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IN THE HIGH COURT
OF THE REPUBLIC OF BOTSWANA

HELD IN
FRANCISTOWN

MCHFT-000296-12

DATE:
22 MARCH 2013

In the matter
between:

LAZARUS
ITEMOGENG……………………………………………………………………….Appellant

Versus

DIRECTORATE OF
PUBLIC
PROSECUTIONS…………………………………….Respondent

Applicant
Appearing in Person

Ms Attorney Ms K
Selaledi for the Respondent

JUDGMENT

MAKHWADE J

1. This is an
application for leave to appeal against decision of the Magistrates
Court to the High Court out of time. The appellant
was the second
accused in a case in which the two were charged with the offence of
Rape Contrary to Section 141 as read with Section
142 of the Penal
Code. The alleged offence was said to have taken place on the 18th of
July 2008. Both accused persons were convicted
and they were
sentenced on the 10th of November 2010

2. This application
was filed on the 6th of September 2012. The applicant put the blame
for his failure to file his appeal on time
on the failure by the
Court to forward to him a copy of the judgment and further on the
computers at prison having been non functional.
I am doubtful that a
delay of this magnitude could be attributed to the factors that the
applicant has mentioned. However for the
reason that he is an
unrepresented litigant I shall examine whether the applicant has
reasonable prospects of success.

3. The applicant has
raised several issues which in his view would result in his appeal
being successful should he be granted leave.
I shall deal with these
individually.

4. It is the
applicant’s position that the trial Magistrate was biased and
showed partiality. The applicant pointed to two
issues. The first
issue is that on the date when the trial was scheduled to start the
prosecutor announced that the complainant
did not want the case to
proceed and that the complainant was pregnant with the first
accused’s child. The Magistrate refused
to allow the withdrawal
of the case on the basis that cases of this nature are not only
serious but very prevalent in his jurisdiction.
At the conclusion of
the judgment the Magistrate reverted to the issue and explained why
such cases should not be withdrawn.

5. It is my
considered view that rape is indeed a serious offence and the courts
should not encourage such cases to be withdrawn.
It is clearly not in
the interest of society that serious offences should be swept under
the carpet in the guise of reconciliation.
I therefore come to the
conclusion that this proposed ground of appeal would not be
meritorious.

6. The second
proposed ground of appeal was that the evidence of identification of
the applicant was not satisfactory. The evidence
of the complainant
was that she did not know the applicant until the day of the
incident. The applicant and his companion were
arrested two days
after the date of the incident. No identification parade was
conducted. It is the applicant’s position
that in the absence
of an identification parade the evidence by complainant of
identification should not have been allowed.

7. It is my
considered view that there is a difference between admissibility of
evidence and the weight to be attached to that evidence.
I consider
that in cases of this nature the evidence of identification would be
enhanced if an identification parade is conducted.
In this case it is
my considered view that the evidence of the complainant should be
viewed in the context of this case. The evidence
of the complainant
was to the effect that she knew the first accused before the day of
this incident even though she did not know
his name by then. She went
on to testify that the applicant and his companion were with her from
11 O’clock in the evening
until 5 O’clock in the morning.
It was her evidence that they raped her several times during the
course of that night. She
also testified that there was moonlight. It
was also her testimony that the applicant was referred to by his name
by his companion
during the course of the night. In the light of that
evidence and on the basis that the Magistrate found the complainant
to be
a truthful witness there is no basis upon which her evidence on
the identification of the applicant could be regarded as unreliable.

This is more so because of the amount of time that the applicant
spent with the complainant and that it was only two days after
the
incident that the complainant saw and confirmed that the applicant
was one the two people who raped her.

8. It was also the
applicant’s position that the report by the medical doctor
should not have been admitted in evidence. The
Criminal Procedure and
Evidence Act provides for the admission of such evidence without
calling the author of such a document.
In my view it is always
important to point out to unrepresented litigants that they have the
right to demand that the author of
the document should be called to
testify. In this case there is no indication on the record of
proceedings that the Magistrate
explained that to the accused
persons. In my view this was an irregularity. That notwithstanding it
is clear from the reading of
the medical report that it does not
implicate the applicant in the commission of the offence. It is my
considered view that in
this circumstances even if the medical report
is excluded it would not have a material bearing upon the applicant’s
case.

9. It is also the
applicant’s position that the investigating officer did not
prepare a sketch plan nor did he take photographs
to be used in the
trial. There are cases where a failure to do so may weaken the
prosecution case. In this case nothing turns on
the sketch plan or
photographs.

10. The applicant
also raised the issue of a failure to present evidence in the form of
shoe casts. The investigating officer testified
that he saw three
shoe prints. He also testified to the effect that the applicant
refused to give them the shoes that he was putting
on in the night of
the alleged commission of the offence. It therefore follows that even
if a cast has been made at the scene of
the offence there was nothing
to compare it with. In my view this does not advance the applicant’s
case.

11. The applicant
also attacked the credibility of the complainant. He pointed out
several issues. At the commencement of the trial
when the prosecutor
indicated that the complainant wished to withdraw the case, the
witness stated as follows:

“I am
withdrawing because I am pregnant by the accused one. Accused 2 is
also my cousin.”

The applicant’s
position is that the evidence by the complainant did not indicate
that the applicant and the complainant were
known to each other
before the date of the commission of the offence and therefore that
there was no truth in saying that the two
were cousins. It should be
pointed out that at the time when the complainant wanted to withdraw
the charges she was not giving
evidence and she was not under oath.
In my view considering the circumstances of this case it is also
likely that she lied in order
to allow the withdrawal of the case. It
is clear on the evidence that the complainant did not know the
applicant until the date
of the commission of this offence. The
credibility of the complainant was also attacked for the reason that
it was incomprehensible
that after having been raped by the first
accused she would later have a relationship with him to the extent
that at the time of
the trial she was expecting the first accused’s
child. While this is not usual it is clearly not impossible. This
however
cannot be used in the light of the evidence on record to
nullify the evidence of the complainant and for her to be labelled a
witness
of untruth. The Magistrate had the opportunity to observe
this witness and other witnesses who testified in this matter and
came
to the conclusion that the evidence was credible. I have no
reason to hold to the contrary.

12. It is my
considered view that the applicant has no reasonable prospects of
success should he be granted leave to appeal out
of time. The
application is therefore refused.

DELIVERED IN OPEN
COURT

ON THE 22ND
MARCH, 2013.

Z. MAKHWADE JUDGE

Directorate of
Public Prosecutions Appearing for the Respondent

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