R v Fanana (CRI/A 7 of 1980) [1980] LSHC 41 (24 June 1980)

CRI/A/7/1980 IN THE HIGH COURT OF LESOTHO In the Appeal of : PHETLA FANANA Appellant v REX J U D G M E NT Respondent Delivered by the Hon. Chief Justice, Mr. Justice T. S. Cotran on the 24th June, 1980 The appellant was convicted by a magistrate at Maseru of an offence under s.3(l) read with s.3(4) of the Deserted Wives and Children Proclamation (No. 60 of 1959) as amended. The magistrate postponed passing sentence 'for 3 years (in terms of s.308 of the Criminal Procedure and Evidence Proclamation) on condition that the appellant paid maintenance for a child allegedly fathered by him in the sum of M10 per month with effect from 31st August 1979. The appellant now appeals against his conviction. The complainant Libapiso (PW 1) testified that she had sexual intercourse with the appellant at his house in Seapoint on a number of occasions in June and July 1978 as a result of which she became pregnant and then gave birth to a child in March 1979. She informed her mother and her brother. The complainant called three witnesses. The evidence of the last witness, Sgt. Lerotholi (PW 4), who was her relative, did not carry her allegations very much further, except to the extent that the appellant could not have been truthful when he testified he met her once only. Her mother 'Mamohale (PW 3) and her brother Mohale (PW 2) testified that she told them when she realised she was pregnant, that the appellant was the father. They testified that when they went to the appellant to ask him about the matter he admitted to them the truth of the complainant's allegations and pleaded for time. He is alleged to have also said he will come and visit the baby. They testified further that when he was pressed the appellant was evasive in /disclosing -2- disclosing to them the name and address of his father. The appellant denied that the evidence of the complainant and her brother and her mother was true. He admitted only that he saw the complainant, in April 1978, once, when she was given a lift by the driver of a car in which he was a passenger. The magistrate believed the complainant and her brother and her mother. He thought it was improbable that the complainant would concoct a story about a man who says he saw her once only. He also found that the appellant's evasiveness in disclosing the name and address of his father, as an indication, if not quite corroboration, of the truthfulness of the complainant's allegation. Counsel for the Crown is not quite happy with the conviction on the grounds, inter alia that the complainant's story stands on its own and that the corroborative evidence, if such it can be called, comes from close relatives of the complainant. That of course is true, but it must be remembered that intercourse between man and woman rarely takes place in the open, and when the couple are young, (as they are in this case) there can be mutual secrecy about the act, but when it is followed by pregnancy, the secrecy cannot be maintained (unless an abortion takes place) or cannot be maintained for long. The natural course to take in Basotho Society (and sometimes in other societies as well) is for the girl to confide her secret in her parents or close relatives. I do not consider the evidence of parents or other close relatives as necessarily biased in such a case. The magistrate was obviously quite aware of the relationship when he came to consider his decision. Mr. Muguluma cited the case of David Monyane v. R. 1971-73 LLR p.283, before Jacobs CJ, but in that case there was very serious misdirection by the magistrate in that he seemed to be of opinion that cases under the criminal sections of the Proclamation could be decided on balance of probabilities and not beyond reasonable doubt, a proposition which the learned Chief Justice found could not be sustained. There is not such mis- direction in the appeal before me. An appeal Court should not disturb the trial magistrate's findings of facts based on credibility of witnesses seen and heard by him and not seen or heard by the appellate tribunal unless there are good reasons. I find none. The sum total of the evidence before the magistrate /justified -3- justified the appellant's conviction. I would dismiss the appeal. CHIEF JUSTICE 24th June,1980 For Appellant : Mr. Jobodwana For Respondent: Mr. Muguluma