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Thotshane v The State (Court of Appeal Case No. 26 of 1989 ) [1989] BWCA 17 (4 December 1989)
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IN THE COURT OF APPEAL OF THE
REPUBLIC OF BOTSWANA
Court of Appeal Case No. 26 of 1989 High court Cr. Case No. 272 of 1989
In the matter between;
MOTHASEDI THOTSHANE
vs.
THE STATE
Mrs. M. C. Motsemme for the Appellant
o
Mis P. Kupe for the State
JUDGMENT o
Coram: A. N. E. AMISSAH, JP. B. A. DOYLE, JA. W. H. R. SCHREINER, JA.
DOYLE, JA:
On the 2nd December 1988 at the Subordinate Court at Mahalapye Motlhasedi Thotshane (whom I will hereinafter call the applicant) was
convicted of the offence of rape contrary to section 142 of the Penal Code. The particulars were that he raped Lerometswe Moswetla on the night of 31st December 1987. He was sentenced to 4 1/2 years imprisonment and six strokes of the cane. He appealed to the High Court. The appeal was summarily dismissed and he was refused leave to appeal to this court. He now applies for such leave.
The prosecution case was as follows: Lerometswe gave evidence that on the night of 31st December she went to the chibuku depot at Shoshong Village. She was with a woman, Fane. When she arrived at .the depot, she was pulled away from it to the gate of the depot's yard. The person who pulled her was the Applicant who
2
*
at that time was a total stranger to her. At the gate she wrestled free from the Applicant and ran away. She was chased and ran into
another yard where there was a woman. She ran to the woman and clutched her around the waist. Applicant pulled her away threatening to beat her and the woman. He pulled her to his hut where he put her inside. He then put a belt around her neck and tried to strangle
her. He then took out a knife, forced her down on a mattress, took off her panties and had sexual intercourse without her consent. When he had finished, he said he would keep her there and went out locking the door behind him.
After he had gone, Lerometswe opened the window and got out. She went to the house of an ex-constable, Nthobatsang, where she reported the rape. The next morning she went to the police who took her to hospital where she was examined by a doctor
In cross-examination Lerometswe denied that she had been Applicant's girl-friend. She agreed that Applicant had told her that he was going to Jwaneng next morning but denied that she had wanted to go to a disco at the Community Hall. She said that in fact Applicant had removed all her clothes. She had been wearing a green skirt, a pink half slip, a yellow jersey and a white skipper. When she left she had put on the skirt and skipper but could not find the jersey and halfslip.
She agreed that there were people still awake in the village through which they passed. She agreed that some time later, (it is not
clear when, but it must have been a matter of days) she had gone with the Applicant to the police whom she had told that her parents
wanted her to drop the charge. When the police asked her if that was her wish, she had said it was not. A woman, Modiri Tshitoeng, gave
3
evidence that at some time on the night jf 31st December she was at her house. She saw some people chasing each other. A girl came
and clasped her around the waist from behind and clung to her. A man came up and said "Exsa Moro". The record does not show what this meant but counsel in court informed the court that it was an Afrikaans corruption meaning "I will hit you" The girl said nothing. She detached herself from the girl and told her to run away.
She did so and the man followed. There was moonlight that night but she could not recognise anyone. She thought it was about 8.m.
A policeman gave evidence of arresting the Applicant on 4th January and produced a medical report. The report stated that there were a couple of old injuries and that an examination could not determine whether or not intercourse had taken place.
The woman Fane was not called as a witness.
The Applicant gave evidence. His version was that on the relevant night he and Lerometswe left the chibuku depot together at about 9.30 p.m. They went direct to the Applicant's mother's house. They never had a quarrel or fight that night. She wanted to go to a disco but he said he had to go to Jwaneng. While they were at home he found that he had no cigarettes. They went back to the depot and returned to the house. She said she wanted some wather and he went to get some. When he returned she had gone. He assumed that she had gone to the disco at the Community Hall. The next day he noticed the window was broken.
In cross-examination he denied that he had chased her at all or that there had been the incident with the woman. He also denied that he had had intercourse against her will. He thought she made this charge to cover up the fact that she had broken the window. He said
4
she had gone to the disco wearing a towel around her waist.
A defence witness, Romokento Mereothe, said that he knew both Aplicant and Lerometswe. He had been at the chibuku depot and saw Applicant and Lerometswe leaving amicably together at about 9 pm. . He did not know what happened after that. He had known that Lerometswe was Applicant's girl friend and on several occasions the Applicant and Lerometswe had borrowed blankets from him when Applicant cameo from Jwaneng to Shoshong. He did not think that Applicant would rape Lerometswe because she was his girl friend.
The learned magistrate considered the evidence. He recognised that the main piece of corroboration of Lerometswe's story was the evidence of Modiri Tshitoeng, the woman to whom Lerometswe was
supposed to have clung. He believed Modiri's evidence. Although she could not identify Lerometswe or the Applicant as being the persons
concerned, the learned magistrate considered that it was "more improbable" that such incidents took place at much the same time on that night. He therefore found that Modiri Tshitoeng's evidence, which he believed, related to Lerometswe and Applicant.
I have no doubt that the magistrate was fully entitled to find that Modiri was a witness of truth. In his use of the words "more
probable" in relation to the occurence of two identical incidents he used the wrong test. If it were only a balance of probabilities that Applicant and Lerometswe were the persons involved, the Applicant would have been entitled to have a reasonable doubt resolved in
his favour. I have no doubt however, that in fact it was in the highest degree unlikely that two such identical incidents with reference
to different sets of people occured on that night. I have no doubt
5
that in the result the magistrate came to the right conclusion in identifying Applicant and Lerometswe as being the persons whom Modiri had seen.
It follows from this that the Applicant was lying about this incident and the magistrate so found. The magistrate then went into a number of matters to indicate that the Applciant's story was preposterous. He criticised the Applicant for not having put all the aspects of his case to Lerometswe when he cross-examined her.
o There is of course a basis for such criticism but on the other hand
one cannot expect an unrepresented accused person to cross-examine
with the skill and knowledge of counsel.
o
In referring to what happened at the point when Applicant and Lerometswe left the chibuku depot, the learned magistrate stated that
Applicant's story and that of defence witness did not tally. I have been unable to find a conflict on this point and counsel for the State was unable to point one out. However there are perhaps minor criticisms and the magistrate has no difficulty in saying that Applicant was an untruthful witness. Because he found Applicant to be a liar he therefore found Lerometswe's story to be true and convicted the Applicant.
In my view the learned magistrate was too hasty ih coming to his conclusion. He should also have examined the whole state case more carefully. There were a number of somewhat strange aspects. When Lerometswe was seized near the chibuku depot, and dragged, as she says, towards the gate, she did not scream for help either from her friend Fane, or from the other patrons of the depot. Similarly
when she was being dragged through the village, she did not scream for help from any of the villagers who might have been awake. This is
6
very odd in relation to a perfect stranger. It might be more explicable if the man were a person she knew as a friend.
Again she agrees that the Applicant told her that he was going to Jwaneng in the morning. Why should a total stranger who had just
raped her volunteer this information? Again it is more explicable if, as the Applicant says, he told her this in explanation why he could not go to the disco. Furthermore would a man intent on raping a girl he did not know take the risk of being recognised by going of to a woman whom the girl was clinging.
Finally there is the failure to call Fane as a witness. On the face of it she was an obvious witness of what occurred when she and
Lerometswe arrived at the chibuku depot. Yet she was not called and the court was left in the dark as to what she might have seen and, indeed on Lerometswe's evidence, ought to have seen.
It may well be that it is true that Applicant did rape Lerometswe, but has the proper consideration been given to the evidence?
On reading the record I have an uneasy feeling that there was something in Applicant's story that he knew Lerometswe before that day, and that liar though the Applicant was, the court was not told the whole story of what happened that night.
Coupled with the failure to call Fane I do not consider that thi was a satisfactory trial.
I would therefore, grant, leave to appeal, treat the application
as the hearing of the appeal and allow it in favour of the Applicant.
Conviction and sentence are hereby quashed.
Dated this
4th. .. . day of December, 1989.
B. A. DOYLE JUDGE OF APPEAL
I agree
A. N. E. AMISSAH JUDGE PRESIDENT
I agree
W. H. R. SCHREINER JUDGE OF APPEAL
V.
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