A 21-year-old man of Morolong Ward in Karakubis has pleaded with Francistown High Court judge Modiri Lesididi to overturn his defilement conviction saying that the magistrate who handled his case was prejudiced and failed to give him a fair trial.
Kitso Kgamelo, who is currently out on bail after being found guilty of having a sexual relationship with a minor in January 2003, pleaded with Justice Letsididi to overturn his ten-year conviction because the magistrate who had presided over his case at the Ghanzi Magistrate Courts was prejudiced and biased against him.
Kgamelo was sentenced to ten years after being found guilty of having had sex with an under-aged girl of 16.
Presenting his appeal, Kgamelo said that his conviction was unjustified because the prosecution did not furnish the magistrate with sufficient evidence to warrant a conviction.
He also took issue with the fact that the prosecution amended the charge sheet in the middle of the trial.
Kgamelo told Justice Letsididi that his judgment was not dated, which he felt is a contravention of Section 291 of the Criminal Proceedings Act.
He also said that the court had failed to inform him of his right to present his grounds of defense during the commencement of the trial and only did that after the prosecution witnesses had presented their evidence.
Kgamelo, who is representing himself, told the High Court that the magistrate made an amendment to the charge sheet basing only on the physical appearance of the complainant without looking at any documentation presented before him.
The State Counsel, Reneetswe Rabosotho, however, dismissed all the accused’s grounds of appeal as inappropriate to render him to qualify for any plea. He stated that the magistrate was not prejudiced in any way as there was enough evidence that the accused had sex with a minor.
Rabosotho further told the court that the appellant’s argument that the charge sheet was amended without accompanying evidence was unfounded as the magistrate changed the charge from rape to defilement after being furnished with the minor’s birth certificate, which showed that she was, in fact, a minor at the time.
“It was only after the magistrate saw the complainant’s birth certificate that he changed that charge from rape to defilement. Also, the evidence presented before the court was sufficient for the charge to be changed from rape to defilement,” he said.
He, however, conceded that the magistrate failed to advice the accused on the date of the commencement of his trial but argued that it was not deliberate, but only an irregularity that does not provide sufficient grounds for the conviction to be overturned, especially as there is ample evidence that Kgamelo is indeed guilty as charged. Rabosotho also argued that while such notification was necessary, it is not the legal duty of the judicial officer.
Justice Letsididi informed the accused that he should regard himself as very lucky to have been given bail as rape and defilement convicts are usually denied bail but immediately sent to jail.
“Whether there was a change of the charge sheet from rape to defilement, it would not have made any difference to your case as you had not pleaded guilty. The charge would still be the same as there was enough evidence against you,” said Justice Letsididi.
Judgment on the appeal will be delivered on June 12 2009.
