Source:

Botswana Law Reports (1964 to 2020(2))/CHRONOLOGICAL LISTING OF CASES 2020/1993/Cases Reported/BOITUMELO v. THE STATE 1993 BLR 281 (CA)

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BOITUMELO v. THE STATE 1993 BLR 281 (CA)

Citation 1993 BLR 281 (CA)

Court Court of Appeal, Lobatse

Judge Amissah JP, Bizos JA, Schreiner JA

Judgment July 14, 1993

Counsel B. Setidisho for the appellant.

S.A. Afful for the respondent.

Annotations

Flynote
Criminal law ­ Rape ­ Defences ­ Consent ­ Complainant removing own clothing ­ Not inconsistent with use of force or threat of it.
Criminal law ­ Rape ­ Corroboration ­ Doctor examining complainant finding evidence of forced sexual act ­ Such constituting corroboration.
Headnote
The appellant had been convicted of rape. In an appeal it was contended on his behalf that there was no admissible, relevant, credible and
independent corroboration of the complainant's version. The court found that the statement of the doctor who examined the complainant that
there was "evidence of forced sexual act" constituted corroboration. With regard to evidence that the complainant had removed her own
skipper prior to the act of sexual intercourse, the court found that this evidence was not inconsistent with the appellant finally having induced
the complainant by force or threat of it to acquiesce in his unlawful act.
Case Information
Cases referred to:
(1) R. v. D. and Others 1951 (4) S.A. 450 (A).
(2) R. v. Scarrot [1978] Q.B. 1016; [1978] 1 All E.R. 672.
(3) R. v. Thomas (1985) 81 Cr. App. R. 331.
(4) R. v. Whitehead [1929] 1 K.B. 99.
(5) James v. R. (1970) 55 Cr. App. R. 299.
Appeal against the appellant's conviction in a magistrate's court for rape. The facts are fully set out in the judgment of Bizos J.A.
B. Setidisho for the appellant.
S.A. Afful for the respondent.
Judgment
Bizos J.A.
The appellant, a 24­year old soldier was convicted by the magistrate of

1993 BLR p282

BIZOS JA
raping Julie Botlhabaphuti, an 18­year old school girl. He appealed to the High Court. The Chief Justice dismissed his appeal and confirmed the
sentence of four years' imprisonment and granted the appellant leave to appeal to this court.
Mr. Setidisho, who appeared for the appellant before us, indicated that if the conviction was upheld, he had no submissions to make in relation
to the sentence.
The appellant, who conducted his own defence before the magistrate, admitted that he had intercourse with the complainant but with her
consent, which is the only issue before us.
The evidence for the prosecution and the appellant was summarised by the learned Chief Justice.
"The case for the prosecution was given by three witnesses. The first witness was Julie Motlhabaphuti herself, who stated that on 26 January 1992 she attended
a festival at the Easy By Nite Club with Mary, her elder sister, and one Ontlametse. Whilst at the festival a friend of hers called her to witness a fight taking place
nearby. Whilst watching the fight she was pulled into the bush by the appellant. She tried to resist but she was forcefully pulled by the appellant. She shouted for
help but nobody came to her rescue, probably because they couldn't hear her owing to the noise in the festival. According to her, after raping her, the appellant
left her and she afterwards reported to her elder sister Mary and Ontlametse. She was crying, bleeding in the knees and looking very distressed. The elder sister
Mary and Ontlametse then took her to the police at the gate of BDF Camp from where the police took her to the hospital where she was examined by the doctor."

The evidence of the complainant's sister, Mary, is also set out in the judgment of the learned Chief Justice:
"Whilst at the festival the complainant joined one girl called Boitumelo. They went away together with the said girl where they alleged a fight was being held.
She was away for quite some time as I stayed behind with Fortunate where she left us. When she later came, she came crying and bleeding from her knees. I
asked her what had happened. She told me that the accused person pulled her away from where she was watching the fight and pulled her into the bush where
he raped her. She stated that whilst there she let go from the accused's grip and tried to run away, but tripped and fell. That the accused caught up with her and
raped her. We looked for the accused person, we could not find him, we then proceeded to the BDF Camp where we were going to report him. On the way we
met the accused person. I tried to ask him what had happened, the accused was uncooperative, he pulled the complainant again. We reported the matter to the
police, that is that the accused had raped the complainant."

Similarly, the evidence of the appellant is set out:

"The appellant gave evidence on oath and stated that he knows the complainant; she is his girlfriend, although they had never made love

1993 BLR p283

BIZOS JA
before until this occasion. According to his evidence, he saw Julie at the festival and called her. They stood together watching the fight and thereafter
complainant asked him to take her home. On the way home, they looked for a suitable spot to make love. A spot near some trees was identified; it was however
wet and the appellant then took off his skipper and put it under and they made love. Then he continued:
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worry me because the body is hers. I assaulted her because her answer angered me.
 The appellant, a 24­year old soldier was convicted by the magistrate of

1993 BLR p282

BIZOS JA
raping Julie Botlhabaphuti, an 18­year old school girl. He appealed to the High Court. The Chief Justice dismissed his appeal and confirmed the
sentence of four years' imprisonment and granted the appellant leave to appeal to this court.
Mr. Setidisho, who appeared for the appellant before us, indicated that if the conviction was upheld, he had no submissions to make in relation
to the sentence.
The appellant, who conducted his own defence before the magistrate, admitted that he had intercourse with the complainant but with her
consent, which is the only issue before us.
The evidence for the prosecution and the appellant was summarised by the learned Chief Justice.
"The case for the prosecution was given by three witnesses. The first witness was Julie Motlhabaphuti herself, who stated that on 26 January 1992 she attended
a festival at the Easy By Nite Club with Mary, her elder sister, and one Ontlametse. Whilst at the festival a friend of hers called her to witness a fight taking place
nearby. Whilst watching the fight she was pulled into the bush by the appellant. She tried to resist but she was forcefully pulled by the appellant. She shouted for
help but nobody came to her rescue, probably because they couldn't hear her owing to the noise in the festival. According to her, after raping her, the appellant
left her and she afterwards reported to her elder sister Mary and Ontlametse. She was crying, bleeding in the knees and looking very distressed. The elder sister
Mary and Ontlametse then took her to the police at the gate of BDF Camp from where the police took her to the hospital where she was examined by the doctor."

The evidence of the complainant's sister, Mary, is also set out in the judgment of the learned Chief Justice:
"Whilst at the festival the complainant joined one girl called Boitumelo. They went away together with the said girl where they alleged a fight was being held.
She was away for quite some time as I stayed behind with Fortunate where she left us. When she later came, she came crying and bleeding from her knees. I
asked her what had happened. She told me that the accused person pulled her away from where she was watching the fight and pulled her into the bush where
he raped her. She stated that whilst there she let go from the accused's grip and tried to run away, but tripped and fell. That the accused caught up with her and
raped her. We looked for the accused person, we could not find him, we then proceeded to the BDF Camp where we were going to report him. On the way we
met the accused person. I tried to ask him what had happened, the accused was uncooperative, he pulled the complainant again. We reported the matter to the
police, that is that the accused had raped the complainant."

Similarly, the evidence of the appellant is set out:

"The appellant gave evidence on oath and stated that he knows the complainant; she is his girlfriend, although they had never made love

1993 BLR p283

BIZOS JA
before until this occasion. According to his evidence, he saw Julie at the festival and called her. They stood together watching the fight and thereafter
complainant asked him to take her home. On the way home, they looked for a suitable spot to make love. A spot near some trees was identified; it was however
wet and the appellant then took off his skipper and put it under and they made love. Then he continued:
'After making love to her I told her that I smelled an unusual odour from her. She then replied by saying yes, she had slept with someone, that it must not
worry me because the body is hers. I assaulted her because her answer angered me.
She ran away, she said fotsek to me, I chased her, while I was about to catch her she fell to the ground. While she stood up she was crying and I left her to go.
On my way to the BDF Camp I find her crying. I asked her where she was going, but she didn't answer me. I left her and proceeded to the Camp, I found her
and her sister at the BDF Camp Gate in Mogoditshane. I was called by the Military Police. They arrested me. I was told I had raped the complainant.' "

In an able argument Mr. Setidisho submitted that the failure of the State to call the complainant's friend, Boitumelo, who could corroborate the
complainant's evidence of having been pulled away from the festival was a vital omission which weakens the State case. He compared the facts
in R. v. D. and Others 1951 (4) S.A. 450 (A) where there was evidence of forcible removal of the complainant which was found by Schreiner
J.A. "to some extent corroborative of her story that she was raped and did not have intercourse by consent".
On a similar basis it was submitted that the failure of the State to call one Ofana further weakened the State case.
The evidence of the complainant on this issue is:
"One elderly boy came and I reported to him that the accused was holding me and that I didn't know why he was holding me. That boy is called Ofana. Ofana
asked the accused to leave me. Ofana left. I asked the accused to leave me, he refused and threatened that if I called for help, he would beat me. He pulled me
away, I shouted for help. When I did so he said he would beat me. He pulled me through the bush, to an empty house. There were people in the festival, there
was a lot of noise and nobody came to my assistance as I shouted for help. Boitumelo had disappeared the moment the accused person took me away."

My reading of this evidence clearly shows that both Ofana and Boitumelo were not present during the vital stage when the complainant was
taken away by the accused. Ofana only received a report from the complainant. It is doubtful whether it would have been admissible. In the
context the sentence, "Boitumelo had disappeared the moment the accused person took me away", really meant that she was not there when
the event occurred. In answer to a question by the accused the complainant said "when you pulled me I don't know if anybody saw you". I
would therefore hold that there was no failure on the part of the State to call relevant evidence in support of its case.

1993 BLR p284

BIZOS JA
It was further argued that there was no admissible, relevant, credible and independent corroboration of the complainant's version as is indicated
in R.v. Scarrot [1978] Q.B. 1016 per Scarman L.J. at 1021.
R v. Thomas (1985) 81 Cr. App. R. 331 and R v. Whitehead [1929] 1 K.B. 99 at p. 102 where Lord Hewart C.J. said:
"The evidence to be independent must be extraneous to the witness who is to be corroborated. A girl cannot corroborate herself."

Reliance was also placed in the dictum in James v. R (1970) 55 Cr. App. R. 55 that evidence that intercourse took place does not per se show
that it took place without consent.
It was submitted that the evidence tendered by the State as corroborative of its case was equally consistent with the appellant's version that
there was consent.
The complainant was examined by the principal medical officer, whose report was admitted without objection from the appellant. His findings
were that the complainant's knees were bruised as were the fourchette and perineum; that there was a slight haemorrhage and that the
examination was painful. Under the head of Remarks the following appears:
"evidence of forced sexual act".

This is completely consistent with the evidence of the complainant and irreconcilable with the evidence of the appellant. I find therefore that
there is independent corroboration of the complainant. It is, however, unfortunate that the doctor was not called. Where important evidence is
contained in a report it may well happen that the admission of the accused is not made on an informed basis, however carefully it may be
explained.
There are a number of other factors which tend to show that the appellant cannot be believed on the main issue, as well as a number of queries
in relation to the complainant's evidence which should therefore be carefully examined before coming to a final conclusion.
The complainant says that she tried to run away from the appellant before intercourse took place but he says it was after when he slapped her
for admitting that she had had intercourse with another man and she had said her body was hers. The appellant cross­examined the
complainant and although one must be mindful not to draw adverse inferences against an unrepresented accused, sight must not be lost of the
fact that the appellant failed to challenge her statement that the chase and fall were before intercourse. Coupled with these are inherent
improbabilities in the appellant's version which the learned Chief Justice sets out in his judgment, which I respectfully adopt:
"In this case the appellant has given evidence on oath to the effect that he had made love to the complainant and that it was a normal intercourse between
lovers. However, the unusual evidence is that after making love to the complainant, he smelled something. One wonders why he didn't smell anything before.
After all, according to his evidence they were lovers, they had plenty of time whilst watching the fight and walking away

1993 BLR p285

BIZOS JA
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complainant is supposed to have agreed that the smell is due to the love­making she had previously with another man. After all, 'it is her body' she is alleged to
have said. This is really unusual, especially coming from a school girl of 18 years. His evidence in this regard is so improbable that the magistrate was correct in
 "The appellant gave evidence on oath and stated that he knows the complainant; she is his girlfriend, although they had never made love

1993 BLR p283

BIZOS JA
before until this occasion. According to his evidence, he saw Julie at the festival and called her. They stood together watching the fight and thereafter
complainant asked him to take her home. On the way home, they looked for a suitable spot to make love. A spot near some trees was identified; it was however
wet and the appellant then took off his skipper and put it under and they made love. Then he continued:
'After making love to her I told her that I smelled an unusual odour from her. She then replied by saying yes, she had slept with someone, that it must not
worry me because the body is hers. I assaulted her because her answer angered me.
She ran away, she said fotsek to me, I chased her, while I was about to catch her she fell to the ground. While she stood up she was crying and I left her to go.
On my way to the BDF Camp I find her crying. I asked her where she was going, but she didn't answer me. I left her and proceeded to the Camp, I found her
and her sister at the BDF Camp Gate in Mogoditshane. I was called by the Military Police. They arrested me. I was told I had raped the complainant.' "

In an able argument Mr. Setidisho submitted that the failure of the State to call the complainant's friend, Boitumelo, who could corroborate the
complainant's evidence of having been pulled away from the festival was a vital omission which weakens the State case. He compared the facts
in R. v. D. and Others 1951 (4) S.A. 450 (A) where there was evidence of forcible removal of the complainant which was found by Schreiner
J.A. "to some extent corroborative of her story that she was raped and did not have intercourse by consent".
On a similar basis it was submitted that the failure of the State to call one Ofana further weakened the State case.
The evidence of the complainant on this issue is:
"One elderly boy came and I reported to him that the accused was holding me and that I didn't know why he was holding me. That boy is called Ofana. Ofana
asked the accused to leave me. Ofana left. I asked the accused to leave me, he refused and threatened that if I called for help, he would beat me. He pulled me
away, I shouted for help. When I did so he said he would beat me. He pulled me through the bush, to an empty house. There were people in the festival, there
was a lot of noise and nobody came to my assistance as I shouted for help. Boitumelo had disappeared the moment the accused person took me away."

My reading of this evidence clearly shows that both Ofana and Boitumelo were not present during the vital stage when the complainant was
taken away by the accused. Ofana only received a report from the complainant. It is doubtful whether it would have been admissible. In the
context the sentence, "Boitumelo had disappeared the moment the accused person took me away", really meant that she was not there when
the event occurred. In answer to a question by the accused the complainant said "when you pulled me I don't know if anybody saw you". I
would therefore hold that there was no failure on the part of the State to call relevant evidence in support of its case.

1993 BLR p284

BIZOS JA
It was further argued that there was no admissible, relevant, credible and independent corroboration of the complainant's version as is indicated
in R.v. Scarrot [1978] Q.B. 1016 per Scarman L.J. at 1021.
R v. Thomas (1985) 81 Cr. App. R. 331 and R v. Whitehead [1929] 1 K.B. 99 at p. 102 where Lord Hewart C.J. said:
"The evidence to be independent must be extraneous to the witness who is to be corroborated. A girl cannot corroborate herself."

Reliance was also placed in the dictum in James v. R (1970) 55 Cr. App. R. 55 that evidence that intercourse took place does not per se show
that it took place without consent.
It was submitted that the evidence tendered by the State as corroborative of its case was equally consistent with the appellant's version that
there was consent.
The complainant was examined by the principal medical officer, whose report was admitted without objection from the appellant. His findings
were that the complainant's knees were bruised as were the fourchette and perineum; that there was a slight haemorrhage and that the
examination was painful. Under the head of Remarks the following appears:
"evidence of forced sexual act".

This is completely consistent with the evidence of the complainant and irreconcilable with the evidence of the appellant. I find therefore that
there is independent corroboration of the complainant. It is, however, unfortunate that the doctor was not called. Where important evidence is
contained in a report it may well happen that the admission of the accused is not made on an informed basis, however carefully it may be
explained.
There are a number of other factors which tend to show that the appellant cannot be believed on the main issue, as well as a number of queries
in relation to the complainant's evidence which should therefore be carefully examined before coming to a final conclusion.
The complainant says that she tried to run away from the appellant before intercourse took place but he says it was after when he slapped her
for admitting that she had had intercourse with another man and she had said her body was hers. The appellant cross­examined the
complainant and although one must be mindful not to draw adverse inferences against an unrepresented accused, sight must not be lost of the
fact that the appellant failed to challenge her statement that the chase and fall were before intercourse. Coupled with these are inherent
improbabilities in the appellant's version which the learned Chief Justice sets out in his judgment, which I respectfully adopt:
"In this case the appellant has given evidence on oath to the effect that he had made love to the complainant and that it was a normal intercourse between
lovers. However, the unusual evidence is that after making love to the complainant, he smelled something. One wonders why he didn't smell anything before.
After all, according to his evidence they were lovers, they had plenty of time whilst watching the fight and walking away

1993 BLR p285

BIZOS JA
to look for a suitable spot. But apparently he only smelt the bad odour after making love to her. The other unusual aspect of this evidence is that the
complainant is supposed to have agreed that the smell is due to the love­making she had previously with another man. After all, 'it is her body' she is alleged to
have said. This is really unusual, especially coming from a school girl of 18 years. His evidence in this regard is so improbable that the magistrate was correct in
rejecting his evidence and believing the evidence of the complainant."

It appears to me that the appellant made up the story in order to explain away the injuries to the knees and the distress shown by her. It was
suggested that because she was at a festival club called Easy By Nite an inference of her loose morals may be inferred. There is no basis for
this submission. It was at nine o'clock on a summer's evening where a large group of people was present.
Furthermore the appellant's cross­examination of the complainant's elder sister, a student, tends to show that the appellant admitted to her
that he had raped the complainant:
"PW.2: Cross­examination by accused ­ We were at the Gaborone West Police station when you apologised for what you did to the complainant. I didn't hear
you apologising whilst we were in the vehicle going to the hospital. We walked from the club to the BDF Camp in Mogoditshane. We were given a lift from the
Mogoditshane rank to the BDF Camp. I am a witness. But from your apologies I gathered you had raped the complainant."

The appellant introduced the matter of an apology. If it was for something other than rape he would surely have said so.
The evidence given by the complainant in cross­examination by the accused cannot be overlooked:
"You had of course put a skipper down for me as we were making love. You took it off when we were together. You were holding both my hands and you used
the other hand to take off your skipper and spread it down for me. I used two hands to take off my skipper. You took off your skipper in one hand."

It suggests that there was consent. One would have expected the magistrate to have asked her at least why she took her skipper off. We do
not know what her answer would have been, but reading her evidence as a whole she would probably have said that at that stage as a result
of the threats, the pain caused by her fall she had to succumb to the appellant's will. Putting his skipper down is not inconsistent with his
having finally induced the complainant by force or the threat of it to acquiesce in his unlawful act. The ground was wet. The appellant may
have desired to perform the act more comfortable for himself.
The absence of torn clothing and the circumstances under which the complainant took off articles of her clothing in so far as they may be
consistent with consent are explained on the same basis. Young, weak and

1993 BLR p286

BIZOS
© 2018 JutaJA
and Company (Pty) Ltd. Downloaded : Thu Feb 15 2024 08:11:08 GMT+0200 (South Africa Standard Time)
helpless girls may not always put up a protracted struggle. This does not mean they have consented. The appellant admits that he assaulted
 would therefore hold that there was no failure on the part of the State to call relevant evidence in support of its case.

1993 BLR p284

BIZOS JA
It was further argued that there was no admissible, relevant, credible and independent corroboration of the complainant's version as is indicated
in R.v. Scarrot [1978] Q.B. 1016 per Scarman L.J. at 1021.
R v. Thomas (1985) 81 Cr. App. R. 331 and R v. Whitehead [1929] 1 K.B. 99 at p. 102 where Lord Hewart C.J. said:
"The evidence to be independent must be extraneous to the witness who is to be corroborated. A girl cannot corroborate herself."

Reliance was also placed in the dictum in James v. R (1970) 55 Cr. App. R. 55 that evidence that intercourse took place does not per se show
that it took place without consent.
It was submitted that the evidence tendered by the State as corroborative of its case was equally consistent with the appellant's version that
there was consent.
The complainant was examined by the principal medical officer, whose report was admitted without objection from the appellant. His findings
were that the complainant's knees were bruised as were the fourchette and perineum; that there was a slight haemorrhage and that the
examination was painful. Under the head of Remarks the following appears:
"evidence of forced sexual act".

This is completely consistent with the evidence of the complainant and irreconcilable with the evidence of the appellant. I find therefore that
there is independent corroboration of the complainant. It is, however, unfortunate that the doctor was not called. Where important evidence is
contained in a report it may well happen that the admission of the accused is not made on an informed basis, however carefully it may be
explained.
There are a number of other factors which tend to show that the appellant cannot be believed on the main issue, as well as a number of queries
in relation to the complainant's evidence which should therefore be carefully examined before coming to a final conclusion.
The complainant says that she tried to run away from the appellant before intercourse took place but he says it was after when he slapped her
for admitting that she had had intercourse with another man and she had said her body was hers. The appellant cross­examined the
complainant and although one must be mindful not to draw adverse inferences against an unrepresented accused, sight must not be lost of the
fact that the appellant failed to challenge her statement that the chase and fall were before intercourse. Coupled with these are inherent
improbabilities in the appellant's version which the learned Chief Justice sets out in his judgment, which I respectfully adopt:
"In this case the appellant has given evidence on oath to the effect that he had made love to the complainant and that it was a normal intercourse between
lovers. However, the unusual evidence is that after making love to the complainant, he smelled something. One wonders why he didn't smell anything before.
After all, according to his evidence they were lovers, they had plenty of time whilst watching the fight and walking away

1993 BLR p285

BIZOS JA
to look for a suitable spot. But apparently he only smelt the bad odour after making love to her. The other unusual aspect of this evidence is that the
complainant is supposed to have agreed that the smell is due to the love­making she had previously with another man. After all, 'it is her body' she is alleged to
have said. This is really unusual, especially coming from a school girl of 18 years. His evidence in this regard is so improbable that the magistrate was correct in
rejecting his evidence and believing the evidence of the complainant."

It appears to me that the appellant made up the story in order to explain away the injuries to the knees and the distress shown by her. It was
suggested that because she was at a festival club called Easy By Nite an inference of her loose morals may be inferred. There is no basis for
this submission. It was at nine o'clock on a summer's evening where a large group of people was present.
Furthermore the appellant's cross­examination of the complainant's elder sister, a student, tends to show that the appellant admitted to her
that he had raped the complainant:
"PW.2: Cross­examination by accused ­ We were at the Gaborone West Police station when you apologised for what you did to the complainant. I didn't hear
you apologising whilst we were in the vehicle going to the hospital. We walked from the club to the BDF Camp in Mogoditshane. We were given a lift from the
Mogoditshane rank to the BDF Camp. I am a witness. But from your apologies I gathered you had raped the complainant."

The appellant introduced the matter of an apology. If it was for something other than rape he would surely have said so.
The evidence given by the complainant in cross­examination by the accused cannot be overlooked:
"You had of course put a skipper down for me as we were making love. You took it off when we were together. You were holding both my hands and you used
the other hand to take off your skipper and spread it down for me. I used two hands to take off my skipper. You took off your skipper in one hand."

It suggests that there was consent. One would have expected the magistrate to have asked her at least why she took her skipper off. We do
not know what her answer would have been, but reading her evidence as a whole she would probably have said that at that stage as a result
of the threats, the pain caused by her fall she had to succumb to the appellant's will. Putting his skipper down is not inconsistent with his
having finally induced the complainant by force or the threat of it to acquiesce in his unlawful act. The ground was wet. The appellant may
have desired to perform the act more comfortable for himself.
The absence of torn clothing and the circumstances under which the complainant took off articles of her clothing in so far as they may be
consistent with consent are explained on the same basis. Young, weak and

1993 BLR p286

BIZOS JA
helpless girls may not always put up a protracted struggle. This does not mean they have consented. The appellant admits that he assaulted
the complainant. The only dispute is whether it was before or after intercourse had taken place. I have already found that it was before.
The evidence of the doctor, her sister, her injuries, her distress shortly after the event and the probabilities are so overwhelming that the
conclusion is inevitable. The appellant raped the complainant and in my view his appeal should be dismissed and the conviction and sentence be
confirmed.
AMISSAH J.P. I agree.
Schreiner J.A.
I regret that I am unable to agree with the majority of the court in dismissing the appeal.
There seem to be too much uncertainty which has largely been caused by the fact that the appellant was not represented by counsel. There
are also certain matters which perhaps should have been dealt with differently by the State.
In the report of the chief medical officer which was identified by the complainant it is stated that there was "evidence of forced sexual act".
The injuries reported were that the complainant had bruised knees and that her fourchette and perineum were bruised. The medical officer was
not there to be cross­examined and probably would not have been, if he had been. There is in my view some doubt as to what the medical
officer would have answered if it had been asked whether the bruising in the genital region was consistent with voluntary sexual intercourse. In
the absence of detailed reasons which would define more clearly the basis of the view concerning evidence of a forced sexual act and evidence
as to whether the bruising was consistent with a voluntary sexual act and the extent to which the bruising on the knees of the complainant
was taken into account when reaching his conclusion, I think it would be dangerous to give much weight to the very brief statement in the
medical report.
The evidence of the complainant as to how the assault was committed raises in my mind a doubt as to whether the State has proved beyond a
reasonable doubt that the appellant had intercourse against the will of the complainant. She deposed to having gone to the Easy By Nite Club
with a friend of hers and having gone to watch a fight nearby and having there been harassed by appellant and despite protests and shouts,
pulled away through the bush to an empty house. Apparently the persons watching the fight did not take a very serious view of the matter
because
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: Thu Feb 15 2024 08:11:08 GMT+0200 (South Africa Standard Time)
The complainant continues:
 After all, according to his evidence they were lovers, they had plenty of time whilst watching the fight and walking away

1993 BLR p285

BIZOS JA
to look for a suitable spot. But apparently he only smelt the bad odour after making love to her. The other unusual aspect of this evidence is that the
complainant is supposed to have agreed that the smell is due to the love­making she had previously with another man. After all, 'it is her body' she is alleged to
have said. This is really unusual, especially coming from a school girl of 18 years. His evidence in this regard is so improbable that the magistrate was correct in
rejecting his evidence and believing the evidence of the complainant."

It appears to me that the appellant made up the story in order to explain away the injuries to the knees and the distress shown by her. It was
suggested that because she was at a festival club called Easy By Nite an inference of her loose morals may be inferred. There is no basis for
this submission. It was at nine o'clock on a summer's evening where a large group of people was present.
Furthermore the appellant's cross­examination of the complainant's elder sister, a student, tends to show that the appellant admitted to her
that he had raped the complainant:
"PW.2: Cross­examination by accused ­ We were at the Gaborone West Police station when you apologised for what you did to the complainant. I didn't hear
you apologising whilst we were in the vehicle going to the hospital. We walked from the club to the BDF Camp in Mogoditshane. We were given a lift from the
Mogoditshane rank to the BDF Camp. I am a witness. But from your apologies I gathered you had raped the complainant."

The appellant introduced the matter of an apology. If it was for something other than rape he would surely have said so.
The evidence given by the complainant in cross­examination by the accused cannot be overlooked:
"You had of course put a skipper down for me as we were making love. You took it off when we were together. You were holding both my hands and you used
the other hand to take off your skipper and spread it down for me. I used two hands to take off my skipper. You took off your skipper in one hand."

It suggests that there was consent. One would have expected the magistrate to have asked her at least why she took her skipper off. We do
not know what her answer would have been, but reading her evidence as a whole she would probably have said that at that stage as a result
of the threats, the pain caused by her fall she had to succumb to the appellant's will. Putting his skipper down is not inconsistent with his
having finally induced the complainant by force or the threat of it to acquiesce in his unlawful act. The ground was wet. The appellant may
have desired to perform the act more comfortable for himself.
The absence of torn clothing and the circumstances under which the complainant took off articles of her clothing in so far as they may be
consistent with consent are explained on the same basis. Young, weak and

1993 BLR p286

BIZOS JA
helpless girls may not always put up a protracted struggle. This does not mean they have consented. The appellant admits that he assaulted
the complainant. The only dispute is whether it was before or after intercourse had taken place. I have already found that it was before.
The evidence of the doctor, her sister, her injuries, her distress shortly after the event and the probabilities are so overwhelming that the
conclusion is inevitable. The appellant raped the complainant and in my view his appeal should be dismissed and the conviction and sentence be
confirmed.
AMISSAH J.P. I agree.
Schreiner J.A.
I regret that I am unable to agree with the majority of the court in dismissing the appeal.
There seem to be too much uncertainty which has largely been caused by the fact that the appellant was not represented by counsel. There
are also certain matters which perhaps should have been dealt with differently by the State.
In the report of the chief medical officer which was identified by the complainant it is stated that there was "evidence of forced sexual act".
The injuries reported were that the complainant had bruised knees and that her fourchette and perineum were bruised. The medical officer was
not there to be cross­examined and probably would not have been, if he had been. There is in my view some doubt as to what the medical
officer would have answered if it had been asked whether the bruising in the genital region was consistent with voluntary sexual intercourse. In
the absence of detailed reasons which would define more clearly the basis of the view concerning evidence of a forced sexual act and evidence
as to whether the bruising was consistent with a voluntary sexual act and the extent to which the bruising on the knees of the complainant
was taken into account when reaching his conclusion, I think it would be dangerous to give much weight to the very brief statement in the
medical report.
The evidence of the complainant as to how the assault was committed raises in my mind a doubt as to whether the State has proved beyond a
reasonable doubt that the appellant had intercourse against the will of the complainant. She deposed to having gone to the Easy By Nite Club
with a friend of hers and having gone to watch a fight nearby and having there been harassed by appellant and despite protests and shouts,
pulled away through the bush to an empty house. Apparently the persons watching the fight did not take a very serious view of the matter
because the only reaction was that of a boy who asked the appellant to leave the complainant alone.
The complainant continues:
"At the house the accused said I should lean against the wall but I refused. He held both my hands and he asked me to take off my panty. Whilst he was taking
off my panty the accused person held me by both hands and forcefully took off my panty. Whilst he was taking off my panty I managed to let go my hands and
ran away but as I was running away I fell and the accused caught up with me. The accused pulled me next to a tree near the house he had initially taken me to.
He asked me to lie on my

1993 BLR p287

back. I shouted. He was forcing me to the ground as he was at the same time holding both my hands. I was crying."

She then goes on to describe the sexual act in terms which show resistance on her part and force on his.
The description above of how the complainant's panty was removed is strange. While holding both her hands he removed her panty. Something
seems to be missing from this description. There seems to have been no question of her panty having been torn from her body. The garment
was taken off while the hands of the complainant were being held. According to her the appellant then chased after her holding the panty which
was returned to her after intercourse had taken place.
The cross­examination is short, but two facts are extracted which seem to me to throw serious doubt upon the picture of violence by the
appellant and resistance by the complainant. Not only did the appellant take his own "skipper" off and place it on the ground for the complainant
to lie on, but she herself took her own skipper off using both her hands. This seems to me to be sufficiently significant to raise a real doubt as
to the accuracy of the evidence of the rape. I cannot say positively that there was consent on the part of the complainant, but it seems to me
that, despite all the other evidence, there is sufficient uncertainty to justify an acquittal.
It may be said that the fact that the complainant, a young woman, was alone and far removed from other persons with a violent man would
mean that she would not have run the risk of putting up too much resistance which could have resulted in serious injury or even death. It would
have been natural in these circumstances that she would not have shown too much resistance and might even have indicated some measure of
consent. That is a possibility, but it does not rule out the other possibility of intercourse by consent followed by a quarrel and an assault as
deposed to by the appellant.
I therefore conclude that there is a reasonable doubt as to the guilt of the appellant and would uphold his appeal.
Appeal dismissed.

1993 BLR p287

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 consistent with consent are explained on the same basis. Young, weak and

1993 BLR p286

BIZOS JA
helpless girls may not always put up a protracted struggle. This does not mean they have consented. The appellant admits that he assaulted
the complainant. The only dispute is whether it was before or after intercourse had taken place. I have already found that it was before.
The evidence of the doctor, her sister, her injuries, her distress shortly after the event and the probabilities are so overwhelming that the
conclusion is inevitable. The appellant raped the complainant and in my view his appeal should be dismissed and the conviction and sentence be
confirmed.
AMISSAH J.P. I agree.
Schreiner J.A.
I regret that I am unable to agree with the majority of the court in dismissing the appeal.
There seem to be too much uncertainty which has largely been caused by the fact that the appellant was not represented by counsel. There
are also certain matters which perhaps should have been dealt with differently by the State.
In the report of the chief medical officer which was identified by the complainant it is stated that there was "evidence of forced sexual act".
The injuries reported were that the complainant had bruised knees and that her fourchette and perineum were bruised. The medical officer was
not there to be cross­examined and probably would not have been, if he had been. There is in my view some doubt as to what the medical
officer would have answered if it had been asked whether the bruising in the genital region was consistent with voluntary sexual intercourse. In
the absence of detailed reasons which would define more clearly the basis of the view concerning evidence of a forced sexual act and evidence
as to whether the bruising was consistent with a voluntary sexual act and the extent to which the bruising on the knees of the complainant
was taken into account when reaching his conclusion, I think it would be dangerous to give much weight to the very brief statement in the
medical report.
The evidence of the complainant as to how the assault was committed raises in my mind a doubt as to whether the State has proved beyond a
reasonable doubt that the appellant had intercourse against the will of the complainant. She deposed to having gone to the Easy By Nite Club
with a friend of hers and having gone to watch a fight nearby and having there been harassed by appellant and despite protests and shouts,
pulled away through the bush to an empty house. Apparently the persons watching the fight did not take a very serious view of the matter
because the only reaction was that of a boy who asked the appellant to leave the complainant alone.
The complainant continues:
"At the house the accused said I should lean against the wall but I refused. He held both my hands and he asked me to take off my panty. Whilst he was taking
off my panty the accused person held me by both hands and forcefully took off my panty. Whilst he was taking off my panty I managed to let go my hands and
ran away but as I was running away I fell and the accused caught up with me. The accused pulled me next to a tree near the house he had initially taken me to.
He asked me to lie on my

1993 BLR p287

back. I shouted. He was forcing me to the ground as he was at the same time holding both my hands. I was crying."

She then goes on to describe the sexual act in terms which show resistance on her part and force on his.
The description above of how the complainant's panty was removed is strange. While holding both her hands he removed her panty. Something
seems to be missing from this description. There seems to have been no question of her panty having been torn from her body. The garment
was taken off while the hands of the complainant were being held. According to her the appellant then chased after her holding the panty which
was returned to her after intercourse had taken place.
The cross­examination is short, but two facts are extracted which seem to me to throw serious doubt upon the picture of violence by the
appellant and resistance by the complainant. Not only did the appellant take his own "skipper" off and place it on the ground for the complainant
to lie on, but she herself took her own skipper off using both her hands. This seems to me to be sufficiently significant to raise a real doubt as
to the accuracy of the evidence of the rape. I cannot say positively that there was consent on the part of the complainant, but it seems to me
that, despite all the other evidence, there is sufficient uncertainty to justify an acquittal.
It may be said that the fact that the complainant, a young woman, was alone and far removed from other persons with a violent man would
mean that she would not have run the risk of putting up too much resistance which could have resulted in serious injury or even death. It would
have been natural in these circumstances that she would not have shown too much resistance and might even have indicated some measure of
consent. That is a possibility, but it does not rule out the other possibility of intercourse by consent followed by a quarrel and an assault as
deposed to by the appellant.
I therefore conclude that there is a reasonable doubt as to the guilt of the appellant and would uphold his appeal.
Appeal dismissed.

1993 BLR p287

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 He asked me to lie on my

1993 BLR p287

back. I shouted. He was forcing me to the ground as he was at the same time holding both my hands. I was crying."

She then goes on to describe the sexual act in terms which show resistance on her part and force on his.
The description above of how the complainant's panty was removed is strange. While holding both her hands he removed her panty. Something
seems to be missing from this description. There seems to have been no question of her panty having been torn from her body. The garment
was taken off while the hands of the complainant were being held. According to her the appellant then chased after her holding the panty which
was returned to her after intercourse had taken place.
The cross­examination is short, but two facts are extracted which seem to me to throw serious doubt upon the picture of violence by the
appellant and resistance by the complainant. Not only did the appellant take his own "skipper" off and place it on the ground for the complainant
to lie on, but she herself took her own skipper off using both her hands. This seems to me to be sufficiently significant to raise a real doubt as
to the accuracy of the evidence of the rape. I cannot say positively that there was consent on the part of the complainant, but it seems to me
that, despite all the other evidence, there is sufficient uncertainty to justify an acquittal.
It may be said that the fact that the complainant, a young woman, was alone and far removed from other persons with a violent man would
mean that she would not have run the risk of putting up too much resistance which could have resulted in serious injury or even death. It would
have been natural in these circumstances that she would not have shown too much resistance and might even have indicated some measure of
consent. That is a possibility, but it does not rule out the other possibility of intercourse by consent followed by a quarrel and an assault as
deposed to by the appellant.
I therefore conclude that there is a reasonable doubt as to the guilt of the appellant and would uphold his appeal.
Appeal dismissed.

1993 BLR p287

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 Appeal dismissed.

1993 BLR p287

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