03 Sep 2015

Gaborone Court of Appeal Judge Justice Steven Gaongalelwe has dismissed an appeal launched by rape convict Ofentse Mofokeng who had applied for the court to quash both his conviction and sentence.

In his findings, Justice Gaongalelwe said the applicant had no prospects of success looking at the fact that the trial court found that the complainant was credible and consistent in the way she answered questions posed to her during trial.

The court also noted that the complainant sustained injuries including bruises and abrasions but the applicant failed to disclose the manner and circumstances of the alleged cheating which he said led him to assault her.

The applicant testified that the complainant was his girlfriend and that when the incident happened in August 2010 they had been having a relationship for two months.

The court however observed that one aspect which works against his version is that he admitted under cross examination that all along he did not know the lady’s surname until he learnt in court.

The trial court had been informed that on the evening of the day in question, the complainant went out for entertainment in Gaborone accompanied by her friends. She said when it was time to go home, they boarded a taxi driven by the applicant and her friends were dropped off at their respective destinations leaving herself and the applicant.

When the taxi was to go to her place, the driver stubbornly drove out of Gaborone following the road leading to Lobatse and at Boatle the applicant stopped the taxi and the complainant alighted pretending to go out in order to pass water but ran away.

However, she did not go far as the applicant immediately caught up with her, assaulted her and dragged her back to the car before driving off to Otse after hitting her with his fist on her face while she was in the car.

At Otse village, the applicant drove off the road and parked in the bush. As he parked, the court heard, he told her that if she tries to escape he would kill her. He subsequently tied her hands to the passenger seat and removed her clothing and then forcefully had sexual intercourse with her in the car.

It was only thereafter that he drove back to Gaborone where he dropped the lady off. When the complainant alighted from the taxi she quickly took down the taxi registration numbers and went to report her ordeal at Urban Police Station.

The trial court found that the injuries on the complainant and the fact that her clothing was in disarray negatives the version of the consent. The applicant also did not dispute the evidence of the injuries.

Mofokeng was charged and convicted for a single count of rape and was subsequently sentenced to 10 years imprisonment on June 20, 2013 by the Lobatse Magistrate Court. However he challenged his conviction and sentence at the High Court but his application was heard and dismissed.

Following the dismissal of his appeal, he made another application before the same judge seeking permission to appeal against his conviction and sentence to the Court of Appeal. The said application was similarly dismissed, reasons being that he did not harbour reasonable prospects of success on appeal.

The crux of the applicant’s application are that; the complainant did not take oath before giving evidence and therefore her testimony must be thrown out as it is inadmissible and that the appellant court curtailed his rights by failing to provide him with a record of proceedings, moreso  that he was a self-actor.  

Mofokeng further submitted that the complainant was not a credible and reliable witness and as a result, her version of events needed corroboration. The applicant further submitted that his sentence is improper and cannot stand as a result of the reasons alluded to above. However, it turned out that the victim took oath. Ends