Lobatse High Court judge Onkemetse Tshosa has discharged and acquitted five men who were facing charges of armed robbery and rape.
Justice Tshosa said their trial was a nullity as the accused had not made pleas against the charges they were facing.
The five, Shanki Molaletsi, Kebatshotse Ratlhaga, Mmonye Bogale, Thato Mokowe and Bena Gaketholwe, were accused of robbing one Bareetseng Basimolotse in Molepolole in April 2008.
They are said to have robbed Basimolotse of a Nokia cell phone, DVD home theater, Samsung VCR and a Philbao decorder. They also threatened her with an axe. The five also faced a second charge of rape.
When acquitting and discharging the accused persons, Tshosa said the state lawyer had not disputed the fact that the accused were not given an opportunity to plead.
Justice Tshosa also said it is a legal requirement for every accused person to take a plea.
“Failure to take a plea renders the proceedings a nullity, resulting in the acquittal and discharge of the accused persons or a retrial. In deciding which option to take, the Court will have to consider the seriousness of the offense, the time and expenses of having the matter commence afresh and the ordeal the accused persons may suffer,” he said.
Tshosa also said the DPP indicated that the prosecution’s case was very weak.
For example, the complainant told the police that she was raped by three people, while the charge sheet indicates that five people raped her.
This, said the judge, shows that the accused persons were not clearly identified.
Further, the robbery charge should have been changed to theft as there was no evidence of threat to use force.
The accused had only covered the complainant with a blanket, took items and left the house.
The accused persons had asked the Court to acquit and discharge them because the case had been pending for a long time.
“Our legal provision makes the taking of plea mandatory. In this case, no plea of either guilty or not guilty was taken, but this trial had proceeded as if the accused persons had pleaded not guilty,” said Tshosa.