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IN THE COURT OF
APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT GABORONE

COURT
OF APPEAL CASE NO. CLCGB-062-12

HIGH
COURT CRIMINAL COMMITTAL NO. CRHLB-000007-11

DATE:
01 FEBRUARY 2013

In the Matter
Between:

THABO
BOJANG…………………………………………………………………………….APPELLANT

And

DIRECTORATE OF
PUBLIC PROSECUTIONS…………………………RESPONDENT

Mr Appellant in
Person

Attorney K.B.
Maleke for the Respondent

JUDGMENT

CORAM: Twum J.A.

Foxcroft J.A.

Gaongalelwe J.A.

Dr S. TWUM JA:

1. This is an appeal
from the judgment of Walia J. sitting at the High Court, Lobatse. The
case had come to him on a referral from
the Magistrates’ Court
Tsabong.

2. The Appellant was
charged with one count of rape contrary to section 141, as read with
section 142 of the Penal Code. He was
tried before the Magistrates’
Court at Tsabong, presided over by Mr A. Sibanda, Senior Magistrate.
After a full trial he was convicted
as charged. The Senior Magistrate
found the rape was accompanied by violence which caused the
complainant serious injury and so
the appellant deserved a more
severe sentence than the statutory minimum sentence of 10 years in
prison. The law in this area is
rather recondite. The legal position,
in my view, is that once the trial court determines that a rape was
accompanied by violence
which caused the complainant injury, the
accused should, if convicted, be sentenced to a minimum statutory
term of 15 years imprisonment
or a maximum term of life imprisonment,
(see section 142 (2) of the Penal Code). The trial Magistrate, being
a Senior Magistrate,
obviously had no sentencing jurisdiction to
impose a sentence under s. 142 (2) (supra). This is because under
section 61 of the
Magistrates’ Courts Act (Cap 04.04) only Principal
Magistrates and Chief Magistrates have that power of sentencing.
Aware of his
limited jurisdiction, the trial Magistrate committed the
appellant in custody to the High Court, Lobatse, for sentencing under
sections 295 and 296 of the Criminal Procedure and Evidence Act, (Cap
08.02).

3. The appellant
ultimately appeared before Mr Justice Walia, sitting at the High
Court, Lobatse. His Lordship found out that the
appellant was
unrepresented and therefore the Senior Magistrate ought to have
explained to him that as a result of the violence
that accompanied
the rape, he was liable to be imprisoned for a statutory minimum
period of 15 years under s. 142(2) of the Penal
Code. He said the
Magistrate, not having done that, the only permissible section for
sentencing the appellant was section 142 (1)
(ii) of the Penal Code.
The learned judge said in those circumstances, the Senior Magistrate
could have passed the statutory minimum
sentence of 10 years on the
appellant himself. Indeed, he considered sending the appellant back
to the Senior Magistrate to sentence
him but on further reflection,
he decided that in view of the probable administrative delays that
could attend upon an order for
the appellant to be committed back to
the Senior Magistrate for sentencing, he invoked his powers under
sections 295 and 296 of
the CP & E Act to sentence him.

4. In my view, the
matter is not as simple as that. There is no judicial discretion in
section 142 (l)(ii) and s. 142(2). The Code
allocates express powers
which are also tied in with the sentencing powers of Magistrates. For
purposes of sentencing there are
two categories of rape:-

(a) what I will call
rape simpliciter (i.e. rape unaccompanied by violence)

(b) rape accompanied
by violence.

The statutory
minimum sentence is 10 years for rape simpliciter. That is within the
sentencing jurisdiction of Senior Magistrates
and above. It should be
noted however, that even for rape simpliciter, the maximum statutory
sentence is life imprisonment. That
is clearly above the sentencing
jurisdiction of all Magistrates.

5. If I may take the
discussion a little further. Where section 142 (2) is not in issue
because the rape was not accompanied by
violence which caused the
complainant injury, he could still be sentenced to a term of
imprisonment more than the statutory minimum
of 10 years under s. 142
(l)(ii). This is because the maximum sentence under that section is
life imprisonment. The problem will
be the limit of the jurisdiction
of the trial magistrate. In this particular case, the Senior
Magistrate would not have had the
appropriate jurisdiction to exceed
the minimum 10 years. In short, the combined effect of sections 141
or 142 of the Penal Code
and section 61 of the Magistrates’ Courts
Act (Cap 04.04) means any punishment for rape over 20 years
imprisonment can only be
imposed by a High Court Judge, whether the
punishment is by virtue of section 142 (l)(ii) or section 142(2). The
reason is simple.
No magistrate has a sentencing jurisdiction of 20
years imprisonment.

6. The next matter
which I believe should be dealt with is this. Walia J. correctly took
issue with the Senior Magistrate for failing
to explain s 142(2) to
the appellant who was unrepresented at the trial. The authorities are
clear that that constituted a misdirection
in law. In his view, he
ought to have explained the import of section 142(2) to the appellant
before committing him in custody
to the High Court for sentencing. In
practical terms, I believe a High Court Judge would be at least as
well placed to make the
necessary explanation. There would be no
miscarriage of justice to the appellant. When the appellant
eventually appeared before
Walia J. the learned Judge himself could
have explained the import of s. 142(2) to him and invited him to
address him on why he
should not pass a more severe sentence than the
mandatory minimum sentence of 10 years on him. My reason derives from
the wording
of s.296(3) of the CP&E Act. It provides:

“When a person
is brought before the High Court in accordance with the provisions of
the subsection (2), the High Court shall
inquire into the
circumstances of the case and, if satisfied from the record of the
accused’s guilt, shall thereafter proceed as
if such person had
pleaded auiltv before the Hiah Court in respect of the offence
concerned, before the High Court.”

7. As he was
mandated to do under section 296(3) of the CP & E Act, the
learned judge carefully examined the record of the proceedings
before
the Senior Magistrate to satisfy himself-

(i) that the
totality of the evidence adduced at the appellant’s trial at the
Magistrates’ Court established the appellant’s guilt
beyond
reasonable doubt.

(ii) The Magistrate
applied the relevant laws correctly and that the appellant was given
a fair trial.

The record of
proceedings before the Magistrates’ Court revealed that the
complainant, together with other friends went to entertain
themselves
at various shebeens in Tsabong on the night of 6th November 2009.
After some revelling, the complainant decided to go
home to sleep.
The appellant had in the course of the evening proposed love to the
complainant which she had rebuffed. On her way
home, the appellant
ran after her and when he caught up with her, he assaulted her
viciously with a plank and dragged her some
15 metres into an
uncompleted house wherein he had sexual intercourse with her, without
her consent.

The record further
revealed that as soon as the complainant regained her liberty, she
reported her ordeal to the police who took
her to the hospital where
she was examined and treated for her injuries. Subsequently, the
appellant was arrested and charged with
the offence of rape as
hereinbefore stated. The appellant denied raping the complainant when
he was arrested.

The complainant
testified before the Magistrates’ Court and gave a vivid account of
how the appellant viciously attacked her with
a plank before dragging
her some 15 metres into an uncompleted house where he raped her
without her consent.

The prosecution
called a number of witnesses who corroborated the complainant’s
evidence in material respects. The Medical Report
Form, detailing her
injuries was also tendered in evidence as Exhibit “4”. It
showed that the complainant suffered a
swollen face, a swollen left
eye and there were other marks of violence on her body.

8. The Magistrate
put the appellant on his defence. He testified on oath. In his
defence he admitted that he had sexual intercourse
with the
complainant but added that it was consensual. He said that he and the
complainant agreed to spend the night together at
his place and it
was there that the sexual intercourse took place – without a condom.
He said when the complainant decided to go
to her place he
accompanied her half way. Finally the record showed that at the end
of the trial the Magistrate concluded that
the complainant was a
credible witness. He added that her account of the rape was amply
supported by independent state witness
and held that the appellant’s
evidence was false beyond reasonable doubt and convicted him.

9. At the end of his
review the learned Judge was satisfied that the appellant was given a
fair trial and that he was guilty of
the charge of rape contrary to
section 141 as read with section 142 (l)(ii) of the Penal Code. He
then convicted him accordingly.
The learned Judge adjourned the
proceedings and at the next hearing he explained to the appellant
that the sentence for the offence
for which he had been convicted was
minimum imprisonment for 10 years and a maximum of life imprisonment.
The learned Judge then
invited the appellant to address him on
whether or not there were exceptional extenuating circumstances
attendant upon the commission
of the offence which would make it
wholly inappropriate to sentence him to the statutory minimum period
of 10 years in jail. The
appellant said in response, that before he
was arrested, he had been a volunteer at an NGO at Tsabong, taking
care of home-based
care patients. He said he would wish to continue
with that service. He also said that he had reconciled with the
complainant. The
learned Judge informed him that none of these
matters constituted exceptional extenuating circumstances. He
therefore sentenced
him to the statutory minimum period of 10 years
in prison. He explained to him his right of appeal against both his
conviction
and sentence.

The Appeal

10. The appellant
was dissatisfied with his conviction and appealed against it to this
Court on or about 18th November 2011

On or about the 3rd
of January 2012, he abandoned those grounds of appeal which he had
filed on 11th November 2011 with the Notice
of Appeal and filed the
following amended grounds of appeal:-

“1. My appeal
is against conviction only that the charge sheet which I was tried is
so defective that it does not disclose
an offence of rape contrary to
section 141 as read with section 142 of the penal code chapter 08:01
volume 11 of Botswana laws.

2. The trial court
erred by failure to evaluate the credibility of PW2.

3. The magistrate
erred by failure to record questions put to the witness by the
accused and version of statement said in court
by the witness.

4. The trial court
erred to allow the prosecution to lead its witness with question for
recollection of events.” About the
same time he filed his Heads
of Argument. I deal with the grounds of appeal seriatim

11. Ground 1:
Defective Charge Sheet

The appellant
complained that the charge sheet was defective in that it did not
specify that the commission of the offence was accompanied
by
violence.

This ground may be
disposed of quickly. The appellant was not sentenced under s. 142(2)
of the Penal Code. That is made manifest
in the judgment of the
Learned Judge, (see paragraphs 5 and 11 thereof). Further, at page
152, paragraph 56 of the record, he concluded
thus “I am
therefore satisfied from the record that accused is guilty in
contravention of section 141 as read with section
142 (1) (ii) of the
Penal Code.” It is clear that the issue of whether the offence
was accompanied by vilence was not relevant
to a conviction for rape
simpliciter, which is what the appellant was convicted of. It is also
clear from page 141, paragraph 11,
of the record that the Magistrate
failed to draw the appellant’s attention to the import of s. 142(2)
particularly as it is clear
he intended to mete out to him the other
minimum statutory sentence of 15 years imprisonment because the
offence was accompanied
by violence. In the circumstances, the
appellant must consider himself lucky that the Magistrate
inadvertently failed to explain
to him the reason for the existence
of s. 142(2) in the Penal Code. The learned Judge did not do this
either.

12. Ground 2:
Failure to evaluate the credibility of P.W.2

The learned Judge
carefully examined the record of proceedings before the Magistrates’
Court. The Magistrate quite properly noted
that the complainant was
in a “hopeless” state and had bruises and wound on her
head. She was covered in dust and was
taken to the hospital, (see
paragraph 31 of the judgment by Walia J.) In paragraph 49, the Judge,
quoted the Magistrate, as saying
that “the 2 witnesses called by
the accused were of no assistance to him”. Indeed, the record
stated that the first,
Onkarabile, denied that she had been with him
at any time on the fateful day (see pages 123-124). After a careful
analysis of the
evidence before him, the Magistrate had found the
complainant to be a credible witness. He added that her account of
events surrounding
the commission of the offence was supported by
independent evidence led by the State. The Magistrate saw and heard
the complainant
as well as the accused. He also saw and heard the
witnesses. He observed their demeanour and how they answered
questions put them.
In the end he rejected the accused’s evidence as
false beyond reasonable doubt. In my view, he was entitled on the
evidence on
record to come to that conclusion.

This was confirmed
by the Learned Judge. In the circumstances, the appellant’s ground 2
fails and is dismissed accordingly.

13. Ground 3: “The
Magistrate erred by failure to record questions put to the witness by
the accused and the version of statement
said in Court by the
witness”:-

This ground of
appeal is unclear. It also ignores the true state of affairs as
recorded in the proceedings. DW2 was Onkarabetse
Moruakgomo. Her
evidence is faithfully recorded in “question and answer”
form at page 123 to 126. The upshot of her evidence
was that she did
not know the accused and that she did not see him on 6th March 2009.
The appellant’s next witness was Trueman
Seabo. His evidence may be
found at pages 128-133. This was also recorded in “question and
answer” form. Ground 3 is
therefore without any factual basis
and the same is dismissed.

14. Ground 4 “The
trial court erred to allow the prosecution to lead its witnesses with
questions for recollection of events”

This ground of
appeal is not elaborated in the appellant’s Heads of argument. In
practice, there would be nothing wrong in putting
a question to a
witness to jolt his/her mind. There is no evidence on the record in
what context this happened. In my view, this
practice should not
cause the appellant any prejudice. There is no evidence that it did.

15. In the result, I
hold that the entire appeal is unmeritorious and is dismissed
accordingly.

DELIVERED IN OPEN
COURT AT GABORONE

THIS 1st DAY
FEBRUARY 2013

DR S. TWUM
JUSTICE OF APPEAL

I agree

J.G. FOXCROFT
JUDGE PRESIDENT

I agree

S.M. GAONGALELWE
JUSTICE OF APPEAL

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