Thursday, October 28, 2021

Judge halves sentence of man who defiled primary school girls

A 25-year old man who unleashed untold sexual fury on two primary school girls has had his 20-year jail sentence halved by the Lobatse High Court.

“The appellant is a first offender and he has had no previous convictions. The appellant is young (aged 23 at the time of the offences) and was gainfully employed so as to contribute meaningfully to society. Though he violated the very society he was entrusted to protect and care for, the courts should not be seen to be punitive and retributory in sentence,” said Justice Jennifer Dube when handing down judgement.

The appellant is Matshediso Tladi who, until offending Section 147 of the Penal Code, worked at Khurutshe Primary School as a security guard. The level of detail of the abuse is astounding. Deploying highly unusual predator methods and armed with the offending instrument, a packet of sweets, a casual-sex hotline and a non-Obamaesque yes-you-can mentality, Tladi indulged a perverted appetite for forbidden sex by turning the girls hostel into a budding nocturnal harem. The culprit would literally not take ‘no’ (or silence) for an answer. When his victims would indicate ‘No, I can’t’, he would nudge them towards a ‘yes’ and in some cases that involved either physical violence or threats to use it. Typically, not much time elapsed between Tladi securing consent (by any means unnecessary) and him seeking carnal returns on his amorous investment.

Both his victims were 13-year old girls at the time (2012) but would be about 18 years now. To the first victim’s infantile mind, she and Tladi were “lovers.” She actually told the Mochudi Magistrate Court so in 2015 when she testified. Given the nature of his work, Tladi had unrestricted access to all corners of the school but determined to avoid suspicion, he contrived a sex hotline which he set up with a spare cellphone. One evening, he stopped off outside Ramangole’s room, knocked on the window and when she opened it, gifted her with sweets. But Tladi’s intentions were anything but generous. He popped back up the following evening and this time brought not sweets but a cellphone which he slipped under the Ramangole’s bed pillow. He called a short while later to set up a rendezvous behind the showers in the girls’ hostel. Ramangole showed up and in unusually robust language that mentions one reproductive organ with its scientific name, the judgement describes how he subsequently defiled her. 

It would appear that Tladi got the phone back because a “couple of days” later, he gave it to one Kgopolo, with instructions that she should put it under the Ramangole’s bed pillow. However, when the phone rang, Ramangole ignored it. Later that night, an enraged Tladi showed up carrying a stick which he used to assault her, Kgopolo and another girl called Matlhogonolo. There would have been a ruckus and learning of the incident the following day, the headmaster summoned both Ramangole and Kgopolo to her office to explain. Ramangole came clean and was later taken to the police station to give a statement as well as to the hospital for medical examination.

Victim Two (Leburu) encountered Tladi on her way to drink water ÔÇô possibly from a communal tap somewhere in the school. He proposed love to her and when she rebuffed him, he threatened to beat her up. She accepted the proposal and in her particular case, he seemed to have been more daring because later that night, he stopped back seeking carnal returns on his amorous investment. Sneaking into the hostels through an open window, he crawled into the bed of the then 13-year old girl and defiled her. To stay on the right side of a voyeurism red line, the court could evidently not explore why Tladi’s sexual appetite became more voracious towards this victim but that is what is supposed to have happened. The judgement only says that he “admitted to having had sexual intercourse with both the two complainants more especially [Leburu].”

The admission notwithstanding, there was a point when he unsuccesfully tried to wriggle out of this jam. While agreeing that primary school students are under 16 years, Tladi also told the court that both complainants physically looked old enough to legally engage in sex. However, in her judgement, Justice Dube says that Tladi “knew or should have known that the girls were below the age of 16 by the mere fact that they were still attending primary school. He did not bother to ask their age before engaging in sexual activity with them. He, in my opinion, was only thinking of his own pleasure.”

When the case came up before the Mochudi Magistrate Court, Tladi indicated he would call two witnesses but never did so. Having earlier pleaded not guilty, he changed his plea to guilty. Having satisfied herself that all elements of defilement had been established (positive identification of the accused, admission of guilt and written evidence of the medical doctor), the magistrate sentenced Tladi to a term of 10 years on each count. The terms were to run consecutively, meaning that he would spend 20 years in prison. 

Having gone through the entire magistrate court trial without a lawyer, Tladi enlisted the services of attorney Lyndon Mothusi when he appealed this sentence at the Lobatse High Court. In his appeal, Tladi argued that his right to a legal representative was not adequately explained to him, that the magistrate did not adequately advise him of his right to cross-examine witnesses, that the medical evidence was “highly inconclusive” and that it was irregular to have the sentences run consecutively and not concurrently.

The appeal failed on all but the last ground. While the success rate of the appeal might seem mathematically dismal, Tladi did in fact score a major victory. In expressing her agreement with the latter, Dube says that Tladi would turn into a hardened criminal and find it difficult to blend back into society if he were locked up for 20 years.

“In the circumstances, I find that both the sentences should remain at the minimum requirement of 10 years each but should run concurrently,” the judgement says. 

The sentences have been backdated to February 2015 and in accordance with standard penal procedure, one third of the sentence will be subtracted.

On the face of it, Botswana law protects underage girls from sexual terrorism but it really doesn’t because the relevant pieces of legislation pull in different directions. Section 147 of the Penal Code is one component of a broader – and on the evidence thus far, unavailing effort to protect minors from heavy-breathing sex predators. While the Penal Code prohibits sexual intercourse with children under 16 years, the Children’s Act defines “child” as any person who is below the age of 18 years. Basically, this means that while a man who has sexual relations with a 16-year old girl would have molested a child, he would not have done anything wrong in terms of the Penal Code – which greenlights sex with 16-year olds. The Marriage Act complicates the situation even further. Section 15 of the Act says that “No minor or person below the age of 21 years not being a widower or widow may marry without the consent in writing of his or her parents or guardians.” This Act effectively sanctions child sexual abuse within a matrimonial setting because some parents can marry off a 15-year old girl. 

RELATED STORIES

Read this week's paper