06 Dec 2022

 The Court of Appeal (CoA) has dismissed rape convict, Thomas Mayongora’s application for leave to appeal his conviction out of time.

Delivering the ruling, Judge Mercy Garekwe dismissed Mayongora’s application for leave to appeal out of time, saying it was without merit.

Judge Garekwe said the application filed on August 26, was ill-conceived as it did not comply with the rules of the CoA and therefore an abuse of the court’s process.

She noted that the applicant was charged, tried and convicted of the offence of rape. 

Particulars of the offence are that on or about June 04, 2015 at or near Boseja ward in Maun, Mayongora had unlawful carnal knowledge of a six-year-old girl without her consent.

The CoA established that upon the charge being read out to him, Mayongora initially pleaded not guilty.  The court further learnt that after receiving the case record which included witnesses’ statements, Mayongora on May 31, 2018 changed his plea, admitted all the evidence by witnesses and pleaded guilty to the charge.

Judge Garekwe said the applicant was found guilty on his own plea of guilty and on June 23, 2018 he was sentenced to a minimum mandatory term of 10 years after the court found no extenuating circumstances.

The CoA further revealed that following his conviction and sentencing, Mayongora on September 04, 2018 noted his appeal with the High Court on the grounds that the state failed to prove its case beyond reasonable doubt and that there were prospects of success in his case.

However, Judge Lot Moroka of the Francistown High Court dismissed the appeal on August 09, 2020 and confirmed the conviction from the lower court.

The decision led to the applicant filing an application for leave to appeal to the CoA.

Judge Garekwe said Judge Moroka granted him leave to appeal on the aspect of the language preference exercised at trial.

Judge Garekwe said the basis for granting Mayongora leave to appeal at that point was that the applicant was assisted by a Setswana interpreter before the Magistrate Court and a Sembukushu interpreter before the High Court.

Therefore, leave to appeal was granted on November 27, 2020 said Judge Garekwe, adding that the applicant was supposed to lodge his appeal to the CoA within six weeks.

“This means he ought to have noted his appeal on or before January 08, 2021. The applicant however failed to do so and was thus compelled to make the present application which he only filed on July 07, 2021, about eight months from the date leave to appeal was granted,” said Judge Garekwe.

The application for leave, she said, filed on July 07, 2021 was not accompanied by an affidavit speaking either to acceptable reasons or to the exceptional circumstances constituting the delay.

Moreover, Judge Garekwe said the notice of motion was also not accompanied by a draft notice and grounds of appeal showing either reasonable prospects of success on appeal or strong prospects of success on appeal.

She said the applicant did not comply with the CoA rules, therefore failing to meet the lowest threshold expected of a party who had failed to note an appeal within the set timelines.

“Without both the affidavit and the draft notice and grounds of appeal, the court is not in a position to assess that which it is enjoined with to assess. The application thus, is hopelessly defective and ought to be dismissed,” said Judge Garekwe. ENDS