Masilo and Others v R (Crl/A/28/2001)

Case No: 
Media Neutral Citation: 
[2003] LSHC 154
Judgment Date: 
16 December, 2003




In the Appeals of:







Delivered by the Hon. Mr. Justice ML Lehohla on the 16th December, 2003

The three appellants appear in this Court on appeal following conviction and sentence secured and imposed respectively on each one of them by the subordinate court before which they stood charged with the crime of rape.

The charge set out that on or about 4th November, 1998 and at or near Phahameng in the district of Mokhotlong the appellants intentionally and unlawfully had sexual intercourse with 'Makhutliso Masilo an adult female aged thirty years without her consent.

The appellants pleaded not guilty to that charge. They were nonetheless convicted and sentenced to six years' imprisonment at the close


of the trial conducted before the learned magistrate Mr Khoeli stationed at Mokhotlong at the time.

Evidence led on behalf of the Crown in the court below indicates that on the day in question the complainant PW1 'Makhutliso Masilo had gone to gather firewood on the hillside at day time near Phahameng in the Mokhotlong district.

No sooner had she started doing this than was she confronted by Appellant 1 who exchanged a few words with her in the course of which he insulted her. No dispute was raised by any of the Appellants on this aspect. It is important to show that the record reveals that all appellants are known to PW1 and that all of them are related to her and further that appellants 1 and 2 in particular are closely related to her as they are her husband's brothers' sons. Thus she knows all of them very well as indeed they even come from the same area and village.

To go back to the trend of the evidence as it unfolded in the court below the complainant testified on oath that it was Appellant 1 who after the exchange with her of a few words referred to earlier, tripped her and felled her to the ground. Soon thereafter he removed the complainant's panties assisted at this stage by Appellant 2 who covered the complainant's head with a blanket and sat on it while Appellant 1 was gaining access into the complaint's private parts by means of his male ejaculatory organ.

After Appellant 1 had finished having sex with the complainant in circumstances set out above it then became Appellant 2's turn to have sex


with PW1 while Appellant 1 sat on the complainant's head that was covered with a blanket.

It was elicited in cross-examination that PW1 was unable to shout for her rescue because the purpose for covering her head with the blanket was to muffle any attempt on her part to raise alarm audible in the immediate vicinity. This way the appellants had succeeded in thwarting the complainant's attempts at drawing attention to her plight should there have been any passer-by nearby.

PW1 also told the Court below that Appellant 3 who was standing some distance away was invited by Appellant 1 under some threat that if he didn't join in the crime he would be implicated by the participants as the sole culprit. Thus he also helped by pinning the complainant down as she was being raped and later had his own turn in the sordid act.

Interestingly in this regard while it appears all the appellants on the one hand have concocted a strong story to remove Appellant 1 from the scene on the other hand they are quite prepared to resile from this position; and, banking on PWl's version that Appellant 3 was invited to the scene, they think nothing of the destructive effect that this has on Appellant l's alibi.

PW2 gave evidence to the effect that Appellant 1 is her grandson. Her evidence throws light on the fact that she was the first person to whom the complainant gave her stressful report at the earliest available opportunity.


To this extent she could be properly regarded as the first person to respond to the hue and cry raised by the complainant.

She testified that only Appellants 2 and 3 responded to the invitation she extended to each of the Appellants and their respective fathers. At that gathering PW1 repeated the story she had earlier narrated to PW2. It is at this occasion that the two appellants who were there said Appellant 1 was nowhere near them during the day. Saying this they also stated that on their part during the day at the approximated time mentioned by PW1 they had caught PW1 red-handed having sex with one Lerata who chased after them and charged them with peeking into other people's privacy.

I must straight away support the learned magistrate who saw through all this as a ruse or a ploy to draw a red-herring across the trail before correctly rejecting it in my view.

This was properly rejected in view of the fact that Appellant 1 who maintained that he was nowhere near the scene where and when rape took place he nonetheless states that on being thus caught in a compromising position with PW1 her concubine i.e. Lerata threw a stone at him and hit him. The interesting thing is that he never laid a charge against Lerata for assault. His concern as well as that of his co-Appellants being that revelation of this fact would necessarily lead to revelation of the illicit liaison between PW1 and Lerata. In the Appellants' view such revelation would put PW1 in real hot water should her husband come to know of it.


To illustrate the emptiness of the Appellants1 allegations against PW1s innocence, surely as the prosecutor in the court below advanced a common sense notion, it often happens that a woman caught red-handed in compromising circumstances by a third party would rather falsely charge her paramour with rape than charge the intruder with that offence in the hope that her false innocence would remain untarnished. - hence the importance of the application of the cautionary rule to the evidence of young children and female victims of sexual offenders.

In my view four important factors on the satisfaction of which the court is entitled to convict in a rape case have been satisfied in the instant case. These are

(i) the lack of consent,

(ii) the identity of the alleged offender/s,

(iii) evidence of intercourse itself and

(iv) the mendacity of the accused.

This Court has repeatedly drawn attention to Velakathi Vs Regina Case NO 56 of 1984 (unreported) at page 5 by Hannah AJA who delivered the judgment concurred in by Maisels P and Isaacs AJA sitting in Swaziland.

The judgement read in part that:

" There is no rule of law requiring corroboration in a case such as the present one. But there is a well established cautionary rule of practice in regard to complainants in sexual cases in terms of which a trial court must warn itself of the dangers in their evidence; and accordingly should look for corroboration of all essential elements.


Thus in a case of rape the trial court should look for corroboration of the evidence of intercourse itself; the lack of consent and the identity of the alleged offender. If any one of these elements are uncorroborated the court must warn itself of the danger of convicting and in the circumstances it will only convict, if acceptable and reliable evidence exists to show that the complainant is a credible and trustworthy witness."

In my view the complainant satisfied this test.

A factor which earns the complainant fitting tribute in this regard among others is that she did not falsely implicate Lerata with having raped her were she indeed found with him by the Appellants in compromising circumstances. But I would hasten to indicate for emphasis that the learned magistrate correctly in my view rejected the presence of Lerata anywhere near the scene where the three Appellants carried out their sordid act against the complainant.

In keeping with Velakathi above T.T. Vs Rex 1971-73 LLR 266 at 268 is authority for an all-important view that:

"The cautionary rule does not require that the trier of fact should be told or should warn himself that there must always be corroboration in these cases."

Having said that the learned Smit JA sitting with Schreiner P and Maisels JA concluded at page 270 that:

"In view of all this evidence implicating the appellant, the magistrate was perfectly justified in accepting the evidence of the complainant and rejecting that of the Appellant. This court is satisfied that, notwithstanding


the magistrate's failure to warn himself of the special dangers inherent in the evidence of children and victims of sexual assaults, there has been no miscarriage of justice and that court, if it had properly warned itself, would inevitably have convicted."

The appeals against conviction are dismissed.

Now coming to sentence this court has repeatedly drawn attention to guidelines outlined in R Vs Billam & Ors (1986) 1 All ER 985 (C.A.) at PP 987-8 where it is stated that:

"There are, however, many reported decisions of the court which give an indication of what current practice ought to be and it may be useful to summarise their general effect".

After suggesting that:

".............For rape committed by an adult without any mitigating or

aggravating features, a figure of five years should be taken as the starting point in an uncontested case"

the learned Lord Chief Justice proceeded as follows: "The crime should in any event be treated as aggravated by any of the following factors:

  1. violence is used over and above force necessary to commit the rape;

  2. a weapon is used to frighten or wound the victim;

  3. the rape is repeated or is

  4. gang rape


and the sentence should be substantially higher than the figure suggested as

the starting point" which is eight years in a contested case.

It should be noted also that on 10-01-2002 in a minute directed by this Court to the Registrar my notes read:

"Registrar; please place on roll. Meantime ask the appellants to come prepared on day of hearing their appeals to argue either in person or through Counsel why in the event of their being convicted, sentences should not be appreciably enhanced taking into account that if the factual position revealed is valid, the offence has been aggravated by being a gang rape as opposed to a benign form of rape. Copy this intimation to the Crown." This caution sounded here is in keeping with the provision in the High Court Act 1978 that this court is entitled to interfere mero-motu in the matter of sentence even if generally speaking such interference is withheld where there was no appeal against sentence. In the case of Seholoholo Vs Rex the Court of Appeal set the record straight and pointed the way forward concerning the need to notify the appellant in good time of the likelihood of the sentence that was not appealed against being enhanced on confirmation of the conviction. See also Act NO5 of 1978 Sec 8 (d).

One of the remarks made by this Court when going through old rape cases was that with regard to sentencing in rape cases and with benefit of hindsight and experience gathered through the passage of years it appears that protection of rape victims warrants far higher sentences than has hitherto been the case. This is not to detract from the principle that sentencing is primarily within the province of the trial court. But if despite several warnings such as have been given before no visible departure from


the old trend is observed then this court is entitled to interfere as it has indeed done so repeatedly in the past.

In Review Cases 71 and 81 of 1988 Rex Vs Neo Janki and Rantjana Khauta the words of Cullinan CJ as he then was are all the more welcome. In CRI/REV/51/2000 Rex Vs Tseliso Phatsoane (unreported) at page 8 this Court in reference to Review cases 71 and 81 of 1988 had this to say:

" I said guidelines were proposed in those cases. I could do no more than implore those charged with administration of criminal justice to keep those guidelines in mind when contemplating imposition of suitable sentences in cases involving rape or sexual offences."

In CRI/REV/572/88 Rex Vs Griffith Lehana (unreported) at page 5 the sentence of eight years' imprisonment was substituted for that of five years' imprisonment.

In CRI/A/10/2000 Mashongoane Vs Rex the court set aside the suspended portion of six years' imprisonment. Reliance was heavily reposed on Cullinan CJ's approach in Rev/127/88 Rex Vs Khotso Nalana where for attempted rape five years' imprisonment was substituted for the eighteen months' imprisonment imposed earlier by the court below.

I acknowledge with appreciation that the honourable Ismael Mahomed till recently the President of the Lesotho Court of Appeal imposed fifteen years' imprisonment on a rapist in South Africa where the honourable Judge was Chief Justice before his sudden death. (May his soul rest in peace).


Cullinan CJ as he then was being aware of the fact that not every Magistrate has sufficient jurisdiction in rape cases, concluded that:

"In passing sentence I would once more impress upon all magistrates the gravity of the offence of rape. I have set out dicta in Billam in extenso above for their guidance. Obviously it is desirable that only Magistrates of the rank of the Resident Magistrate or above should try cases of rape. This is not possible of course in some districts. In any event, the provisions of the Criminal Procedure and Evidence Act 1981 are available to a Magistrate, and where in any particular case those provisions are applicable, he or she must commit the accused to the High Court for sentence if his or her sentencing powers are inadequate". (Emphasis mine). I wholly endorse these remarks.

It is now fitting for me to once again match my words with positive illustration of what they are meant to convey. There is no doubt in my mind that gang rape is one of the most savage and brutal ways in which this sordid form of dehumanising brand of crime can be perpetrated. It is time that proper sentence was fitted to its insensitive and unfeeling turpitude.

That rape has aptly been described as fate worse than death makes gang rape all the more deserving of positive signs by our Courts that they bear these serious infractions of human inviolability in mind when contemplating what sentence to impose in respect of varying degrees of commission of the crime of rape where by definition gang-rape is either almost at the apex if not right there.


It is blood-curdling to imagine how the victim felt as she resisted this treadful violation of her body and personality to no avail till she lay limp as three hot-blooded and strong young men attacked her with demonic frenzy as of swine feeding greedily with their snouts deep into a trough full of pinguid and squelching slime.

For the above reasons the six years' imprisonment imposed by the court below in respect of each appellant is set aside. In its place in respect of Appellants 1 and 3 is imposed one of thirteen years' imprisonment reckoned to run from the day the Appellants started serving their sentences following their convictions by the court below. Appellant 2 on account of the fact that he was barely 18 at the time of committing the offence is given eight years' imprisonment which should start running from the time he started serving the sentence following the conviction secured against him by the court below.


16 December, 2003

For Appellants : Mr Molefi'

For Crown : Ms Mofilikoane