10 Feb 2014

The Court of Appeal has dismissed Molatlhegi Jonase's appeal against a 20-year jail term for aggravated rape.

Jonase had appealed on grounds that the trial court exceeded its sentencing jurisdictional powers when it sentenced him to 20 years instead of 10 years, which was the mandatory punishment. 

Delivering judgement, Justice Elijah Legwaila, assisted by Justices Stephen Gaongalelwe and David Newman explained that he was sentenced to 20 years because of his HIV status.

Justice Legwaila said the law required that any person convicted of rape shall undergo an HIV test before he/she was sentenced and if he/she was found to be HIV positive, they would be sentenced to a minimum of 20 years imprisonment if such a person was not aware of his HIV status.

He said at the time of committing the offence, Jonase was aware that he was HIV positive as evidenced by the court record where he stated in his evidence that he tested HIV positive before the rape.

Justice Legwaila said it was not in the power of the CoA to reduce the 20 years imprisonment sentence in the absence of exceptional extenuating circumstances and that the appellant’s HIV positive status was not an exceptional extenuating circumstance.

Jonase’s other ground of appeal was that the trial court erred by not observing that the prosecution charged him for an offence that did not attract a sentence of 20 years, which failure prejudiced him.

He had argued that he was tried and convicted for the offence of rape whose sentence was not the enhanced minimum of 20 years, but the ordinary minimum of 10 years imprisonment.

Jonase had also argued that the trail court could had warned him of the risk of being sentenced to an enhanced sentence on conviction because had they done that, he would not have taken his defence lightly or he could have decided to engage a legal representative. ENDS