Gaborone-based advocate, Sidney Pilane, has asked Lobatse High Court judge Gabriel Rwelengera to set aside the 10-year-jail term passed on James Mathokgwane by Broadhurst Magistrate, Nehemia Mguni, for raping a small girl because there was no evidence that links him to the crime.
Pilane, who is assisted by Moses Kadye, Tshiamo Rantao and Sadique Kebonang in the matter, submitted that even with the cell phone that the state relies heavily on as proof that Mathokgwane had committed the crime (as it was found at the place where rape had taken place) it was not much help because Mathokgwane had reported that it was stolen from him and that a state witness had confirmed that he had said so in Court.
On the position taken by his client not to give evidence, Pilane said that it was a great misdirection of law in the circumstances of this case for the Magistrate to draw an adverse inference against his client for his decision not to give evidence in Court.
Pilane said that Mguni was biased against his client and that he readily believed everything the child-victim had said against him at the expense of his client. He also said that it was odd that after Mguni had described the child complainant as having been a truthful and reliable witness, he had then gone out to look for evidence corroborating her evidence.
The Magistrate, he also said, had disregarded the fact that the child had stated that Mathokgwane was not her assailant but that despite this, the Magistrate had disregarded that evidence and referred to a different time when she had identified Mathokgwane at the clinic.
Pilane also accused Mguni of having been too emotional when dealing with the case to the point that he wept.
Countering submissions by Pilane, Mosweu Ditodi, of the Directorate of Public Prosecutions, submitted that the Magistrate had in his judgment been aware of the rule normally applied when handling evidence from children.
He also submitted that evidence at the scene of the crime, specifically the cell phone which was found at the scene, places Mathokgwane on the scene.
On the explanation for the arrest and later releasing of another James, Ditodi said that was a plain case of mistaken identity.
Judgment is expected on September 10th, 2008.
Amongst those who turned up to give Mathokgwane moral support were friends and relatives as well as Lobatse Member of Parliament, Nehemia Modubule, who, after the session, wished Mathokgwane well and apologized that he would not be able to attend the judgment session as he will be on official duty out of town.
Mathokgwane is the former Secretary General of the Botswana National Front Youth League.