CRI/A/77/86

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

MOTSU
JEREMIA MOPELI

v

REX

JUDGMENT

Delivered
by the Honourable the the Chief Justice, Mr. Justice B.P. Cullinan,
on the 25th day of May, 1987.

The
appellant was convicted by the Magistrate's Court of the First Class
for Leribe District, of assault with intent to do grievous
bodily
harm, and was sentenced to 18 months' imprisonment. On the 18th May,
1987, I allowed the appeal and set aside the conviction
and sentence,
reserving my reasons which I now give.

The
appellant was initially charged with rape. It was the prosecutrix's
evidence that she opened the door of her house to the accused
at
mid-night, after the latter had pretended that he had urgent messages
to deliver to her. There­after he assaulted and then
raped her.
Before leaving her he kicked her in the stomach, as she failed to
comply with further sexual demand, causing the scar
of an operation
(apparently that of a Caesarian operation) to break and bleed.

As the
learned trial magistrate himself observed however, the prosecutrix in
making complaint the following morning to another,
concerning the
alleged rape, stated that the appellant had had sexual intercourse
with her the whole night, leaving at dawn. That
account was hardly
consistent

2

with a
raping, and on the issue of credibility the learned trial magistrate
rejected the prosecutrix's evidence of lack of consent
on her part.

Having
rejected her evidence on the issue of consent however, the learned
trial magistrate accepted the prosecutrix's evidence of
assault. A
medical report tendered in evidence indicated that the prosecutrix
had "torn lips". She made a complaint thereof
the following
morning. She testified that the appellant had struck her with his
head in her face, immediately upon entering her
house. She did not in
her evidence however refer to or specify how and when her lips had
become torn. She never testified that
the appellant had struck her in
the face after intercourse. The learned trial magistrate made no
finding as to the alleged initial
assault. As he was satisfied that
the prosecutrix had consented to intercourse, he can only then be
regarded as having rejected
her evidence of the alleged initial
assault.

As to the
alleged assault after intercourse, the learned trial magistrate
observed:

"Accused said they quarrelled but that the old operation was
torn by cold: This is possible. He failed to explain to the Court

what the nature of assault or quarrel they had. P.W.1 (the
prosecutrix) presumably was in good health for accused could not have

had sexual intercourse with her if her old operation was torn.
Already the operation must have got torn after they had sex.

There are two misdirections in that passage. Firstly, it was the
appellant's evidence that he had not assaulted the prosecutrix.
He
did in fact explain that there was a quarrel, to the extent that she
complained that her operation scar was painful and she
required some
money; the appellant said he would try to get her some money, but the
prosecutrix formed the opinion that he did
not intend

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to assist her and was but "running away". Secondly, if, as
the learned trial magistrate concluded, without the assistance
of
expert medical advice on the particular point, the operation scar
could have torn "by cold" (in the month of July),
then
there is also the possiblity that the scar tore in the course of
prolonged sexual intercourse throughout the night. Indeed
the medical
report in the matter indicates no more than an "inflamed
operation".

The fact
that the scar became inflamed or tore, was not in dispute: The manner
in which that condition arose was disputed however.
Having rejected
the prosecutrix's evidence on the issue of consent, her credibility
as to the issue of assault must then have been
shaken. The learned
magistrate seems not to have considered this aspect, nor, as I have
said, the possibility of the injury to
the scar and even the injury
to the prosecutrix's lips arising during intercourse.

The
learned Crown Counsel, Mr. Mdluli, very properly concedes that
reasonable doubt must remain.. With that submission 1 agree.
In all
the circumstances I considered that it would be unsafe to allow the
conviction to stand and for these reasons I allowed
the appeal and
set aside the conviction and sentence.

B.P.
CULLINAN

CHIEF
JUSTICE

25th May,
1987.

For the
Appellant : Mr. G.N. Mofolo

For the
Crown : Mr. G.S. Mdluli