R v Phatsoane (CRI/REV 51 of 2000) [2000] LSCA 110 (22 November 2000)

1 CRI/REV/51/2000 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: REX VS TSELISO PHATSOANE J U D G M E NT Delivered by the Hon. Mr Justice M. L. Lehohla on the 22nd day of November, 2000 It is necessary to indicate that on 2 2 - 0 5 - 2 0 00 w h en the r e v i ew file reached my d e sk the C o u rt ordered the Registrar to w a rn the a c c u s ed to c o me prepared w h en this matter eventually appears on the roll to argue t h r o u gh his counsel or in person, w hy in the event of the conviction being c o n f i r m ed the sentence should not be appreciably e n h a n c e d. T he C o u rt listened with care to the submissions m a de by the a c c u s ed in this matter. He stood charged in the court b e l ow with rape of a girl 'Matsieame N k u e b e, it being alleged that on or about 9th January 1999, and at or near Q o m o q o m o ng in the district of Quthing the accused did unlawfully a nd intentionally h a ve unlawful sexual intercourse with her, without her consent, (a fourteen (14) year old girl) thereby committed the offence charged. Alternatively the accused is charged with contravention of Proclamation 14 of 1 9 49 : ( W o m en and Girls' Protection) Proclamation in that he did h a ve unlawful sexual intercourse with "Matsieame N k u e b e, a female m i n or aged fourteen years. T he Court b e l ow heard the evidence of the complainant herself and her story w as in fact that she h ad attended a concert with the permission of her grandfather M o e k e t s a n e; and that while she and others w e re there she felt like going to relieve her bladder. S he asked one B o k a ng to escort her to the toilet. B o k a ng obliged. W h en they c a me back from the toilet and w e re near the church door the accused pulled the complainant. S he called out B o k a ng to see w h at the accused w as doing, and B o k a ng challenged the accused about w h at he w as doing. T he accused pulled out a s w o rd or a knife, - a sharp instrument - and m a de as if to hit B o k a ng with it. W h en B o k a ng went into the church house the accused pulled the victim a w a y, the complainant a w a y. S he w as s c r e a m i ng a nd trying to free herself but w as o v e r p o w e r ed by the accused w ho d r a g g ed her until they w e re a b o ut 3 00 metres a w ay f r om the church. T h en he fell her by letting her trip, t o ok out her panty, twisted her a rm a nd h a v i ng g o ne on top of her inserted his penis into her front passage. T he complainant says she w as crying all this while, a nd that o ne Tsela did c o me together with a c h ap called M o s o t h o; a nd this M o s o t ho a s k ed the accused w h at he w as d o i ng to the complainant. M o s o t ho did assist the complainant to get u p, a nd then M o s o t ho took a w ay the s w o rd w h i ch w as on the ground. T he c o m p l a i n a nt h ad seen it being put there by the accused. All these things h a p p e n ed at night before d a w n, a nd there w as no m o o n l i g ht as the night w as e v en cloudy, affording a perfect c o v er for a n y b o dy w ho intended doing the sort of thing that is c o m p l a i n ed of in this instance. T he accused g a ve his evidence a nd argued before me in this Court as to w hy a girl w h om he has s w o rn he is intimately k n o wn to h im could falsely incriminate h im - he h ad a c h a n ce to give evidence to that effect but did not do so in the court b e l ow or rather challenge/put that evidence in the f o rm of questions to P W1 the complainant but he did not do so, - n a m e ly that the complainant is only incriminating h im falsely b e c a u se the a c c u s ed h ad h ad differences with the complainant's father c o n c e r n i ng a vehicle w h i ch w as p a r k ed w h e re the a c c u s ed didn't w a nt it to be p a r k ed by the complainant's father. This as I said, w as n e v er put to the c o m p l a i n a n t, so the court b e l ow w as not alerted to it, or to w h a t e v er significance it had. B ut b e c a u se the a c c u s ed reposes a lot of i m p o r t a n ce to it, then if he failed to a d v a n ce that important aspect of his case, he thereby c o o k ed his o wn g o o s e. In other w o r ds he w as responsible for his o wn u n d o i n g. So I find nothing w r o ng with the w ay the court b e l ow h as treated this matter. T he c o m p l a i n a nt k n o ws the a c c u s ed well. T h e re is an e l e m e nt of lying that w as d o ne by the a c c u s ed both in that court a nd in this Court, trying to d e ny that he h ad this s w o rd a nd instead attributing the handling of this s w o rd to the complainant's grandfather. T h at is a factor w h i ch courts of l aw are b o u nd to take into a c c o u nt in cases s u ch as this. W h at I am trying to say is that if an a c c u s ed p e r s on lies a nd gives a version that is inconsistent with i n n o c e n ce then this attitude of his h as a w ay of strengthening an inference of guilt. T h e re is also an e l e m e nt of corroboration. It h as t i me a nd again b e en indicated that there is no rule that corroboration is required in a case s u ch as this, but w h e re the court finds that the c o m p l a i n a nt in her e v i d e n ce is reliable a nd trustworthy t h en the court is entitled to accept her version as an important factor t o w a r ds establishing the guilt of an accused person. H a v i ng said this, I h a ve no hesitation in rejecting the accused's story a nd confirming the Magistrate's conviction of the accused. N ow I w a nt to k n ow for purposes of sentence. W h at do y ou do for a living : A c c u s ed : I am attending school H. L.: W h e r e? A c c u s ed : M o p h o l o si H i gh S c h o ol H. L.: D o i ng w h a t? A c c u s ed : I am d o i ng F o rm five H. L.: Y e s, but y ou see rape is, as the Magistrate h as explained it, a d e h u m a n i s i ng offence. I w i sh to illustrate the a b o ve c o m m e n ts by reference to a j u d g m e nt of this Court, that w as in C R I / R E V / 1 3 2 / 97 : Rex vs Teboho Melamu, it's an unreported decision. At p a ge 7 of that j u d g m e n t, this C o u rt stated as follows : T h at relevant factors attendant on the case h a ve to be taken into account, the court h as to h a ve regard to the fact that there is no rule of l aw that a first offender is entitled, as of right, to special privileges. T he condition of being a first offender on the part of the accused is merely o ne a m o ng factors that the court ought to take into account. His individual interest m u st be w e i g h ed against factors such as the nature of the offence, protection of the public and prevalence of the kind of crime his conviction has b e en secured in respect of. In dealing with offences of particularly serious nature such as w h e re violence is an element, it w o u ld not be w r o ng that the natural indignation of interested persons and of the c o m m u n i ty at large should receive the s a me recognition in sentences i m p o s ed by courts, a nd that it is not irrelevant to bear in m i nd that if sentences for serious crimes are too lenient the administration of justice m ay fall into disrepute a nd injured persons m ay incline to take the l aw into their o wn hands. In Regina vs Mabusa and Another 1955 H C T LR pg 16 to 18 it w as stated that all factors should be taken into consideration by the Subordinate Courts, and material circumstances of the offence in arriving at the proper sentence. It s e e ms to me that such views w e re not given adequate consideration or d ue weight. A nd that in a ny event, in the light of the circumstances of the c o m m i s s i on of the offence the said sentences i m p o s ed are wholly, wholly inadequate, thus e v en on a m o st lenient v i ew of the said circumstances the sentence should be substantially increased. In that j u d g m e nt again this Court h ad this to say with regard to rape cases w h e re force has b e en used. This includes w h e re violence is applied such as w h e re a y o u ng girl's a rm is twisted and a s w o rd is used to frighten her. This C o u rt said it is gratifying to note that last w e ek the Chief Justice of South " Africa, the honourable Ishmael M a h o m e d, till recently the President of our Court of A p p e a l, i m p o s ed a sentence that g a ve a clear warning to rapists that they w o u ld be warehoused for a long time if they persist in indulging their u n w h o l e s o me lust against the will of w o m en a nd girls in that country." In an e n d e a v o ur to bring into line sentences i m p o s ed by various courts in this country, Cullinan C. J. as he then w as b o r r o w ed from Lord L a ne in R. vs Billam and O rs (1986) 1 W LR at 3 4 9, the following : " R a pe involves a severe degree of emotional a nd psychological trauma; it m ay be described as a violation w h i ch in effect obliterates the personality of the victim. Its physical consequences equally are severe: the actual physical h a rm occasioned by the act of intercourse, associated violence or force a nd in s o me cases degradation; after the event, quite apart f r om the w o m a n 's continuing insecurity, the fear of venereal disease (one can add and include A I DS lately) or pregnancy. We do not believe this latter fear should be underestimated because abortion w o u ld usually be available. This is not a choice o p en to all w o m en and it is not a w e l c o me consequence for any. R a pe is particularly unpleasant because it involves such intimate proximity b e t w e en the offender a nd the victim. We also attach importance to the point that the crime of rape involves abuse of an act to which society attaches considerable value". See these remarks in the cases decided by Cullinan in Review Cases 71 and 81 of 1988 Rex vs Neo Janki and Rex vs Rantjana Khauta (unreported). I said guidelines were proposed in those cases. I could do no more than implore those charged with the administration of criminal justice to keep those guidelines in mind when contemplating imposition of suitable sentences in cases involving rape or sexual offences. Suffice it to say in none of the various categories considered ranging between the mildest form of rape to the most severe was there an occasion where it was shown that anything less than 5 years' imprisonment would be adequate. In other words, it was proposed that if the form of rape that is charged is the mildest one then the minimum amount of sentence should be five years, but the instant case does not fit this type of bill. It is not the mildest form of rape. It is rape against a female of tender years. That is an aggravating factor. It is a rape where more force than necessary for sex was employed i.e. violence beyond force necessary for rape was employed in the form of twisting the victim's arm. There was also this constant fear inspired in her by the presence of this sword. S o, quite plainly it w as w r o ng that the learned Magistrate i m p o s ed the m i n i m um sentence suggested in the guidelines. I am not unmindful of Lord Lane's observation that the variable factors in cases of rape are so n u m e r o us that it is difficult to lay d o wn guidelines as to proper length of sentences in terms of years and I w o u ld say consistently with the v i ew that I entertain in contrast with the sentences w h i ch used to be i m p o s ed by courts in this country till the recent past; it is stimulating to observe that on 30th M a r ch 1 9 88 Cullinan C. J. as he then w as rose to the occasion on review of five years' imprisonment from one of eighteen m o n t hs imposed by a Magistrate Class I at B u t ha B u t he in respect not of rape but attempted rape. So just for attempt a nd not for rape proper the learned Chief Justice found that the m i n i m um sentence he could give w as five years. This w as the case in R E V / 1 2 7 / 88 Rex vs Khotso Nalana (unreported). N ow w h e re rape has actually taken place, it stands to reason that an appreciably high sentence, or long term of years w o u ld be called for. I h a ve indicated but I w as talking from m e m o ry that there is no rule of l aw requiring corroboration of the complainant's evidence in a case such as the present one. These w o r ds appear in the case D i c ks Maxelala vs Regina - a S w a zi A p p e al C o u rt decision in A p p e al 5 6 / 1 9 84 (unreported). A nd they go further to state " b ut there is a well established cautionary rule of practice in regard to c o m p l a i n a n ts in sexual cases in terms of w h i ch a trial court m u st w a rn itself of the d a n g e rs inherent in their e v i d e n c e, a nd accordingly s h o u ld look for corroboration of all essential e l e m e n ts of the offence. T h us in the case of rape the trial court should l o ok for corroboration of the e v i d e n ce of intercourse itself, the lack of consent alleged, a nd the identity of the alleged offender. If a ny or all of these e l e m e n ts are uncorroborated the court m u st w a rn itself of the d a n g er of convicting, a nd in s u ch circumstances it will only convict if acceptable a nd reliable e v i d e n ce exists to s h ow that the c o m p l a i n a nt is a credible a nd trustworthy witness." I h a ve no d o u bt reading f r om the record that the Magistrate w as obliged to regard the c o m p l a i n a nt in this case as a reliable a nd trustworthy witness. T he other e l e m e n ts are satisfied in the sense that there is no m i s t a ke as to the identity of the a c c u s e d. T he c o m p l a i n a nt k n ew the a c c u s ed v e ry w e ll as they are m o re or less co-villagers a nd t h en the corroboration of intercourse itself is supplied by the e x a m i n e r, a lady w ho i m m e d i a t e ly e x a m i n ed the c o m p l a i n a nt after the l o a t h s o me act. As to the lack of c o n s e nt that o ne is irrelevant b e c a u se a girl of that a ge is incapable of giving any. N ow in setting aside therefore the five years' i m p r i s o n m e nt I will substitute eight years in place thereof. Of course the t e rm of i m p r i s o n m e nt will be r u n n i ng f r om w h en the a c c u s ed w as convicted in the court b e l o w. J U D GE 22nd N o v e m b e r, 2 0 00 For C r o wn : Ms Mokitimi For Defence : In Person