R v Mohoasf (CRI/S/2/03 )

Case No: 
CRI/S/2/03
Media Neutral Citation: 
[2004] LSHC 75
Judgment Date: 
4 June, 2004

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CRI/S/2/03

IN THE HIGH COURT OF LESOTHO


REX

V

THULOANE MOHOASF


JUDGMENT


DELIVERED BY THE HONURABLE MRS. JUSTICE KJ. GUNI ON THE 4™ DAY OF TUNE, 2004


CHARGES-----------------------Rape and Attempted Murder.

Who commits a crime of rape----------------how?----------------

Attempted Murder-----------when does a person commit attempted murder?

Identity of the Accused-----------------------

Inferences to be drawn----------------------when to draw them----------------


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[1] CHARGES


The accused is charged with two counts. In the first count the accused is charged with the crime of rape. It is alleged that on the 18th day of November,2001 at LEFIKENG HA MOHALINYANE, in the district of MOHAEES'HOEK, the accused did intentionally have an unlawful sexual intercourse with MPHO SESINYI an adult mosotho female aged thirty-five (35) years, without her consent and did thereby commit the crime of RAPE.


In the second count, it is alleged that at the same date, place and time as in the first count, the accused unlawfully and intentionally assaulted MPHO SESINYI by stabbing her thirty times all over her body-with an okapi knife. As the accused stabbed the complainant on her neck, the accused told the complainant that he is certainly killing her by cutting her throat and did thereby commit the crime of ATTEMPTED MURDER.


From the facts of this case it will be seen that these two offences were committed at the one and the same time to the one and the same victim. For the complainant it never rained but poured torrentially that night. She found herself besieged with the attacks by stabbing in such a vicious manner. As the crowning of that attack the complainant's body was violated. This added an insult to the injury.


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PLEA

To both these charges the accused has pleaded not guilty. His defence is a total denial of all the allegations against him. He pleads an ALIBI. He claims he was nowhere near the scene of the alleged crimes. These crimes having been committed in the middle of the night, the accused claims that he was in his bed and fast asleep at the time of the commission of the alleged offences.

[2] DEFINITION AND DESCRIPTION OF THE CRIME OF RAPE


What is Rape:? Who commits a crime of Rape?


"Rape consists in a male having unlawful and intentional sexual intercourse with a female without her consent". C R SNYMAN - CRIMINAL IAW - Third Edition, page 424. RVK 19.58 (3) SA 420 (A) 421F. Another renowned learned author JRL MILTON, in his invaluable works on SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE, Volume II (Common law Crimes) third edition, page 439, defines rape as follows :


" Rape consists in unlawful intentional sexual intercourse with a woman without her consent". In this jurisdiction, as the law stands, only the man can commit a crime of rape. According to Honourable M.P. Mofokeng J. (as he then was, may his soul rest in pence) in his CRIMINAL IAW AND PROCEDURE


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THROUGH CASKS "the crime of rape consists of the intentional unlawful intercourse with a woman or a girl without her consent", page 396 also see REX V SIMON SEALA, 1976 LLR 241. These common law authorities show that the crime of rape can only be committed against the female. The common law position in England is precisely to this very point. In BLACKSTONE'S CRIMINAL PRACTICE 1998, edited by Peter Murphy it is shown that" a crime of rape is committed by a man who has sexual intercourse with a female without her consent". This accused is a mosotho male of 19 years of age, as shown in the indictment. The complainant is a female .


[3] DESCRIPTION OF THE CRIME OF ATTEMPTED MURDER ATTEMPED MURDER: Simply speaking it is a murder which is not complete. One of the elements of the crime of murder is missing. The actions of the accused person went well beyond the mere preparations into the implementation of his resolve. R V NLDOVU 1921 AD 485-495. By his conduct the accused applied very severe force when punching with a sharp object - okapi knife, thirty or so, holes all over the complainant's body, (refer to medical report - EXHIBIT A and the evidence of Dr. Mosenene).


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Through these numerous holes all over her body the complainant lost a lot of blood. The villagers noticed that she was most likely going to die from loss of too much blood if she is not taken to the hospital to receive medical treatment timeously. Therefore she was hurried to the hospital. By expressing his intent to kill her by cutting her throat and actually stabbing her neck the accused manifested his resolve to kill her. Viewed from the outside, the accused person's actions bear unequivocal testimony to a firm resolve to commit the crime of murder. R V SOFIANOS 1945 A.D 809. The accused did have full control over every requirement, essential for the commission of the crime of murder. The accused by his actions, satisfied all the requirements of the commission of the crime of murder. "The accused had not missed his target It can be said he hit the bull's eye. He had done everything to kill his victim. His resolve had been fully implemented. Pure misfortune on his part but a glimpse of luck on the part of his victim brought about the failure. It is the outside intervention which stopped the victim from dying. MPHO SESINYFS will power to live coupled with the medical treatment received by her timeously saved her life. The accused's actions and intentions were intact thwarted by the complainant's love for life. She hang on her dear life tenaciously - saving not only her own life but also that of her intended killer.


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Who in those circumstances, if" death had occurred would definitely be expected to pay the ultimate prize.


[4] FACTS OF THE CASE

The complainant - MPHO SESINYI was asleep in her one roomed and flat roofed house on the 18th November, 2001. She was awakened by a knock at her door. She enquired as to who was knocking. The response came in a female tones, may be still not fully awake - the complainant thought the person knocking is one of her neighbours who usually comes to her place to borrow 20 litres containers for the purpose of fetching water that they used for the initiation ceremony. These incidents happened during the period of such ceremonies. The complainant - thinking that she had over slept and therefore was late, jumped off her bed. Put on the light and proceeded to the door which she opened to let in the person who knocked. She discovered, that contrary to her initial impression it was not a woman. It was in fact a man who was wearing a blue and white blanket, over the green overalls and was wearing white gumboots with red soles. When the complainant opened the door the light fell on that man who immediately covered his lace with the blanket - denying the complainant an opportunity to see his face. He immediately stabbed the complainant with a knife repeatedly.


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The struggle ensued. He kicked the lamp which fell and went out. He continued stabbing the complainant indiscriminately all over her body.


The complainant screamed - crying for help as she struggled to defend herself. As she cried she was calling out the names of her neighbours. During the struggle complainant grabbed hold of the knife by its handle. She felt and recognized it as an okapi knife. They fought over the possession of the said knife. The attacker had grabbed hold of the blade in order to wrest it out of the complainant's hand. The attacker successfully pulled that knife out of the complainant's hand. He resumed his vicious stabbing in the same indiscriminate manner. He stuck the knife at the neck of the complainant who felt that she was being killed. She asked the attacker why he was so cruelly killing her. The reply was " I am certainly killing you by cutting your throat" or words to that effect. The struggle and the assault upon the complainant had been going on for too long - she estimated the time to have been between 30 minutes and one hour. Complainant was exhausted. She had been weakened by the loss of too much blood because of so many open stab wounds which must have been bleeding profusely as she struggled to defend herself. Dr. Mosenene in her evidence told the court that complainant was an obsess


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person. The light or straggle with her attacker must have been strenuous and tiring. She was finally forced to fall to the ground.


She was no longer able to successfully fight him off. Her panties were forthwith removed by her assailant. She was left wearing only a t-shirt.


She was then raped. As the rapist laid on top of her he possibly soaked in her blood his own overalls and blanket because it appears he did not remove them. He just jumped on top of her. When the rapist has had his satisfaction he got up and left her. She heard her door open and shut. She heard that the key was being turned in order to lock the door. She heard the key fall as he walked away. As the evidence unfolds it turned out that this was not the key but that machine or tool used for repairing locks or breaking them.


From the time the attack commenced the complainant raised the alarm. At the same time she tried to defend herself. She was so tired she could no longer raise herself from the floor. She was unable to stand up. She laid there and kept calling for help. Pw3 heard the woman cries- calling her name. She woke up her son who was asleep with her in her perhaps one roomed house also. She asked her son to listen and identify the voice. She thought it was that of the


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complainant. The boy confirmed Pw3's suspicions that the voice was that of the complainant.


Pw3 asked the boy to wake up and come outside of the house with her to listen further in order to ascertain if it is correct it is the complainant's voice. They came out of their house. They continued the cries and calls for help, as being made by the complainant from her house.


Pw3 together with her son proceeded to another neighbour's house - nearest the complainant's - that of one ALICE. Pw3 knocked at ALICE's door waking her up. When Alice responded Pw3 asked her if she hears or heard the complainant's cries lor help. Alice said she heard but was afraid to go out in the dark. Pw3 asked Alice to wake up and come along with them. Alice woke up her two children;- 14 years old girl and 10 years old boy. The two ladies and the three children proceeded to the complainant's house. On their arrival thereat they knocked at her door. She responded to their knocking. They asked her what was the matter. She pointed out that she had been stabbed with the knife and has been raped by an unknown man. They asked her to let them into her house. She told them that she has been locked in by her attacker. The two ladies scrumbled around in an effort to open the door. Pw3 touched and


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felt the lock with the key still stuck in the key hole. She unlocked the door and opened it She saw near the door a tool or machine used for repairing door locks or breaking them.


They entered. They asked the complainant to put oil the light. The complainant did not know where the lamp was because it was kicked by her attacker at the very beginning of the assault upon her person. It was about 03.00 a.m. So they still needed artificial light to see properly inside the house. Alice retuned to her home where she Fetched a candle and matches. They put on the light.


What a sight! They found the complainant lying in a pool of blood. She was covered in blood all over her body. There were blood stains everywhere in that house. She had wounds all over her body. She was wearing only a t-shiit whose colour could not be determined because it was covered completely with blood. (The person who struggled with the complainant and caused those many wounds on her, must also have stains of her blood which appears to be even-where in that house.) The first people to arrive at the scene of the crime, could not see a particular injury as the whole body looked like one big injury -with blood everywhere. It would appear that there was no part of her body


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which was not injured. At this sorry sight, the two women cried out loud. Their cries raised the alarm.


Alice ran, shouting, crying and raising alarm as she went about waking up the fellow villagers in the neighbourhood to come, see and to help. The first few men who arrived at the scene were also horrified by what they saw. NTATE REENTSENG suggested that this is the case (or the police whom he was going to call there and then. He took the motor vehicle to go to the nearest police post - the MOHALK'SHOKK police were on patrol in that area. They had camped not very far from that village.


This is the place where NTATK REENTSENG went with a motor vehicle. NTATK BETHUEL said that if they wait for the police the complainant who has lost too much blood already and was still bleeding will not be alive when the police arrive. He suggested that another motor vehicle be found in order to take the complainant to the hospital. Pw3 and other woman were assisting the complainant to go into the motor vehicle when the police arrived together with STATE REENTSENG. The chief of the village and many other villagers had gathered there by this time.


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[5] DESCRIPTION OF THE ATTACKER - HOW HE MAY BE

IDENTIFIED

The complainant was asked if she could identify her attacker: Although she did not see his face and therefore could not identify him, she pointed out that he was wearing a blue and white blanket, green overalls, white gumboots with red soles. The complainant told the villagers that they (herself and her attacker) fought over the possession of the knife which this attacker was using to stab her. She held the handle and the attacker held the blade. In that tuck-of-war she feared, that her attacker might have sustained an injury in the palm of his hand as he pulled that knife out of her hand. The complainant was driven by the police to MOHALK'SHOEK HOSPITAL.


[6] MEDICAL EVIDENCE

Dr. Mosenene testified before this court.

At the lime she had been a medical general practitioner for four(4) years. During that period of four years she had never ever come across the case like this one - our complainant in this case. It was about 0.5.00 a.m. when the complainant was admitted at MOHALES'HOEK HOSPITAL. This doctor


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worked on this patient for lour hours. According to Dr. Mosenene her main concern was to save the patient's life.


She had many open wounds which needed stitching up. The Doctor was doing that for the greater part of her engagement with this patient. Some wounds were big enough to allow the doctor's whole hand to go into them. The patient had approximately thirty (30) wounds. There were wounds on the head, face, arms, chest, breasts, abdomen and thighs. She had a wound where her mandible bone was exposed. The skin had peeled off and was overlapping on her face. Parodic gland was cut.


(7) MEDICAL HISTORY

The complainant was admitted on the 18th November, 2001 at MOHALEASHOEK HOSPITAL. She was discharged on the 29th November, 2001. She was discharged because the hospital was not able to offer her any further help. She was still ill. She sought medical help elsewhere. At first she brought herself to QUEEN ELIZABETH II HOSPITAL. She saw two consultants. They could not see exactly what was wrong with her. The water was oozing out of the wound on her head. Her left hand is paralised. She was advised to buy a soft toy which she should constantly keep pressing inside her left hand. Her cousin who works at UNIVERSITUS HOSPITAL in Bloemfontein asked the complainant how she was getting on.


When she discovered that the complainant cannot infact get useful and corrective medical help in LESOTHO, she invited her to UNIVERSITUS HOSPITAL.Bloemfontein. Complainant was admitted there on the 7th December, 2001. She was operated on her head. The water that was continuously oozing out of that wound on her head, was stopped. Nine days after that operation she was discharged and kept going for check ups regularly from December 2001 up to April 2002. What remains is the permanent disability to use the left hand.


(8 ) COMMENCEMENT OF THE SEARCH FOR THE ATTACKER

The complainant had given the full description of the attire of her attacker. In addition the village men expected to hud the man with an injury in the palm of his hand because the complainant told them that they fought over the possession of his weapon - okapi knife.


With this information, the chief instructed the men there present to follow the (spoor) - tracks over the morning dew from the complainant's house and see


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where they lead, just may he, they might find the man fitting the description given by the complainant.


The village men complied - among them there was Pw4 MOLATO SELLO - who had been awakened by Alice and given that horrifying report of what she had seen and heard at the complainant's place. On his arrival at the complainant's house Pw4 had just peeped through the window - saw some women busy trying to help the complainant who according to him was pretty bad. She was covered in blood. He had suggested that they search to see where the blood comes from - with a view to apply first aid to stop the bleeding. He discovered that there were wounds all over her body including her neck. That is why he went to ask the business person in the village to release her motor vehicle to take the complainant to the hospital. The complainant was put on board of the motor vehicle.


The village men followed the spoor from the complainant's house. It took them up to Ha Mokhele - (at KHOTLA - village court. The day had broken many people were walking about - making many and mingled spoors at this point. As fate will have it. this spoor ended just near the accused person's home which is in the vicinity of "KHOTLA". I here was still no suspect. According


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to Pw2 - KHOTSO 'NEKO, the men following the spoor met at this point with men from that village - coming there to "KHOTIA". The chief instructed the "whistle" of the village to call all the men of the village to "KHOTIA".


This is where some men had already gathered. The accused's father was already up and out in the veld with his animals on the mountain. He heard the (all. He saw a crowd of men at "KHOTLA". HE came down to "KHOTIA". He learnt from one of those men already gathered there that the complainant has been stabbed and raped by an unknown man. He was told that it has been decided that the search should be conducted in order to find the complainant's attacker who had been described in his attire as the complainant has shown.


The conclusion reached by following the foot prints from the complainant's place, was not useful. It was therefore decided that a search be extended to the examination or inspection of all men's right hands to look for injuries which the complainant said may be found in the palm of the hand of her attacker.


All men present there at "KHOTLA" produced their hands for inspection. Pw 1- inspected them. He went from one man to the oilier in a line. When he arrived at this accused be noticed that he had two fresh cuts so fresh they were still bleeding. He asked him how he came by those cuts. The


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accused said he sustained those cuts at the time he was cutting vegetables. That very evening meal was according to the accused's father prepared and cooked by his wife - the accused's mother.


Whereupon his own father - there present, remarked how come the accused who has a wile, two sisters and a mother was cutting vegetables. No great deal was made of this discovery. Pw4 went on with the examination of the remaining men. He had indicated to the accused that he might come back to him. Pw4 found no other man with any kind of injury and he returned to the accused.


The accused's father remarked before every ullage men there present that the items of the clothing which the complainant is said to have seen and recognized worn by her attacker just prior to the commencement of the attack, were hanging on the wash line at his home. They have just been washed. Accused's lather with some of the men went to his home to collect them - according to IV4. the blue and white blanket and green overalls were taken from the accused person's home wash line and brought to the court - (KHOTIAL) Although washed, those village men noticed blood stains which have not completely washed off.


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The village men, together with the accused and his wet clothes went to complainant's place. There the accused was asked if he is the man who attacked, stabbed and raped the complainant. He denied that he was that man. The police arrived, they were handed the accused. The report was made. Police asked (he accused. In the presence of those village men accused persisted in his denial. The police took the accused away. The village men dispersed.


Immediately thereafter the accused took the police in the company of chief THEKISO MOKHELE, to his home. The chief informed the accused person's parents about the purpose of their visit. The accused although married with one child, he is still living with his parents. He is still their dependant The police were led into a six roomed house. In the bedroom which is described as the girl's room by accused and his parents, the police found under the bed the while gumboots with redsoles. They were wet-dipping water mixed with blood, according to the chief They took the said gumboots and left. The chief was dropped on the way as the police, accused and the wet recently washed items of clothing went to MOHALE'SHOEK .


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The police came back again, within a short space of time, picked the chief and returned to the accused's residence. There the accused led them into the kitchen. He indicated to the police that the okapi knife is in the cupboard inside a glass dish. It was found as indicated and taken away by the police.


The accused is adamant that he is not the man who attacked, stabbed and raped the complainant. He claims that at the time the attacker was at the complainant's house he was at his house asleep alone in his bedroom because his wife was away. The accused and his wife sleep in a hut near this six roomed house on the same premises. He considers that he has an air tight ALIBI. The complainant has told everybody that she cannot identify her attacker. She did not know who her attacker was. She could only identify the items of clothing that she has described. Mind you, the accused and the complainant are fellow villagers. They therefore know each other. The accused attended the school where the complainant is a teacher although complainant never taught him as he was not in her class. There are no eye witnesses. The cover of darkness, |the attack being carried out in the middle of the night at one (1) or two (2) a.m. in such early morning hours,I afforded the perpetrator an opportunity of not being likely to have anyone to witness what he did. At that time everyone is asleep in


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his or her bed. He kicked off the light - putting it off. He had covered his face. Therefore even his victims could not see him.


AH the evidence that is likely to connect this accused with the commission of these crimes is circumstantial. The blanket and the overalls are the property of the accused. The white gumboots are nobody's properly. The knife is the property of the accused's Mather. His parents have no idea who owns that pair of white gumboots with redsoles. The accused admits that he washed his overalls and blanket that morning of the 18th November, 2001.


The accused still lives with his parents and he is their dependant. It is his father who still maintains and supports him. He buys him clothes, food and everything he needs. It is his lather who bought him that green overalls recently. He had come with it from the mines where he works. On the 18th November, 2001 it was the very first time the accused wore these overalls. The accused said he washed the clothes because they were dirty. This is a good reason tor washing anybody's clothes. What sort of dirt was on those clothes. There are witnesses who testified before this court who know what kind of dirt


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was on those clothes. The while gumboots were wet and water mixed with blood was dripping from them, its the chief - Pw4 observed.


His mother and father are adamant that those gumboots are not their son's. They also testified to the effect that they do not belong to any of their daughters in whose bedroom they were found.


The police and the chief did not bring those gumboots to the accused person's home. It is the accused who led the police into that room. Are they likely to be the ones worn by that unknown man who attacked, stabbed and raped the complainant:? Perhaps, may be not but taken together with the blue and white blanket and green overalls they are found at the same premises, the home of this accused. All of these items had just been washed that morning. The two cuts - fresh and bleeding were found in the palm of his hand. These lends substance to the suspicion that these items of clothing must be the very ones worn by the man who attacked the complainant. At the time the accused was asked how and when did he sustain the injury he claimed he was cutting vegetables. That excuse held no water before the village folk which investigated the incident. The accused person's father by expressing doubt regarding the truthfulness of his excuse, that he was cutting vegetables threw spanners in his works. They had no problem to accept that the blood stains on the black


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gumboots he was wearing there at 'KHOTLA' were old and that he is correct when he claims it came from RAMOSENTI'S sheep which he slaughter sometime ago. Every witness had no difficulty to concede that those particular blood stains on his black gumboots were old - stale - not as fresh as the cuts in his hand.


It cannot be conspiracy against this accused by those witnesses who say they noticed those fresh and bleeding cuts in his right hand.


Even though the accused's mother claimed she particularly asked the accused to cut vegetables on that very day she did not say she knew certainly that the accused cut himself that day. The accused claims he cut himself long time ago and those cuts were old. This is not true. Pw4 told this court that those cuts were fresh. The counsel lor the accused when cross examining Pw4 he did not put it to that witness that the cuts in the accused's hands were old, why? May be he had not yet received instructions to that effect. So that the witness was left uncontradicted. He was not given an opportunity to deal with this new defence that there was only one cut and an old one - not fresh.


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It is the duty of the cross-examiner to challenge the evidence and give the witness an opportunity to deal with the issue before he could be described as a liar. BOESAK (3) SA 200 at pages 381-393, 39.5. So IV4's evidence cannot be rejected as a lie now. Therefore, if it is not a lie, the accused's evidence contrary to that must be untrue.


(9) INFERENCES TO BE DRAWN - WHEN TO DRAW THEM.

This accused must be that man who attacked, stabbed and raped the complainant. All the circumstances point at no one but him - that this accused is that man, is the only reasonable inference that can be drawn from those established facts. REX V BLOM 1939 AD 188. The inferences are drawn only from the established facts. The inferences to be drawn from such established facts must be the only reasonably possible inferences REX V BLOM (Supra).


The accused and his father are the only men who reside on the premises where the items of clothing described by the complainant as the ones worn by her attacker were found. The accused was wearing that blanket and that overalls on the night in question. The accused admitted that he washed them because they were dirty. The overalls were new as shown by his lather in his evidence. He


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had recently bought them in the Republic of South Africa. He had come with them for him on that occasion.


He had been present at home on leave from the Republic of South Africa for three days. It was established that the accused wore those overalls for the very first time on the 18th November, 2001.


Pw2, Pw4, Pw5 observed two fresh cuts in the right hand of the accused. The cuts were so fresh they were still bleeding. Can it therefore be inferred that the two fresh cuts in the accused's right hand were caused by his knife as he and the complainant fought over its control and possession during that attack? When cutting vegetables, the person who is doing so does not hold the blade of the knife in the palm of his hand.


The accused after the close of the crown case, claimed in his evidence, when he testified on his own behalf, that he cut his hand not when he chopped the vegetables but after chopping the vegetables when he clasped the knife in order to close and keep it. He demonstrated how he performed that maneuver in the witness' box here with the same knife. Holding the knife by its handle the accused tried to force the blade to the hand by pressing the said blade against


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the witness stand but failed to dose it. He said he could not for fear of cutting himself.

What he was likely to cut as court observed during the demonstration carried out by the accused in court was his fingers which were over the handle that was inside the palm of his hand.


Therefore, it can be inferred that the injury inside the palm of his hand was not caused when cutting vegetables or when closing the knife at the end of the process. An adverse inference may be drawn not only from the failure to give an explanation but also from giving a false explanation REX V BLOM 1939 AD 188.


All the items of clothing described by the complainant as those worn by her attacker, were found on the accused person's premises. The blanket and overalls were admitted as his own property.


Why were they washed so early in the morning? There is nothing wrong with that per se. The fact that those items of clothing were the ones described by the victim, changes what is normal to something extraordinary. Despite the wash,


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the witness stand hut failed to close it. He said he could not for fear of cutting himself.

What he was likely to cut as court observed during the demonstration carried out by the accused in court was his lingers which were over the handle that was inside the palm of his hand.


Therefore, it can he inferred that the injury inside the palm of his hand was not caused when cutting vegetables or when closing the knife at the end of the process. An adverse inference may be drawn not only from the failure to give an explanation but also from giving a false explanation REX V BLOM 1939 AD 188.

All the items of clothing described by the complainant as those worn by her attacker, were found on the accused person's premises. The blanket and overalls were admitted as his own property.


Why were they washed so early in the morning:? There is nothing wrong with that per se. The fact that those items of clothing were the ones described by the victim, changes what is normal to something extraordinary. Despite the wash.


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stains of blood were not completely removed. The village men still observed the same blood stains unsuccessfully washed off. The white gumboots with red soles were found in the girl's bedroom. They may not be the accused's property but he was wearing them together with his own green overalls and blue and white blanket. All these items together with the okapi knife were indicated by this accused to the police who found them at his home.


The accused's father today claims that he also had an injury in his right hand. His son hangs his hope on this false allegation by his father. The hand examiner at KHOTLA saw no other man with injury in his hand except this accused. The chief and other witnesses testified to that effect, no suggestion was made to any of those crown witnesses that there was yet another man with injuries in his right hand. I have no difficulty to reject the allegation by the accused's father that he also had an injury in his hand.


All those items of clothing are still together under the accused person's control at his own home. The identity of the accused is brought about by these circumstances. HE IS THEREFORE FOUND GUILTY AS CHARGED ON BOTH COUNTS.


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(10) SENTENCEE

After violating the complainant, the accused got up and left her in the pool of blood to die. She heard the accused walk to the door. She heard her door open and shut presumably behind the accused. She heard the rattling of the lock and key. She made another presumption, that is, her attacker is locking her in the house. She heard the quick footsteps going away.


At the commencement of this quick march the complainant heard some object drop to the ground. She again thought that must be her key. The evidence led has shown that assumption to be wrong. The object which was found by Pw3 -having fallen by the door, was a de\ice used to repair or break the locks. The key was found by Pw3 and Alice still stuck in its keyhole.


Obviously, armed with this lock breaking or repairing device, the accused was on a mission to commit a mischief that night. He was prepared and ready with his weapons e.g the keybreaking device, the knife etc.


Sparing his time, energy and skill, the accused on arrival at the complainant's place, decided to knock and ask to be allowed in rather than engaging in time and energy consuming process of breaking in. Why was he so desperate to


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enter by hook or crook the complainant's house that night? When knocking at the complainant's door the accused disguised his male voice by speaking in soft female tones - convincing the complainant that the person at her door is one of her neighbours. This was the neighbourhood of single women - Pw3, ALICE and the complainant.


The complainant may have committed an error - grave error or an act of terribly dangerous stupidity, by opening her door that night. But certainly she committed no crime. She was attacked by the defence counsel, when cross-examined as though she has committed an offence by opening her door or that she got what she asked for. I must hasten to add that the counsel retreated and withdrew the question with those unfortunate connotations immediately upon my intervention.


The fact that the accused was already armed with a tool to break-in if he was not allowed takes the seriousness of the offences committed to a higher level. He was not just prowling around, ready to pounce on an unsuspecting victim, he set out to create those unfortunate circumstances which presented him with the victim. He premeditated and planned his actions to the last detail. The accused selected his victim carefully. He chose this obsess, clearly unhealthy person whose resistance would not be much nor prolonged. The complainant, by her


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appearance, is just a "push over". She lives alone. This offered the accused an opportunity which he seized with open arms to cany out his plen to its finality successfully uninterrupted.


The accused took the advantage of the cover of darkness. Most criminals operate under the cover of darkness. The accused moved his operation deep into the middle of the night when everyone is expected to he fast asleep. This was still to ensure that there is no possibility of being seen by passers-by. It must have been about 02.00 a.m. because according to Pw3 they arrived at the complainant's place at about 03.00 a.m. in response to the complainant's cry of help.


According to the complainant, the struggle or fighting between her and the accused went on for an estimated duration of (30) thirty minutes to one hour. 1 hat is why I have come to the conclusion that these offences were committed at the time commonly referred to as "the witching hour". He was doing what can be properly described as evil deeds in that quite dark night.


1 he accused has demonstrated total lack of respect for other people and their rights. He consciously and deliberately set out to commit capital offences -rape and murder. The accused has only been denied his wish, desire or resolve


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to commit murder by the complainant's lo\e for life. The accused was certain that he had killed the complainant by cutting her throat. The complainant simple refused to die. She hang tenaciously onto her dear life until she successfully obtained an appropriate medical treatment.


By her actions, the complainant saved her life and that of her intended killer. Compare and contrast both of your actions with regard to life. The accused took every step in his resolution to put an end to the complainant's life, well aware that if caught, brought to justice and convicted, he just might pay the ultimate penalty - SECTION 297 (1) (a)(1)) CRIMINAL PROCEDURE AND EVIDENCE ACT 1981.


It provides : "(I) Subject to sub-section (2) or (3), sentence of death by hanging


  1. Shall be passed by the High Court upon an accused convicted before it or by it of murder and

  2. May be passed by the High Court upon an accused convicted before it or by it of u cason or rape " The complainant did everything in her power to save both their lives despite there being no guarantee that the- killer will also he killed. Often the murderers


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get away with murder. This statutory provision cited above has been filed and forgotten.


It is now partly repealed by SEXUAL OFFENCE ACT 2002. But in this case the law that applies is the one which was in Force at the time these crimes were committed.


From the murder charge this accused has been saved by the complainant's refusal to die. The accused had done everything possible to carry out his resolve to kill the complainant.


Everybody, including this court, has done everything to save tills accused from the consequences of his actions. Here in Lesotho though under developed and poor everyone has fundamental Human Rights and Freedoms enshrined in THE CONSTITUTION OF LESOTHO. The courts insist on and enforce those human rights when the man is charged with heinous offence. There is no free medical aid. There is no law or binding decision of the court for anyone to be provided with free medical treatment even to safe life. Questions arose in my mind when I read "KINGDOM OF LESOTHO PARLIAMENT DEBATES OF THE NATIONAL ASSEMBLY - DAILY HANSARD -OFFICIAL REPORT OF THE SIXTH MEETING - FIRST SESSION OF SIXTH PARLIAMENT -Thursday, 22nd April, 2001".


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I undoubtedly accept that we should have the criminal justice system second to none. This should be within our means which can only cover the extent of our priorities. What is the order of our priorities? Take a look at the annual budget.


Where does the government spent most money? How? By doing what? The Honourable Minister of Health DR. M. PHOOKO in his speech in parliament - ( refer to in the above tiled HANSARD), told the house that in 2003 there were one hundred and fifty nine (15*)) neonatal foetus death. There were twenty six (26) maternal death. It is common knowledge that many mothers and babies die at -MALIAKO LEROTHOLI MATERNITY UNIT of QUEEN ELIZABETH II HOSPITAL. The causes of deaths are various but the common denominator is lack of funds. For example these causes are set out at page 14 of the said HANSARD as:-


  1. Lack of skill or expertise

  2. Lack of appropriate equipment

  3. Lack of sufficient numbers of doctors and nurses To take care of the patients.


Here at the courts if a rapist is not provided with the expert legal advise about his rights, he is without further trouble or fuss, entitled to an acquittal irrespective of the convincing evidence against him. LETSABA V REX C OF


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A no.2 of 2003 and the authorities therein cited. The rapists are allowed to go back into the communities now with full knowledge that the law is on their side. They are the only people whose human rights must be protected and enforced under any circumstances.


Do law abiding citizen have fundamental human rights which warrant protection or enforcement? The criminals who have offended against the crown must be provided with expert legal advise or services. Those at hospitals are allowed to lose their lives rather than be provided with medical expertise. This is a curious situation. Arc our priorities in good order. Be that as it may.


The crime of rape is very prevalent presently. According to DR. MOSENENE, the doctor who treated this complainant and examined her regarding the allegation of rape, she examines per week at least four or more women or girls who have been raped. This is only there at MOHALESHOEK HOSPITAL. What about the other hospitals all over the country? There are ten districts. Disregarding the population density and distribution let us assume that the number of women and girls raped per week is the same all over the districts. Times that by the ten districts. In all forty (40) women or girls are raped in Lesotho per week. In Republic of South Africa the media indicates that


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Johannesburg is the rape capital of the world. Every second a woman or girl child is raped. Lesotho is coining hot on heels behind the Republic of South Africa. We are eager to catch up - no wonder HIV/AIDS infection is running like the veld lire on a windy day in our region.


Since we lack expertise and modern technological equipments there is no telling if the victims of rape have been sentenced to sure death by their rapists. The rapists are nevertheless still treated with extreme leniency. They are not removed from the society. They should be removed from the society for its protection from your actions. But still it is not a permanent removal. This accused will be removed for a while. Perhaps while in prison he may learn to respect other people and their rights.


Even the term of imprisonment that you are going to receive is going to be considerably reduced by those blessings bestowed upon you by the circumstances of this case. You were a young man at the age of 19 years when you commuted these offences. To the village children, every grown up woman of the village is according to the custom and tradition "'Me"-translated mother-'M'e MPHO - complainant, is your mother. Why did you attack your mother?


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Why did you rape your mother? A well brought up MOSOTHO CHILD will not do any wrong in the presence of his or her mother. Let alone do the wrong against his or her mother infront of her. When your counsel indicated that you are ostracized by the community and no one comes to see you in prison because of the crimes you have committed it is because of that custom and tradition against which you have offended. In consideration to that you will get yet another reduction of the sentence you deserve.

Another consideration which will reduce the severity of the sentence which you deserve even further is your illness - epilepsy. You do not claim that it caused you to do what you did. You complain that you have had frequent attacks while in prison. You still receive the same medical attention presently in prison as you received when you were at home.


Your counsel pointed out that you have no opportunity to buy yourself decent clothes. Since you were dependant on your parents, now the tax payer will assist your parents to maintain and support you. When on remand you were using your clothes. Now as a convicted prisoner you will be provided with clothes by the prison authorities at the expenses of the tax payer.


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You claim you want to go to help your son. You do not tell the court what you want to do for him. You did not tell us what you did for him in the past Evidence showed this court that you arc total dependant of your parents. Your lather did everything for you.

Even when he was at home on leave he is the one who went out with the cattle to graze at the veld. Your mother said in your father's absence she has hired a herdboy. What good are you then to your son? You are not a good role model.


YOU ARE SENTENCED ON THE MUST COUNT TO FORTY (40) YEARS IMPRISONMENT AND SECOND COUNT TWENTY (20) YEARS IMPRISONMENT. BOTH SENTENCES TO RUN CONCURRENTLY -COMMENCING FROM THE 18th NOVEMBER, 2001.


K.J.GUNI

JUDGE


Assessor : Mr. Loko

For Crown : Ms. Lesupi

For Defence : Mr. Mokaloba








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