15 Feb 2021

A panel of justices; Monametsi Gaongalelwe, Zibani Makhwade and Tebogo Tau of Court of Appeal in Gaborone has on Wednesday freed a rape convict, Mokwadi Gaatwesepe. 

Gaatwesepe was convicted by Selebi Phikwe Magistrate Court, for rape and sentenced to a 10-year imprisonment. The particulars of the offence were that in October 10, 2015 at Botshabelo location in Selebi Phikwe, the appellant raped the complainant.

The appellant was said to have noted an appeal after conviction and the matter came before Judge Gaolapelwe Ketlogetswe at the Francistown High Court, whose judgment delivered on December 19, 2018, dismissed the appeal and confirmed Gaatwesepe conviction and sentence.  

The appellant then applied to the High Court for leave to appeal to the Court of Appeal.  The matter came before Judge Matlhogonolo Phuthego and in his ruling of February 18, 2020, granted the appellant leave to appeal to the Court of Appeal on the point that the trial magistrate failed to assess the credibility of the complainant before looking for other pieces of evidence to corroborate it.

On his grounds of appeal the appellant has submitted that the court erroneously convicted him without evidence proving that sexual intercourse took place. The appellant also submitted that the court erred by not applying the cautionary rule on the evidence of suspect witness or the danger of relying on such evidence.

Furthermore, the appellant also submitted that the court failed to apply or consider some cardinal rule while analysing circumstantial evidence and also that the court a quo’s rejection of the appellant’s defence was unreasonable and resulted in miscarriage of justice. 

Prior to dealing with facts of the appeal, the Court of Appeal first restated the backgrounds facts of the case among that the complainant is the biological daughter of the appellant and that at the time of the alleged commission of the offence, the complainant resided with her father and her two younger brothers at Botshabelo. 

The court also recollected that the appellant was married to a woman who was not the complainant’s biological mother.

In making its determination, the Court of Appeal indicated that although the complainant claimed to have been raped by the appellant, who is her father, and that it was not the first time, she did not directly notify the enquiring neighbour of her ordeal. “She only told her neighbour that she was uncomfortable with the way her father looked at her.

“The complainant also did not tell her Guidance and Counselling teacher that her father raped her. She only told him that her father would usually get into her bed. She also did not inform her biological mother about the incident even though she said she knew it was wrong, having been taught so at school and also having been involved in a love relationship with her boyfriend who had had sexual intercourse with her,” said the Court of Appeal. 

The court has also established that there was no evidence of DNA of her found in the towel, which she claimed was used during sexual intercourse. It was also said that the appellant denied having sexual intercourse with the complainant as he only stated that he beat her with a stick for failing to do laundry.

“All the above, do not in my well-considered view, point to any sexual intercourse taking place between the complainant and the appellant. I have no doubt that the magistrate could not or should not in the face of the above background, have found that the appellant’s version of events could not reasonably possibly be true,” said the Court of Appeal. 

Therefore, Court of Appeal said High Court Judge repeated Magistrate’s mistake when he held that the appellant had sexual intercourse with the complainant. ends