R v Molapo (CRI/A/72/83)

Case No: 
CRI/A/72/83
Media Neutral Citation: 
[1984] LSCA 117
Judgment Date: 
10 October, 1984

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CRI/A/72/83

IN THE HIGH COURT OF LESOTHO

In the Appeal of :


KHETHISA MOLAPO Appellant

V

REX Respondent


REASONS FOR JUDGMENT


Filed by the Hon. Mr. Justice B.K. Molai on the 10th October, 1984.


On the 6th August, 1984, I dismissed this appeal and intimated that reasons for the decision would be filed later. These now follow.


The appellant and two others appeared before the Resident Magistrate of Leribe charged with the crime of rape on the allegations that on or about the 10th April, 1983 and at or near Ha Moholisa in the district of Leribe they unlawfully and intentionally had sexual intercourse with one 'Mateboho Lefama, a mosotho female aged about 34 years, without her consent.


They all pleaded not guilty to the charge. The appellant was, however, convicted as charged whilst his co-accused were acquitted and discharged. A sentence of 2 years' imprisonment was imposed on the appellant.


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It is against both his conviction and sentence that the appellant has now appealed to this Court on a long list of grounds of appeal which can, however be summed up in that the conviction was against the weight of evidence and the sentence was excessive.


Very briefly the evidence was that the complainant originally came from the district of Mafeteng. She was working as a dressmaker at Ha Moholisa (Maputsoe) in the district of Leribe where she rented a room next to a certain "hotel 77" belonging to Chief Mooki, It was not very clear from the evidence whether the room rented by the complainant was also the property of Chief Mooki,


At about midnight on 9th April, 1983, the complainant was asleep in her room when she was awaken by a knock on the door. She kept quiet and listened when she heard that there were people talking outside her room. One of them remarked that the person inside was hearing. Complainant then asked what it was that they wanted and one of the people outside told her that they were soldiers and she should open for them. He said there were insurgents in her room. When she did not open one of them asked complainant whether she was refusing to do so. Complainant explained that people in her locality had been warned against opening for person-they did not know. She was told that there was no


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reason for her fears as chief Mooki himself was there and the nightwatchmen Selialia and Rafono were around.


Complainant knew chief Mooki to be the chief of the area. Also when she looked through the window complainant could see the illumination of the flash light of Selialia, the nightwatchman at the hotel. So she put on the light and opened the door. She stood next to the door as the appellant and his co-accused entered into the room. They were all strangers to her and none of them showed her any police identity card. Chief Mooki was certainly not amongst them.


As the appellant and the co-accused entered into the room, one of the co-accused walked straight to the wardrobe and opened it while the other looked underneath the bed. The appellant himself caught hold of her by the hands at the door. The complainant then suggested to go out of the room but the appellant stopped her asking what she was going out for. She explained that whatever people they were looking for were not in her room.


The appellant then started dragging her from the door. She resisted and a struggle ensured at the door. In the course of that struggle, she was injured on her arm by the door. The co-accused came to the assistance of the appellant. One of them closed the door. Before the door was actually closed, complainant attempted to call out Selialia but she was hit with an


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open hand when she fell on the floor next to the table. She was tied on the mouth with what appeared to be a doek so that she could not scream. She was literally carried and placed on her bed by the appellant and the co-accused.


The appellant then stripped off her panty, got on top of her and had full sexual intercourse with her. While having sex with her the appellant removed the doek from her mouth. After he had satisfied himself, the appellant got down from the bed and sat at the table, He did not have shoes and trousers on and was necket as he sat at the table. Accused 2 and 3 then in turn also had sexual intercourse with her. One of the co-accused asked her where her school going daughter was and complainant deceived him by saying she was sleeping with another girl in the next door room. Accused 2 and 3 then dressed up and left her room saying they were going for the girls. Complainant remained in her room sleeping with the appellant who had returned into her bed and continued having sex with her after the co-accused had left the room.

Complainant told the Court that after she had been violently dragged away from the door, physically assaulted next to the table and tied on the mouth, she decided not to offer any further resistance for fear of being killed. However, after accused 2 and 3 had gone out of her room, complainant told appellant that


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she was thirsty and. wanted water. There was no response from the appellant, who was apparently asleep and so she got out of bed pretending to be going for water. She suddenly opened the door and rushed out.


As she ran out of the room, complainant was raising an alarm. She was screaming and shouting that she had been attacked by people. She ran into the next door room occupied by PW.7, Ntsu Maphela. This was confirmed by PW.7 who testified that soon after complainant had rushed into his room, they heard some noise outside. They then went out and found the appellant already apprehended by the nightwatchmen. The appellant was bare footed and pleading with the nightwatfchmen not to be assaulted. He was taken back to complainant's room.


PW.2 Lehloibi Selialia, PW.4 Rafono Tsebetsalaka and PW.5 Tlohang Khotso, testified that they were nightwatchmen at Maputsoe. On the night of 9th April, 1983, they were on duty when they heard a scream from the direction of the complainant's room. They rushed in that direction.


According to PW.2 and 4 they had earlier seen the appellant and his co-accused going to complainant!s room and waiting at the door for some time before they were admitted in. As the two nightwatchmen were some distance away, they could not follow if any conversation


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took place between the complainant and the appellant and his co-accused.


On approaching complainant's room, the nightwatchmen noticed the appellant running bare footed. He was ordered to stop and he did. PW.4 and 5 wanted to beat up the appellant but PW.2 discouraged them against it. Appellant was pleading that he should not be assaulted and would explain himself. He said he had a love affair with complainant and did not understand why-she was making noise for him. He gave the names of the co-accused as the people with whom he had been going. However, the complainant who appeared rather distressed immediately objected and said she had no love affair with the appellant whom she saw for the first time on that night.


The nightwatchmen escorted the appellant into complainant's room where they found his shoes and underpant. They also noticed that complainant's wardrobe was opened. Her panty was found lying on the floor. The complainant herself was bleeding from her right arm. She was taken to the police charge office where the appellant was later also escorted to.


PW.6 Sgt. Batholonya, confirmed that after the complainant had come to his office and made a report on the night in question, he ordered that the appellant


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should also be brought to the police charge office. He confronted the appellant with the complainant. Although he claimed the complainant to be his secret lover, the appellant did not even know her name. The appellant mentioned the co-accused as the people he had been going with. PW.6 also noticed that the complainant who had an injury on her right ankle could not walk properly. He referred her to a medical doctor for treatment on the following morning, 10th April, 1983. He looked for and arrested accused 2 and 3 with whom the appellant was subsequently charged as aforesaid.

In his evidence, PW.3, Dr. Merkens confirmed that on 10th April, 1983 he examined the complainant. He found a bruise, a swelling and an abrasion on complainant's right arm. There was also a swelling just above her right knee and a small laceration on labia minora. The examination of sperm smears proved positive.


The appellant and his co-accused also gave evidence on oath. According to the appellant, he had met the complainant during the day on 9th April, 1983, when he proposed love to her. His proposal was accepted and they arranged to have sex together at night. Appellant's evidence confirmed by that of the co-accused was that on the night in question they proceeded to complainant's room as pre-arranged. On arrival at her room they never said they were soldiers, nor did they say they were in the company of


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chief Mooki or that they were looking for insurgents. The truth of the matter was that they knocked at the door and the complainant opened for them without any fuss. They entered into the room. The co-accused then sat at the table and talked to themselves while the appellant sat on the bed with the complainant, his secret lover. After some time, the appellant told the co-accused to leave and they did. They returned to their home from where the following morning they were arrested and charged on the false allegation that they had raped the complainant.


In his evidence, the appellant further testified that after his co-accused had left complainant's room, he undressed and went to bed with the complainant. They had sexual intercourse with complainant's full consent. He conceded that while he was sleeping with her, complainant said she was thirsty and wanted water. He then got out of bed and went to get her water. He could not, however, find the water and had to return into bed. The complainant then got out of bed and went for the water. She, however, opened the door and screamed out of the room. He hurriedly put on his trousers and followed her out.


As he ran to the back of complainant's room he was met by two of the nightwatchmen who wanted to assault him. He returned to the front of the room. It was then that he met PW.2 who came to his rescue. He explained that the complainant was his secret lover and was surprised why she was screaming and making


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noise for him. He admitted that he was then escorted back to complainant's room where his pair of shoes, underpant and watch were found. He put on the shoes and the watch before he was taken to the police charge office. In his reasons for judgment, the trial magistrate said he approached complainant's evidence with caution and warned himself against the dangers of convicting on her uncorroborated evidence. Complainant's evidence that he had sexual intercourse with her was corroborated by the appellant himself. On the other hand the co-accused denied to have had sexual intercourse with the complainant. Their evidence was confirmed in that regard by the appellant.

The trial magistrate took the view therefore that as there was only the evidence of the complainant that the co-accused had had sexual intercourse with her, it would be unsafe to convict them. He accordingly acquitted and discharged the co-accused.


It was argued on behalf of the appellant that the trial magistrate's refusal to accept complainant's evidence that the co-accused had had sexual intercourse with her was a clear indication that he found her to be an unreliable witness who should not have been believed on other points, in particular that the appellant had had sexual intercourse with her without her consent. I do not agree. The view taken by the trial magistrate was that he was not prepared to rely


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or base a conviction on complainant's uncorroborated evidence. It did not necessarily follow that even where it had been corroborated, complainant's evidence would not be accepted.


Be that as it may, in Rex v VV 1949(3) S.A. 772 at p. 780, Watermeyer, C.J. stated the law governing the evidence of complainants in cases of sexual assault in the following terms:


"In rape cases .......the established and

proper practice is not to require that the complainant's evidence be corroborated before a conviction is competent. But what is required is that the trier of fact should have clearly in mind that these cases of sexual assaults require special treatment, that charges of the kind are generally difficult to disprove, and that various considerations may lead to their being falsely laid."


In my view, by requiring corroboration over and above the cautionary rule in the present case, the trial magistrate went further than he was expected to go and the co-accused could well consider themselves lucky to have been acquitted on the basis that the complainant's evidence that they too had had sexual intercourse with her was not corroborated. Nevertheless, there could be no doubt from what he said in his judgment that the trial magistrate was alive to the cautionary rule requirement. That, in my opinion, was all that he needed do in the circumstances of this case.

As regards the appellant himself, it was common cause that he had had sexual connection with the


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complainant and the only important question was whether or not it was with her consent as the defence had contended. The contention was based on the evidence that while having sex with the complainant, the appellant had undressed and no rapist would do so for fear of being caught in the unlawful act. The probabilities were, therefore, high in favour of the appellant's story that sexual connection took place with the consent of the complainant, his secret lover.


It ought, however be borne in mind that according to the complainant's evidence which was accepted by the trial court, after they had come into her room, the appellant and his co-accused assaulted her and she sustained injuries. The findings of PW.3, the medical doctor who examined the complainant on the following morning in a way supported her evidence in that regard. Her evidence also found support in the evidence of the nightwatchmen and the police officer who immediately after the alleged assault noticed that the complainant was distressed, bleeding from the arm and unable to walk properly.


As has been pointed out earlier, according to her evidence after the appellant and his co-accused had physically assaulted her, the complainant decided not to offer any more resistance for fear of her life. On that evidence, the trial magistrate rejected as false the defence version that there was no assault on the complainant before the sexual intercourse took


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place and accepted as the truth the complainant!s story that there was such assault. I found nothing unreasonable in the conclusion reached by the trial magistrate in the circumstances.


If for the reasons she advanced, complainant had offered no resistance to sexual intercourse, it was, in my view, not surprising that the appellant had relaxed and undressed to have sex with her. The salient question was, however, whether or not where a woman was assaulted and injured before sexual intercourse took place and for fear of sustaining further injuries, she offered no further resistance, her failure to resist should be interpreted as consent to sexual intercourse. In my view, the reply was in the negative and the lack of resistance in the circumstances, indicative of submission induced by fear of further assaults and injuries rather than consent.

A further argument in support of the contention that the appellant and the complainant had had sexual intercourse with the latter's full consent was based on the defence evidence that the appellant had a love-affair with the complainant. That evidence was, however, denied by the complainant. The trial court had again rejected the defence evidence in favour of that of complainant.


As has been pointed out, I took the view that the complainant's failure to offer resistance was indicative of submission induced by fear of further assaults rather than consent to sexual intercourse. There was


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also evidence not really disputed, that the moment she got a chance to get out of bed where the appellant had been having sex with her, complainant screamed out of the room and raised the alarm. Again when she heard him saying she was his secret lover complainant immediately objected and pointed out that she had no love affair with the appellant whom she saw for the first time on that night. Indeed, according to PW.6, the appellant did not even know the name of complainant whom he claimed to be his lover.


In the light of all this evidence, I found nothing unreasonable in the trial court rejecting, as it did, the defence story that the complainant was appellant's lover. That being so, the argument that the complainant had consented to the sexual intercourse could not find any evidential basis.

By and large, I was satisfied that there was ample evidence establishing beyond reasonable doubt that the appellant had sexual intercourse with the complainant without the latter's consent and had, therefore, committed the offence against which he stood charged and the trial court rightly convicted him of rape.


Although the appeal was also against the sentence, the defence counsel did not, in his argument address the court on this aspect of the appeal. However, as it is often said the question of sentence is pre-eminently a matter for the discretion of the trial


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Court and an appellate court should not lightly interfer unless it could be shown that in exercising its discretion, the trial court had misdirected itself or the sentence imposed was so excessive as to cause a sense of shock. I was unable to find any misdirection on the part of the trial magistrate in this regard nor could I be convinced that the sentence imposed caused a sense of shock. As the Crown cousel pointed out, and rightly so in my view, rape is a serious offence upon the conviction of which a sentence of two (2) years cannot seriously be regarded as excessive,


I came to the conclusion therefore, that this appeal ought not to succeed and it was accordingly dismissed.


JUDGE.

10th October, 1984.


For the Appellant : Mr. Underhaulter

For the Respondent : Mrs. Bosiu.