The respondent had drunken intercourse with the complainant. He claimed that he mistook the complainant for his wife in his drunken stupor. She also mistook the respondent to be her husband during the intercourse. After intercourse, she realized that the respondent was not her husband. The respondent also claimed that he did not know the complainant was not his wife until this moment. Consequently, the court acquitted the respondent of rape and criminal trespass. The lower court reasoned that the onus was on the prosecution to establish whether the respondent had done something to impersonate the complainant’s husband and concluded that there was no evidence to support a finding of impersonation with the intent to deceive. The Attorney-General appealed this decision. The appellate court remarked that the lower court’s conclusion that there was no evidence of impersonation was incorrect. Whereas the lower court was focused on the testimony of the complainant regarding her own state of mind, the proper analysis should have concerned the state of mind of the respondent. While the Court of Appeal was suspicious of the respondent’s account that his actions had been the result of a mistake, it still found that the trial judge “had the great advantage of seeing and hearing the witnesses,” and could have reasonably found the respondent’s testimony credible. Therefore, the lower court could have had “reasonable doubt” as to his guilt. Accordingly, the appeal was dismissed.
Women and Justice: Keywords
Domestic Case Law
Theko v. Theko High Court of Lesotho (1982)
The plaintiff-wife sought the dissolution of her marriage to the defendant on the grounds of his previous marriage under the Sotho custom. The Court declared the marriage to be null and void on the grounds that the plaintiff agreed to the marriage through fraud, believing that the defendant was unmarried at the time and would not have agreed to the marriage if she had known the truth.
Kamwendo v. Republic High Court of Malawi (2004)
The accused was convicted of rape and sentenced to a custodial term of imprisonment of 18 months. He appeals on the grounds that the lower court erred in convicting him in contradiction of the Medical Report that found it was a fabricated rape. The Court dismissed the appeal finding that the complainant's story was corroborated by the evidence and did not therefore require the Medical Report's corroboration as well and also that the Medical Report is not to be taken as conclusive evidence of penetration. The evidence also showed that the intercourse the appellant had with the complainant was non-consensual because the consent was fraudulently obtained. After this decision, the Malawi High Court banned the corroboration rule in sexual violence cases in Republic v Kaliyati.