Mofokeng v R (CRI/A 36 of 90) [1990] LSCA 171 (16 November 1990)

CRI/A/36/90 IN THE H I GH C O U RT OF LESOTHO In the matter b e t w e e n :- THABO MOFOKENG Appellant and R EX J U D G M E N T Delivered by the Honourable Mr. Justice J. L. Kheola on the 16th day of November. 1990 The appellant appeared before the Subordinate Court for the district of Leribe charged with rape. It was alleged that on the 24th December, 1987 and at Lisemeng the accused unlawfully and intentionally had sexual intercourse with Nyane Thotho without her consent. He pleaded not guilty but at the end of the trial he was convicted and sentenced to five (5) y e a r s' imprisonment. He is now appealing to this Court on a number of grounds with which I shall deal at a later stage in this judgment. The evidence by the Crown is to the effect that on the 24th December, 1987 at about 10.00p.m. the complainant and one /2 - 2- Linake Mokhitli (P. W.6) were returning to their homes from a restaurant in the vicinity of their h o m e. On their way t he appellant and another youngman came to them. The appellant and the youngman suddenly attacked the complainant and P. W.6 with sticks and managed to drive them into the Linare Stadium. The appellant and his companion finally caught the complainant and threw her to the ground. They both raped her. The com- plainant testified that while she was struggling with the appellant she managed to pull off his balaclava hat and saw his f a c e. Although it was at night and dark she saw his face because there w e re electric lights. While they were raping her P. W.3 were ran away and went to the home of the complainant and reported to h er m o t h er that t wo young men were raping h er daughter. He had also identified their attackers by the clothes and shoes they were wearing b ut he did not see their faces. Having satisfied t h e ir lust appellant and his companion released the c o m p l a i n a n t . S he went to her home and reported to h er m o t h er that she had been raped by two young m e n. H er mother, accompanied by P. W.6 took her to t he charge office. On their way to the charge office they saw the appellant being escorted by P. W.3 Kuena Makhethi. The complainant immediately identified the appellant as one of the men who had just raped her about two hours ago. P. W.3 is a nightwatchman at Frasers Store and had arrested the appellant for an entirely different matter which had nothing to do with rape. While t he complainant was still reporting to the-others t h at the appellant was one of the men who raped h e r, the police arrived at the scene and arrested him. . -3- D r. K o k l er examined t he complainant on t he 25th December, 1987 and formed the opinion that sexual intercourse had taken place up to seventy hours back. He also found sperms in the vaginal smear t h at was taken from the complainant. At t he close of t he Crown case t he learned magistrate explained t he appellant's right to him. The appellant elected to remain silent but he indicated that he had three w i t n e s s e s, namely M o f o t a, Makotoko and Putsoa w h o se surnames he did not k n o w. He told t he court that they worked in the mines at Vaal Reefs and that he did not know their a d d r e s s e s. The learned magistrate recorded "Court cannot wait f or such w i t n e s s e s" and closed t he c a se for t he d e f e n c e. During cross-examination of t he complainant the a p p e- llant's counsel raised the d e f e n ce of a l i b i. He put it to her that at t he time s he w as r a p ed t he appellant was at 'Mantsebo's Restaurant at Leriba Moreneng, a distance of about twenty kilometres away He indicated that he w as in the company of Putsoa, Matatoko and Mofota. The appellant is appealing to this Court on a number of g r o u n d s, but I do not propose to deal with t h em all because only one ground must dispose of t h is a p p e a l . I am of t he opinion that t he learned magistrate committed a very gross irregularity by denying t he appellant t he right to call his w i t n e s s e s. He g a ve t he c o u rt the n a m es of t he p e o p le with whom he w as when t he alleged rape t o ok place. T h e se p e o p le worked in the mines in the Republic of South Africa and the appellant indicated that he did not know -4 their addresses. It is not uncommon even in this Court to find that after the completion of a preparatory examination prospective witnesses for the defence go to the mines in the Republic of South Africa. This Court has very often given the defence the chance to go to the relatives of such witnesses and to get their addresses in the Republic of South Africa. The appellant knew these people very well and must have known their local addresses/villages. I wish the learned magistrate had been a little bit patient to enable the appellant to call his witnesses because it was not his fault that the witnesses had to go to work. Postponing the case for a few weeks would not have caused any harm, after all this case had been postponed several times before for other reasons which had nothing to do with the appellant. Section 72 (4) of the Subordinate Courts Order No.9 of 1988 reads as follows: "The High Court shall thereupon exercise the powers conferred by section 329 of the Criminal Procedure and Evidence Act, 1981: Provided that, notwithstanding that the High Court is of opinion that any point raised might be decided in favour of the appellant, no conviction or sentence shall be reversed or altered by reason of any irregularity or defect in the record or proceedings unless it appears to the High Court that a failure of justice has in fact resulted therefrom or that the accused has been prejudiced thereby." (see also section 8 (2) of the High Court Act No.5 of 197() /5 -5- It was gross irregularity which had prejudiced the appellant to deny him the right to call his w i t n e s s e s. If he had been given a reasonable time to get their addresses from their relatives and had failed to do s o, it would have been a different m a t t e r. The abrupt decision that the 'court cannot wait f or such w i t n e s s e s' was uncalled for and unjust. In R. v. Vazi. 1954 S. A. 5 38 it was held that a magistrate had committed gross irregularity which had prejudiced the appellant w h e re he had interfered with the a p p e l l a n ts conduct of his trial by dissuading him from calling witnesses that he had wanted to c a l l, who w e re eye-witnesses of the occurrence and w e re present in court when t he case was being tried. The appeal is allowed; the conviction and sentence of the court a quo are set a s i d e. The appeal fee must be refunde to the appellant. The Crown did not support the conviction. J. L. KHEOLA JUDGE 16th November, 1990. For Appellant For Crown - - M r. Mofolo M r. M O K H O B O.