Tuesday, September 26, 2023

Man convicted of raping his three nephews wins his appeal

Baaitse Sefhophe, a middle aged man of Majwanaadipitse village in the Central District who was convicted and sentenced by the Palapye Magistrate Court in 2013 for raping his three nephews who were also minors, last week won his appeal before Francistown High Court Judge Lot Moroka. Sefhophe had been sentenced to 10 years imprisonment for each count. 

He pleaded not guilty to all the counts and appealed against both conviction and sentence on grounds that the trial court erred in convicting him when the evidence did not prove his guilt beyond reasonable doubt. He also said that the presiding magistrate erred in holding that the prosecution witnesses were credible. He accused the trial court for admitting the medical report as evidence on the other hand failing to call the doctor to testify. The teenage girls were aged between the ages of 12 and 15 years.
According to evidence before court on the 19th of October 2010, the appellant approached the complaints and implored them to accompany him to buy beer at one Tshono’s place in Majwanaadipitse at night. The teenage girls who had been sleeping at their grandfather’s house then agreed to accompany him. Upon their return, he then took turns raping them one by one at the same time threatening to throttle them with a bottle in the dead of the night. After the harrowing incident, the complainants then told their parents who had been sleeping in a separate house. However, the appellant complained that he had given the three girls his money to buy beer and they did not return the beer or the money. The following morning the issue was reported to the police.

Police statements were made and the complainants were also taken to the hospital for medical examinations. The appellant was then warned for a charge of rape. Three medical reports were tendered as evidence. At the close of the case by the prosecution, the trial magistrate ruled that the appellant had a case to answer. The appellant chose not answer any questions and the trial magistrate recorded that the appellant elected to remain silent and the matter was concluded. The complainants gave evidence under sworn evidence. The prosecution had called seven witnesses.

On the 9th of September 2013, the trial magistrate passed judgment and found the appellant guilty and convicted him on all three counts sentencing him to ten years imprisonment for each count.

Giving his ruling last week, Justice Moroka said that there were problematic issues about the conduct of the case.

“The first is the apparent failure of the trial court to handle evidence of children. All three complainants were of tender age at the time of the incident and at the time they testified in court,” he said.

Touching on the law on testimony of children, the judge said witnesses who testify in courts have a duty to speak the truth. He said that to ensure that this is the case, trial courts have a duty to administer or cause to be administered to all witnesses any form admonition which appears to be calculated to impress upon their minds and bind their consciences to tell the court nothing but the truth. He said in this case, no steps were taken to ensure whether the complainants who are in this case children appreciated the significance of the oath they were made to take. He said such was a grave error on the part of the presiding magistrate.  

“The second issue is that of probative value that ought to be attached to the evidence of a child. The Judge said over years, courts have developed rules of caution in terms of which the evidence of children ought to be treated. In this case the trial magistrate seemed oblivious of the law on the handling of the children from oath to cautionary rules,” added the Judge.

Justice Moroka also said the evidence by the complainants was full of contradictions and inconsistencies. He gave example of one of the complainants who said in her testimony that she was threatened with a bottle while the other complainant was raped. The complainant said she then waited for her turn to be called by the appellant and she was raped.

“From their own evidence the witnesses appreciated that what the appellant was doing on them was rape. It is inconceivable that each could wait patiently while the appellant was busy raping one and then go to the appellant for her own rape,” the Judge said.

He also rubbished the doctor’s report which was used as evidence saying that there was lack of proof of penetration. He said in respect of each complainant, the doctor recorded no bruises, no wounds and no injuries on their bodies and particularly on their genitals. The Judge emphasized there was absolutely no basis upon which a conviction could have been entered and said that the guilt of the appellant was not proved beyond reasonable doubt.

“His conviction was in error. The appeal succeeds and I hereby make the following orders; the appeal against conviction succeeds, the conviction in respect of each count is hereby quashed and set aside. The appellant should be liberated from imprisonment immediately,” ruled Justice Moroka.

The appellant was not represented and C. Letsoalo from the DPP represented the state.


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