable (sic)" Even if it is properly spelled "likeable" means "pleasant, easy to like." I really do not think this doctor meant that Presumably it should have read, "rape very likely."
Bearing in mind that the complainant was aged 24 and had had two pregnancies it would not normally be easy to find signs of rape unless the doctor had taken a vaginal smear to test for the presence of semen, which this doctor apparently did not bother to do However, there were also the lacerations and bruises in the area and the discharge of blood
The five accused all testified on oath in their defence Both A 1 and A.2 denied raping the complainant
7
but admitted having sexual intercourse with her and asserted that she had consented to it. They each added that they were in love with her. Both admitted that they had also assaulted the complainant. A.1 said he did not do so in order to rape her but because she had taken other lovers besides him. A.2 did not explain why he assaulted her, he merely said that it was not so as to force her to have sexual intercourse.
The other three accused, (A.3) Nkaja, (A 4) Purutla and (A 5) Ralilochane, each denied assaulting and raping the complainant.
The only other witnesses were the two youths Makoae (P w.2) and Lithakong Khutlang (P.W.3) who were their accomplices. They each admitted raping the complainant, claiming very unconvincingly that they did so on the orders of A 1. By its very nature this particular offence is very unlikely to be committed involuntarily and I have no doubt that they willingly took part They could easily have refused or just run away but they did not. Even worse they stayed there without trying to assist the complainant. Their testimony is therefore very suspect It is also contradictory. These two youths stated that they came to the scene and left together. Makoae (P.W 2) said that he saw only the witness Khutlang and A.4 Purutla, besides himself, rape the complainant. But Khutlang (P.W.3) testified at first that he saw both A 1 and A.4 and the witness Makoae (P.W 2), besides himself, rape the complainant. In cross-examination he went further and claimed to have seen all the accused raping her. His co-accomplice did
8
not see that.
These two youths were obviously trying to avoid being prosecuted and perhaps, especially Khutlang, were willing to say anything. I certainly believe that they both raped the complainant but the rest of their evidence is doubtful and needs to be well corroborated in my opinion Accomplices cannot corroborate each other.
Thus there is a need to look for corroboration of the complainant's testimony as well as of that of the two accomplice witnesses
The trial magistrate was in the best position to assess the credibility of the complainant and she found her to be truthful and credible and I would accept that On the question of corroboration there is firstly the admissions by both A.1 and A.2 of having had sexual intercourse with the complainant and having assaulted her. Secondly there is the medical report which reveals evidence of bodily assault and bleeding and lacerations around the private parts with a likelihood of rape having occurred. Thirdly there is the testimony of Lebina (P.W.4) about A.1 accosting and seizing hold of the complainant and telling the witness to leave the place as he was in love with the complainant.
Fourthly there is the testimony of 'Mamolise (P.W.5) about the terrible state that the complainant was in afterwards at dawn and how she had complained of being raped by A.1 and others, and of the injuries to hen body including the burns and removal of her pubic hair.
9
Even discarding the testimony of the two accomplices (P.W 2 and P W.3) I am satisfied that there is ample corroboration of the complainant's
allegations against A.1 and A.2. Consequently I find that A.1 Mokebe and A 2 Tsele Khutlang were properly convicted of the offence of rape.
With regard to the other three accused, the only evidence against them comes from the other accused only that they were present at the scene, and from the two accomplice witnesses Makoae (P.W.2) and Lithakong Khutlang (P.W.3) who alleged that the three accused youths took part with the witnesses in raping the complainant. Both say that they saw Purutla (A.4) actually raping her but there is really no such evidence against Nkaja (A.3) and Ralilochane (A.5). Unfortunaly the complainant was not able to identify any of the others who raped her in addition to A.1 and A.2 whom she knew well. The youths were strangers to her and it was dark. There is evidence that they were present at the scene but they have not admitted having intercourse with her. There is thus no proof beyond reasonable doubt that would suffice to convict them, although there are very strong suspicions that they took part in this dreadful offence
As for A.4 Purutla, the only evidence of his having participated in the raping of the complainant comes from these two accomplices.
Accomplices cannot corroborate each other and there is no other corroboration. The evidence of these accomplices is contradictory and conflicting on other matters, already indicated, and it would therefore not be safe to rely on any of it without some
10
corroboration more closely associating A.4 with the offence itself.
The trial magistrate does not appear to have considered the position of these three youths and the lack of evidence against them and, in my view, their convictions cannot be supported and it would be unsafe to allow them to stand. In addition, when sending teenaged accused persons to the High Court for sentencing under s.293 of the C P E. Act 1981 the magistrate must remember to make specific findings on the record of their ages since they must be over 18 years.
A.1 Mokebe is 26 years old and A.2 Tsele Khutlang is 29 years old Both are first offenders and for their first offence they have chosen to commit one that is disgraceful, cowardly and very serious. There is evidence that they tried to kill this poor woman by drowning and strangling her, in addition to instigating a gang rape of her, and then continuing by themselves to rape her time and time again accompanied by unmerciful flogging and physical humiliation of a most savage kind. If that is the way they treat a person whom they claim to love then I am very sorry for their friends, if they have any.
I call them cowards because there is nothing manly or admirable in inflicting such appalling treatment on a defenceless woman. It was totally unjustified, for she had not provoked them in any way and I can find absolutely no excuse or mitigation for what they did The proper place for savagely violent creatures like these two accused is prison. These two accused, Mokebe and Khutlang,are therefore each sentenced to imprisonment for six years.
11
The convictions of the other three accused, Nkaja (A.3), Purutla (A.4) and Ralilochane (A.5),are quashed and they are acquitted and discharged.
In future they should remember that nobody at all can order them to commit an offence or to break the law. In addition they must realise that their duty as citizens is to give assistance to someone like the complainant whom they see being assaulted or made a victim of cowardly bullies like the first two accused. If they were not taught this proper sort of behaviour at their circumcision school then they should have been.
P. A. P J. ALLEN
JUDGE
24th November, 1987
Mr Monyako for all of the Accused
Mr. Thetsane for the Crown
